HICKEY & MILBURN

[2019] FCCA 3800

FEDERAL CIRCUIT COURT OF AUSTRALIA

HICKEY & MILBURN [2019] FCCA 3800

Catchwords:
FAMILY LAW – Parenting – interim orders – where protracted litigation between parents has caused psychological harm to the child – where the child has indicated that spending time with father is causing her anxiety – where the child has indicated the desire to self-harm – where the child has the right to the benefit of a meaningful relationship with both parents – variation to time orders with a “catch up” provision – transferred to Family Court.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Applicant: MS HICKEY

Respondent: MR MILBURN

File Number: ADC 4256 of 2012

Judgment of: Judge Young

Hearing date: 9 December 2019

Date of Last Submission: 9 December 2019

Delivered at: Adelaide

Delivered on: 9 December 2019

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: In person

Counsel for the Respondent: Ms Hume

Solicitors for the Respondent: Tessa Hume

Counsel for the Independent Children’s Lawyer: Mr Hemsley

Solicitors for the Independent Children’s Lawyer: Legal Services Commission of South Australia

ORDERS

1. The child [X] born … 2008 spend time with the father:–

   (a)On each Wednesday from the conclusion of school or 3:30 pm if not a school day until 7.00 pm of each week; and

   (b)On each alternate Sunday commencing on Sunday 15 December 2019 from 10.00 am to 5.00 pm; and

   (c)Such further or other times as may be agreed between the father and the child.

2. The child's time with the father shall be subject to her ability to opt out of spending time with the father on any specific occasion and in the event that the child expresses such a preference, the mother shall notify the father by email by 8.00 pm on the preceding night.

3. Any changeovers not taking place at the school shall take place at McDonald's at Suburb A.

4. The mother forthwith make the permitted number of appointments (pursuant to the mental health plan) for [X] with Ms B for the calendar year 2020.

5. The mother ensure [X]'s attendance at each and every appointment but that every second appointment starting with the first appointment the mother deliver [X] to Ms B's rooms and leave the premises immediately with the father to attend at the room 10 minutes after the start time of the appointment and depart therefrom not less than five minutes prior to the end of the appointment time SAVE AND EXCEPT that Ms B may direct that [X] attend upon her own for any appointment and that either parent may attend for more times than the other and that either parent may collect the child in which case the parties shall pay 50% of any costs of [X] attending on her own.

6. There be an order in terms of paragraphs 7 and 8 of the Orders of 22 February 2019 provided that the number of appointments shall be the maximum available.

7. It is ordered by consent that the father shall continue to attend upon Ms C and the mother shall continue to attend upon H Psychologists and shall comply with the recommendations of their respective therapists.

8. Each party shall provide to their respective therapists all reports of Ms B and the report of Ms D and of each Order.

9. The Independent Children’s Lawyer shall provide a copy of these Orders to Ms B and to the Principal at School E in Town F.

10. These proceedings are transferred to the Family Court of Australia at Adelaide to be listed on a date to be fixed by that Court.

11. That the application in a case filed 17 December 2018 by the father be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Hickey & Milburn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4256 of 2012

MS HICKEY

Applicant

And

MR MILBURN

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting matter involving the child [X] which has been, as far as I can see from the file, running for many years in this Court. Why it has run so long is unclear to me.

3. The issue seems to be, reading a report from Ms B annexed to an affidavit of Ms G filed on 14 November 2019, that [X] is caught in the middle between disputing parents and as is almost always the case, she has been exposed, to some extent, to the conflict between her parents and as a consequence is suffering psychological harm.

4. The harm appears to have manifested itself in pronounced anxiety, particularly anxiety about spending time with her father. On 22 February 2019, Judge Mead, as she then was, suspended the existing time orders and made orders that, in substance, provided for [X] to spend time with her father as she wished and also set in place a framework for a therapeutic intervention with a view to what has been called “reunification therapy” between [X] and her father, and also an order that the mother and the father pursue their own individual therapy because of, essentially, their failure to shield [X] from their conflict.

5. The latest report from Ms B, if I can summarise it, essentially records [X] as saying that she loves her father but she wants to continue living with her mother because that is where she feels calm.

6. [X] has conceded to Ms B that she falsely claimed to her father that the mother discouraged her from spending time with her father. [X] said, in fact, that was not the case. [X] says that essentially her reluctance to spend time with her father stems from her anxiety and she also references particular instances of the father questioning her about her, that is, [X]’s, motivations and thoughts. She told Ms B that she found that intrusive and she felt pressurised dealing with those sorts of questions and it made her feel anxious and worried about spending time with her father.

7. That is not an uncommon scenario in this Court, regrettably. This matter may be a little more serious than others because [X] told Ms B that if she was forced to enter a spend time arrangement with her father she may self‑harm. Such a threat has to be taken seriously but I am satisfied, having regard to each of the matters in section 60CC(2) and (3), that it is in the child’s best interests, if she is to have the benefit of a meaningful relationship with her father, that the present arrangements continue, more or less, giving very significant weight to the wishes that [X] has expressed principally to Ms B and which Ms B accepts as a genuine and sincere expression of her wishes. That is, in my view, the most important factor, at this stage at least, in the legislative pathway in section 60CC.

8. Ms B has also recommended, in order to bolster [X]’s relationship with her father and her right to the benefit of a meaningful relationship with her father, which is not in question here, that there ought to be a further step to try and scaffold that arrangement, rather than simply leaving everything to [X]’s wishes.

9. The father has, in his application, suggested, really, a reversion to a regular alternate weekend time arrangement. In my view, there is no evidence to support that that proposal is in [X]’s best interests at this stage.

10. Ms B suggested there ought to be what she calls:

    …exploration could be given to there being a standing arrangement each week for an after school catch up or along the day visit each fortnight that [X] could either opt in or opt out of and extend if she wished.

11. The mother essentially supports that basic recommendation, as does the independent children’s lawyer. The mother says that there ought to be every second Sunday and that the after school catch up should be in the next week, that is, a catch up each fortnight and a day each fortnight.  The independent children’s lawyer suggests that there ought to be a catch up after school each week, along with the day time each fortnight. Given that the order I propose to make will require notice of any opt out, I consider that the proposal of the independent children’s lawyer is a reasonable one and it is the proposal I will adopt.

12. I have asked counsel for their estimate of the length of trial. Both very experienced counsel suggest that the matter will take well in excess of four days. They point to the likelihood of calling four expert witnesses, psychologists, the author of the family report, each of the psychologists who is providing therapeutic care for the parents, the likelihood of Ms B, who has been providing reunification therapy for the child, the mother, the father and the father’s partner, as witnesses. 

13. The estimates appear reasonable to me and accordingly, having regard to the protocol between this Court and the Family Court, I consider that the likely length of trial means that it will come within the terms of that protocol and I propose to transfer the matter to the Family Court.

14. I have dismissed the father’s application of 17 November 2019.

15. There is an outstanding matter regarding sentencing for a contravention that the mother has been found guilty of. I am unaware of any of the factual matters behind that contravention finding. There is, as far as I know, no transcript before me, there are no written findings and I feel quite unable to adequately deal with that matter. I think it is best dealt with at the trial, whenever that might be.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  8 January 2020