Langmuir & Fields

[2021] FCCA 1223

FEDERAL CIRCUIT COURT OF AUSTRALIA

Langmuir & Fields [2021] FCCA 1223

File number:	MLC 5053 of 2014
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	16 April 2021
Catchwords:	FAMILY LAW – interim parenting – urgent application – where mother files urgent application seeking recovery of the children – where father does not return children to mother’s care – where children were spending time with the father on school holidays – allegations of family violence – orders made for children to return to mother’s care
Legislation:	Family Law Act 1975 (Cth) ss 60CC, 65DAC
Number of paragraphs:	40
Date of hearing:	16 April 2021
Place:	Melbourne
Counsel for the Applicant:	Mr G Atkinson
Solicitor for the Applicant:	Berger Kordos Lawyers
Counsel for the Respondent:	Mr C Arnold
Solicitor for the Respondent:	Cornelius Family Law

ORDERS

MLC 5053 of 2014

BETWEEN:

MS LANGMUIR

Applicant

AND:

MR FIELDS

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	16 APRIL 2021

THE COURT ORDERS THAT:

1.On or before 4.00pm on Saturday 17 April 2021 the Father, Mr Fields, return the children X born in 2011 and Y born in 2014 to the care of the Mother, Ms Langmuir.

2.The Mother and the Father are hereby restrained by injunction from physically disciplining the children or either of them.

3.The Mother do all acts and things to cause and ensure that her partner Mr B is not involved with the discipline of the children or either of them at all.

4.The parents and the children attend upon a family consultant on 13 May 2021 for the purposes of the preparation of a private Family Report to be filed on Affidavit by 13 June 2021 with the costs of the Family Report to be borne equally between the parents.

5.Both parents do all acts and things to cause and ensure that any medical practitioner or therapist for the children be informed that there is an existing order that both parents have equal shared parental responsibility for the children.

6.The next weekend time that the Father's is to spend with the children in accordance with the existing orders is Friday 30 April 2021.

7.Pursuant to section 68L(2) of the Family Law Act 1975 the children X born in 2011 and Y born in 2014 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon as possible AND THAT:

(a)Forthwith upon appointment by Victoria Legal Aid, the Independent Children's Lawyer file a Notice of Address for Service; and

(b)Upon notification of such appointment, the parties (by their solicitors if represented) shall provide to the Independent Children's Lawyer copies of all relevant documents.

8.The parties may inspect only and the parties' legal representatives and the Independent Children's Lawyer (if appointed) may inspect and photocopy the document produced by the Department of Families, Fairness and Housing (DFFH) dated 15 April 2021 in these proceedings.

9.The parties and their legal representatives are restrained from providing a copy of the documents or disclosing their contents to any other person without an order of the Court.

10.The parties have liberty to apply on short notice.

11.The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on 25 June 2021 at 9.30am for Interim Defended Hearing.

AND THE COURT NOTES THAT:

A.The Independent Children's Lawyer has been requested as there are allegations of physical and psychological abuse of the children.

B.The information produced by DFFH is confidential and cannot be disclosed to any other person without an order of this Court.

C.Penalties may apply pursuant to s.112AD and s.121 of the Family Law Act 1975 if the information is disseminated other than as ordered in these proceedings.

D.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

E.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

F.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

G.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

H.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. These are settled ex tempore reasons.  The proceedings concern the children X aged 10 and Y aged 7 (‘the children’).  The proceedings were initiated by the applicant mother Ms Langmuir (‘the Mother’) seeking urgent recovery of the children from the care of the father Mr Fields (‘the Father’).  The children have always lived with the Mother.  During school holidays the Father had taken X to a new GP where X told the doctor of severe unhappiness with his Mother’s household including her new partner and that he thought of suicide.

2. My decision in this matter is that both children should return to the Mother's household, and I accept the Father's statement to me that he does not need a recovery order and that he will comply with that.

3. I am very concerned about the statements that the child X has made to the doctor, and I am not critical of the doctor in becoming concerned at the statements, and I am not critical at the police for making an application for an intervention order.  However, with the benefit of the parties' lawyers, I have considerably more information than either the police or the doctor has, and at this point we are not aware of the extent of the information that Child Protection has.

4. I will be ordering that the children are to be returned to the Mother's home, this is Friday and I do not expect that to happen today, but I expect that to happen on or before 4.00pm tomorrow.  There will be an injunction restraining both parents from physical discipline to the children.  I will not exclude Mr B (the Mother’s partner) from the home on this interim emergency hearing, but there will be an interim order the Mother is to do all acts and things to cause and ensure that Mr B is not involved in disciplining the children at all. 

5. I have pondered and been troubled about the issue of injunctions and the extent to which, with a child of X's age and general circumstances, being at a difficult point in his life, being over empowered to create more trouble for himself.  However, I am also not prepared to treat the Father's concerns as other than genuine at this point.  

6. For the Father to have been in the doctor's surgery and to have heard X say those things can only have concerned him.  For those reasons I am not going to be making any orders as to costs, notwithstanding that ultimately I am determining that the Mother’s application is entirely successful and his opposition to it largely unsuccessful. 

7. These are very short reasons. I do acknowledge and in fact this decision is based upon primarily section 60CC(1)(ii)(a) and (b) and 60CC(2A) of the Family Law Act 1975 (Cth) (‘the Act’) but I am also to take into account 60CC(3). The children have lived all their lives in their Mother's household, and I am troubled at the parental conflict that exists, and I am troubled at the extent to which the Father is able to support the Mother's relationship with the children, and X in particular.

8. The events that occurred in this matter really go back many years, and those that are relevant really go back two years, and certainly back to a date, according to apparently X's recollection in 2019.  He has lived backwards and forwards between his Mother's and his Father's household throughout that time and that period.  It may well be that he has a very poor relationship with Mr B or not.  

9. The nature of X as an individual, part of that picture is very much informed by exhibit marked as M1 being X’s school support plan, and the full text of that is recited below: 

   Behaviour Support Plan

   STUDENT:                X  YEAR LEVEL: Four

   START DATE:          Term 4, 2020  COORDINATOR: ...

   This plan is designed to support the student in developing skills required for positive social interaction, in order to become a more successful learner and to create a safe learning environment for all.

   Refer to the “Behaviour Support Plan – Reference Guide” for information on each element of the plan.

BACKGROUND

X has displayed concerning behaviour especially in his interactions with particular students … (omitted) X has had a cognitive assessment which outlines behaviours consistent with ASD.

TARGET BEHAVIOUR

X speaks angrily and very harshly to others. He has difficulty regulating his emotions. He can be very uncooperative and refuse to participate in activities/tasks. He lashes out with his arms and legs in frustration. He will gain others’ attention in inappropriate ways - flicking hats off their heads, rubbing hands on others heads, pushing and bumping into others.

He becomes verbally aggressive when emotions are heightened and uses inappropriate language with staff.

X will often walk away from staff when instructed to accompany them.

TRIGGERS

When X is being asked to be part of the class routine and everyday learning he may become unwilling to do so. Support in place to help him to do this can result in escalating behaviour.

When particular other students are involved /near X, it usually results in a negative/accusatory environment and builds up to X becoming extremely angry and lashing out verbally and physically.

FUNCTION

X is overcome by a perceived injustice. His behaviour is unrelenting and extremely heightened. X is seeking to gain the attention of adults and the cooperation of others. He is avoiding a possible consequence for his own contribution to the angry situation between himself and other students. X will often fabricate his recollection of events as “accidents”.

BEHAVIOUR GOAL:

For X to participate in tasks and social situations with a calm and happy attitude using positive language and friendly non verbal cues for 75% of each day by the end of Term 4.

For X to engage in play times that see him playing with others with a calm and happy attitude using positive language and friendly non verbal cues for 75% of each day by the end of Term 4.

PROACTIVE INTERVENTIONS

Prevent Interventions

X is not to play, work with or go near students who he has had altercations with … (omitted).

The use of a playtime time table where X decides what he will do during the playtime breaks. This will be co-constructed with the guidance of an LSO at the beginning of each day.

Upon leaving the classroom before playtimes X will be reminded of what is in his timetable and the use of positive reminders

Teach Interventions

Increase monitoring of X during play breaks and engage in positive interactions with him when appropriate play is observed.

Present ways we show others we are happy/ pleased/ satisfied. Focus on the positive emotions we can display. Teach the use of positive language everyday via role play scenarios.

Use the reflection element of the playtime timetable to create record of his emotions at playtime and to highlight times of enjoyment and happiness when at play.

Reinforce Interventions

At the end of each day X is to use a positive non verbal cue to another person upon leaving the classroom. Sticker/stamp/ ??? At the end of the week X is to check in with ... for a chat and update his progress.

IMPLEMENTED BY:

Class teacher and LSOs and all specialist staff

senior school teacher with whom X has a good relationship with, is to check in and to support as needed/on a daily/weekly basis

EVALUATION

Daily anecdotal notes in communication log for first few weeks by teacher and/or LSO

Reflections on Play timetable

ONGOING ADJUSTMENTS

Targeted and timely appraisal every time Use of visual schedule, cueing in, reminders and reiteration of the expectations in a calm and caring manner

Checking in with Year 5-6 class teacher whom X responds well to ... Participation in weekly library session during lunchtimes as reading holds a high level of interest for X.

REVIEW DATE OF PLAN

End of Term 4, 2020

1. Considering the recent history and acting in the children's best interests, I am to put protection from physical or psychological harm at the forefront of my mind, and I do.  However, the harm to these children is not just the issue of risk of exposure to Mr B, given the allegation of his poor relationship with X.  That is one risk I have to face.  The other risk I have to face is the abrupt interruption on their living arrangements, and in particular for Y, who it appears to me has been dragged into this new regime or living with her Father.

2. Y has lived her entire life with her Mother, and the psychological harm to Y of being now home schooled until the matter can come back before me with further information, and the same applying to X, is also a risk of psychological harm to X and Y.  There is a risk to X's well-being that this was an outburst, to the doctor, along the lines of X’s personality and difficulties described in M1, as opposed to a genuine concern, or the reality of his position.  This is also a considerable risk.

3. I do not dismiss what X has told the doctor and the Father’s counsel took me to specifically the following from the doctors consultation notes:

   “X informs me that he has had thoughts of ending it all à hanging himself, or getting a gun from a policeman and shooting himself in the head

   - feels this way when he thinks of going to his mum’s place

   Asked if he trusts anyone – She replies that he trusts his dad, and that going to his dad’s place is like going on holiday

   States Mr B has threatened to break his arm

   States his Mum has threatened to not let him see his dad again

   X informs me that his mum slaps him on the face

   X states Aug 5^th 2019 was when Mr B dragged him out of the car on the freeway and drove away a bit; X states he yelled “No” when he saw Mr B driving away, and the response he got was “are you going to behave?” and X responded that he would and then he was able to get into the car.

   X states he is not saying that he is being constantly harassed but that it is a “scheduled” thing

   States that when he has had suicidal thoughts he reminds himself that he should not do this, because “there is no fate, only what we make of it”.

4. The mitigation of the risk of X continuing for the time being to live in his Mother's household will include the fact that he will be attending his usual school.  He will be attending as soon as possible upon a psychologist with the Father's knowledge, and I would expect that to the extent that the therapist deems it appropriate, both parents will be involved in that therapy, and it is not to be therapy or assistance for X where only the Mother is consulted simply because that is convenient if the Father lives at Town C. 

5. However, I have got to balance risk of harm to two children, not just one, and balance all those matters, I have carefully considered all of the matters.  I do not find, despite those very strong statements by X to the doctor, that there is an unacceptable risk of harm of X returning to live in his Mother's household in all the circumstances.

6. The recent timeframe needs repeating.  It really starts two years ago, which would appear to be early 2019, then we move to August 2019.  X's many complaints about Mr B do include the statement that Mr B has never hit him and that his Mother hits him at times.

7. I am putting an injunction in place, notwithstanding the risk of undermining her parental authority by that injunction.  The issue of X’s suicidal thoughts, where he says he has had suicidal thoughts and is unhappy in his Mother's household, do concern me.  For that reason I am going to order that the parties attend upon a family report writer chosen by them on 13 May 2021 for the preparation of a report to be completed on or before 13 June 2021, and that the matter will otherwise be back before me on Friday, 25 June 2021.

8. I note that in the meantime Child Protection will be continuing their investigation of this matter, and, as the matter stands at the moment, have not spoken to the Mother, or indeed the Father, save that the Father has not unreasonably contacted Child Protection and spoken to them.

9. The recent events really start in March of this year, where the text message is sent as is set out at page 16 of 25 (of the Mother’s affidavit filed 14 April 2021) between the Mother and the Father relating to a dispute about one weekend.  It can be said, well, it was just a dispute about one weekend, but it is clear from the text message that there was very considerable emotion and emotional baggage invested in that communication. 

10. It is clear from that communication that the Father has really significant antipathy to the Mother, the children's mother, and that he wants her to know that he has that antipathy.  I do not know yet the extent to which the Mother reciprocates that antipathy towards the Father, and whether she reciprocates that she wants him to know that she has that antipathy, but at the moment I do not have evidence of that. 

11. What I have is evidence of the Father would not have school holiday time with the children unless the Mother agreed, or there was a further court order.

12. It is unfortunate that there was an intense dispute about a weekend, but there was. It is then the Father's case that somewhere around that time four weeks ago, X told him that he needed someone to talk to, and for that reason the Father involved the school. But according to the Father, X then told the school that he did not want to see anyone about two weeks later.

13. What is clear, and is common ground, is that at the point where X told his Father that he wanted someone to talk to, the other parent was not involved in that issue at all. 

14. So the first order regulating these parties was that previous orders were discharged. The second was that they have equal shared parental responsibility. It means what it says, and I will ask the parties' lawyers to point out, and read to the parties, section 65DAC of the Act, and it means what it says and it is not just there for advice.

15. It is not just there as optional. It may well be that the end result of these proceedings is that because of a poor relationship the parties cannot have shared parental responsibility. It is not clear to me at this point, and I cannot make a judgment that they have not been, but I am not satisfied that the parents have been complying with section 65DAC of the Act, and in particular section 65DAC(3).

16. Section 65DAC of the Act states as follows:

    Effect of parenting order that provides for shared parental responsibility

    (1)      This section applies if, under a parenting order:

    (a)       2 or more persons are to share parental responsibility for a child; and

    (b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

    (2)      The order is taken to require the decision to be made jointly by those persons.

    Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).

    (3)      The order is taken to require each of those persons:

    (a)to consult the other person in relation to the decision to be made about that issue; and

    (b)       to make a genuine effort to come to a joint decision about that issue.

    (4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

1. The other aspect of this is that it is the Mother that has the day to day carriage of the medical treatment for X's autism spectrum disorder.  It appears that the Mother may not have informed the Father of each and every appointment.  It is also clear that the Father has not taken it upon himself to be further involved, other than communicating with a paediatrician when necessary to obtain prescriptions for medication.  That is a good indication, perhaps of the future, that when this calms down it may be that the parents are able to continue to have equal shared parental responsibility.   

2. As a result, the chronology of events, though, is that sometime between March and 8 April 2021, by the intervention of family friends, a return date of 8 April 2021 for the children to the Mother's care was negotiated.  The Father collected the children from school on 1 April 2021 and they were due to be returned on 8 April 2021.

3. The significant event is that it appears to me that prior to the Father collecting the children from school, he made an appointment with the new, and local to the Father, doctor for 7 April 2021, that being a time for him to consult at a time when the children would next be in his care. The background to that consultation with the GP was the issue of X's discussion with the Father about needing someone to talk to, then it being cancelled, and the Father still being concerned.

4. It is common ground that the Father having equal-shared parental responsibility for these children, and being concerned about their welfare, did not consult the Mother. In my view not only does section 65DAC of the Act command him to do so, but common-sense would say were it not for the antipathy between the parties that he would immediately at least attempt to communicate with the other parent (who may, or may not, have an attitude of antipathy equal to the Father's), but he did not.

5. It is then clear that X and the Father attended upon the doctor on two days.  It would appear that the doctor did not make the mandatory notification on 7 April 2021.  He made notes on 8 April 2021.  The Father returned to see the doctor on that day, as I understand, in the morning.  It is clear that the Father then makes contact again at about midday on 8 April 2021 to inform him that he has indeed contacted the police.

6. After that event, halfway through the second day, the doctor makes the mandatory report.  Thereafter the Father on 8 April 2021, instead of returning the children, or discussing the matter with the Mother, determined by email text message to tell the Mother, as follows:

   “X was seen by a GP at Town D medical centre yesterday and further again this morning regarding a mental health plan for him to see an SFX psychologist as requested by Ms E SFX principle. During these consultations X advises the Doctor of numerous extremely concerning incidents he has been subjected to by your partner Mr B and yourself.  The Doctor demanded I report this immediately to Police and retain X and Y in my care until the matter is investigated and their safety and welfare is assured whilst they are with you or in your care. 

   Both Ms F and Ms G expressed they no longer wish to assistance in a role of mediation between us due to this now.  I have been advised Police and DHS will be in contact with you.”

7. In all of those circumstances, and balancing the risks to the children: 

   (a)Firstly, there is a risk of, it appears to me, psychological harm to X of being returned to his Mother's home in the circumstances of his expressed antipathy to Mr B and his Mother's household, and his statements about self-harm, and I take those into account.  They are front and centre of my mind.

   (b)I then balance the risk to X's psychological development of having his living arrangements interrupted in these tumultuous circumstances until the matter can come back before me on 25 June 2021.   

8. Sensibly the parties, and to their credit, did not even contemplate that the children would not be other than together, and I am grateful to them for that, and that is to the credit of the Father and the Mother.  But I must take into account the risk of psychological harm to Y as well as X.

9. What is implicit in the orders that the Father seeks, which is that the children stay where they are, have telephone contact, and/or in the alternative raised late today, spend weekend time with the Mother if Mr B is not present, would be a serious interruption in the day-to-day life and welfare of the children, including an interruption in their school regime.

10. The children have just got back to ordinary school after 2020 home schooling and all the strains and difficulties and disruption that that entails.  I find that X is likely to be assisted in learning skills for the rest of his life by involvement in face-to-face conventional school as he has been, and that is a matter that I take into account.

11. I also take into account that it appears unbeknown to the Town C doctor, X already has a mental health plan, I am told, from his existing GP and that the Mother has now put in place arrangements to have the child consult a psychologist. 

12. These orders will also have liberty to apply on short notice in the event of a variety of things, including evidence of greater risk to the children, and/or the children not being returned to the Mother's care tomorrow, or either parent not being properly involved in the psychological therapy.

13. We need to avoid the situation that the relevant medical practitioner only addresses the parent who happened to actually take the child into that appointment, whether that's the paediatrician, the psychologist or a GP. 

14. I will also order that the parents cause and ensure any medical practitioner or therapist to be informed that there is an existing order that has been place for five years that these parents have equal shared parental responsibility.  I will order an Independent Children’s Lawyer, and we will make a notation that the order for the Independent Children’s Lawyer relates to allegations of physical and psychological abuse of the child, X, and Y being exposed to that.  We need to tick that box for the Legal Aid Commission.

15. There will be an order that the Father's next weekend, in accordance with the existing orders, commence Friday, 30 April.  Thank you.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       3 June 2021