Madison & Madison

[2009] FamCA 666

FAMILY COURT OF AUSTRALIA

MADISON & MADISON	[2009] FamCA 666
FAMILY LAW – CHILDREN – Best interests of the child – Order sought for counselling to children and updated family report – Systems abuse – Family report ordered – Family consultant to consider necessity of counselling and manner in which it be provided
APPLICANT:		Ms Madison

RESPONDENT: Mr Madison

INDEPENDENT CHILDREN’S LAWYER: Ms Dart

FILE NUMBER: BRC 1200 of 2008

DATE DELIVERED: 24 July 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 24 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jordan of Counsel appeared for the Applicant Mother

SOLICITORS FOR THE APPLICANT: Rhonda Sheehy & Associates

COUNSEL FOR THE RESPONDENT: Ms Martin of Counsel appeared for the Respondent Father

SOLICITOR FOR THE RESPONDENT: J. Reddy & Co Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Dart, Solicitor of Legal Aid Queensland

Orders

IT IS ORDERED BY CONSENT:

1. That a report be produced pursuant to section 69ZW by the Department of Communities (Child Safety).

2. Pursuant to section 62G of the Family Law Act 1975, an updated report be prepared for the Court by Mr F and that such report be available by 31 August 2009.

3. IT IS ORDERED that in addition to the normal terms, Mr F be asked to consider whether ongoing counselling is necessary for the children and if so, the appropriate person or professional body to provide such counselling.

4. IT IS FURTHER ORDERED BY CONSENT that for the purpose of preparing the Family Report, Mr F have leave to read the report of Dr G, and any material produced on subpoena once permission to inspect has been granted to the Independent Children’s Lawyer.

5. The parties shall do all acts and things, and sign all documents necessary to ensure the children including M born … October 1993, (if requested by Mr F) attend such appointments as are reasonably necessary for the preparation of the Family Report. 

6. That this Order operate as an authority for Mr F to speak with relevant experts including Dr G, the child psychiatrist, Dr E, and Dr S.

7. That the parties’ legal representatives have leave to inspect and copy all documents produced under subpoena but the documents are not to be disclosed to their clients or anyone else other than Counsel without specific leave of the Court.

8. That the subpoena directed to the Department of Education, Training and the Arts be discharged.

9. That Order (8) of the Orders of His Honour Justice Barry made on April 9 2009 be varied such that changeovers not occurring at school shall occur at the O Children’s Contact Centre.

10. Each party shall:

    (a)contact the O Contact Centre (“the Contact Centre”) within seven (7) days and arrange an appointment for assessment for suitability for supervised changeovers;

    (b)attend the assessment;

    (c)comply with any appointments made by the Contact Centre for supervised changeovers;

    (d)comply with all reasonable rules of the Contact Centre;

    (e)comply with all reasonable requests or directions of the staff of the Contact Centre.

11. If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision of changeovers as set out in Order (9) then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on seven (7) days written notice to the other party and to the Court.

12. The Contact Centre may recommend the parties or either of them to participate in a program or programs, and in that event either party may re-list the matter for mention on three (3) days notice.

13. In the event that the Contact Centre offers supervised changeover only at times which are different to the times specified in the Orders of this Court for changeover to occur then changeover will occur at the times which are offered by the Contact Centre.

14. If the Contact Centre during the currency of these Orders declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, then either party or the Independent Children’s Lawyer may on seven (7) days written notice to the other party and the Court restore the matter to the list.

15. If during the currency of these Orders the parties and the Independent Children’s Lawyer agree in writing to vary these Orders the parties have leave to list the proceedings in Chambers urgently for consent orders to be made.

16. The parties will each bear their own costs associated with using the Contact Centre.

17. That Order (17) of the Orders made on 25 March 2008 by Federal Magistrate Purdon-Sully be discharged.

18. That the Mother undertake a hair analysis test for the purpose of drug screening at her own cost at the request and in the manner specified by the Independent Children’s Lawyer.

IT IS FURTHER ORDERED THAT:

1. The proceedings be listed for trial for five days commencing 10.00 am on

   
   15 February 2010

   at the Brisbane Registry of the Family Court.

2. The proceedings be adjourned for trial directions at 9.30 am on 4 December 2009 at the Brisbane Registry of the Family Court.

3. The proceedings be adjourned for trial directions compliance check at 10.00 am on 4 February 2010.

4. Each party be at liberty to apply on forty-eight (48) hours notice to the other parties.

5. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

NOTATION:

That the parties intend that staggered arrival and departure times be given to the parties for the changeovers at the Contact Centre.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:   BRC 1200 of 2008

MS MADISON

Applicant

And

MR MADISON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter was last before me on 9 April this year.  Consent orders were entered into at that time.  Once again, the parties are able to enter into consent orders, but submissions are made in relation to a number of issues, the important one being the process of ongoing counselling for the children.

2. I have revisited the reports of Mr B, Dr G and Mr F.  I have perused the affidavits that have recently been filed, and I have considered the written submissions of Ms Martin and the oral submissions of Mr Jordan. 

3. It strikes me, first and foremost, as a textbook case of parents behaving badly.  The children would be otherwise fine.  The view that I take is that no amount of litigation is going to solve the ongoing relationship problems.  The parties will not find their answers in the four walls of a court room.  All they will get is a decision.  That decision will be given as impartially and as wisely as I can manage, but there seems to me a suggestion of giving this an urgent early hearing.  It is not necessarily going to assist one jot.  The answer lies in the respective households, and it is not one party trying to fix the other household’s problem.  I would have thought it was a case that screamed out for urgent counselling of the parents. 

4. I will just refer briefly to the summary section on page 5 of the assessment done by Mr F, which was before me on the last occasion. The second dot point:

   “There is a very strong likelihood that the high level of parental conflict is having a detrimental impact on the parenting capacity and the children’s wellbeing”.

   I would have that was self-obvious.

   “The court should, in my view, be mindful of any structural change that might increase or exacerbate the exposure of the children to parental conflict.  Orders should invariably seek to protect the children from their parents’ interaction.  This may require some limit and management of changeovers, and parental communication.”

5. At a time when parties are living on Centrelink benefits and so forth, why they spend their money at contact changeover centres defeats me, but that regularly happens.  The next dot point:

   “The highly reactive nature of the parents, together with their history of substance abuse and their present medical interventions, leads the report writer to recommend they have psychiatric assessments conducted before any consideration is given to further changes of time. Ongoing testing for substance misuse is warranted.”

   And so it goes on:

   “Some progress has been made in that the parties have agreed that [M] can be spared the ordeal of having her future the subject of conflict between her parents.  The views of the younger children about the issues of parental conflict point to there being little in their parents’ relationship that has been left to their imagination.  Their views about respective structures are completely shaped by their parents’ competitive conflict.  In this respect they are under some considerable pressure by their parents, at least until the proceedings be finished.”

6. Now, I am being asked to make an updated family report.  I will make that order.  I have some concerns about the timing, because if you are wanting five days, I cannot give you five days until the new year.  It may necessitate yet a further report.  What I propose to do is to communicate with Mr F and check his availability, but I gather he has indicated he can prepare a report by 31 August and in all likelihood, that report preparation can go ahead.  Otherwise, there may need to be some adjustment.  That would not be done without the consultation of the respective legal representatives.

7. The matters raised by the mother’s counsel relate to annexures which are attached to the mother’s solicitor’s affidavit, in particular, annexures C and H.  One is a medical assessment report done by the general practitioner.  The other is by Dr H.  I have considered those.  I have long held the view that in any conflict, but particularly high conflict cases, one of the worst aspects is the over-involvement of the children in the dispute.  They are seeing endless numbers of counsellors, social workers, psychologists, and, to my mind, it becomes systems abuse, particularly children of the vulnerable age of C and K.

8. I note Mr B’s recommendations in his report of approximately 12 months ago:

   “[C] and [M] to continue counselling through the school; [K] to attend counselling at the [O] Domestic Violence Service until deemed unnecessary by the counsellor, with both parents to be involved as deemed appropriate by the counsellor.”

9. The independent children’s lawyer advocates for Mr F to provide his recommendations in this matter.  I accept that Mr F is, in all likelihood, going to be influenced by the medical reports which have been appended. 

10. I note that the independent children’s lawyer, in a letter to the mother’s solicitors of 2 July 2009, in the second paragraph of that letter says:

    “We have made an application for a family report to be prepared by [Mr F], Family Consultant.  That application is returnable today.  From our inquiries, we are aware that [C] has been affected by the dispute and we would be, and believe that the court would be, assisted by Mr [F’s] analysis of the underlying causes of the stress.  I am concerned that the effective treatment of [C] would require a proper brief to the psychologist as to the background to the parental conflict.” 

11. I think what is being hinted there is if the court sanctions the mother going off and arranging counselling, the particular counsellor may be getting a skewed view, and endeavouring to give counselling therapy to the children from that perspective only.  I can see merit in that approach.  The letter continues:

    “Also, any treatment plan would require support for [C] and consistency with the treatment regime by both parents.  It may also be impractical to treat the stress which you accept is related to the dispute until the parental conflict has been resolved.”

12. In the whole of the circumstances I am of the view the better approach is to be guided by Mr F’s recommendations in relation to what further counselling, if any, the children should have.

13. I would dearly like to be able to give an early date of hearing where the parties want five days.  I seriously query whether, this far out, it is known that the matter would take five days, but I am relying on the experience of counsel to that effect.  It just cannot be done until the new year.   

14. By consent, I will make orders in terms of the draft orders produced to the court, initialled by me and placed with the papers.  They are interim orders.  The trial dates have to be inserted in paragraph 19.  They are likely to be in March. 

15. It is not in the draft orders, but I will give liberty to apply by any of the parties on 48 hours’ notice to the others.  That is not to say you will get on in 48 hours.  It is just to say you have got to tell them that you are bringing the matter back on and the court will endeavour to re-list it expeditiously.  I am not encouraging an early return.

16. But, save for that, this matter will be adjourned to 10 o’clock on 4 December, at which stage I will issue trial directions.  Things such as canvassing what evidence each party proposes, whether there should be a further report, and things of that nature.  Then, on 4 February, there will be a compliance check to ensure that everyone has done what the court has ordered them to do.  15 to 19 February - that is going to cover a weekend period.  We will not sit on the weekend.  It will be Thursday, Friday, Monday, Tuesday, Wednesday.  We can start on the Monday - Monday to Friday, 15 to 19 February, the day after Valentine’s Day.

17. I will make orders as there for the reasons given. 

18. I give leave to all parties to photocopy subpoena documents, but not to be disclosed to their clients, or anyone else other than counsel, without specific leave of the court.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate: 

Date:  24 July 2009