Humphrey & Humphrey (No 3)
[2024] FedCFamC1F 691
•12 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Humphrey & Humphrey (No 3) [2024] FedCFamC1F 691
File number(s): BRC 4211 of 2019 Judgment of: BAUMANN J Date of judgment: 12 September 2024 Catchwords: FAMILY LAW – CHILDREN – Where the parents have a high level of conflict – Where the now teenage children are expressing views regarding parenting proceedings – Where no orders were made regarding the older child who is approaching 18 years – Where interim Orders were made for the younger child to spend unsupervised time with the mother during the school holiday period Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Banks & Banks (2015) FLC 93-637
Humphrey & Humphrey (No 2) [2022] FedCFamC1F 640
Division: Division 1 First Instance Number of paragraphs: 68 Date of hearing: 12 September 2024 Place: Brisbane Counsel for the Applicant: Mr T Matthews KC Solicitor for the Applicant: Evans Brandon Family Lawyers Solicitor for the Respondent: Litigant in person ORDERS
BRC 4211 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HUMPHREY
Applicant
AND: MR HUMPHREY
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
12 SEPTEMBER 2024
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the child Z born 2011 (“the child”) spend time with the mother during the Term 3 2024 school holiday period, from 12.00pm on Friday 13 September 2024 until before school on 1 October 2024.
2.That changeover on 13 September 2024 shall occur at McDonalds Suburb AA.
3.That during the child’s time with the mother as prescribed at Order 1 and on a without admissions basis, the mother shall not bring the child into contact with or allow the child to remain within the presence or contact of any member of the maternal family.
4.That during the time with the mother as prescribed at Order 1, the child shall communicate with the father by telephone each Wednesday and Sunday commencing between 4.00pm and 6.00pm, with the mother to facilitate the communication by the child calling the father’s mobile, with such calls to occur in private and not be recorded by either parent.
5.That any previous orders prescribing time the child X born 2007 spends with the mother shall be discharged.
6.That these proceedings be adjourned for Case Management Hearing at 9.30am on 16 October 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
7.That the parties be at liberty to apply to have the matter re-listed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Humphrey & Humphrey has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J
The father, Mr Humphrey, and the mother, Ms Humphrey, have been engaged in conflict about their children since they separated way back in December 2017.
The focus of the Reasons today relates to their children but, in essence, only one of their children – Z born 2011. X, who was born in 2007, will be 18 years old next year.
Even though Orders were made by this Court in August 2022, as a result of a trial, that X and her younger brother, Z would have the same arrangements for care, the mother accepts that at X’s age – and in view of her clearly expressed views – the Court should not be prescribing any further orders in relation to X. The mother says she has formed that view with some regret.
Z is now over 13 years of age. It is important to understand the context for the Reasons delivered today, Reasons which must necessarily be truncated as the interim hearing has been truncated before me, not only because that is the process, but also because I am being asked to make orders that will have almost immediate effect. I will refer shortly to the statutory pathway, but for the purpose of these Reasons, and even though the parents are aware of the history, I provide the following brief contextual chronology.
BRIEF HISTORY OF PROCEEDINGS
Final Orders were made by me after a trial, in August 2022. The effect of those Orders were, amongst other things, that the two children who had, at that stage, been primarily living with the mother and spending time with the father, were to spend slightly more time living with the father than with the mother. In a mathematical sense, it provided for the children to live with the father eight days a fortnight; with the mother six days a fortnight, and that holidays were to be shared. There were, of course, many other orders.
The regime of time in respect of X and Z with the mother was to operate from after school on a Thursday to before school on the Tuesday in one week and overnight on Thursday in the following week.
Although the Court has been provided with many hundreds of pages of documents, annexures and extremely long affidavits that have been generated since this matter came back to the Court, what the Court can carefully and understandably accept is that the conflict between these parents relating to their children only abated for a short time after final Orders were made.
As it seems sadly inevitable that this matter will be the subject of a further trial, I do not regard it as helpful today, in terms of the circumstance of this matter, to delve into all the events, nearly every one of which is challenged between the mother and father, that have occurred since August 2022. In my view, the appropriate and relevant chronology, and with an eye to authorities (such as Banks & Banks (2015) FLC 93-637), in truncated hearings, is to look at the factors which are most relevant and the facts most relevant to the issue in question.
I make the following observations:
(a)The mother brought an Application alleging that the father had contravened the Orders made by me without reasonable excuse. Those proceedings were the subject of a hearing before Jarrett J, who delivered no Reasons as such orders were made by consent, inclusive of such findings. The first part of his Honour’s Order made 6 June 2024, just over three months ago, was that his Honour had found the father had, without reasonable excuse, contravened the Orders on at least 10 occasions;
(b)The father says Jarrett J got it wrong, however no appeal was brought against that Order. The father, who is a professional himself, said from the bar table today that he did not know he had a right to appeal that Order. I find it very difficult to accept that statement from the bar table in view of the father’s long professional experience. Nonetheless, he did not appeal it;
(c)The Court cannot ignore such a serious finding in this matter, that is that the father had failed to comply with the Order without reasonable excuse, however a consequence of that hearing before his Honour, and clearly within the power vested under the Family Law Act 1975 (Cth) (“the Act”) was to consider any orders that might be to the benefit of the child thereafter. The Order provides that, “by consent” the mother and father agreed to reconfigure at least two forthcoming holiday periods – I mention again that, under my final Orders, the holidays were to be shared equally;
(d)Jarrett J, at Order 1(a) of his Order, effectively varied the final Order so that the children (that is, both X and Z) would spend the whole of the end of term two school holidays (otherwise known as the June school holidays) with the mother. Furthermore, under Order (1)(b), his Honour made an order that the children’s time with the mother for the end of term three school holidays, that is the September school holidays, which I am told are to commence today, were also to be spent with the mother;
(e)The father had a very significant cost order imposed against him, which I am told from the bar table by Mr Matthews of King’s Counsel appearing on behalf of the mother today, has been paid;
(f)I also note that, by reason of an amendment to the Order made on 25 July 2024, Jarrett J incorporated into the Order made 6 June 2024, a liberty to the mother to apply on short notice to his Honour. It is a statement of fact, not controversial – although the reasons for it not occurring may be controversial – that the Order in relation to the children spending time with the mother for the June school holidays did not occur;
(g)It is not a fact in dispute that at least since before those holidays – in fact from around May 2024 – X has not spent physical time with her mother;
(h)Under the liberty to apply provisions of the said Order, Jarrett J dealt with this matter again on 25 July 2024. In that Order – again for reasons of which I am not aware, but looking at the Order, I think, are plain – his Honour both amended the earlier Order of 6 June 2024; ordered that the Orders of 31 August 2022 be suspended until 2 August 2024, after which time the Order shall stand reinstated, and ordered that Z would spend time with the mother from 30 July 2024 until after the conclusion of school on 1 August 2024; and
(i)Thereafter, his Honour prescribed very specific changeover arrangements for Z to move from the father’s care into the mother’s care. That was to occur on 30 July 2024, and did occur. There is evidence, yet to be tested, that it was problematic; involved the mother's brother Mr OO, and caused some distress to the child, if one accepts his statements to both his father and to Mr PP, to which I will return shortly.
Whilst those contraventions might now have ceased, in almost parallel proceedings, the father had brought an Application seeking to amend the final Orders. Such an Application is contested by the mother and is effectively the foundation and the enlivening of the jurisdiction that I am exercising today.
The father would say that the Order of Jarrett J of 25 July 2024 was not intended to be a joinder of the additional time Order of 25 July 2024 and the reinstatement from 2 August 2024 of the final Orders made in August 2022. I reject that submission. It is abundantly clear to me that the intention of his Honour was to reduce conflict at a contact changeover and to provide to the mother the benefit of Z spending time with him for approximately one week.
The father’s material raises concerns about the child not attending school during that period he was with the mother.
The mother says that she had indicated to the school that the child would not be attending. From the material, there is at least an implication that the mother had concerns that if the child went to school, she may not be able to spend time with him. I accept that the period from 30 July 2024 to 6 August 2024, while primarily in the mother’s care, it was not without difficulties. Difficulties continued to occur in the month of August. I will deal with those shortly.
However, what is, I think, an important factor, is that on 23 July 2024, I made an Order for a specific issues report to be prepared urgently by the court. That report was prepared by Child Court Expert Mr PP, who, after interviewing the children on 22 August 2024, provided a report to the Court dated 4 September 2024, which has been shared with the parents. The father, in his submission today, relies heavily upon the comments made by Z during the course of that report.
I do not propose, nor do I believe it is necessary, to deal with all the events that have occurred after 6 August 2024, just over one month ago, until today, to acknowledge that the reinstatement – or if you like, the discharge of any suspension so far as Z was concerned in relation to the final Orders made, meant that the child was to spend time with his mother in the regime created by those final Orders.
I am satisfied that on at least four occasions during that period, for reasons which are contested and which are controversial, the child demonstrated some concerns being in the care of the mother, manifested by – at least on one occasion, and regrettably – being absent without knowledge of the parents for what could have been many, many hours, and into the evening.
The father points to four occasions over August that that occurred. However, the mother says and for the purpose of these truncated proceedings I think I am prepared to accept this evidence, that for the time that Z was with her, she felt, as she says, that the time went well. The father says that could not possibly be the case because of what Z has told him, to which he goes into enormous detail in his affidavit. Certainly, Z expressed concerns to Mr PP.
As I must remind the parties in these interim hearings, it is not possible for this Court to make definitive findings about these challenges of facts between these parties in this case. I can, however, observe that this all appears to be much the same as has been going on for years, and which is referred to in my detailed Reasons for Judgment published in August 2022 (see Humphrey & Humphrey (No 2) [2022] FedCFamC1F 640).
We get to the position today, then, with school holidays due to start. In circumstances where the Order made by Jarrett J – to which I have earlier referred – would compel Z to remain in the care of the mother for the whole of the school holiday period, which I am told commences today and will extend until the morning of 1 October 2024.
THE COMPETING PROPOSALS
Despite enormous other matters raised in the material, the essential and urgent issue for the Court to decide today is:
(a)where Z should spend the holidays, and if so, how much of those holidays; and
(b)what is to occur after Z’s holiday is finished and he returns to school?
The father
The father says – and has been consistent for some time to say – that it is in Z’s best interests that he only spend time with his mother if agreed to between the mother and father and consistent with Z’s expressed wishes. The father did not cavil with my observation that the history of this matter since separation – now nearly seven years ago – would give the Court no confidence that these parties could ever agree on anything. Accordingly, in effect, the father’s proposition on this seminal issue is that Z’s wishes, expressed presumably to the father, will guide whether he sees the mother.
The mother
The mother’s position is that the child should, in accordance with the Orders of Jarrett J, begin time with her for the holidays now, at 12.00pm tomorrow, and for the duration of the holiday.
Taking on board the concerns raised at least by the father in some way, and identified as a matter to the mother’s Counsel, the mother will also, at this stage agree if time is to occur from 12.00pm tomorrow until before school on 1 October 2024, to an order that for these school holidays, “without admission, the mother shall not bring [Z] into contact with, or allow [Z] to remain within the presence of, or contact of, any member of the mother’s family”.
Furthermore, again taking on board what might be seen as a need to deal with another issue that arose on the evidence, the mother proposes that “during [Z’s] time with the mother during the end of term three 2024 school holiday period, [Z] shall communicate with the father by telephone on each Wednesday and Sunday, commencing between 4.00pm to 6.00pm with the mother to facilitate the communication by [Z] calling the father’s mobile”.
STATUTORY PATHWAY
Since 6 May 2024, the statutory pathway in this matter has changed.
I should also note that although the mother in her material offered as an initial position that all proceedings should be dismissed because the test in now s 65DAAA of the Act could not be met, namely that there has been a material and substantial change of circumstances since the final Orders were made on 31 August 2022, and that it would be in the best interests of the children to revisit those Orders (that is a shorthand summary of s 65DAAA.) I do not, in these Reasons, propose to traverse what seems to be a growing divergence of opinion about whether s 65DAAA is a mere codification of the principles established over many years in Rice & Asplund (1979) FLC 90-725 or whether s 65DAAA of the Act is a materially different process. I do not need to deal with it because the point is not pressed by the mother today.
However, as the father – who although not a family lawyer, can read a statute, no doubt – reminds me, s 60CC provides that in determining what is in a child’s best interests is the paramount consideration of any parenting order.
The Court must consider the matters in s 60CC(2). The child is not an Aboriginal or Torres Strait Islander child and so some parts of the statute do not apply to him.
Let me say at this stage, I am now directing all my attention to Z, because the mother sensibly does not press for orders in respect of X. That is appropriate and I will deal with the overlapping orders that still exist in relation to X.
The general considerations in s 60CC are clear. I do not propose in these oral Reasons delivered now at 4.35pm to repeat them, but the father is aware of them. He addressed me on them, as did, to some limited degree as was required, Mr Matthews of King’s Counsel. How ever the pathway is illuminated, the fact remains that the decision, a matter of discretion, must reach the destination of orders which are in the best interest of the child.
The father’s case is that the mother is an unacceptable risk to the child’s safety. Without intending to be absolute about every submission he makes – which I am not required to do as a matter of law – he points to the history of what he says is neglect and abuse that the children have experienced in the mother’s care. To the extent – as many were – allegations raised during the trial, they have been the subject of findings. I do not need to repeat them. With some of those findings, I found the mother’s conduct less than it should have been. I also found examples of where the father’s conduct was less than it should have been. The father says that the incidents to which Z refers – which go back many years, save for things which I am going to speak about shortly – are still relative to the assessment of risk. I disagree. They have been dealt with and have been taken into account in the Orders that were made, and which were applied for many months before the current situation.
The father, however, says that some of the events that have occurred, particularly on one occasion in mid-2024, and since the child began spending time with the mother again, are reflective of a pattern of behaviour by the mother – as I understand his submission – where she does not respect the child; treats him poorly; causes physical harm to him; and significantly psychologically abuses the child. He raised allegations in his material in submissions where he says that there has been behaviour by the mother’s family – in particular one brother Mr OO was mentioned – which both, in support of the mother, has caused abuse of the child to occur. I mentioned at this stage, as I did to Mr Matthews, that I had no evidence from Mr OO about the incident in mid-2024. That might be a matter for trial.
Part of the father’s allegations of abuse against the mother in terms of emotional abuse is what he says is the mother’s failure to allow the older sibling X to engage with Z when Z is in her care. He says that the mother has prevented the child maintaining a relationship and contact with the father and X, as he says he wants and demands in his comments to the father. In so doing, he submits the mother and her family are seeking to isolate and affect the relationship between the child, his older sibling, and the father.
The mother denies all such conduct. The mother raises issues about events in her care which are at odds with what the child is said to have mentioned to the father. For example, the mother says, and the father says this could not possibly be true, that in effect, Z was gathering evidence in their household using a device on his wrist. The father, who has the capacity to go very much into detail, says that is not possible. It could not possibly be correct he says. The fact that any child might be, in some way, gathering evidence in this situation is an issue that has previously been a matter raised in these proceedings at an earlier stage which I have dealt with. It is a possible repetition of behaviour of a concerning nature.
The father asserts that the mother’s rift involves also the disengagement of the mother with X, but to be frank, that is more a decision made by X as she approaches adulthood than any decision that the mother would want to make. The father says that X has, perhaps in separation, when in his home, taken a parenting role with the child, Z. They have a close relationship of that I am certain. However, she is not the parent of Z. She is his sister. She is strongly negatively predisposed towards the mother. Their relationship is, sadly, almost entirely estranged at this point.
I am satisfied that Z is well aware of his older sister’s view of their mother. I cannot, on an interim basis, properly assess to what extent this negative view about the mother, I am sure shared in the father’s home, is assuaged by some comments made by the father. As I say, the father does not say, necessarily, that the children should not see their mother. He supports it if they say they will do so. What he says is that the mother is a risk to their physical and emotional safety. The mother, of course, in terms of risk and safety, says the father is doing exactly what Jarrett J found him to have done in the contravention proceedings.
Although these are not contravention proceedings and the Court has not been required to make any findings in these proceedings as to whether some of the breaches, most significantly in my view the first set of holidays in June 2024 (not long after the contravention proceedings) the mother merely says the father is doing exactly what he has always done. The father would ask the Court to accept that the wishes expressed by the children are their genuine beliefs, not shaped in any way by his view of what is in their long-term best interests.
The mother says that the children are not able to express in the father’s home a view other than one entirely negative about the mother, and that is a view that the father does nothing to correct, mainly because the father believes that the mother is a risk. That these children have had to navigate this passage between these homes for so long, is distressing to the Court to observe. I am sure it is as distressing to the parents, but as I have indicated, many of these issues are issues that can only be ultimately determined at trial.
Inevitably and sadly, the parties’ conduct is probably driving the Court to an ultimate conclusion that the child live with one parent and spend no real time with the other parent. How else can this child, Z, be protected from, the father would say, risks in the mother’s home, the mother would say risks in the father’s home, and I would say the risks associated with the inability of two intelligent, capable and loving parents to move on with their lives in a way which does not put their children's emotional well-being at risk. They are matters for trial.
SPECIFIC ISSUES REPORT
It is appropriate, because of the legislative pathway, to say something about the wishes expressed. This is referred to in s 60CC(2)(b) “any views expressed by the child”.
When I had the matter before me on 23 July 2024 – and I note so much has happened in such a short period of time and the Court has devoted enormous judicial resources to these issues – I made an order for a specific issues report to be prepared
.Mr PP, an experienced Court Child Expert, has provided his report. Of course, Mr PP’s report – although not something I am bound by – nonetheless concludes with the comment that “given the intensity of both children’s feelings towards their mother, which appears to have been maintained since around 2019, I think it is unlikely they will seek out a relationship with their mother”.
The report from Mr PP identifies that X is not interested in a relationship with the mother. That would be a very confronting statement to any parent. More importantly, in my view, it is a statement almost entirely based on that child’s view of her mother, but one which she will have shared with her brother, noting the closeness of their relationship, however shaped.
In those circumstances and bearing in mind that the interviews with Mr PP took place on 22 August 2024, I am not that surprised that at paragraphs 23 to 28, when Z was the subject of interview, he said things which made it clear that he holds strong negative views about his mother. He says, due to things she has said and done, which Mr PP categorised perhaps as neglect, physical maltreatment and emotional abuse. Z did comment about how distressing he found the changeover ordered by Jarrett J in mid-2024 that involved the mother’s brother, Mr OO.
The father says in his submissions that the comments made to Mr PP are entirely consistent with what the children are telling him.
Of course, the difficulty with assessing children’s wishes or views – as Mr PP himself acknowledged – is that they need to be contextualised. We need to see where they say them, to who they say them and what is the context for the comment? It is well open to the Court to think that perhaps these wishes are an attempt by these children to align in a way that gives them some peace and quiet. Z navigating from the father’s home to the mother’s home, conscious of the strongly expressed express negative views by his big sister with whom he is close, would be a very difficult burden for him to carry.
A careful reading of the father’s affidavit does not contain any particular evidence given by him that he supports the children spending time with the mother genuinely. He is, I think, as I reflected in my earlier Reasons for Judgment of the parenting style, which is to try and empower and to support wishes given by children and views given by them which are aligned with his own view. However, I do not ignore what the children have said to the father, as the father has set in out in his affidavit. I do not ignore that Z has, given the opportunity to speak to an independent person, made some strong comments against the mother.
In respect of the issue for decision today, primarily about school holidays, my concerns are a mixture of these factors:
(a)Despite Orders of the Court and many attempts to do otherwise, the mother’s relationship with X is now totally estranged. Whether that can be repaired in the passage of time is not a matter that the Court can make orders to correct. It will just be what it will be;
(b)I am concerned that if nothing happens to ensure that Z maintains a relationship with the mother, then his trajectory will be entirely the same as X’s. He is much younger; his life experience is different, and he should be given the opportunity to follow a different course; and
(c)The father says that typically the child will not stay at the mother’s, whatever length of time. However, the evidence in August 2024 does not actually support such a view. Although there have been difficulties, for most of the time – the father described it as some of the time – the child remained in the mother’s care. Although he might have expressed unhappiness to the father, from the mother’s perspective, he remained quite happily in her care. These highly conflictual parents could never agree that the other person would give an honest perception of what occurred in their household. In my view, the facts, to a degree, support that this child was getting some benefit from having the relationship with the mother maintained during the orders that I previously made.
I cannot predict whether or not – if this boy believes he is entitled to tell his parents what to do and perhaps this Court – that there may not be difficulties if the child is ordered to spend time with the mother over the school holidays.
Though I am reluctant to do so, and so fuel the litigation, there will be a capacity for liberty to apply. I am not able to say, however, in view of my other commitments, that I can necessarily turn this matter around in a matter of hours, but I will do my best.
I believe it is in the best interests of Z that he have an opportunity to repair his relationship with his mother.
I am not prepared on an interim basis at this stage, in view of the history which I have given, to effectively say the relationship is over because, frankly, that is what will occur in my view at the moment, if orders that are made for him to spend time are both not made, or not complied with.
I raised with Mr Matthews of King’s Counsel that my concern is that there are some factors in the mother’s house which perhaps need to be adjusted to better support the child. As a result, I propose to make the orders that for the purpose of this school holiday period, the child not come in contact with the mother’s family. I appreciate that the mother will say there is nothing wrong with her family and that it is not fair to them. Whilst that might ultimately come to be the position taken by the Court, the orders I will make are an attempt to preserve what is now currently a somewhat tenuous relationship between Z and the mother. It is only through the strength of that relationship, that this child can explore relationships safely with other members of the extended maternal family. And if the mother cannot maintain a relationship with this child, then her extended family will have no relationship with this child.
In my view, whether by dint of her own motivation, because she feels she has been empowered by the father to do so – which I make no finding she has – or just because she loves her brother dearly and thinks that she can control the situation, the intervention by X at the moment has been unhelpful. It is not her role to engage her mother in disputes about her brother. It is not her role to intervene in the time the child spends with the mother, consistent with her view of her mother. Children, in the end, have to make their own decisions about their parents when they are mature and able to do so. I intend to give Z a better opportunity to do so.
However, I recognise – as the evidence makes clear – that when he is in the mother’s care, he has wanted, it would seem, to have some opportunity to speak to his father.
I do not propose to make an order because X is not a party to proceedings, nor should she be, that there be separate contact between Z and X when the child is in the mother’s care.
I propose to make the orders for the time that I have earlier referred to. Of course, I anticipate that when that call is made, the father will hopefully have X available. I have considered whether, if I made such an order, there should be some restrictions on how that call takes place, should it be recorded, should there be some way of trying to prevent the children from – and in particular, Z – from being involved in further conflict between the parents? But in my view, with the care arrangements that will be in place, there is no really effective way of controlling that exchange, and I do not want, when Z is in the mother’s care for this holiday, for its duration, that Z feels he cannot speak to his sister and his father. But it will be regulated from the mother’s home. I hope the father will do his best to comply with orders. So the calls will be initiated by the mother. I do not want them recorded by either parent. So, I will order that they will not be recorded by either parent.
I have considered whether or not it might have been advisable or desirable to limit the length of the period of time that the child spent with the mother during the holidays. The transcript will reveal that I raised this matter with the father when he, at one stage, made a submission, or began to make a submission that one of his concerns was the length of time. Upon further exploration by the Bench, it was apparent that it was not about the length of time, it was about any time. I have considered whether any further scaffolding around these orders is necessary. The father has referred to the child having counselling. Today, I am not in a position to know what level of counselling the children have been having recently, and/or whether those people are neutral, or whatever.
I do not say that there may not be a need for counselling for Z. I would not order counselling for X when she is almost an adult, but I would be open, ultimately – after the school holidays where I intend to bring this matter back before me, in any event – to canvas with the parties what therapeutic support might be available. One of the issues for therapeutic support for this child is, of course, without a context to all the dynamics of the relationship between the mother and father, any therapy can be misdirected. But that is a matter we can deal with another day.
The mother says that the regime of time that should occur after the holidays should be varied. She says it would be in the best interests of the child – I suspect, at least, so as to avoid the number of changeovers – that in fact the block of time be from a Wednesday to a Tuesday each alternate week so as to avoid the off Thursday night period, but maintaining the number of nights. As I say, the father’s position is that the child should have no time with the mother without his consent, or in accordance with his wishes, and as that is not an order I am prepared to make at the moment, it is up to me whether I change the regime.
Jarrett J, when he dealt with the matter post the contravention, saw no need to change the regime and in fact, reinstated the order. On the basis of the current evidence, I am not prepared to change the regime in the final Orders. Now, I appreciate that this means that rather than one block, there are two blocks in a fortnight and some changeovers, but those changeovers take place at school. In my view, the same reasons why I made that Order in August 2022, apply now. Namely, to enable the mother – where the primary carer is probably the father now, under the Orders – to have a real opportunity of engaging with the child; the child’s school; the child’s homework and the like.
Now, I know the father raises concerns about whether the child’s school performance is being affected by the time the mother’s care. I cannot make such a finding, but it may well be open on the evidence ultimately to find that the child’s school performance is being affected by the ongoing conflict between his parents. So, I will not be changing the regime after the end of the school holidays.
Now, I appreciate that there are other issues that the father wishes to agitate for in terms of parental responsibility. I propose to discharge today the orders relating to X spending time with the mother and living with the father. As far as I am concerned, at her age, she wants to be an independent person and I do not think she should be the subject of any orders of the Court. I see no reason why I should take a different view in respect of parental responsibility. She does not want to be the subject of parental responsibility. I am not satisfied there is anything imminent before her birthday in 2025 at this stage that requires a parent’s consent. At this stage, I do not propose to change the way in which consent for major long-term decisions occurs on an interim basis.
The school holidays finish on 2 October 2024. The prospect of me being able to give this matter attention over the next three weeks is limited. I cannot say I will not, but I am sitting in other places, and it is not possible for me to just be at call for this matter, but I think it is important I bring this matter back after the holidays.
Unless it is otherwise listed before me, I am going to list it before me at 9.30am on 16 October 2024, at which stage what I intend to do, unless I have otherwise been dragged into it because of some precipitous action, I will then have to plan a course towards the resolution of the matter. I should say that I am contemplating appointing an Independent Children’s Lawyer in this matter. I know the parties have had the benefit of legal advice in the past. The father is currently unrepresented.
I am also prepared to consider any proposals to assist Z with therapeutic support. I can indicate to the parties that if I was going to do that, I would want to try as best I can not only to provide this person with the benefit of some of the social science reports, not affidavits of the parties, but also to have someone who is willing to get involved in this battle, because a lot of therapists will not wish to get involved in this battle.
The father says that he might have some ideas about counselling, and I am not saying today that I would be against that. I just do not know who should do it. It would have to be someone, I think, who probably has not previously had a therapeutic relationship with the child because both parents would think one way or the other that person might not bring an open mind to the task. But I have not decided that this child needs to keep speaking to people about his life.
The Orders that appear at the commencement of these Reasons are, on an interim basis, in the best interests of the children.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 22 October 2024
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