Laurent & Laurent
[2021] FedCFamC2F 402
•18 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Laurent & Laurent [2021] FedCFamC2F 402
File number(s): PAC 904 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 18 November 2021 Catchwords: FAMILY LAW – interim parenting - best interests of children - Orders made Legislation: Family Law Act 1975 (Cth), ss. 60B, 60CA, 60CC, 62G(2), 69ZL Cases cited: Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286
Marvel & Marvel (No 2) [2010] FamCAFC 101
Eaby & Speelman [2015] FamCAFC 104
Banks & Banks [2015] FamCAFC 36Division: Division 2 Family Law Number of paragraphs: 104 Date of last submission/s: 28 October 2021 Date of hearing: 28 October 2021 Place: Parramatta Solicitor for the Applicant: Mr Ginges Solicitor for the Respondent: Ms Makdo Solicitor for the Independent Children’s Lawyer Ms Lam ORDERS
PAC 904 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LAURENT
Applicant
AND: MS LAURENT
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
18 November 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.That the children X born in 2008 and Y born in 2015 live with the Mother.
2.That the children spend time with the Father in accordance with their wishes.
3.That without admissions, each party be restrained from discussing these proceedings or any issues arising out of these proceedings with the children or permitting any third party to do so.
4.That each party shall be restrained from discussing matters in relation to Y’s paternity with the child or permitting their respective partners to discuss matters in relation to the child’s paternity with the child, save for with Y’s psychologists.
5.The Mother shall within 28 days from the date of these Orders engage with Y’s psychologists for the purposes of obtaining recommendations about managing Y’s knowledge about his paternity in the future.
6.Leave to the Independent Children’s Lawyer to provide a copy of the Child Inclusive Memorandum dated 5 August 2021 to the children’s treating psychologists.
7.Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by August 2022.
8.The Family Report shall deal with the following matters:
(a)Any views expressed by the child(ren) the subject of parenting Orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the child(ren) with each of the child(ren)’s parents and with significant other persons;
(c)The willingness and ability of each of the child(ren)’s parents to facilitate and encourage a close and continuing relationship between the child(ren) and the other parent.
(d)The likely effect of any changes in the child(ren)’s circumstances, including the likely effect on the child(ren) of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the child(ren) has/have been living.
(e)The practical difficulty and expense of the child(ren) spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child(ren)’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)The capacity of each parent, or another person, to provide for the needs of the child(ren), including emotional and intellectual needs.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child(ren) and of either of the child(ren)’s parents and any other characteristics of the child(ren) that the reporter thinks are relevant.
(h)Each parent’s attitude to the child(ren) and to the responsibilities of parenthood.
(i)Any family violence involving the child(ren) or a member of the child(ren)’s family.
9.The parties shall attend all appointments with the Family Consultant and shall ensure the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.
10.The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.
11.The matter is to be listed on a date to be advised following release of the Family Report.
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).
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 by this Court under a pseudonym Laurent & Laurent has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
These are short form reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”).
This Interim Hearing relates to the children, X, born in 2008, aged 12, and Y born in 2015, aged 6.
The parties have other children from their relationship being Ms B born in 2000, and Mr C born in 2001.
MATERIAL RELIED UPON
The Father relied upon his Case Outline filed 26 October 2021 and the documents set out in that Case Outline.
The Mother relied upon her Case Outline filed 27 October 2021 and the documents set out in that Case Outline. She also relied upon her tender bundle of documents.
The ICL relied upon her Case Outline filed 25 October 2021, and the documents set out in that Case Outline, including the Child Inclusive Conference Memorandum dated 5 August 2021, and ICL’s tender bundle.
PROPOSALS
The Father sought interim Orders in accordance with his Minute of Interim Orders sent to the Court on 28 October 2021; he sought interim Orders that:
1.That the parties retain joint and equal parental responsibility for the children.
2.That the children live with the Mother.
3.That the Father spend time with the children as follows:
(i)Telephone contact with X and Y for up to 15 minutes with each child between 6pm and 7pm each Sunday commencing 31 October 2021;
(ii)Face to face contact with the children at an agreed place and with an agreed supervisor or, failing agreement, under supervision at a contact centre from Saturday 27 November 2021 each second Saturday for a period of two (2) hours;
(iii)From the commencement of the school term in 2022, that is, from Saturday 29 January 2022, the father have unsupervised time with the children from 11am until 3pmeach second Saturday.
4.That Y be informed by the Mother that the Father, and not Mr D, is his natural father.
5.That the parents both comply with the constraints and courses set out by the Independent Children's Lawyer in her proposed Minute of Order, with the exclusion of the constraint upon informing Y that Mr Laurent is his father.
The ICL sought interim Orders as set out in her Case Outline as follows:
1.That the children X born in 2008 and Y born in 2015 live with the Mother.
Spend time with Orders
2.That the children spends time with the Father in accordance with their wishes.
Restraints
3.That without admissions, each party be restrained from discussing these proceedings or any issues arising out of these proceedings with the children or permitting any third party to do so.
4.That each party shall be restrained from discussing matters in relation to Y’s paternity with the child or permitting their respective partners to discuss matters in relation to the child’s paternity with the child, save for with Y’s psychologist, Ms E.
Courses
5.That within 7 days of these Orders, both parents shall enrol into parenting programs in either ‘Keeping kids in mind Program’ (F Centre), Parents not Partners (G Centre) or Parenting after Separation (H Centre) and use their best endeavours to complete the programs.
6.The Mother shall within 28 days from date of these Orders engage with Y’s psychologist, Ms J for purposes of obtaining recommendations about managing Y’s knowledge about his paternity in the future.
7.Leave to the Independent Children’s Lawyer to provide a copy of the Child Inclusive Memorandum prepared by Family Consultant K dated 5 August 2021 to the children’s treating psychologists.
8.That pursuant to s 62G of the Family Law Act, a family report be prepared in the usual Order.
The Mother supported the ICL’s proposed Orders.
EVIDENCE INCLUDING THE PARTIES’ RESPECTIVE ALLEGATIONS
The Mother alleges that the Father has had no relationship with the children for 4 years. It was submitted by the Father’s solicitor that the Father has not spent time with the children for about 4 years.
The Mother is aged 44 years. The Father is aged 48 years and describes his occupation as a professional.
The Father asserts that he is seeking to renew his relationship with the children.
The Father asserts that the parties’ final separation was in August 2015. The Mother left taking the 4 children with her.
The Father refers to an incident involving Ms B on 8 March 2017. He asserts that the Mother had asked him to remove a mobile phone from Ms B. The Father asserts he asked Ms B for the phone and when she would not give it to him he tried to take it from her. He asserts that Ms B and himself then wrestled for the phone. He denies striking Ms B or intending any harm towards her.
The Father asserts that he sees a psychologist who has assisted him in dealing with loss of contact with the children and the break up of the marriage.
The Father asserts that he accepts that his reintroduction to the children will need to be gradual and that it may be best if he has short periods of supervised contact with them initially.
The Father asserts that the Mother was the primary carer for the children.
The Father refers to an incident with the Mother in 1997. He asserts there was an argument and the Mother started ranting at him, so he used one arm to pin the Mother by the upper chest. He alleges that at no time did he attempt to affect the Mother’s breathing.
The Father refers to the Mother’s daughter from a later relationship being L. He asserts that the Mother has separated from the Father of this child.
The Father asserts that he only resorts, “to violence angry under severe provocation where no opportunity for withdrawal is available”.
The Father asserts, in relation to the incident with Ms B in 2017, that after Ms B had been yelling and swearing at the Father, he did push Ms B out the door but she did not fall down the stairs.
The Father asserts that he continues to see his psychologist on an occasional basis. He asserts that he finds his time with his psychologist very helpful in dealing with the anguish brought up by the Court proceedings.
The Father asserts that the children suffer from some degree of high functioning autism. The Father asserts that he also suffers from some of the signs of autism spectrum disorder which have been identified in the children. He asserts that he too is easily hurt and is cautious therefore about getting too close to other people.
The Father asserts that the wife’s alleged betrayal of him by having sex with his then boss destroyed his self belief, so that, like the child X, he became depressed and suicidal.
The Father asserts that he believes it is most important for the children to spend time with him and see that it will be possible for them to have fulfilling lives despite their autism.
The Mother alleges in her Affidavit, and to the family consultant, that in 1998 she attempted to talk to the Father about a matter when the Father allegedly put her up against a wall and placed his hands around her neck yelling in her face at which time she ran from the home. This alleged incident appears to be the same incident referred to by the Father which he alleges occurred in 1997.
The Mother alleges that the child X was diagnosed with autism in June 2012 by Dr M, paediatrician.
The Mother alleges that the Father’s mental health was parlous in about July 2013 when he was briefly admitted to the N Hospital.
The Mother alleges that she began a relationship with Mr D in 2015.
The Mother alleges that in March 2016 she went with the Father to his counselling appointment. She alleges the Father told her he was not stable and not right. She alleges that the Father wanted to go to a soccer game but did not want Mr D there and said if he was there, he would not be responsible for his actions as he may snap.
The Mother alleges that in March 2016 the Father spoke to her on the telephone; she alleges that he was crying and saying he had no one and he thought about jumping off Suburb O Centre top car park level. The Mother alleges that the next day the Father told her that he had called the suicide helpline.
The Mother alleges that the parties attended parenting mediation in March 2017.
The Mother alleges that a paternity test for the child Y was completed in October 2018 with results indicating the Father was this child’s biological Father. She alleges that her solicitors informed the Father of the results at about that time.
The Mother alleges that in March 2021 the child X broke down sobbing in tears because he was so anxious about what was going to happen and being made to see the Father.
The Mother alleges that routine and structure and stability are critical for the children, especially with their diagnosis of autism spectrum disorder.
The Mother alleges that the child X attends Year 7 every school day as well as, inter alia, the following: speech therapy, fortnightly; OT, fortnightly; psychology, fortnightly; GP appointments, when required; paediatrician appointments twice a year; starting outings with a support worker/mentor for daily life skills and social participation. She alleges that the child Y, now in kindergarten, has similar attendances for speech therapy, occupational therapy, psychology and paediatrician appointments.
The Mother alleges that the children need to be in familiar surroundings and any change and disruption to their routine is very distressing for them to cope with. She alleges that the boys struggle with sensory issues and emotional regulation and anxiety with separation.
The Mother alleges that the child X only vaguely remembers living with the Father from November 2014 to August 2015. The Mother alleges that the child Y has no knowledge or familiarity with the Father.
The Mother alleges that the children have both started primary school and high school this year. She alleges that this transition to school is a priority and all efforts have gone into making sure the children are well supported and adapt to this big life change as smoothly as possible. She alleges that the boys’ routine and structure is key to the boys functioning and coping. The Mother alleges that the children’s education is crucial and already the child X has started to withdraw, struggle and regress with the added stress and anxiety of the possibility of the Father coming back into his life.
The Mother alleges that the children have both been diagnosed with autism spectrum disorder, DSM IV, level 2, and asthma.
The Mother alleges that she is the sole carer for the children, she is on a carer payment and reliant on Centrelink for financial assistance. She alleges that she has been a stay-at-home Mother and carer for all of the children. She alleges that she has made sure the children’s health is a priority, that they have access to the NDIS for supports and therapies and that their education needs are the best for them and can cater for their additional needs.
The Mother annexes to her Affidavit reports of the children’s treating psychologists.
The report from psychologist Ms J, relating to the child Y, and dated 4 April 2021, states, inter alia, that information and test results contained within the report were collected to inform psychological treatment by a provisional psychologist under the primary supervision of registered psychologist Ms J.
The report refers to the child Y believing Mr D is his biological Father with a healthy relationship noted.
The report refers to the child Y attending three appointments in March and April 2021. The report refers to this child observed to experience issues with changes to his routine and experiences some degree of separation anxiety from the Mother. The report states that changes to this child’s routine reportedly manifest as anxious behaviours, such as nervousness, restlessness and crying.
The report refers to a report dated 19 November 2020 from the child’s paediatrician; the report refers to this child having autism spectrum disorder with level 2 severity requiring substantial support; problems with emotional regulation, socialisation, and communication skills, poor fine motor skills. The report refers to another report from the child’s paediatrician dated 19 June 2018 in which it is stated, inter alia, that the child Y is fairly rigid in his thinking and behaviour, exhibits fixed interests, and needs to have the same fixed routine every evening.
The report refers to psychological intervention completed to date for Y. The report refers to the impacts of ASD on the child including some restriction in processing verbal instructions, limitations and verbal communication, difficulty and organisation, inattention and emotional dysregulation. It refers to this child experiencing emotional dysregulation when presented with changes to routine or abstract concepts.
The report refers to the possible reintroduction of the Father to Y. The author states her opinion that this may be perceived as both abstract and a significant change to routine (for the child), as it is likely that this may heighten the child’s level of emotional dysregulation. The report states that the reintegration of the Father is likely to create a significant change to the child’s routine and consequently, a degree of distress beyond what would be typical of a neuro typical individual. It states that this likelihood is further heightened by the child’s bottom-up processing style.
The report makes recommendations for legal matters around parenting/care arrangements. It recommends that any decisions around the possibility of reintegration of the Father to the child be strongly considered in light of, inter alia, the child’s established diagnoses, and high needs for support (and likely exacerbation of presenting symptoms and disability due to emotional dysregulation surrounding reintroduction of the Father, whom the child does not know, into his life), and the Father’s long absence in the child’s life (4+ years).
The report states that the impact of the psychological stressor of the Father attempting to re-enter his life will impact the child’s ability to emotionally regulate as it would for any neuro typical child. The report states however, that given the child’s diagnoses, it was likely that he will be more sensitive to rapid change in his environment, and his current needs for certainty, predictability and rigidity of routines will increase beyond that of a neuro typical child.
The letter dated 16 February 2021 in relation to the child X, the author Mr P, psychologist, states, inter alia, that the letter aims to capture the psychological impact upon X given his changing home environment, and how it has been assessed to impact him at home, school and the wider community. He states that the letter is written due to the reintroduction of the Father into the child’s life.
The letter states that the child X has informed the author that he has limited memory of the Father. He stated that he feels like he is meeting someone for the first time. The author states that this child is drawing upon his experience of observing the negative emotional impact observed when the Father periodically entered and exited his older siblings’ lives, and the negative emotional impact this caused. The author states that this child is anticipating that contact with the Father will promote similar distress within himself and the greater family.
The letter of 26 April 2021 from Mr P, psychologist, regarding the child X, states, inter alia, that the letter is written due to the possible reintroduction of the Father into this child’s life. The author refers to having acted as this child’s psychologist for the last six months, completing fortnightly visits at his home. Appointments are funded under this child’s NDIS plan.
The author states that he has assessed this child’s profile of need, inter alia as follows: need for consistency and predictability to be met for much of the time, an understanding of his highly concrete thinking, in that he experiences high levels of distress if he is asked to participate in activities in which he is not provided clear, actionable steps, difficulty verbalising emotional experiences, emotional regulation difficulties specifically regarding the interruption of desired activities, such as soccer.
Under the heading “impact of possibility of contact with Father”, the author states, inter alia, that he conducted a clinical interview with X on 23 April 2021. The author refers to this child reporting, inter alia, feeling a lot of anxiety of late, experiencing the somatic symptoms of unrest in stomach, likens the prospect as like meeting a stranger, the child reported that it was the change of routine that was the most typical element of his Father returning, he stated he was fearful of the general interruption to life and schooling, and reported that he just wants things to stay the way they are now, and have been for the last several years. The child stated that he cannot think of a positive impact that will come with the Father returning. When asked about the impact of not having the Father in his life, the child stated that this would allow him to return to normal life. He stated, “like I was before going to high school, I was just focusing on doing normal things.” The author states that during this questioning phase, the child was highly distressed, tearful, and he made the decision to discontinue questioning, noting that further questioning would cause significant emotional distress with little additional information gained.
The author states under the heading “Psychological opinion”, that from his clinical assessment, and his contact with the child X over the past several months, he notes the significantly negative impact that the reintroduction of the possibility of contact with the Father is having. He states that the child X has expressed the opinion on multiple instances in which his preference would be to not have contact with the Father. The author states that further, the child is struggling with the uncertainty, and the possibility of the interruption to highly desired activities in order to complete contact. The author states that it is his clinical opinion that the child X have no contact with the Father; he states that such contact will be unlikely to develop a meaningful relationship given the history of (alleged) domestic violence, and interruption to the established routine.
CHILD INCLUSIVE CONFERENCE MEMORANDUM
A Child Dispute Conference was held on 2 August 2021.
The Mother made allegations of alleged family violence by the Father.
The Mother made allegations of alleged family violence by the Father towards Ms B in 2017.
The Mother reported to the family consultant that she currently receives counselling for stress-related issues, in relation to the recent breakup with Mr D, who is the Father of her four-year-old daughter, L, parenting two children with additional needs, and due to the anxiety and stress of the Court proceedings. The Father reported that he sees a counsellor occasionally.
The family consultant stated that both parents reported that they felt uncertain about how communication between them would take place, due to the relationship difficulties they previously experienced. The Father reported that he does not trust the Mother and they have not spoken for about four years.
The family consultant interviewed the child X, age 12 years and 8 months. The child stated he could not recall good memories of the Father, and said that he had many bad memories of the Father. When asked by the family consultant about the proposal to spend time with the Father each week, the child explained that he would feel sad and anxious about this, a mix of emotions, no happiness and that this was because he had not seen the Father in a long time. The child further stated it was because they do not have much in common, he has bad memories of the Father, and it would be awkward. The child said there would be no way it would be easier even if the time spent was supervised.
When asked how he would feel if he did not see the Father again, X said that this would make him very happy. The child stated that his life was going well at the start of the year and that he had been enjoying school. He reported that this changed when he became aware that he might have to see the Father again; he became anxious for himself, Y and the Mother, and he began feeling less inclined to want to get up and go to school in the mornings.
The Father reported seeing the children on occasion in 2016/2017 when it suited them, and that he found it difficult to deal with the Mother.
The Mother stated that the child Y has a diagnosis of autism spectrum disorder (ASD), level II, and experiences a separation anxiety in relation to her. She said that due to his diagnosis of ASD, his thinking is rigid, and he requires structure and routine. She reported that this child has sensory and social issues, experiencing difficulty making friends, he also gets upset easily and has difficulty self-regulating.
The Mother reported that the child X also has a diagnosis of ASD level II, and can be uncomfortable with verbal communication. The Mother stated that due to this X recently texted her to tell her he had been feeling depressed and suicidal, and had used a necktie to tighten around his neck, he also spoke of wanting to slit his throat, and attributed his suicidal feelings to the possibility of having contact with the Father. The Mother reported that X is currently taking medication and seeing a psychologist.
Under the heading “Future directions”, the family consultant stated, inter alia, that from the reports provided by the Mother and from the child X’s presentation, particularly in the context of X’s age, and his expression of clear views, it appears likely that he has experienced difficulties with his mental health and this is likely to be related to the parenting dispute. She stated that it may assist X if he is able to continue to access support services as required.
THE MOTHER’S TENDER BUNDLE DOCUMENTS
The letter from Mr P, psychologist, dated 28 May 2021, in relation to the child X, refers to the Father seeking to communicate with the children through a short handwritten note to each of them. The author states that he was contacted following the Mother’s concerns regarding the psychological impact of the child X replying to such communication.
The author states, under the heading “Psychological recommendations”, that he does not support X receiving this communication, and nor does he support X engaging in providing a response. He states as follows:
Justification for this is that X is currently experiencing severe psychological distress in response to his Father reinitiating contact in legal proceedings. In my recent appointments with X he has articulated great anxious rumination and stress regarding the possibility of needing to live with his Father. He is highly anxious regarding the possible disruption to his established routine, and fearful of the possibility of him having, reportedly, unwanted contact with his Father.
In recent weeks X has reported to me during our sessions, to his Mother, and to his general practitioner the presence of feeling overwhelmed, emergence of depressive symptoms, and expressing suicidal ideation, with him also expressing self harm behaviours. He has reported to myself, and his Mother that on two occasions he has attempted to strangle himself with the school tie, on the second occasion resulting in an abrasion to his neck near his Adam’s apple. Upon psychological evaluation X has reported that he does not have an intent to die, yet rather was using the abrasive stimulus of strangulation towards responding to intrusive and distressing thoughts of his routine being changed and the possibility of needing to live with his Father.
My clinical judgement dictates that engaging in, at this time, an unwanted written communication relationship with his biological Father will further result in a deterioration of X’s mental health. I anticipate that X being required to reply will result in the strengthening of the narrative that he is powerless, and result in a further worsening of his symptoms.
The report of X’s treating paediatrician, Dr M dated 20 April 2021, states inter alia, that this child had commenced Year 7 and started off the year well. She states that, however, everything became unhinged when X became aware of an impending Court case where his biological Father was attempting to have visitation rights with X by means of supervised visits on a fortnightly basis. The doctor states that X has been highly anxious and sad to know about this Court case and the impending change to his life arrangements. The doctor states that the child is a young boy with autistic spectrum disorder who becomes easily distressed if his routine changes in any way. The doctor states the child has no very clear memories of his biological Father. The doctor states the child has therefore become highly anxious and she has suggested that the Mother bring this up with the child’s counsellor. The doctor states that academically the child is doing very well at the beginning of the year, but again his learning seems to have been affected by the impending Court case. The doctor states that she feels that the child X is doing very well in general, but has been affected adversely by the impending possible big life change and impending Court case. She states that she thinks that the child needs counselling, close observation, and if possible, maintenance of his current home environment, which provides him with stability, which is what this child needs at the moment.
The report of Dr Q dated 30 August 2021 refers to the child X, inter alia, having depression and anxiety and taking one tablet daily of prescribed antidepressant. The report refers to regular respite will benefit X with his emotional regulation and coping skills due to his diagnosis of autism, depression and anxiety and is critical for his mental health and well-being.
The report of Dr M paediatrician dated 18 May 2021 in relation to the child Y, refers to the child’s background history of ASD, requiring substantial support, socialisation, emotional regulation, and communication issues, and poor fine motor skills. The doctor referred to the child’s issues with learning as would be expected. She referred to this child struggling with reading. She refers to the child having had speech and occupational therapy which services were temporarily suspended.
THE ICL’S TENDER BUNDLE
A report dated 20 May 2021 from psychologists Ms E and Ms J in relation to the child Y states, inter alia, that at this child’s most recent consultation on 13 May 2021, the Mother expressed concerns for the child’s emotional well-being as a result of the Father writing a letter to the child. The report refers to the impacts of ASD on Y including, inter alia emotional dysregulation, and that the child experiences emotional dysregulation when presented with changes to routine or abstract concepts.
The report states the opinion that the recent letter written by the Father may be perceived by Y as both abstract given the lack of previous contact between this child and the Father, and a significant deviation to routine which is likely to result from accommodating information that Y has a biological Father that is not known to him. It was therefore highly likely that the presentation of the letter will heighten Y’s level of emotional dysregulation, and create distress. The report states that the verbal reintegration of the Father, via this written letter, is likely to create a significant change to Y’s routine and consequently, a degree of distress beyond what would be typical of a neuro typical individual. This likelihood is further heightened by Y’s bottom-up processing style.
LEGAL PRINCIPLES
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286.
In Marvel & Marvel (No 2) [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and Orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting Orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting Orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 50, “When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors”.
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). In this context the Court refers to its discussion above in relation to Banks & Banks.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2), the primary considerations, and (3), the additional considerations. In this context the Court refers to its discussion above in relation to Banks & Banks.
Section 60CC(2) provides:
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents;
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Further, and importantly in this case, s 60CC (2A) provides:
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (2)(b).
DISCUSSION
As to the meaningful relationship primary consideration under s 60CC(2)(a), the children have a meaningful relationship with the Mother, the Mother having been the children’s primary carer from birth to date, and the children will likely benefit from a continuance of those relationships with the Mother.
The children do not presently have a meaningful relationship with the Father not having spent time with him for about four years. The child Y is not aware that the Father is his biological Father.
There is a suggestion, on the material before the Court, that prior to about 4 years ago, X may have had a meaningful relationship with the Father.
The children may, prospectively, benefit from having a meaningful relationship with the Father if it is safe, physically and psychologically, for them to do so.
As to the need to protect primary consideration under s 60CC(2)(b), in the view of the Court, at this interim stage, there is a significant risk of psychological harm posed to the children in having telephone contact with the Father and/or spending time with the Father, whether supervised or unsupervised.
In relation to X, who is a vulnerable child who suffers autism spectrum disorder, level 2, there is a significant risk that he will experience significant psychological harm should he be presently reintroduced to the Father, whether through telephone contact or face-to-face contact whether supervised or unsupervised. On the material before the Court, there is a significant suggestion that X has experienced adverse mental health this year, including attempted self-harm, having learned that the Father was seeking to spend time with him.
In the case of Y, who is also a vulnerable child who suffers autism spectrum disorder, level 2, there is a significant risk that he too will experience significant psychological harm should he be presently reintroduced to the Father, whether through telephone contact or face-to-face contact whether supervised or unsupervised. And again, Y is unaware of his true paternity.
The Court is also of the view that there is an unacceptable risk of harm that the children, or either one of them, may be exposed to family violence at the instance of the Father if spending unsupervised time with him.
In relation to the above discussions as to risk of harm, the Court takes into account the contents of the treating psychologists’ reports regarding the children, the contents of the GP’s report, the content of the paediatrician’s reports, and the content of the family consultant’s Memorandum, with the Court acknowledging that those reports are untested at this interim stage. The Court also takes into account the Mother’s allegations in her Affidavit and in her statements to the family consultant in relation to the children (see for example, paragraphs 23 and 24 of the CIC Memorandum relating to the children’s autism diagnoses and X’s alleged text message to the Mother in relation to his depression, suicidal ideation and self-harm). The Court takes into account the Mother’s allegations against the Father of family violence both as against herself and as against the parties’ daughter Ms B. The Court takes into account the Mother’s allegations against the Father relating to his mental health including previous alleged suicidal ideation, and alleged anger issues of the Father. The Court takes into account, at this interim stage, the Mother’s allegations and the untested expert evidence previously referred to, relating to the children, who suffer autism, requiring the consistent maintenance of routine and structure in their lives (including in relation to their schooling) and their difficulties coping with change.
The Court again indicates at this interim stage that in applying the primary considerations under section 60CC, the Court is to give greater weight to the need to protect primary consideration, and in this particular case, it does so. The Court gives significant weight to this need to protect primary consideration at this interim stage.
The Father acknowledges his delay in seeking Orders in relation to the children, however he submits that his attempts to be reintroduced to the children were persistently rebuffed by the Mother and he also suffered from depression. The Mother disputes at least the former contention. The Court cannot resolve that factual dispute at this interim stage.
The Court acknowledges that the Father, through his proposed Minute of Interim Orders, is seeking to gradually be reintroduced to the children, including through initial telephone contact. However, the Court, at this interim stage proposes to act cautiously and conservatively in relation to these two vulnerable children and it refers to its above discussions as to risks of harm. In the view of the Court, the ICL’s proposed interim Order that the children spend time with the Father in accordance with their wishes will enable the children to be introduced to the Father safely and in circumstances where they are psychologically ready for that to occur.
The Court takes into account the views of X as expressed to the family consultant, including his views in relation to the Father.
In the view of the Court, the ICL’s proposed Order 6 that the Mother engage with Y’s psychologist for the purposes of obtaining recommendations about managing his knowledge about his paternity in the future will be an Order in the best interests of this child because that paternity issue is a delicate and sensitive issue, with potentially serious psychological ramifications for Y, and which needs to be managed by the Mother at this interim stage with professional guidance.
At this interim stage, it will not be in the best interests of the children to make an Order for parental responsibility, and observing that there is no major decision looming for these children. Having regard to the Court’s above discussions in relation to the need to protect primary consideration, it will not be in the best interests of the children to make an Order for equal time, nor substantial and significant time, with the Court observing that no party sought such Orders.
Having regard to the Court’s above discussions under the primary considerations, in particular the need to protect primary consideration, there is force to the submission of the ICL that a family report and quite possibly other expert evidence may be of considerable assistance to the Court in assessing, inter alia, the implications to the children of spending time with the Father.
The ICL’s proposed restraint Orders (proposed Orders 3 and 4) will be Orders in the best interests of the children and proper, particularly taking into account the vulnerabilities of each of these children and the eldest child’s alleged psychological reactions in relation to spending time with the Father.
For about the last 4 years, the Mother has been the children’s most satisfactory and attentive primary carer and has been making the major decisions for these children. Again, there is a dispute between the parties as to the extent to which the Father sought to spend time with the children and be involved in their lives post separation.
The Father, through his proposed Order 5, was content to complete one of the courses proposed by the ICL in her proposed Order 5, and such an Order will be in the best interests of the children.
These Reasons have discussed the relevant considerations under section 60CC of the Act. Evaluating such discussed relevant considerations, it will be in the best interests of the children to make the following interim parenting Orders:
1.That the children X born in 2008 and Y born in 2015 live with the Mother.
2.That the children spend time with the Father in accordance with their wishes.
3.That without admissions, each party be restrained from discussing these proceedings or any issues arising out of these proceedings with the children or permitting any third party to do so.
4.That each party shall be restrained from discussing matters in relation to Y’s paternity with the child or permitting their respective partners to discuss matters in relation to the child’s paternity with the child, save for with Y’s psychologists.
5.The Mother shall within 28 days from the date of these Orders engage with Y’s psychologists for the purposes of obtaining recommendations about managing Y’s knowledge about his paternity in the future.
6.Leave to the Independent Children’s Lawyer to provide a copy of the Child Inclusive Memorandum dated 5 August 2021 to the children’s treating psychologists.
7.Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by August 2022.
8.The Family Report shall deal with the following matters:
(a)Any views expressed by the child(ren) the subject of parenting Orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the child(ren) with each of the child(ren)’s parents and with significant other persons;
(c)The willingness and ability of each of the child(ren)’s parents to facilitate and encourage a close and continuing relationship between the child(ren) and the other parent.
(d)The likely effect of any changes in the child(ren)’s circumstances, including the likely effect on the child(ren) of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the child(ren) has/have been living.
(e)The practical difficulty and expense of the child(ren) spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child(ren)’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)The capacity of each parent, or another person, to provide for the needs of the child(ren), including emotional and intellectual needs.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child(ren) and of either of the child(ren)’s parents and any other characteristics of the child(ren) that the reporter thinks are relevant.
(h)Each parent’s attitude to the child(ren) and to the responsibilities of parenthood.
(i)Any family violence involving the child(ren) or a member of the child(ren)’s family.
9.The parties shall attend all appointments with the Family Consultant and shall ensure the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.
10.The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.
11.The matter is to be listed on a date to be advised following release of the Family Report.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 18 November 2021
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