Licha & Wunscher (No. 3)

FAMILY COURT OF AUSTRALIA

LICHA & WUNSCHER (NO 3)

[2007] FamCA 1056

FAMILY LAW – CHILDREN – Interim dispute about parent with whom child should live requiring evidence of child’s psychiatrist, school counsellor and cross examination of family consultant – wife’s new representatives not prepared to proceed – matter adjourned with costs and some incidental orders made by consent – assessment of matter as appropriate for Magellan list.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Licha

RESPONDENT:

Ms Wunscher

INDEPENDENT CHILDREN’S LAWYER:

Septimus Jones & Lee

FILE NUMBER:

MLF

6928

2003

DATE DELIVERED:

4 September 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

4 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms L. Dorian

SOLICITOR FOR THE APPLICANT:

Pearsons Schetzer & Associates

COUNSEL FOR THE RESPONDENT:

Ms O. Nikou SC

SOLICITOR FOR THE RESPONDENT:

Michael L Maplestone

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Mr P.A. Marchetti

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Septimus Jones & Lee

THAT UPON THE COURT ACCEPTING THE UNDERTAKING of the mother’s brother given personally this day that he will pay the cost of attendances upon Dr R for the purposes of compliance with court orders being paragraph 18 and 19 of the Order made on 14 February 2007 and orders made this day, in the event that the mother fails to pay Dr R’s fees by the due date.

IT IS ORDERED:

That I adjourn the further hearing of the competing interim applications in relation to parenting orders to Thursday 13 September 2007 at 10am before the Honourable Justice Carter, estimated to take not less than a full day.
That until 6:00pm on the adjourned date the child … born … August 1999 spend time with the father on a continuing basis subject to any order of the Court.
That pending the adjourned date the mother be and is hereby restrained by herself her servants or agents from approaching within 50 metres of the child’s school, or from contacting or communicating with the child other than in accordance with this Order.
That I assess this matter as a matter appropriate to include in the Magellan list of cases.
That this matter be listed before the Honourable Justice Brown and the Magellan Registrar in the Magellan directions list on 16 November 2007 at 10am for case management noting that it is the intention of the mother to seek an expedited hearing.
That documents produced to the court this day in compliance with subpoenae be released to the parties and practitioners for inspection and photocopying.
That I extend to Thursday 13 September 2007 at 10am subpoenae to give evidence directed to Ms S of the child’s school and Dr R, psychiatrist provided that neither recipient attend court at 10am on Thursday

13 September 2007 unless requested to do so by the independent children’s lawyer in writing by 9am the day prior being Wednesday 12 September 2007.
That by 3pm on Tuesday 11 September 2007 the mother and the father each file and serve an affidavit in which they depose to with precision the abuse or risk of abuse (if any) that he or she contends is/are relevant to these proceedings and that, otherwise, each be relieved from filing a Form 4 Notice of Risk of Child Abuse.

BY CONSENT IT IS ORDERED:

That pending the adjourned date the mother be entitled to spend time with the child on a fully supervised basis at G on one occasion if and when that opportunity arises.
That the mother and the father each do all acts and things necessary to attend upon Dr A, psychiatrist for the purpose of an assessment of each of them as to their mental health, psychological and psychiatric functioning and any other condition in which the opinion of Dr A may affect or impair the capacity of the mother and/or the father to parent the child.
That each party be solely responsible, vis a vis the other, for the reasonable cost of the psychiatric assessment of himself or herself and cause to be deposited with his or her solicitor at least 48 hours prior to his/her scheduled attendance upon Dr A an amount equivalent to the estimated fees of Dr A as advised by the independent children’s lawyer.
That for the purpose of the assessments of the parties by Dr A:-
(a)The mother attend upon Dr A at his rooms at 9am on Friday 7 September 2007;
(b)The father attend upon Dr A at his rooms at 1pm on 21 September 2007 –
Or at such other times and on such other dates as Dr A or the independent children’s lawyer may notify the mother or the father in writing. IT IS NOTED that Dr A anticipates his report to be available on Friday 28 September 2007.
That when the reports of Dr A are made available to the independent children’s lawyer, the independent children’s lawyer forthwith send a copy of the reports to the Court marked to the attention of the Magellan Registrar requesting that the reports be placed on the Court file in anticipation of affidavit evidence following in due course.

IT IS FURTHER ORDERED BY THE COURT:

That any party including the independent children’s lawyer who seeks to rely on further affidavit material on the adjourned file and serve such material by not later than 3pm on Tuesday 11 September 2007 and thereafter only with leave of the Judicial Officer who presides on 13 September 2007.
That until further order the father be responsible for delivery of the child to the rooms of Dr R for the purpose of her attending any interviews or consultations with Dr R in compliance with paragraphs 18 and 19 of the Orders made on 14 February 2007 noting that the mother remains solely responsible for payment of any professional fees subject to the undertaking given this day by her brother.
That within 30 days the mother pay the father’s costs thrown away today which I fix in the sum of $796.00 and do so by cheque payable to the father’s solicitors.
That within 30 days the mother pay the costs of the independent children’s lawyer thrown away this day being:-
(a)The sum of $1,235 being the brief fee of Mr Marchetti;
(b)The proper costs as invoiced by Dr R for his attendance at court today and by the child’s school for the attendance of Ms S at court today such cost to be invoiced within 7 days of service upon Dr R and the said school of a sealed copy of this Order and in the event that there is a dispute as to quantum of costs, that dispute be determined by the Judge who is presiding on first mention of this matter in the Magellan list subject of course to her discretion to otherwise adjourn the issue of quantum of costs to the learned trial Judge presiding at the final hearing.
That the independent children’s lawyer serve a sealed copy of this order on

Dr R and the proper officer of the child’s school drawing their attention to provision for their expenses of today to be paid and invoiced within 7 days.
That my reasons for judgment this day be transcribed and when transcribed a copy be sent to each of the parties.
That pursuant to section 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 and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

IT IS NOTED INCONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Licha & Wunscher (No 3).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6928 of 2003

MR LINCHA

Applicant

And

MS WUNSCHER

Respondent

REASONS FOR JUDGMENT

(ex tempore)

This matter concerns a child born in August 1999 and today is the return date of the father's application for an interim change in parenting orders so that the child resides with him.
The purpose of this matter being listed today was to permit cross‑examination of Ms W, family consultant, by the mother, the father and the independent children's lawyer, it being the case that Ms W gave evidence briefly on 29 August 2007 and then delivered an oral report to the Court on 30 August 2007. On 30 August 2007, the mother’s then solicitor, applied for an adjournment of the matter to yesterday to enable him to retain counsel and to prepare the mother’s case. Because the child’s psychiatrist, Dr R, was not available yesterday, I adjourned the matter until this morning.
Dr R was also to be cross-examined today, by all parties, in relation to his reports which are annexed to his affidavits sworn respectively on 15 June 2007 and 17 December 2006. Dr R is in Court. Finally, it was also arranged that the child’s counsellor from her school would attend Court today to provide evidence inclusive of cross examination in relation to her dealings with the child. She has done so.
Ms Dorian, solicitor, appears as counsel on behalf of the father. Her firm, which is Pearsons Schetzer & Associates, having filed a notice of address for service on behalf of the father today.
Ms Nikou of senior counsel appears on behalf of the mother. She is instructed by Michael Maplestone, solicitor, who filed a notice of address for service on behalf of the mother yesterday.
The independent children's lawyer, Kate Mitchell, remains represented by Mr Marchetti of counsel.
These reasons set out the basis upon which I have acceded to an application by the mother that today's proceedings be further adjourned and have adjourned the matter to the next available single hearing day, being Thursday,

13 September 2007.
I also propose to capture some of the procedural history of the matter, given that it is a large court file and I have assessed this matter as appropriate for inclusion in the Magellan List of cases conducted by the Court. So, whereas

I make findings in support of determining the mother’s application for an adjournment, where I discuss the earlier history of these proceedings about the child, those statements do not constitute findings of fact.
The matter first came before me on 29 August 2007. It was transferred from the judicial duty list by Guest J who had disqualified himself from further dealings with the matter. I note for future listing purposes that Mushin J has also disqualified himself.
Wednesday, 29 August 2007 was the adjourned hearing date of a contravention application which had been issued by the father and in respect of which I gave him leave to withdraw whilst at the same time permitting him to file an application for a change in parenting orders on an interim and final basis. His parenting application is folio 110 on the court file.

History

The husband is 52 years of age, having been born in Iraq in July 1954. He entered Australia and has lived here since 1977. He lives at E, with his partner, who is 46 years of age. They are engaged to marry. The father is employed as a manager for four days a week at a shop. He earns approximately $450 per week gross or $400 per week net. He pays no child support and says that that is because he has been assessed at paying nil; not the statutory minimum amount, but nil.
The mother is 46 years of age, having been born in Australia in March 1961. She resides at T, with her elderly mother and her brother. She is a self-employed health worker working part time and estimates that in the last financial year her income was approximately $23,000 net of expenses, which is an income of about $422 per week.
The child, as indicated, was born in August 1999. She is a student in grade 2 L School. She is a troubled child who sees the school counsellor regularly and in respect of whom orders were made, by consent, on

14 February 2007
which provide that she see Dr R, psychiatrist, regularly. A significant issue in the present proceedings is that the mother took the child to Dr R on three occasions, but not since 21 March 2007.
When the matter first came before me last week, both parties were self-represented. Mr Marchetti indicated that he had a fairly detailed history of the matter and I took that history from him on the basis that each parent would be invited at the completion of Mr Marchetti's address to tell me what parts of the history were inaccurate or wrong. I am drawing on that history for the purpose of historical details, it being the case that after Mr Marchetti was finished neither party drew to my attention anything particularly relevant as being amiss with Mr Marchetti's version of events.
The mother and the father met in June 1997.
They commenced to reside as a couple in May 1998. They never married.
The child was born in August 1999. The parents separated on 15 April 2002 when the child was about two and three-quarter years old.
In June 1999 there was an agreement between the parties which determined financial issues and some child matters. That the agreement included the child living with the mother.
The proceedings in relation to the child were commenced in the Federal Magistrates Court by the father in April 2003 at which time he sought orders for the equivalent of shared parenting. The mother filed a response some time after that, but by May 2003, orders were made on a consensual basis providing that the child live with the mother and spend unsupervised time with the father from 9am to 5pm on Sundays and 4pm to 7pm on Wednesdays.
On 27 June 2003 the first notification in relation to the child was made to the Department of Human Services. The notification was in relation to exposure to psychiatric illness and emotional trauma. The case was closed shortly after the notification.
On 29 September 2003 the mother notified the Department of Human Services that the child had disclosed that the father had sexually abused her. The mother unilaterally ceased contact between the father and the child. The father thereafter filed a contravention application which was subsequently withdrawn. There were various hearings and adjournments. It appears that on 20 November 2003 a notification was made by the child’s school in relation to concerning behaviours by the child at school, including wetting and soiling and the child being distressed.
There was a fourth notification to the Department of Human Services on 19 December 2003.
It appears that after 24 December 2003 the Department of Human Services substantiated the notifications that the child was at significant risk and, thereafter, contact between the child and the father was either non-existent or supervised. Apparently the father was being cooperative with the Department of Human Services by attending a planning meeting with the Department. The Department of Human Services referred the child for treatment at the Sexual Assault Centre but the Sexual Assault Centre refused the referral because of the then extant court proceedings. In June 2004, the matter was accorded priority for hearing.
As part of the Court's preparation of this matter for trial, Ms W, family consultant, prepared a report which was dated 19 August 2004. That was the first of five written reports by Ms W in relation to the child, the others being either dated or released on 21 April 2005, 6 March 2006, 13 October 2005 and an addendum report on 21 March 2006.
The matter was set down for trial on 31 January 2005, but adjourned to permit a further report by Ms W and an assessment of the parties by Dr K, psychiatrist. That psychiatric assessment was apparently to hand on 6 May 2005.
On 23 May 2005, I think the point of final hearing, an interim order was entered into by consent which provided for the father to spend time with the child on an increasing basis, first supervised and then unsupervised. The matter was adjourned to a pre-trial conference in August 2006 and the independent children's lawyer was discharged.
In August 2005 G accepted the family into its contact program.
In October 2005 the father sought different parenting orders, so that he could spend time with the child away from G and under the supervision of a friend of his, Ms O. There were various other applications filed by the father and then, in early 2006, Guest J became Judge manager of the then proceedings.
The matter came on for final hearing before Guest J in February 2007. By that stage there was evidence from G which had been sworn to by one Ms E in affidavits sworn on 27 January 2005 and 10 May 2006. There was evidence from Dr R, who had assessed the child and provided a lengthy report. There were also a further three reports by Ms W (making 5 in total).
At the final hearing before Guest J, Ms Dellidis of counsel appeared on behalf of the father, Ms Agresta of counsel appeared on behalf of the mother.

Ms Agresta was at that time instructed by Michael Maplestone, solicitor (who yesterday started to act for the mother again). Mr Mort of counsel appeared for the independent children's lawyer.
On the fourth day of the final hearing, the parties resolved the matter and sought that an order be made by consent. That order is on the court file, duly made 14 February 2007. The order provides that the child reside with the mother and the father spend time with the child on a gradually increasing basis. According to the order the father ought by now be spending time with the child from 4 pm on Fridays to 6 pm on Sundays and for the first week in the forthcoming September school holidays. However, the father has not seen the child since May 2007 at which point the regime had only been implemented to the unsupervised stage.
The order made on 14 February 2007 represented a resolution as between the parties of the then allegations and counter allegations in relation to sexual abuse. The notes to the order include the following:
These orders have been agreed to by all parties on the basis that it is acknowledged that this court has made no finding of sexual abuse in relation to the child upon application of the requisite standard of proof and further, that there is no unacceptable risk to the child in relation to any time spent with the father.
It was provided in the order that the independent children's lawyer would arrange for the child to continue to attend upon Dr R, psychiatrist, "for therapeutic and reportable purposes". Each parent was ordered to "abide the directions of Dr [R]" and fully cooperate with any treatment plan" and the mother be responsible for payment of professional fees relating to attendances by her and the child, with the father to be responsible for payment of professional fees relating to attendances of himself.
It was further ordered (in paragraph 20 of the order) that "the mother forthwith attend upon Mr [P] for therapeutic and reportable purposes in order to address the mother's parenting and her allegations of sexual abuse and further to attend, as directed, on a reasonable basis and be responsible for payment of any fees".
There was provision in the orders for Dr R and Mr P to liaise and discuss the matter generally.
At the time of making the order, on 14 February 2007, his Honour delivered some extensive reasons. The reasons are annexed to the affidavit of Kate Mitchell, sworn on 12 June 2007, and run to 291 paragraphs or 54 pages in the new format. It is as well for me to mention here that I have not read his Honour's reasons. When the matter was first before me it was in the context of a contravention application in which the father alleged that the mother had failed to comply with the order that enables the child to spend time with him and/or be treated by Dr R and that the mother had not attended upon Mr P. In that context, there was no reason to look behind the orders alleged to have been contravened.
I may well read Guest J’s reasons in the future. At this point no one has taken me to them. Furthermore, as I understand it, when his Honour delivered those reasons there was no live dispute between the parties which required determination. Absent a judiciable issue between the parties which required determination, it is not immediately apparent to me how his Honour’s comments would have assisted me up to this stage. Of course, that may change.

The appointment of the independent children’s lawyer came to an end with the final order made on 14 February 2007.
On 16 May 2007 the father filed an application (of sorts) in which he sought "for the respondent (mother) to follow court order regarding taking child to Dr [R], the reappointment of child rep Kate Mitchell and finally, Honourable Guest J dated 14 February 2007". It was probably an application seeking compliance with the existing orders but incompetently expressed. The father filed an affidavit in support of that application in which he alleged that the mother ceased taking the child to Dr R on 21 March 2007. The mother admits that is so.
On 12 June 2007 the independent children's lawyer Kate Mitchell swore an affidavit annexing, as I have indicated, those reasons of Guest J, but also a series of correspondence between herself and Dr R and the mother and the father. The correspondence was directed at compliance by the mother with the orders that the child attend regularly on Dr R.
There also is in evidence a letter dated 2 April 2007, tendered before me, from Kate Mitchell. Omitting formal parts it reads:
The report from Dr [R] indicates that he would need to meet with you to discuss the events of 21 March and to ensure that you are prepared to work within a workable therapeutic structure. As Dr [R] notes, you do not need to agree to all of his opinions, but your communications with him need to be respectful and appropriate. Dr [R] further notes that for the sake of [the child’s] treatment in his capacity to work with the family, the events of 21 March need to be addressed directly between you and himself. We note that you have indicated that you are unable at this stage to make an appointment for [the child]. We see nothing in your letter to suggest that you are unable to make an appointment to have the meeting with Dr [R], as suggested. We therefore ask you to make this appointment with Dr [R] as soon as possible. You should be aware that if you do not comply with our directions, which are following on from the orders of the court, it is possible that [the father] will recommence proceedings which would be most unfortunate in the circumstances of this case. Please confirm when the appointment has been made.
It is discussed in Dr R’s report which is dated 28 March 2007 and annexed to his affidavit sworn on 15 June 2007 that on 21 March the mother advised Dr R that she would terminate the child’s treatment. Dr R particularises that since the hearing on 14 February 2007 the child had attended on him on three occasions, being 27 February, 7 March, 14 March. He expresses the following opinions and makes the following observations:
I have found [the mother’s] management of [the child’s] therapy arrangements difficult. She has had difficulty accepting my directions about the structure of therapy, in particular whether sessions would be for [the child] alone or with herself and [the child]. I felt she did not accept it was my role to determine the structure of therapy. When I spoke to her about this she indicated she had great difficulty trusting me. The individual meeting with [the mother] on Wednesday 21 March was to discuss the purpose and structure of therapy for [the child].
At this appointment [the mother] essentially demanded I write to yourself indicating that the Contact arrangements should change back to supervised access at [G]. I indicated I was not prepared to make this recommendation and that I felt both myself as the treating child psychiatrist/therapist and herself should remain working within the context set by the recent Family court Orders. [The mother] was not accepting of my position and became increasingly angry, hostile and critical of myself. Eventually I terminated the interview. Her behaviour was quite extreme and I felt shaken and distressed by her level of attack and vitriol.
It seems to me that [the mother] is not accepting of the recent Family Court Orders and the change of Contact arrangements with [the child’s] father. Her view appears to be that therapy or mental health treatment should act to assist [the child] ending or limiting contact with [her] father to protect [the child] from “abuse” or lessen her anxiety through minimizing contact. My view is that therapy needs to occur in the context of the Family Court agreement or decision and not be seen as an opportunity to overturn the court agreement or decision. The legal agreement allows therapy to work with the reality of the situation for the child. If therapy is seen as a constant opportunity to review the legal decision it both prevents therapeutic work and the treatment itself is likely to aggravate the child’s anxiety and mental health problems as it constantly places the child in the point of conflict. As a therapist the context or structure needs to be determined externally by the legal system. [The mother] either did not understand or agree with this. I think this is important not just for treatment with myself but for any child mental health treatment in the current situation.
[...]
I would anticipate that [the child] will experienced (sic) considerable anxiety and psychological symptoms in the process of re-establishing a regular contact regime with her father. Treatment is likely to help manage this anxiety. However this anxiety also requires there to be less tension and acrimony between the parents. I don't think her anxiety should be managed by precluding a relationship with her father.
I provided a report for the Family Court in late 2006. Essentially my opinion has not changed.
Dr R’s earlier report, in which his earlier opinion is expressed, is found attached to his affidavit sworn on 17 December 2006. It is a lengthy report detailing his attendances upon the child and the parents. At page 21 of the first report, Dr R mentions the possibility of the mother having an "underlying psychological disturbance or psychiatric disorder". At paragraph 22 of the first report, Dr R refers to the fact that "[the mother] raises concerns about [the father’s] psychological and psychiatric state. Beyond my observation that [the father] did not appear psychiatrically on the interview, I am unable to give a further opinion."
I note that, today, the parties have agreed to an order that each will submit to a psychiatric assessment with Dr A.
In the first report, which was part of the evidence in the hearing resolved by the order made on 14 February 2007, Dr R details the child’s psychiatric state as follows:
[The child] presents on this assessment with high levels of anxiety. The assessment strongly indicates that the anxiety is the consequence of the level of conflict between her parents about [the child]. The anxiety is overwhelming to the point of disrupting her psychological moment to moment functioning on interview. The history indicates that it has been disruptive of her day to day functioning at school and home.
Although a psychologically capable six year old, for [the child] the level of anxiety and distress has been beyond her capacity to manage. She is unable to cope with the level of adversity in her family situation. Of concern, there are signs of early distortion of psychological and personality functioning as [the child] attempts to make adjustments to survive this adversity. In particular, there is excessive use of denial and avoidance towards her emotions and internal psychological world. This along with her evident accommodation to the needs of her parents suggests she is moving to a psychological position of being over aware of the emotions and needs of others at the cost of an awareness of her own emotional state. [The child] over uses fantasy to escape or avoid distress. While this is likely to be adaptive in the short term avoiding psychological disorganization, it will have longer term detrimental consequences on her psychological and personality organisation.
Psychiatrically, [the child] can be diagnosed as suffering an Anxiety Disorder. However it is more useful to see her anxiety as a reaction to her family situation rather than as an intrinsic disorder. The situation could be seen as ‘traumatic’ in that [the child] faces environmental adversity beyond the capacity of an ordinary six year old to manage. She does not however display the symptom pattern of Post Traumatic Stress Disorder [PTSD].
This assessment indicates that [the child’s] anxiety is consequent to parental conflict which is current and ongoing. The assessment does not point to past childhood sexual abuse or a problematic relationship with the father as the cause of [the child’s] symptoms and disturbance. Care needs to be taken with the possibility of sexual abuse as psychiatric assessment has limitations in its capacity to either positively confirm or refute the possibility of past sexual abuse. However, the absence of positive psychological signs of sexual abuse on assessment [beyond the verbal statements described] and the observed (on this assessment) and well documented [G and Family Court Reports] good relationship between [the] father and [the child] makes the possibility of past childhood sexual abuse far less likely. On the basis of this assessment I do not think the issue of potential sexual abuse by [the] father should be a major factor in determining the outcome of a regime for residency and contact.
Individual and family psychotherapeutic treatments for [the child] [and her parents] are indicated. However, the main change required is a change in her adverse family situation with resolution or reduction of the family conflict. This may occur through coercive Family Orders but ideally needs to occur through a psychological shift in the parents. It would seem that such a psychological shift is especially required with [the mother].
Opinion about Family Court Orders and Intervention
From a psychological standpoint of what is best for [the child] as an individual child it is my opinion that an arrangement that allows [the child] to have significant and meaningful contact with both parents is optimal. The most obvious arrangements is for [the child] to reside with her mother while having substantial weekend and holiday contact with her father.
Ideally such an arrangement should be put in place over a couple of months allowing gradually increasing (and supervised) time with [the child]. Mental health treatment for [the child] and the family should occur in conjunction with this.
If [the child’s] parents could come to accept that such an arrangement is in the best interests of [the child] I do not think [the child] would have difficulty managing such an arrangement.
It appears that efforts have been made to work towards this sort of arrangement before but it has not been possible, in particular because of

[the mother’s] inability to accept this is in [the child’s] best interests. This has lead to an ongoing state of acrimony. Although I can understand why

[the mother] may hold some concerns about possible abuse, I think her position of adamant certainty is difficult to understand and not helpful in the current circumstances. The reasons for her absolute position are unclear. There may be benefit, both for the Court and as part of treatment, for [the mother’s] position to be explored further psychologically or psychiatrically.
I expect if such an arrangement was in place, [the father] would be able to work within such an arrangement.
Ideally such an arrangement would come about through both parents accepting this is in the best interests of [the child] and compromising to a negotiated arrangement. Such agreement and cooperation itself would be of great benefit to [the child]. It is unclear to me whether the courts use of it coercive authority, for example sanctions for non compliance with Orders for Contact, will shift [the mother’s] position. Even if the use of coercive authority leads to [the mother] ‘accepting’ contact arrangements it is unclear if this will work practically and would be much harder for [the child] to live psychologically with. The impact of such a forced outcome on [the mother’s] mental health is also unclear.
[…]
Psychotherapeutic treatment is likely to be helpful for [the child] in her current situation. It would provide considerable support and a psychological space to reflect on her experience of family with a psychologically attuned adult who is outside her conflicted family. Such a therapist needs to be aligned and advocate for the wellbeing of the child while at the same time providing feedback and advice to both parents. The therapist should not be (or seen to be) aligned to one parent more than the other. The relationship of such a therapy to the Court also needs to be clarified and specified. It should be borne in mind that most mental health professionals are covered by mandatory reporting legislation necessitating them to contact Child Protection in the event of them being concerned about child abuse.
Although it is not its primary purpose, individual psychotherapeutic therapy often provides a safety and supervision around concerns about the possibility of childhood sexual abuse.
[The child] should also be taught protective behaviours around what to do in the event of being approached or threatened with inappropriate touch or abuse. She did not display knowledge of such protective behaviour on this assessment.
[The child] currently receives psychotherapeutic treatment through the Student Counselor (sic) at her school [L School]. There are clearly practical advantages to continuing this including [the child’s] relationship with the therapist and its accessibility whilst she is at school. The concern is that it might be perceived that such a therapist is more aligned with

[the mother] than [the father]. This may be balanced by the therapist liaising with both parents. It is my experience that most school counseling (sic) services are only able to provide intervention to the extent that the problem impacts on the child’s school life. Telephone contact with Ms [S] School Councilor (sic) confirmed this in this case. [The child] will require psychotherapy beyond the impact of it on her school life. I think there will be a need to arrange psychotherapy for [the child] beyond what is provided at school. It also needs to be recognized that providing psychotherapy in such a difficult context is specialized and not all child mental health professionals have the necessary experience or skills. Such a therapist for [the child] should be agreed between the parents and an appropriately skilled and capable therapist chosen.
There is a strong argument for a broader family mental health intervention. This in particular would involve [the mother] undertaking some psychological or psychiatric assessment and intervention.
It is also evident that [the mother’s] mother and brother play a substantial role in [the child’s] life. I would recommend that any further family assessments for the Court should include these individuals in the assessment.
On 13 June 2007, the father's oddly expressed form 2 application filed on

16 May 2007
came before Dessau J who dismissed the application.
On 18 June 2007 the father filed a form 18 contravention application alleging non-compliance by the mother with the orders for him to spend time with the child and also the orders that the mother take the child to Dr R on an ongoing basis. He details evidence in support of that in his brief affidavit sworn 15 June 2007 and also seeks that the mother attend upon Mr P for therapeutic and reporting purposes as previously ordered.
When the matter first came before me, I understood, that the mother had not attended upon Mr P at all but it appears that is not correct. She did attend on one occasion on or about 16 May 2007, but not since then. Today, in discussion between me her senior counsel, Ms Nikou, it was indicated that the mother will not be relying upon any evidence from Mr P for the present application. That is interesting. It appears to me that if the mother seeks to satisfy the court that she has complied with the terms of the extant order then, absent a concession from the other parties, it is incumbent upon her to provide that evidence but I make determination of that issue. Furthermore, Ms Nikou submitted that there is no reason why Mr P’s role could not now be filled by a psychiatrist, to whom the mother is about to be referred for treatment, being Dr L. I have pointed out to senior counsel for the mother that, as matters currently stand, it is Mr P who is the designated practitioner, not the psychiatrist of the mother but, again, no issue has arisen for determination at this stage.
On 4 July 2007 the father's contravention application (filed 18 June 2007) came before Cronin J, ex parte, who adjourned it to 18 July 2007 in the judicial duty list. The application had not at that point been served.
On 18 July 2007 the matter came before Carter J. The parents appeared in person. Mr Holmes of counsel appeared on behalf of the independent children's lawyer. There is a transcript of the proceedings on the court file. It seems that the mother sought an adjournment, eventually through the duty lawyer, on the basis that she had only been served with the father's application two days previously. The mother thought she might be eligible for a grant of legal assistance and wanted time to prepare her case.
On 18 July 2007 Carter J ordered that the contravention application be adjourned to the long interim hearing list on Friday 24 August 2007, the costs of the independent children's lawyer be fixed in the sum of $1,235.00 and payment be reserved. Each parent file and serve within 21 days a financial statement.
On 22 August 2007 the mother swore an affidavit which appears to have been prepared by her. She deposes to not having forced the child to attend to spend time with the father since 29 April 2007, although subsequently the child attended on 4 May 2007 of her own volition. That represents the last time that the father saw the child before the matter came before me last week. The mother deposes as to her concerns for the child:
She told me that she feels that she's unable to recover and overcome her fear that spending more time with her father will eventually lead to

re-abuse [...]
As a mother I find it extremely difficult to stand by and watch my daughter suffer. I see that she is not functioning at school or home as she normally would [...]
[The child] sees her school counsellor on a regular basis weekly and has done so since year 1. [The child] enjoys a good rapport with her counsellor and confides in her about her fear [...]
Since [the child] has stopped spending time with the applicant her behaviour is not aberrant. She is happy and social and her confident self again [...]
I believe that short, supervised visits between [the child] and the applicant would be more appropriate and in her best interests at this time rather than long visits or even no visits. Shorter visits at [G] or similar supervision circumstances would allow [the child] to gradually overcome her fears and hopefully allow her to feel more comfortable and secure with the applicant.
There are a few letters annexed to the affidavit, one of them is apparently by the child, it is certainly in childlike handwriting. It is dated 27 May 2007 and is addressed:
Dear Justice of the Family Court,
I don't want to see my dad any more because I'm scared of him and he makes me sick and nervous, I can't sleep, I poop my pants.
Love [the child].
PS Please help me.
On Friday 24 August 2007 this matter came before Watt J who adjourned the matter to Guest J on 28 August 2007. Watt J made further orders requiring compliance with the provision of financial information and noted as an addendum to his order that:
(1) The father has stated his intention to make application to vary the orders made by Guest J on 14 February 2007 to the effect that [the child] live with him.
(2) The mother has stated her intention to apply to vary the said orders to the effect that the time spent by the child with the father is shortened and supervised by either [G] or the father's fiancée, ….
(3) The child is not presently spending time with the father in accordance with the orders and he will ask the court for urgent interim relief on the adjourned date.
(4) Counsel for the independent children's lawyer has stated that Ms [W] may be in a position to assist the court of what interim orders might be appropriate.

When the matter came before Guest J on 29 August 2007 his Honour acceded to the mother's application that he disqualify himself and the matter came to me from the duty list.

Background to the present application

As I have said, on 29 August 2007, the father withdrew his contravention application and I granted him leave to file his initiating application in which he seeks interim and final orders to change the living arrangements for the child, restore the child’s family name to Licha and for the mother to have supervised visits on an interim basis. I am giving no consideration whatsoever to the father's application to change the child’s family name. That was provided for in the orders of 14 February 2007 and whilst I observe there has been some irregularity in the spelling of the child’s given name, her family name has been ordered (pursuant to paragraph 7) to Wunscher-Licha.
For the avoidance of doubt, I am satisfied that the initiating application of the father is filed in circumstances where the provisions of subdivision E of

Part VII division 1 of the Family Law Act 1975 do not apply. That is, this is not a matter in which it is necessary for the parties to produce a certificate that they have attended a family dispute resolution practitioner before proceedings can be commenced or the matter heard.
The father filed an affidavit in support of his application in which he deposed to various matters, including that he had a home set up for the child, the child could stay at L School and he would ensure that the child attended upon Dr R.
On 29 August I heard briefly from Ms W. She had previously been the

s 65L family consultant as well as the author of the five family reports. Ms W offered her opinion about appropriate reportable assessment on the issue of an interim change of residence and said that she would make herself available on short notice to see the parties. She acceded to my request that she assess the father's fiancée, who had not previously been seen by Ms W. She agreed to conduct a home visit of the father's residence to ascertain the appropriateness of it for the child to live there.
I permitted each party to ask Ms W questions about the scope of her report. At this time the mother indicated that Ms W ought to consider the practical implications of a change in living arrangements because if the child went to live with the father she would no longer be prepared to pay any school fees to enable the attendance of the child at L School and that she would not be paying any further fees for Dr R (although it was clear from the balance of her submissions on that day that she objected to Dr R’s continuing involvement at all).
Ms W said that she would be assisted to know from the mother whether the mother would see or be prepared to see the child in the event that the child lived primarily with the father. The mother responded[1] to the effect that she would not have the personal resources to cope with being able to see the child if the child lived with the father and she would be:-
I think as the saying goes, out of sight, out of mind. I think I would then try to just continue my life. I'll perhaps give up work because really I don't have any reason to be working to this extent and [the child] was my life and she gave me a reason to get up in the morning. I don't believe then I would have any motivation then to continue and I think it would only cause more emotional destruction to myself and perhaps I would require psychiatric care.
[1]At page 9 of the transcript of proceedings on 28 August 2007, lines 11 to 38.
When one reads the transcript of proceedings, the words are accurate but,

I find, the chilling impact of the mother’s verbal delivery is not conveyed. Neither is the extent to which she appeared to be completely self absorbed.
On Wednesday 29 August 2007 I adjourned the matter to the following day, at 11:00am for the purpose of making directions for the further hearing of the matter and attendances by the parties and the child on Ms W.
On Thursday 30 August 2007, the matter was called on shortly after 11:00am. There was a delay because the mother had brought the child to court on the basis that she said that the child might want to tell the court something. The mother began by representing herself, but during the course of the hearing a solicitor, Mr Lopes, of Westminster Lawyers stood forward and said that he had instructions to appear on behalf of the mother. He duly filed a notice of address for service.
This was not the first time that Mr Lopes had acted for the mother. He informed me that within the preceding month he had received instructions to act on behalf of the mother and had filed a notice of address for service which, I now note, appears as folio 105 of the court file. Mr Lopes and his firm then withdrew by filing a notice of ceasing to act on 16 August 2007. It is not apparent as to whether his firm ever notified the other parties of their involvement on the mother’s behalf.
Mr Lopes informed the court that he was instructed to obtain an expert opinion from Mr Mulvany, solicitor, as to how the mother’s case ought to be conducted in the future. He informed the court that the mother had had the benefit of that advice and other advice from Westminster lawyers.
I indicated to the mother’s solicitor that I would take an oral application from the mother, to particularise what she sought in opposition to the father's application for an interim change in parenting arrangements. However,

I required a written note of the precise orders to be tendered on the oral application. What was produced by Mr Lopes in due course became Exhibit “M3”. It is fair to say that the gist of the response/application was that the mother sought that the child continue living with her, the father could have three hours or so at a child contact centre and the matter be adjourned for six to eight weeks.
Ms W attended court on Thursday 30 August 2007 to advise of the arrangements she had been able to make for assessment of the relevant parties and the child. As it happened, Ms W was available that day. I stood the matter down whilst Ms W went about her attendances. She saw the child, the mother, the father, the father’s fiancee who she travelled to M to see and then went to the father's home in B and inspected it, came back to court, saw the child again and then delivered an oral report to the court following that. Her evidence is transcribed and it is on the court file.
Amongst other things, Ms W indicated that the previous evening she had contacted the Department of Human Services and made a notification of concerns which she had as to the mother's emotional state which, in her opinion, left the child open to risk of emotional and possibly physical harm. At page 13, line 7 of the transcript of her evidence on 30 August 2007, the family consult testified:
I'm certainly not condemning the mother in any way in making the statement, but saying she is clearly distraught by the possibility of not having the child with her and it is unpredictable what people will do and

I expressed that concern to the child protection intake worker.
The family consultant discussed her assessment of the mother's statement the previous day that she (the mother) would not be continuing a relationship or seeing the child in the event that the child went to live with the father.
In essence, Ms W found that there were no protective concerns about the child going to stay with the father and his fiancée. Ms W assessed them as a loving family unit who were also in a position to provide appropriate accommodation for the child. On the other hand, her assessment of the mother was that the mother was exhibiting symptoms indicative of psychiatric disturbance. It is not necessary for me to paraphrase the evidence of Ms W because it is transcribed.
I should note here, however, that Ms W made the observation that, in the event that I permitted the mother to take the child home that evening, she would feel compelled to make a further notification to the Department of Human Services as to the child’s safety.
So rather late in the day on 30 August I ordered that the proceedings be adjourned to today on the basis that Dr R would be cross examined on his reports and Ms W could be cross examined on her oral report.
There had been some discussion about adjourning the matter until Monday and in that context I had made provision for everyone to file their material by Friday afternoon. I realised that was an error and, on Friday 31 August 2007,

I convened a telephone mention of the matter for the purpose of advising the parties that they could have until 3 pm yesterday to file their material. The mother was linked into the telephone mention as was Mr Lopes and the father. Mr Marchetti appeared for the independent children's lawyer.
During the telephone mention on 31 August 2007, Mr Lopes sought leave to withdraw as solicitor on the record for the mother. I permitted him to do so without any obligation to file a notice of ceasing to act. I also granted leave to the independent children's lawyer to cause a subpoena to issue to get to court today, such officers of L School who may assist the court in giving evidence concerning the child.
The telephone mention was not without incident. A transcript of it is on the court file and has been made available to the parties. The mention was terminated shortly after the mother said that she was feeling sick, the mother stated:-
"I'm feeling sick, I'm feeling faint. I'm going to have a heart attack. I have to hang up."
The matters that had to be dealt with in the mention had already been dealt with. Today I enquired about the mother’s health. Ms Nikou informed me that the mother thought she was suffering from a panic attack but has since recovered. There is no medical evidence. She did not attend a doctor.
Mr Maplestone went on the record yesterday. He prepared an affidavit for the mother which is quite long. It has been filed. The mother deposes that she will go to a psychiatrist, Dr L at C, for professional assistance "in coping with my own stress associated with the issues of [the child] seeing her father". She deposes to having an appointment at the end of September 2007. In response to my questions of Ms Nikou, it transpires that the mother has not yet been referred for that treatment but her general medical practitioner will attend to that shortly.
Apropos of Ms Nikou’s comments, to the effect that there is no reason why

Dr L could not assume the role which is assigned to Mr P in the order of 14 February 2007, it is apparent from the mother’s description

Dr L function that it is a function quite different from that which

Mr P was to undertake but that is not really a matter for me, that is a matter for another judicial officer on another date.
The mother's brother swore an affidavit in which he deposes that he will support the mother and pay for things. Today he has provided an undertaking to the court by way of security for payment of Dr R’s fees to see the child on an ongoing basis (in the event that the mother refuses to do so).
The father filed an affidavit yesterday. The text of the father’s affidavit is fairly unremarkable. The preamble is not. In bold type and apropos of nothing the father has inserted:
MT18.5: And whoever welcomes a little child like this in my name welcomes me. [6]. But if anyone causes one of these little ones who believe in me to sin, it would be better for me to have a large millstone hung around his neck and to be drowned in the depths of the sea. Amen.
The father is a member of a religious organisation, as is his fiancé. English is not the father’s first language. The reference is a quote from Matthew 18:1 to 9. I recognise it as a section of fairly mainstream Christian teaching against sin. I directed that a copy of that affidavit be made available to Ms W before the commencement of today's hearing. I required that Ms W be in a position to assess for the independent children's lawyer whether or not she should have any further discussions with the father as a result of the preamble to his affidavit which, in my preliminary view, could be interpreted as somewhat menacing. No application is made. I am advised by counsel for the independent children’s lawyer that Ms W was aware of the arrangements which it is agreed will be in place between now and 13 September 2007, which involves the child living exclusively with the father and spending time on a limited and fully supervised basis with the mother at a contact centre.
That is the procedural history of the matter to date. I have extended the subpoenas to Dr R and to the counsellor from L School, although indicated to each of them that they ought not attend court at 10 am unless advised in writing to do so by the independent children's lawyer the day before. The conduct of the matter will be entirely the province of the presiding judicial officer. However, it seems to me that if there is to be cross examination of Ms W that could be done whilst the other witnesses are brought to court if their evidence is to be taken.
In relation to cross examination of Ms W, she gave her evidence-in-chief before me. I have raised with each party to the proceedings through their representative that it is, of course, open to the next judicial officer to require that evidence be given again.
In relation to the mother being able to spend time with the child, the independent children's lawyer is very optimistic of the family being accepted back into the G program. Dr R is available to see the child, but says he would like to do so after the child has had an opportunity to see her mother, so that may occur next Friday. But certainly by next Thursday Dr R should be in a position to give some evidence about the then current psychiatric presentation of the child.

Determination of costs application

The matter requiring determination by me today is in relation to costs. As indicated, the application for the adjournment is made by the mother.
When the matter was called on this morning and all the professional witnesses were in court ready to give their evidence, Ms Nikou announced her appearance for the mother and said “I am not on top of all the material”. She sought “a brief adjournment” to Friday of this week.
I am informed by Ms Nikou that she needs time to read the transcripts of the proceedings on 29, 30 and 31 August and the brief affidavit of the husband, although she said the affidavit would not take her long to read. I am not in a position to question the professional judgment of senior counsel on behalf of the mother in relation to whether or not the mother’s case can be adequately represented. The relevant transcripts were sent by my Associate to the mother’s solicitors at approximately 8:30am today. I do not know why

Ms Nikou was not handed them until 9:59am. Mr Maplestone must have realised that this was a matter which required immediate attention and yet there is no indication that he has searched the file for relevant documents. Ms Nikou does not appear to have been briefed with copies of orders made on 20, 30 or 31 August 2007. Had she been, it would have been apparent that I ordered transcripts.
Having clarified with Ms Nikou that she was, in her assessment, not in a position to cross examine Ms W, Dr R or the school counsellor, I have reluctantly acceded to the mother’s application for an adjournment. However, there is no judicial availability on Friday of this week. The matter can, however, be placed before the presiding duty list Judge on Thursday of next week when, as it happens, no review applications are listed for hearing before her Honour and it appears that the day can be allocated to this matter. It will be the only matter listed on Thursday.
The father seeks an order that the mother pay his costs thrown away today in the sum of $796, being four hours of work. The independent children's lawyer claims costs in the sum of $1,235.00, being the brief fee of Mr Marchetti, as well as the reasonable costs of Dr R and any costs of L School for the attendance of the counsellor. The disbursements referrable to Dr R and what may be claimed by L School are not quantified. They are sought to be as paid on invoice and in the event there is any dispute as to quantum the matter can be determined by the court subsequently.
Ms Nikou takes no issue with the quantum of costs, however, she vigorously resists her client's responsibility for those costs.
Ms Nikou is instructed that Mr Lopes of Westminster Lawyers withdrew as the solicitor for the mother and it was not a matter of the mother's choosing. Ms Nikou refers to the mother's lack of representation being a matter “out of her control”. Likewise, Ms Nikou submits that the availability of transcripts is not a matter over which the mother has control.
I accept that the mother may be in a difficult position for which she is responsible. Through Ms Nikou, the mother says that Mr Lopes refused to act on behalf of the mother. I can make no finding about that. It may be that the mother’s case is inadequately prepared as a consequence of Mr Lopes acting in some way that he should not. However, the father and the independent children’s lawyer are out of pocket as a consequence of the proceedings being adjourned to next week and that is through no fault of their own.
None of the parties sought to address me on the provisions of s 117(2) which provides the basis upon which I may be satisfied that it is appropriate to alter the otherwise statutory arrangement that each party bear their own costs. Notwithstanding that, I have some familiarity with the circumstances of the parties.
Pursuant to subsection (a) I can take into account the financial circumstances of each of the parties to the proceedings. Each was required to file a financial statement, I have read them. The father is of particular modest means, although I am told there has been a change of circumstances in that household by way of a compensation payment. The mother has not provided all of the documents which were required in previous orders to illuminate her financial position set out in her Form 13. The independent children's lawyer is funded by Legal Aid Victoria.
The father has very limited resources. The mother lives with her family but pays the child’s school fees. I am comfortably satisfied that neither parent can afford these proceedings. It is abundantly clear that legal aid commissions around Australia have limited funds and, if they cannot recover costs and expenses in cases where they should, Victoria Legal Aid will have a depleted capacity to fund cases deserving of assistance.
I take into account the balance of the factors which relate to the purpose of the proceedings. In this case the mother’s application for an adjournment has been successful. She sought the adjournment because she has changed solicitors and her new legal team assess that they are not ready to present the mother’s case. The mother gave no notice of seeking an adjournment prior to the matter proceeding in court this morning. The other parties had no opportunity to minimise their client’s costs of today or to disengage the three experts who attended at 10:00am to give evidence.
Now that the mother has been successful in her application for an adjournment, it would be wholly inappropriate in my view for the independent children's lawyer or the father to have to bear their own costs of today. Other orders have been made today, by consent, but it is not contended that those matters could not have been adjusted by agreement in any event.
I am satisfied that an order that the mother pay the costs of the other parties thrown away today is justified.

I certify that the preceding ninety eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate:

Date: 11 September 2007

[2007] FamCA 1056

4 September 2007

Key Legal Topics

Areas of Law

Civil Procedure

Insolvency

Legal Concepts

Abuse of Process

Costs

Res Judicata

Stay of Proceedings