Hickson and Green

[2017] FamCA 1124

FAMILY COURT OF AUSTRALIA

HICKSON & GREEN [2017] FamCA 1124

FAMILY LAW – CHILDREN – Parenting orders – Variation – Where child and family psychiatrist raises serious concerns in single expert report, yet to be tested, about the capacity of the mother and recommends the mother have no contact with the children for six months – Where the applicant father sought a variation of interim parenting orders to suspend the children’s supervised time and telephone communication with the mother – Where the children enjoy spending time with their mother – Where the telephone communication can be problematic and difficult – Concluded the supervised visits for the children take place in a safe, supervised setting – Concluded the suspension of telephone calls eliminates the risk of the mother negatively impacting the children – Ordered the suspension of all telephone communication between the mother and the children – Ordered the mother may provide her treating psychiatrist a copy of the single expert  report

APPLICANT: Mr Hickson

RESPONDENT: Ms Green

INDEPENDENT CHILDREN’S LAWYER: Hannaway Lawyers

FILE NUMBER: NCC 2356 of 2015

DATE DELIVERED: 14 December 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 13 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: Priest Legal

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: Georgia Flynn Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: N/A

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hannaway Lawyers

Orders

1. Order 1.6 [as set out herein] of the orders made 10 February 2017 is suspended:

   1.6By telephone every Tuesday with the mother to initiate the call between 6.00 pm and 6.30 pm and the father to make the children available to speak with the mother, commencing after the first contact visit the children have with the mother at [G Group].

2. The mother is restrained from contacting the children, or any of them, by telephone or permitting third parties to contact the children on her behalf.

IT IS FURTHER ORDERED THAT

1. The Independent Children’s Lawyer to provide a copy of these orders to G Group Contact Centre.

2. By consent, the mother has leave to provide to her treating psychiatrist Dr J a copy of the report dated 13 October 2017 of Dr K, child and family psychiatrist.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hickson & Green has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER:  NCC2356/2015

Mr Hickson

Applicant

And

Ms Green

Respondent

And

Independent Children’s Lawyer

EX-TEMPORE REASONS FOR JUDGMENT

Introduction

1. This is an application by the father, Mr Hickson, for a variation of parenting orders which were made in February 2017 in respect of the parties’ four children, three boys and a girl: C, eleven; B  nine; and twins, D and E, aged seven.

2. The application is for the suspension of Order 1 of the February 2017 orders, which sets out the interim arrangements for time and communication between the children and their mother. Time is being spent at G Group for not less than two hours each alternate weekend.

3. The application is for the suspension of that order and also for sole parental responsibility for the father.

4. The mother opposes the application.

5. The Independent Children’s Lawyer (“ICL”) supports the application.

6. The application was triggered by the recommendations in the Chapter 15 Single Expert Report by Dr K, child and family psychiatrist.

7. In contending with this application, I have taken into account the multiple changes for the children in the two and a half years since their parents separated in late June 2015.

Brief History of Relevant Events

1. After separation, the father left the family home with all four children.

2. In August, the mother removed three of the children back into her care, leaving D separated from her brothers. That separation was maintained until 2 October 2015 when the mother removed D also into her care.

3. Three sets of consent interim orders were made in this matter when it was in the Federal Circuit Court.

4. On 30 November 2015, the orders provided for the children to live with the mother and spend time with the father supervised.

5. On 16 February 2016, the time with the father was extended so that the children live with the mother and spend time with the father each alternate weekend, after school Friday until before school Monday, with some additional overnight time.

6. In June 2016, a Family Report was released. The report recommended an immediate change of residence for all four children from the mother to the father, to be considered on an interim basis.

7. The Family Consultant viewed the mother’s parenting capacity as being quite impaired. The Family Consultant recommended that a Single Expert Report from a psychiatrist would be helpful.

8. Interim orders were made by consent for the change of residence and other specific issues immediately after the release of that Family Report.

9. On 20 September 2016, further interim orders were made by consent that B would live with the mother and spend time with the father.

10. B has been put in the situation of learning, quite abruptly, that his father is not his biological father, and it has had a considerable impact on B himself, and on the other three children.

11. On 9 November 2016, there was a Child Inclusive Conference with the Family Consultant. B had become seriously distressed and was making violent threats.

12. The matter was transferred to this Court at that time, November 2016.

13. On 25 November 2016, the matter came before me and an order was made for B to return to live with the father and his brothers and sister that day.

14. Subsequently, there were difficulties. B ran away between Christmas and New Year.

15. On 3 February 2017, there was an application by the ICL which was heard and gave rise to the orders earlier referred to[1] of 10 February 2017.

    [1] These reasons, par 2

16. In April, a Single Expert Child and Family Psychiatrist, Dr K, was commissioned, and on 19 October 2017 the report was released to the parties.

17. The observations and opinions expressed by Dr K raise very serious concerns about the capacity of the mother. They resonate with concerns raised by the Family Consultant in two Child Inclusive Conference Memorandums and the Family Report. Dr K said this:[2]

    [Ms Green] [the mother] had no insight into how she was compounding [B’s] (sic)[3] distress by these very destructive statements.

    The statements referred to were the mother expressing the view that B was treated differently and adversely by the father.

    [B], having been prompted by the mother, who I believe was putting enormous pressure on [B] to come to her stated, ‘Can I come to you today?’. The abject child was distressed and seemed to feel a great deal of responsibility for his mother”.

    [2] Single Expert Report dated 13/10/2017, page 28

    [3] B’s name is misspelt throughout the Single Expert Report

18. Further in the Single Expert Report[4], Dr K describes B’s relationship with the father in this way:

    [B’s] relationship with the father I believe is a positive strong one but has come under a great deal of pressure. [B’s] very confused about his paternity and doesn’t know how to integrate this information into his feelings of self-worth and he now appears to have been persuaded that he’s not wanted by his siblings or his father. There have been major explosions emotionally from [B] who is struggling. Nevertheless, I believe that the core and basic attachment and relationship between all four children and the father is a solid one including [B].

    [4] Single Expert Report dated 13/10/2017, page 34

19. In relation to the mother’s relationship with the children, Dr K said this:[5]

    [Ms Green] has been very close to the children. She has managed to care for them reasonably well. The four children all have a close loving relationship with her and are reliant on her. [Ms Green] does care a great deal about the children. There does appear to be a strong attachment between the children and the mother.

    [5] Single Expert Report dated 13/10/2017, page 37

20. And finally, about the mother, Dr K said this:[6]

    I do believe that [Ms Green] has a good positive relationship with the children and cares a great deal about them and wants to be a good parent. I do believe she could provide for the biological needs of the children. However, I have major concerns about her ability to provide for the psychological and social needs of the children.

    [6] Single Expert Report dated 13/10/2017, page 40

21. The Single Expert then went on to discuss the mother’s use of drugs and alcohol, which will no doubt be a matter for final hearing, but is not so relevant here.

22. Thus this application is a balancing of two factors.

23. There will be a final trial in this matter in June 2018. Dr K will be available to be cross-examined on behalf of the mother. I take into account that his report is untested expert evidence.

24. The other balancing factor is the serious concerns and a recommendation made in that report for the children to have no contact with their mother for six months.

25. If that recommendation was acted on immediately, it would inevitably disrupt the affectionate and enjoyable time with the mother that they presently enjoy. No contact records were tendered into evidence, but it seems to be a common position that the children enjoy seeing their mother, and that the experience is a positive one for them.

26. The other component of time and communication is telephone calls between the mother and the children. The father’s view about telephone calls is that they can be problematic. He said that the telephone calls[7] have been difficult at times. Earlier in the year, in April, there was another person talking to the children, indicating they were looking forward to the children coming home. The mother, in her affidavit, put forward the explanation that this was a young child who was a friend of the children’s. Nevertheless, there does not appear to be any denial that that child, if that is who it was, was talking about the children coming home to live with their mother.

    [7] Affidavit of the father filed 7/11/2017, pars 8 & 9

27. The father also alleges that on a few occasions it was clear to him, that is, he held the opinion, that the mother had been drinking and had said things to the children that upset them. For instance, that the father and his partner, Ms L, did not love B or want him, and that only she, the mother, and her partner, Mr M, loved him.

28. It is also alleged that the mother told B that it was unfair that she could not see the children, but that the father’s partner, Ms L, could.

29. The father said he tried to keep the telephone calls to a time of about 15 to 20 minutes. In her affidavit[8], the mother, in addition to explaining about the child who was present, denied that she had been drinking at any time during telephone calls and indicated that she had been recording the calls as evidence of her not having done so. Such evidence can be problematic, but no doubt that will be a matter for final hearing.

    [8] Affidavit of the mother filed 5/12/2017, pars 6 & 7

Conclusion

1. In balancing the factors, I have come to the conclusion that the supervised visits for the children take place in a safe, supervised setting. There is some risk that the mother may continue, in whatever way she can, to single B out as the child who should “come home”, even if the others did not. That is not to say that the mother does not want all the children with her, she does. But one of the difficulties is that she has indicated to experts and to B himself that he should “come home”. G Group has provided a safe, supervised setting which reassures the children and, by all accounts, the children feel safe and have an emotionally satisfying time there.

2. On that basis, I have concluded that the telephone calls should be separated away from the supervised visits. The father has, no doubt with good intentions, allowed the children privacy to have their telephone calls with their mother. In circumstances where the indication in the Single Expert Report is that the mother has no insight into her impact on the children, especially B, and is intent on having the children come back to her home by whatever means she can there is risk . By suspending the order for telephone calls it eliminates the risk of the mother saying such things to the children without the knowledge of the father.

3. Had it been the case that the mother’s partner’s child continued at the school, I may have entertained suspending the supervised visits as well, taking a conservative path given the allegations that that child was being used as a messenger between the mother and the children, something that the mother denies. However, that child is progressing to high school, and so the difficulty, if there is one, has been eliminated.

4. The remaining issues are these:

   a)Dr J, the mother’s psychiatrist, has been nominated as an expert who will give evidence on her behalf. Contained in the mother’s affidavit was a reference to questions that Dr J could be asked. No doubt Dr J, if he does give evidence, will produce a report which establishes how long the mother has been his patient, the diagnosis of her, goals of therapy and prognosis. The report by Dr K, which by consent will be provided to Dr J by the mother if she wishes to do so, is for therapeutic purposes and not forensic purposes.

   That is not to say that Dr J is restricted in the evidence that he can give about his own knowledge and treatment of the mother. It is simply the case that it is not being provided for any kind of commentary on Dr K’s report.

   b)The other issue, raised by me, was re-interview of the children. I do not intend to go ahead with asking for the children to be re-interviewed, which would be subject to further Legal Aid funding in any event.

   It may have been helpful if there had been a period of six months abstinence from supervised visits, but I take into account that the children have been interviewed twice for Child Inclusive Conferences, once for the Family Report and again for the Single Expert report, and there will be, no doubt, evidence from both parties about the children both through the parents and the ICL at the final hearing.

5. Orders are made accordingly, as described, with an order by consent for the provision by the mother of the report of Dr K to Dr J.

I certify that the preceding forty-one (41) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Cleary delivered on 14 December 2017.

Associate: 

Date:  14 December 2017