Keighley and Keighley

[2019] FamCA 473

FAMILY COURT OF AUSTRALIA

KEIGHLEY & KEIGHLEY [2019] FamCA 473

FAMILY LAW – CHILDREN – Application by the Independent Children’s Lawyer to temporarily suspend the father’s time with the children – Where the application is supported by the mother and opposed by the father – Where the application is made upon the release of the single expert’s report – Where the single expert recommends the father’s time be supervised – Where it was not practical to arrange supervised time before the next court date – Where the need to protect the children from harm was more significant than the need for the children to have a meaningful relationship with both parents – Application granted – Order made for time with the father to be suspended pending further order

Family Law Act 1975 (Cth) s 60CC
APPLICANT:	Ms Keighley

RESPONDENT: Mr Keighley

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 6003 of 2016

DATE DELIVERED: 7 May 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 7 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Longworth

SOLICITOR FOR THE APPLICANT: Cominos Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Clinch

SOLICITOR FOR THE RESPONDENT: Karras Partners Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Smith

Legal Aid NSW

Orders

1. That the expert report by Dr C may be released to the parties and their legal representatives.

2. The Court notes that the expert’s report has been released to the parties and their legal representatives.

3. That these proceedings be adjourned to before the docket Judge, Loughnan J at 10.00 am on 20 May 2019.

4. That orders be made in accordance with the proposed short minute of order of the Independent Children’s Lawyer filed in Court today, signed by me and placed with the Court papers as set out hereunder:

   1.That pending orders being made at the upcoming interim hearing Orders 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the Orders made 20 March 2017 be suspended.

   2.That leave be granted to the Independent Children’s Lawyer to provide a copy of these orders and the report of Dr. C dated 4^th April, 2019 to the following:-

   (a)Dr. B, Psychiatrist.

   (b)Ms D Clinical Psychologist.

   (c)Ms E, Clinical Psychologist.

   3.That the father within twenty-four (24) hours of the making of these orders contact his psychologist Ms D and or his psychiatrist Dr. B for the purposes of making an appointment to attend upon Ms. D and or Dr. B as soon as is practicable to discuss the report of Dr. C and the impact of its contents on the father.

   4.That neither party shall discuss the contents of this report with either or both of the children.

5. That the parties file and serve one affidavit by each of them personally and one affidavit by each of their witnesses not later than 15 May 2019.

6. That the legal representatives may have photocopy access to all documents produced on subpoena.

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 Keighley & Keighley 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 SYDNEY

FILE NUMBER: SYC 6003 of 2016

Ms Keighley

Applicant

And

Mr Keighley

Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms Smith for the Independent Children’s Lawyer (“ICL”) for the making of some interim orders which would have the effect of suspending, for a couple of weeks, current parenting orders which provide for two children, X, born in 2011, and Y who was born in 2015, to spend time with their father.  The current orders which were made on 20 March 2017 provide for the children to spend time with their father.  In the case of X, such time includes each alternate weekend from after school Friday to before school Monday.  In addition, time is to be spent each Wednesday after school, as well as some time during school holidays and special occasions as specified in the orders.  In the case of Y, under the orders, he spends time with his father each Monday after childcare to 6.30pm and on the Saturdays when X was spending time with her father from 9.00 am to 6.30pm as well as each Wednesday from 3.00pm to 6.30pm, and certain specified special occasions. 

2. The children’s parents are Mr Keighley, to whom, for convenience, I shall refer as the father and Ms Keighley, to whom, for convenience, I shall refer as the mother. 

3. The application is supported by the mother and the application is opposed by the father.  The actual orders sought by the application are:

   1.that pending further orders being made at the upcoming interim hearing, Orders 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the orders made on 20 March 2017 be suspended; 

   2.that leave be granted to the ICL to provide a copy of these orders and the report of Dr C dated 4 April 2019 to the following persons: 

   a.    Dr B, psychiatrist, and

   b.    Ms D, clinical psychologist; and

   c.    Ms E, clinical psychologist.

   3.that the father, within 24 hours of the making of these orders, contact his psychologist Ms D and/or his psychiatrist Dr B for the purposes of making an appointment to attend upon Ms D and/or Dr B as soon as is practicable to discuss the report of Dr C and the impact of its contents on the father; and

   4.that neither party shall discuss the contents of the report with either or both of the children. 

4. This application follows the release to the children’s parents this morning of the single expert report by Dr C, psychiatrist, dated 4 April 2019.  The report is detailed, comprising some 46 pages.  It is the second report about this family by Dr C.  Of concern is the fact that at page 45 of the report, Dr C said that he was very concerned about how the father might react upon reading the report.  For this reason, Dr C recommended that the report not be released to the parents until the day of an interim hearing to enable the Court to consider putting in place some of his recommendations. 

5. In particular, Dr C has expressed considerable concern about the father’s behaviour which Dr C described as unusual and concerning.  Amongst many things, Dr C said that he had indicated in his first report that he felt the father was quite an anxious, insecure, suspicious and dependent person who had acquired a number of very obsessional traits.  He was concerned that in the throes of obsessional anxiety, the father could become quite belligerent, overbearing and aggressive and was prone to losing his sense of proportion. 

6. Dr C said that he is concerned about the father’s mental state which has resulted from the predicament which the father has created for himself.  He said the father presented as genuinely distraught and feeling utterly hopeless.  He said that from the father’s point of view, his situation has only become worse, including his belief that there is a hopelessness about the state of his relationship with X, despite Dr C regarding there to be clear indicators of a more positive relationship between X and her father. 

7. Dr C is concerned that the father is experiencing a significant and perhaps dangerous depression.  Dr C thinks that the father has a serious personality dysfunction with strong obsessional, paranoid and depressive components.  Dr C expressed the view that this situation has caused carnage for the children. He said that specific treatment for the father’s intrusive obsessive ideas and his inability to inhibit inappropriate, disproportionate and child-harming processes is essential.  Dr C goes on to describe what he would regard as appropriate forms of therapy. 

8. Dr C said that some people faced with a similar history over the last 18 months would have started to open their mind to the notion that their theory was partly or completely wrong and they would take another direction.  He said that the father has not done this until the last possible moment and not at his suggestion.  Dr C expressed concern that this insight would be short-lived and that the father’s disabling obsessions involving the children would arise again. 

9. Dr C expressed worry that, upon reading the report, the father’s mood would be lowered further, leading him to take desperate steps, the most desperate of which could be to harm himself or the children or both.  Dr C said that he is concerned that there is a risk of physical harm, referring to the father’s supervision of the children fluctuating significantly and perhaps dangerously and he refers to what he says is the father experiencing a nihilistic form of depression which may lead the father to deliberately harm the children. 

10. Dr C recommends that orders be made on an urgent interim basis to protect the children and to provide an opportunity for the father to demonstrate benefit from psychiatric/psychological treatment and parenting advice.  Dr C recommends that the children spend up to three to four hours with the father one day per weekend, for three weekends in the month, supervised by a professional agency with review of the supervision after six months. 

11. As I have indicated, the father strongly opposes the orders sought by the ICL and the mother.  Mr Clinch on behalf of the father pointed to the longstanding nature of the current orders, the fact that the father takes issue with much of Dr C’ report, the principles of natural justice which demand that the father have an opportunity to properly prepare his case against the requirement for such different and limiting orders and the fact that Dr C did not recommend that there be no time between the children and their father. 

Relevant Law

1. Turning to the relevant law, what is sought are parenting orders. The law requires that the determination be made on the basis of the best interests of the children. Subsection 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”) sets out the primary considerations in determining the children’s best interests, and these are:

   (a)the benefit to the children of having a meaningful relationship with both of their parents; and

   (b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. 

2. Subsection 60CC(2A) of the Act requires the Court to give greater weight to the latter consideration, that is, what I would describe as the protective consideration.

3. This Court takes a cautious approach to the protection of children.  I accept that, as submitted on behalf of the father, it would be a serious step to be suspending the children’s time with their father with whom they have been spending regular and frequent time. 

4. I would have preferred a situation where an appropriate supervision arrangement could have been made and the children could have had supervised time with their father. But Ms Smith indicated that in her experience, it is difficult to engage professional supervisors on short notice. I accept her submission that the approach which is in the children’s best interests is to suspend the current orders for a short time, namely until 20 May 2019 when the parties will be back before Loughnan J to consider the way forward.

5. Giving the protective consideration greater weight than subsection 60CC(2)(a), I regard it to be in the best interests of these children for the ICL’s application to be granted which, as I have said, involves a suspension, but only for a short period.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 7 May 2019.

Associate:     

Date:              18 July 2019