Kelly and Bryant

[2014] FamCA 1198

FAMILY COURT OF AUSTRALIA

KELLY & BRYANT [2014] FamCA 1198

FAMILY LAW – CHILDREN – INTERIM ORDERS – Best Interests – Evidence – Where the mother seeks a stay of orders relating to spend time with the father – Where the child allegedly made threats of self-harm when he resumed contact with the father – Where the mother relies on evidence by a psychologist who had seen the child but not the father – Where the psychologist recommended that a family psychiatric assessment take place before contact is resumed with the father – Where the single expert has not yet prepared a report – Where the evidence of the psychologist cannot be tested – Interim orders made suspending spend time orders.

Family Law Act 1975 (Cth) ss 63,64D

APPLICANT: Ms Kelly

RESPONDENT: Mr Bryant

INDEPENDENT CHILDREN’S LAWYER: Ms Dart

FILE NUMBER: SYC 7646 of 2010

DATE DELIVERED: 9 December 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 9 December 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Gordon & Barry Lawyers

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dart

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

IT IS ORDERED

1. That Orders 2 to 5 inclusive of the Orders made on 19 September 2014 be suspended pending further order.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7646  of 2010

Ms Kelly

Applicant

And

Mr Bryant 

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court are brought by the mother, Ms Kelly (“the mother”), in relation to the children of her marriage to the father, Mr Bryant (“the father”).  The children are O born in 2006 and L born in 2007.  The history of the proceedings is set out in a judgment delivered by me in contravention proceedings on 7 November 2014 and I do not propose here to repeat that history. 

2. The mother’s Application in a Case filed on 21 November 2014 seeks to discharge all of the previous parenting orders and to stay any orders made on 19 September 2014.

3. Orders (9) to (16) made on that day relate to the appointment of Dr M, as single expert.  Both parties want the report to be prepared by Dr M and appointments have been made in April with Dr M.  Those Orders will not be stayed or discharged. 

4. Orders (1) to (5) relate to the time spent by the children with the father.  Order (6) provides for the school counsellor to be the first referral point if any counselling is considered necessary for O.  I have assumed in this judgment that it is, in fact, Orders (1) to (6) which are sought to be either stayed or set aside.

5. Since 7 November 2014 the parents had reached an agreement in relation to orders to finalise these proceedings on the basis that all existing orders are discharged and that the mother have the sole parental responsibility for the children. 

6. The agreed orders provided for no contact between the children and the father, which is not to say that no contact would occur, but there was no provision for contact. 

7. Consequent upon reaching that agreement, the parties cancelled their appointment with Dr M for interviews for the preparation of the report which was to take place on 24 November 2014. 

8. On 21 November 2014 the wife filed the present Application in a Case and a supporting affidavit.  On reading that affidavit, the father became aware of the evidence of the mother, that O was threatening to harm himself.  The father then withdrew his consent to the previously agreed orders.

9. The father has not seen the children since 8 November 2014. 

10. The mother’s evidence is that, on 17 November 2014, she told the children that they would not be visiting their father for the foreseeable future.  After this conversation, O made threats to harm himself.

11. It is the father’s case that in those circumstances, O’s behaviour was either due to his being told that he would not be seeing his father or due to some circumstance in the mother’s home. 

12. The mother asks the Court to suspend the children’s time with their father and that application is supported by the Independent Children’s Lawyer.

13. The mother relies upon an affidavit by a psychologist, Ms I.  Ms I has seen O on three occasions – 13 August 2014, 26 August 2014 and 20 November 2014.  In relation to the most recent occasion, that is, 20 November 2014, Ms I in her report says:

    Our most recent meeting was arranged following (the mother’s) report that (the father) had signed over parental responsibility to (the mother) and was requesting no further contact with the children. 

14. Ms I reports that she agreed to meet with O to conduct a risk assessment due to the mother’s concern about the increasing frequency of behaviours indicating suicidal intent and O’s expressed suicidal wishes.  Ms I reports, :

    [O] described two occasions in which he wanted to kill himself since recently resuming contact with his father ((the mother) reported three occasions).  He said that he had told his mum that he wanted to “jump off the banister stair case at home so he didn’t see his Dad again”.

    When MI (Ms [I]) inquired about whether he wanted to die or wanted to let Mum know how upset, sad, angry you felt, [O] nominated that he wanted to let his Mother know how he felt. “That’s why I pulled the yoyo string around my neck”.

    He did not want to die, rather he wanted to express how badly he felt, with resumed contact with his Father. 

    With regard to psychometric information, [O] scored in the Clinical range on the Children’s Depression Inventory, and in the clinical range on the Spence Children’s Anxiety Scale.  Both scales are self-report measures.  [O] nominated items such as, “I think about killing myself, but I would not do it, I feel like crying every day, things bother me all the time”.

    A safety plan was developed between [O] and his mother.  [O] was settled, quiet and calm when this was made.  The importance of keeping his body safe and using words to let mum know how he felt were part of the plan.  The mother’s attunement and acceptance of [O’s] emotions while placing appropriate limits on [O’s] provocative behaviour led Ms [I] to conclude that the mother is able to monitor and respond to [O’s] expressions of distress.

15. The father challenges Ms I’s report on the basis of syntax, which suggests to him that the report was not written by Ms I. Having read the report carefully, I do not accept that that challenge is made out.  However, I am conscious of the fact that Ms I’s report was made in circumstances where she had no contact at all with the father, had not seen O with his father and had not had any information from the father. 

16. The nature of these proceedings is interim only.  The evidence cannot be tested.  The Court is left to make the decision which is in the children’s best interests; in this case, the decision which is most likely not to cause harm, based on the unchallengeable and untested evidence before it.

17. I do not dismiss the father’s concerns that the pathology of O’s present behaviour lies in the mother’s care.  That will be a matter for Dr M’s expert consideration.  I am, however, required to err on the side of caution, and I accept, for the purpose only of this application, the recommendation of Ms I, that due to the clear report of his negative feelings towards his father, impulsive behaviour and the potentially fatal effects of O’s recent expression of distress, a family psychiatric assessment be carried out before contact is resumed with the father.  Orders will be made accordingly.

18. On behalf of the mother, it is submitted that by signing the document headed Minute of Consent Orders the parties were effectively entering into a parenting plan. The definition of a parenting plan is contained in section 63C of the Family Law Act 1975 (Cth) and means an agreement that:

    (a)       is in writing; and

    (b)      is or was made between the parents of a child; and

    (ba)     is signed by the parents of the child; and

    (bb)     is dated; and

    (c)      deals with the matters mentioned in subsection (2).

19. Subsection (2) sets out the parenting arrangements that can be dealt with in a parenting agreement.  The document which was signed by the parties was not an agreement within the meaning of section 63.  Neither of the parties intended to enter into an agreement.  Rather, it was intended by both of them that the document would be submitted to the Court, so that orders could be made if the Court was satisfied that the orders were in the best interests of the children. 

20. I do not therefore have to rule upon the further submission of Counsel for the mother directed to the application of section 64D. 

21. The parties agree that there is no utility in commencing the first day of the trial on 3 February 2015 when Dr M’s report will not be available.  Consequently, that listing is vacated and the list clerk has been asked to allocate a date after 15 May 2015. 

22. In relation to the Order made on 19 September 2014 relating to the necessity for counselling for the children to be monitored by the school counsellor, the evidence of the mother is contained at paragraph 60 of her affidavit.  It is her evidence that she rang Ms I’s practice at about 8 pm on 19 November 2014 and O was seen by Ms I on the following day. 

23. The circumstances were sufficiently concerning to justify the mother’s not complying with the Order, particularly in circumstances where the father had signed the minutes of consent orders.  However, the ongoing purpose of that Order is to ensure that both parties have some input into any further counselling for O and that Order should remain in place.

24. Therefore, the order of the Court is that the operation of Orders (2) to (5) inclusive made on 19 September 2014 be suspended, pending further order.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 9 December 2014.

Associate: 

Date:  30 January 2015