HEATH & PASCALL (No.2)
[2019] FCCA 3898
•20 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HEATH & PASCALL (No.2) | [2019] FCCA 3898 |
| Catchwords: FAMILY LAW – Children – Interim hearing – child’s time with father – final hearing part-heard – where it is agreed that an updated family report is required – issue as to whom should prepare updated family report – where recommendations of family consultant diverge from expert evidence – whether matter needs an updated expert report – updated family report ordered – updated expert report ordered – whether interim time with father should increase. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 62G, 64B, 69ZL Family Law Regulations 1984, r.7 |
| Applicant: | MR HEATH |
| Respondent: | MS PASCALL |
| File Number: | BRC 8029 of 2018 |
| Judgment of: | Judge Monahan |
| Hearing dates: | 2, 3, 4 and 5 December 2019 (part-heard) |
| Date of Last Submission: | 5 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Frizzell |
| Solicitors for the Applicant: | Ms Lowe of Keyworth Harris & Lowe Family Lawyers |
| Counsel for the Respondent: | Mr George |
| Solicitors for the Respondent: | Mr Holloway of Holloway Jenkins |
| Counsel for the Independent Children's Lawyer: | Mr Waterman |
| Solicitors for the Independent Children's Lawyer: | Ms Chan of Queensland Legal Aid |
THE COURT ORDERS:
All extant applications be adjourned part-heard to the Brisbane Federal Circuit Court on 3, 4 and 5 June 2020 at 10.00am for final hearing with an estimated hearing time of no longer than three (3) days (“the Final Hearing”).
All extant applications be adjourned to the Sydney Federal Circuit Court on 8 May 2020 at 10.00am for directions (“the directions hearing”) for the purposes of a compliance hearing in respect of the part-heard final hearing.
Pursuant to s.62G(2) of the Family Law Act 1975, the parties and X born in 2018 (“the child”) attend upon a Family Consultant nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia, Brisbane Registry (“the Family Consultant”) for the purposes of the preparation of a Family Report to be given to the Court as soon as possible and by no later than 1 May 2020 AND FURTHER:
(a)The Family Report address the issues in this dispute relevant to ss.60cc, 61da and 65daa of the Act and any other matters that the Family Consultant considers important to the welfare or best interests of the child;
(b)The parties comply with all reasonable directions and requests of the Family Consultant;
(c)The Family Consultant have leave to inspect the subpoenaed material produced to the Court and the exhibits that have been tendered;
(d)In the event that the Family Consultant is one appointed under reg.7 of the Family Law Regulations 1984, then:
(i)within seven (7) days of being notified of the Family Consultant, the legal representative for each of the party deliver to the Family Consultant copies of all relevant applications, responses and affidavits and court orders filed by or on behalf of the party in the proceedings AND copies of any intervention or restraining orders currently in force; and
(ii)the Independent Children’s Lawyer have leave to photocopy all relevant subpoena material for the sole purpose of providing same to the Family Consultant if required on the condition that the material is destroyed thereafter.
(e)The Applicant’s legal representative and Respondent’s legal representative confirm with the Family Consultant no later than seven (7) days prior to the scheduled interviews that the interviews will proceed on the dates allocated.
Pursuant to r.15.09 of the Federal Circuit Court Rules 2001, Dr B (‘the expert”) be appointed to prepare an update to his report dated 10 May 2019 (“the updated expert report”) noting that the Court was advised that appointments were available on 4 March 2020 for the mother and 5 March 2020 for the father.
The Applicant make, file and serve one updating affidavit not later than 4:00pm on 1 April 2020 and, subject to paragraph 7 herein, any further material filed after that date cannot be relied upon without leave of this Court.
The Respondent make, file and serve one updating affidavit not later than 4:00pm on 22 April 2020 and any further material filed after that date cannot be relied upon without leave of this Court.
The Applicant make, file and serve any brief affidavit in reply to the Respondent’s updating affidavit not later than 4:00pm on 6 May 2020.
Subject to waiver, the Applicant pay the additional hearing fee(s) in accordance with the Federal Circuit Court Regulations 2000.
Unless legally aided, not less than 14 days before the Final Hearing the legal representatives for each party must give to their client a written notice setting out the actual costs and disbursements incurred by the party up to and including the first day of the part-heard Final Hearing and the estimated costs and disbursements for each hearing day thereafter.
On or before 4:00pm on 27 May 2020 the solicitors for each party and by no later than 4.00pm 29 May 2020 for the Independent Children’s Lawyer, forward to Chambers at [email protected] and each other party:
(a)a minute of the precise orders sought; and
(b)an updated Outline of Case Document of not unreasonable length in the following format:
(i)a list of the documents to be relied upon;
(ii)a list of any objections to affidavit material;
(iii)a brief chronology listing significant events;
(iv)an outline of contentions with respect to:
A.whether the presumption of equal shared parental responsibility applies (s.61DA);
B.the considerations relevant to equal time and substantial and significant time (s.65DAA);
C.each of the considerations relevant to determining the best interests of the child (s.60CC factors); and
D.other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and
(v)any other relevant matter.
(c)Where applicable, the Independent Children’s Lawyer provide details of any costs sought.
If either party proposes to have the Family Consultant available for cross-examination purposes at the Final Hearing, then such party or such party’s legal representative will do the following:
(a)notify the relevant Family Consultant well in advance of the Final Hearing;
(b)ensure that the Family Consultant is available to attend Court either at the next following or on the last day of the Final Hearing; and
(c)at least seven (7) days prior to the Final Hearing provide the Family Consultant with copies of all consolidated affidavit material, and any amended application or response filed after the interviews.
Unless otherwise agreed to in writing by the parties and the Independent Children’s Lawyer, the parties are to cause Dr B to be available for cross-examination at the Final Hearing, and at least seven (7) days prior to the Final Hearing provide Dr B with copies of all updated affidavit material, and any amended application or response filed after the interviews.
AND THE COURT FURTHER ORDERS PENDIN FURTHER ORDER THAT:
Paragraph 7(a) of the Orders made on 5 December 2019 be amended to read:
Commencing 19 March 2020 in a three week cycle as follows:
Week 1: Thursday 4.00pm to Friday 5.00pm;
Week 2: Friday 2.00pm to Sunday 5.00pm; and
Week 3: Friday 2.00pm to Sunday 5.00pm.
For the purposes of paragraph 14 herein changeovers occur as agreed in writing and failing agreement as follows:
(a) on the days the child is at day-care changeover occur at the relevant day/care centre; and
(b) at all other times changeover occur at the C Contact Centre.
AND THE COURT DIRECTS THAT:
For the purposes of paragraph 4 herein:
(a) the Independent Children’s Lawyer prepare a letter of instruction to Dr B;
(b) the Independent Children’s Lawyer have leave to photocopy all relevant subpoena material for the sole purpose for providing same to Dr B on the condition the material is destroyed thereafter; and
(c) the parties be equally responsible for the costs of the preparation of the expert report and any witness fees; and
All parties and legal representatives are directed to read the subpoena material prior to the resumption of the final hearing, and if a party is proposing to tender any subpoena material, they should ‘tab’ the relevant page/s prior to the commencement of the final hearing.
The Exhibit material be held with the subpoena material for the purposes of these Orders.
THE COURT NOTES THAT:
A.These orders were made today following the delivery of ex tempore reasons and will be settled in due course.
B.These Orders be read in conjunction with the Orders made on 5 December 2019.
C.The legal representatives be at liberty to attend the directions hearing by telephone on 8 May 2020.
D.The matter currently has the benefit of the Family Report by Ms D dated 20 February 2019 , Dr B psychiatric report dated 10 May 2019 and Ms D addendum to her Family Report dated 20 May 2019.
E.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Heath & Pascall (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
BRC 8029 of 2018
| MR HEATH |
Applicant
And
| MS PASCALL |
Respondent
REASONS FOR JUDGMENT
These oral short-form reasons are being delivered pursuant to section 69ZL of the Family Law Act 1975 (“the Act”), and are also provided to assist the parties understand the Orders that the Court will make at the conclusion of the reading of these reasons.
Background
In this matter, the Court is asked to decide certain interim parenting and procedural orders relevant to the parenting dispute between MR HEATH (“the father”) and MS PASCALL (“the mother”). The relevant child of their relationship is X (“X” or “the child”) whom is presently 21 months of age.
This matter is currently part-heard on a final basis.
The matter is part-heard due to the need to obtain further subpoenaed material, in particular from the mother’s psychologist, and an updated family report and potentially an updated psychiatric report from the expert, Dr B (name omitted).
The questions or issues requiring determination in this interim decision are:
· Firstly, whether the updated family report should be authored by Ms D (name omitted) who has authored the initial family report dated 20 February 2019, and the addendum family report dated 17 May 2019, or whether a new family consultant should be ordered to undertake a new or updated family report;
· Secondly, whether an updated psychiatric report should be obtained from the single expert, Dr B, or not; and
· Thirdly, whether there should be, in the interim period, an increase in the time that the child spends with the father, to include a period from Thursday afternoon until Friday afternoon in, effectively, the first week of the current three-week cycle.
The discrete interim hearing occurred at the end of the fourth hearing day on 5 December 2019. Following the parties’ submissions, the Court reserved its decision until today.
The parties were represented by counsel at the final hearing. Ms Frizelle appeared for the father, Mr George appeared for the mother, and Mr Waterman appeared for the Independent Children’s Lawyer (“ICL”), Ms Chan.
Areas of Agreement
The parties were able to agree on a number of issues or orders that are reflected in the orders that I made at the conclusion of day 4 of the final hearing on 5 December 2019. The interim parenting orders that were made that day increased the child’s time with the father, from one night to two nights, in each of week 2 and week 3 of the current cycle, that is, by adding a Friday night or Friday evening in those weeks.
The interim Orders made 5 December 2019 were as follows:
AND THE COURT FURTHER ORDERS PENDING FURTHER ORDER THAT:
13. Paragraph 7(a) of the Orders made on 5 December 2019 be amended to read:
Commencing 19 March 2020 in a three week cycle as follows:
Week 1: Thursday 4.00pm to Friday 5.00pm;
Week 2: Friday 2.00pm to Sunday 5.00pm; and
Week 3: Friday 2.00pm to Sunday 5.00pm.
14. For the purposes of paragraph 14 herein changeovers occur as agreed in writing and failing agreement as follows:
a. on the days the child is at day-care changeover occur at the relevant day/care centre; and
b. at all other times changeover occur at the C Contact Centre
As stated, the parties also agree that an updated family report should be obtained.
Proposals
The Court will now briefly outline the respective proposals of the parties.
Father/ICL
The Court notes that the father and the ICL are aligned on their proposal.
Firstly, they propose that Ms D be ordered to complete the required updated family report (at the parties’ equal expense).
Secondly, they propose that Dr B be ordered to complete an updated psychiatric report (again, at the parties’ equal expense).
Thirdly, they propose that the child now spend an additional period in the first week of the three‑week cycle, being from a Thursday afternoon – that is, after day care, until the following Friday afternoon (that is, the next day).
Mother
In relation to the three areas in dispute, the mother proposes that:
· Firstly, that another family or new family consultant be appointed by the Court to complete the necessary family report, and the mother otherwise opposes Ms D being ordered to complete any updated report;
· Secondly, the mother opposes Dr B being ordered to complete an updated psychiatric report or expert report, and
· Thirdly, the mother opposes any further increase in the child’s time with the father at this time.
Evidence
Both parties asked the Court to read and consider a large number of documents in these proceedings.
In addition to the parties’ affidavits and relevant family and expert reports, the Court has also read: the relevant transcripts for days 3 and 4 of the final hearing, the transcript containing the evidence of Dr B and Ms D, and the submissions of the parties in support of the interim proposals previously referred to.
Legislative Requirements
The Court will consider the issue of the updated family report firstly, and then consider whether an expert psychiatric report should be ordered, before separately considering the issues of a further variation or increase in time for the parenting orders in favour of the father.
Family and Expert Reports
The Act provides for family reports relating to a child to be obtained from a number of situations.[1] Relevant to the case before me, section 62G provides that in proceedings under the Act in which the care, welfare and development of the child under the age of 18 is relevant, the Court:
… may direct a family consultant to give the Court a report on such matters relevant to the proceedings as the Court thinks desirable.
[1] See sections 55A, section 62G and section 65C of the Act.
The family reports are organised through the Court’s Child Dispute Services and are, generally speaking, funded by the Court without the parties being required to make a financial contribution. The reports are prepared either by an in-house consultant – that is, an employee of the Court, or an external consultant appointed pursuant or under Regulation 7 of the Family Law Regulations 1984. The parties may opt to privately fund an expert to complete such a report. Increasingly, experts are being appointed by parties in an attempt to expedite the preparation and release of the reports (and that is certainly the case in New South Wales where there are significant delays).
In Queensland, however, Legal Aid will often fund a private family report and/or psychiatric report if recommended by an ICL. Other State Legal Aid bodies may also do so, but, generally speaking, not to the same extent as occurs in Queensland. This is generally limited in other States to situations where an expert report is required and both parties are legally represented, although on occasion the Legal Aid bodies may be prepared to fund one half of the costs of the relevant report on behalf of the legally-aided party.
Expert reports in parenting matters are ordered pursuant to Regulation 15 of the Federal Circuit Court Rules 2001, and this Regulation is similar in form to Chapter 15 of the Family Law Rules 2004. Expert reports are generally required in cases where an investigation by a psychiatrist, a registered psychologist or other type of health professional is needed. However, as stated, they are becoming increasingly used to expedite the receipt of family reports.
The Court does not fund expert reports, and as a consequence, such reports must be funded by one or both of the parties, subject to any Legal Aid-related funding. The Court’s power to appoint an expert to prepare a report is found in Regulation 15.09 of the Federal Circuit Court Rules 2001, and I note that Regulation 15.11 provides that unless otherwise ordered, the parties are equally responsible for the remuneration and expenses of the expert, and that would include not just the cost of preparing the report, but the professional costs required to attend any hearing.
Parenting Proceedings
All parenting proceedings are governed by the provisions of Part VII of the Act.
Parenting orders are defined in section 64B of the Act, and provide for outcomes which includes the issue relevant to this dispute, namely the time and circumstances that a child spends with the non‑primary carer parent.
Section 60CA of the Act makes it clear that for the purposes of making a parenting order, the Court must regard the best interests of the child as the paramount consideration. What is considered to be in the best interests of a child in parenting matters of course depends on the particular circumstances of the case, in light of the available evidence. But that said, to determine the best interests of the child, the Court must consider the available evidence and submissions, in light of the relevant statutory criteria, in particular, the primary and secondary considerations in section 60CC of the Act.
Discussion
The Court will firstly consider the issue of the updated family report before separately considering the second issue of whether an updated report from Dr B is required. Thirdly, the Court will then consider the further increase in the child’s time, as sought by the father and the ICL.
Updated Family Report
As stated, Ms D prepared a comprehensive family report dated 20 February 2019 in this matter. That report considered the available documentation (at that time), and Ms D made the following recommendations.
It is respectfully recommended on the information available that the Court give consideration
to the following on an interim basis:
• That X live with Ms Pascall
• That X spend time with Mr Heath on Saturday each week from 9am to 5pm (or similar times to fit with availability at the contact centre). This time to occur in the presence of Ms E.
• The hand over at the commencement and conclusion of this time occur at a contact centre. (It may be functional to consider continuing to use the current centre where the family is known, X is comfortable and there is no need to wait for an intake process.)
• That if X does not settle when in Mr Heath s care after reasonable attempts, then he is to phone Ms Pascall.
• That neither parent expose X to negative comments about the other.
• That an independent Psychiatric assessment of both parents is arranged by the ICL.
• That both parents are referred to the Parenting Orders Program and provide the ICL with a certificate of completion.
• That this matter is reviewed after the Psychiatric assessment is completed.
As a result of Ms D’s recommendations, the ICL arranged for the parties to see Dr B for a psychiatric report. Following the receipt of Dr B’s psychiatric report dated 10 May 2019, the ICL requested Ms D to provide an addendum to her report. That addendum report was released a week later, on 17 May 2019, and Ms D made the following revised ‘interim’ recommendations:
• That X lives with Mr Heath
• That X spends time with Ms Pascall at a Contact Centre for a minimum of 2 hours. It would be preferable if this occurred once per week.
• If the Contact Centre is only available fortnightly, then consideration be given to utilising a supervisor approved by the ICL to supervise time during the "off” week.
• That Mr Heath has responsibility for decisions impacting X but that prior to making any decision that he consult Ms Pascall in writing and obtain and consider her views.
• That the matter is reviewed in 6 months' time to assess whether it is in X's interests to change the time she spends with Ms Pascall.
As a result of the revised recommendations (which I note recommended a change of residence), the ICL sought to agitate a change of residence before the docketed judge. That hearing occurred before her Honour, Judge Spelleken on 22 May 2019. Her Honour refused to change the child’s primary residence on an interim basis, but did make some significant changes to the spend time with orders that, in summary, enabled unsupervised overnight time to occur two out of every three weekends, that is, an overnight Saturday two weeks on and then one week off.
From the transcript I note the following submissions from Mr Waterman for the ICL. Mr Waterman submitted:
Your Honour, the mother opposes the appointment of Ms [D] to prepare a further report. The evidence appeared to indicate that – from Ms [D], that they’re matters that she didn’t have evidence on, which she – would have been helpful for her to further consider in forming her opinions in this matter. Ms [D] has put considerable time in relation to the reports and addendums she has already prepared. It is logical and appropriate that she be the person to prepare the updated report, given her background in the matter.
Mr Waterman then went on to state:
I can inform your Honour that I’m instructed that Ms D’s updated report will be at a cost of some $3500, including GST. …
And Ms D could prepare a further report in the week commencing 20 April 2020.
Mr Waterman then went on to submit that on the available evidence, the parties had the necessary financial resources to meet the cost of the updated report being prepared by Ms D.
This resulted in the father adopting Mr Waterman’s submissions, Ms Frizelle for the father submitted:
… for the fact that if another family report writer is engaged, your Honour, they would need to go over and read all the volumes of material that the current family report writer has also read. In my submission, she already has the background information that’s needed to be able to assess whether or not there are changes in either of the parents’ attitudes or behaviours.
Mr George for the mother opposed the reappointment of Ms D. Mr George submitted that there were two bases for opposing Ms D’s reappointment:
… One, your Honour, it is very clear both from her use of language and the recommendations she has made, and really quite extraordinary the evidence that she has given, as your Honour picked up very quickly, about dragging a child to a police station, she had adopted a position in this matter that can’t be shaken. But secondly, and perhaps more importantly, your Honour will recall the evidence of Dr [B] having [read] today the addendum, he couldn’t see how his report justified the conclusions reached by Ms D in the addendum. It just needs a fresh set of eyes to look at this, and it’s for that reason, it’s submitted, that Ms D is not the appropriate person.
I note that I then asked Mr George the following:
And in terms of outcomes, are you suggesting that the parties engage their own, or different, expert, or the Court orders one from Child Dispute Services. What are you proposing?
to which Mr George responded:
There be a further family report. In my submission, my client has not the financial wherewithal to contribute to that cost and that the family report be prepared in time for the next trial.
In reply, Mr Waterman for the ICL stated:
… the ICL supports Ms D remaining in the matter, but if there was an alternate report writer appointed, that would be at the cost of the parties to share and the Independent Children’s Lawyer would seek to be able to provide a letter of instruction to the report writer, given the Independent Children’s Lawyer’s – the time that the Independent Children’s Lawyer has had in the matter to provide a fulsome set of instructions to that report writer.
Mr Waterman went on to state that should the Court consider that a report be ordered under section 62G of the Act, he did not think:
… that there would be any complaint about that.
But he stressed there would be benefits in the ICL providing the family consultant with a letter of instructions and background. I note that Ms Frizelle adopted Mr Waterman’s reply.
While there are obvious benefits in retaining Ms D to do the updated report, the Court is concerned that she appears to have rushed to judgment following the receipt of Dr B’s report, and appears reluctant to revise or to review her revised recommendations.
Dr B did raise some concerns about the mother’s honesty in his reports, and certainly raised a concern about her obsessions and ability to promote a relationship between the child and the father. That said, Dr B stated at page 29 of his report that the mother’s personality issues:
… are not necessarily such as to impact significantly on her capacity to be an effective parent of a child of X’s age.
At no point in his report did Dr B state that there was any unacceptable risk for the child to remain in the mother’s primary care, and nor did he suggest that the child’s time with the mother required supervision. Dr B was asked about Ms D’s addendum report, and the family consultant’s fear that the mother may, in the family consultant’s words, “decompensate” in response to the release of Dr B’s report.
I note the following exchange between Mr George for the mother, and Dr B, during cross-examination:
In her report, as his Honour indicated to you, Ms D referred to the possibility of decompensation – I keep thinking of the word ‘meltdown’ – decomposition. Does the fact that there hasn’t been decomposition – well, apparently – have any impact on your opinions?
Dr B replies as follows:
Yes. I must say I was – when I – when I said this – when I said to his Honour that I’d read the supplementary report – I haven’t actually.
And then Dr B says:
I must say I was surprised at its contents.
Mr George then asks:
In what way?
Dr B replies:
Well, I didn’t think that the mother would decompensate as a result of reading my report. I thought she would be distressed in a normal way, and I didn’t think there would be any decomposition … clinically – a clinical situation.
Mr George then asks:
Have you now had the opportunity to read that report through [referring to the addendum report]
Dr B replies:
I’ve read the brief report, yes.
Mr George then asks:
Is there any other comment that you would make in relation to that report?
Dr B replies:
The only other comment that I would make is that the recommendations Ms D cannot makes cannot – I don’t see how they can arise from my report. There’s nothing in my report that would have justified such a severe restriction on the mother – with supervised contact.
Mr George then says:
Nor the conclusion of change of primary care?
Dr B responds:
Well, that’s a different… different call. That’s – she’s has assessed the mother and the father and, you know, Ms D may be entitled to make that call.
Mr George then asks:
Doctor, in your expertise, do you feel comfortable making any recommendation about the nature of a relationship that this child this young being removed from the mother’s primary care, primary attachment?
Dr B replies:
If there is a rupture in the primary relationship, that could not be good for the child, the child requires at this age – well, at any age, but specifically at this age, below the age of two-and-a-half, secure, warm, protective relationship with a carer. So, putting an end to that relationship would be harmful to the child, but the question as to what restriction of that would not have the same effect – it’s the longer the child remains in some contact with the primary carer. As much – it would depend – as this – this is a question I cannot answer – on the extent to which the child has a secure attachment to the other parent or some other person that the child is relating to.
I now move on to the second issue.
Updated Psychiatric Report
I note the following submissions from Mr Waterman for the ICL:
Dr [B] has done a report, and the assessments referred to in the proposed draft orders would be $5500, including GST. Your Honour will recall the evidence provided by Dr [B] in respect of the assistance that he would have in relation to obtaining further evidence and doing – providing an assessment of the mother and as to her suitability for psychotherapy and the type of therapy she could undergo. The appointment of Dr [B] is consistent with the evidence he gave in respect of the utility of obtaining that further information and providing that report, given his concerns in respect of the mother’s personality traits and her capacity to facilitate the father’s relationship with his daughter.
Mr Waterman then goes on to state a little later:
I can inform your Honour that appointments so far as the assessment for the mother before Dr [B] 4 March 2020, the father 5 March 2020.
As stated, Ms Frizelle for the father, adopted the ICL’s submissions in respect of these issues.
Mr George, for the mother, submitted that the issue needs to be considered in light of the reality that the mother would be causing her clinical psychologist, Ms F, to do:
… a fulsome report on her treatment.
Arguably, Dr B could consider the evidence if he was further cross‑examined. That said, it is also arguable that Dr B may not be required for cross-examination, depending on whether his report is definitive one way or the other, and does not differ from his current views. The other alternative, of course, for the Court to consider is whether any trigger for an updated report could flow, for example, from any recommendation of the family consultant, whether that be Ms D or a new family consultant.
I now move on to the third issue, that is, the increase in the child’s time with the father, as sought by the father and the ICL.
Increase of the Child’s time with the Father
I note the following submissions from Ms Frizelle for the father:
Your Honour, I’ve looked at the transcript that was provided today and at what Ms D has said in regards to the child spending time with the father.
A little later, she says:
It says there that she couldn’t understand why it wasn’t every weekend [referring to the child’s time with the father] and it’s – if it was practical from Friday to Sunday afternoon it may be practical to go Monday morning. It seems to be and that if the parents on what you are saying is a proposal of – for more co‑parenting, more cooperative arrangements, why wouldn’t there be every weekend and why wouldn’t it be Friday to Sunday every weekend? The father is not asking for every weekend. The father is being child-focused and indeed considering the mother that she wishes to spend time on a weekend with the child whilst the father is employed. And I have – he’s available to care for the child each Friday. He can collect her from kindy after she’s in childcare on the Thursday afternoon so there’s no need for the parents to have that extra additional funds. There will be no need for a face-to-face with the parents. The child can then be returned as usual to the normal contact centre on the Friday. In my submission, it would be in X’s best interests to have more time with her father, particularly as things were building up to that time, and that the 11 days between week – the Sunday of week 2 to the following time, that he would have her on the normal rotating cycle is 11 days. In my submission, that is far too long for a little girl to go without seeing her dad, if indeed we are ensuring that both parties are having significant time with their child.
I note that Mr Waterman for the ICL adopted the father’s submissions through Ms Frizelle.
In opposing any further increase in time, Mr George for the mother made the following submissions:
… it’s too soon. The father’s time up to now has been one night on a Saturday night. We’re doubling that immediately which will be a significant change to this little girl at this stage. My client is not opposed to increasing it, but at a graduated time. And my client urges upon your Honour careful consideration of the fact that this little girl is so young. She is and has been in the primary care of my client. There has been limited contact between her and the father on the weekends that have occurred, and we have doubled that time already. Let her get used to that before we take the next step. This is an application by the father which has not been canvassed as part of the trial, has not been considered by Ms D, whether or not that might be of use, and it is brand new.
Findings
Having considered the respective proposals and submissions in light of the available evidence and the relevant statutory provisions, the Court is satisfied and determines as follows.
Firstly, in relation to the updated family report, I have formed the view that it is appropriate that a new family consultant be appointed. The Court has some concerns about the recommendation made by Ms D for a change of residence on an interim basis following the release of Dr B’s report. In light of the available evidence, the Court finds this recommendation jars with the contents of the expert report and is persuaded by Mr George’s submission that a new set of eyes will assist the case. The Court acknowledges that while a new family consultant will be faced with a large amount of material to process, it a necessary requirement to progress this matter.
The updated report will be ordered pursuant to section 62G of the Act, and Child Dispute Services in the Brisbane Registry can select the relevant family consultant, obviously with the exception of Ms D, if she was a Regulation 7 family consultant.
Secondly, in relation to the updated psychiatric report, I am satisfied that notwithstanding the cost to parties, a short updated report from Dr B – following the release of the proposed report from the mother’s clinical psychologist, and the subpoena of the psychologist’s notes, etcetera, prior to a further set of interviews –will indeed assist the process. I also find that that occurring before the updated family report is prepared has advantages.
Thirdly, I am persuaded by the submissions of the ICL and the father to further increase the child’s time with the father to include a Thursday overnight in what I would describe as the first week of the three-week cycle. That said, I find it appropriate to delay the start of that increase for a further three months so that it will start in approximately mid-March, 2020. There has been a recent and significant increase in the child’s time with the father, so I am in agreement with the mother’s submission that some caution in the further increase in the time is warranted.
I find that these changes are in X’s best interests.
Conclusion
The Court’s findings have now been stated.
The Court has determined that Ms D should not be engaged to author the updated family report but rather that it should be ordered pursuant to section 62G of the Act and that Child Dispute Services in the Brisbane Registry are to select the relevant family consultant.
The Court will order the parties to obtain a short updated report from Dr B following the release of the proposed report from the mother’s clinical psychologist and prior to the interviews for the updated family report.
The Court will also make interim orders that will further increase the child’s time with the father from mid-March 2020 to include a Thursday overnight period (being the first week of the current three-week cycle).
A new listing date for the parties for the final hearing will be needed, and having considered the availability of all parties and the availability of the Court and myself to be available for a hearing, we have now identified three days, on 3, 4 and 5 June 2020. In addition, the Court has obtained information that would suggest that if I make a report under section 62G of the Act today, that that report will comfortably be received by the beginning of May next year, presumably with interviews sometime in the second half of March or through April next year.
There will be Orders of the Court to reflect these reasons.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Monahan
Associate:
Date: 27 April 2020
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