MASOUD & MASOUD

[2012] FamCA 792

FAMILY COURT OF AUSTRALIA

MASOUD & MASOUD [2012] FamCA 792

FAMILY LAW – CHILDREN – With whom a child lives – Interim Orders – Where the Federal Magistrates Court made orders that the children live with the father while the father’s allegations that the mother was addicted to a prescription drug were investigated – Where there does not need to be a substantial change in circumstances for the orders to be revisited – Where overwhelming drug tests have showed that the mother was not using any substance – Where the daughters make allegations of violence against both their father and their brother in their father’s household – Child’s views – Where the daughters express that they wish to live with the mother and the son expresses that he wishes to live with the father – Children of an age where their respective wishes should be given weight - Orders that the daughters live with the mother and the son live with the father

FAMILY LAW – COUNSELLING – Confidentiality – Where both parties agree that the children should attend counselling – Whether that counselling should be entirely confidential –Role of therapist and role of reporter are inimical – Orders that counselling be kept confidential

APPLICANT: Ms Masoud

RESPONDENT: Mr Masoud

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central Family Law

FILE NUMBER: SYC 2198 of 2012

DATE DELIVERED: 3 August 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 3 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kirk SC

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lethbridge SC

SOLICITOR FOR THE RESPONDENT: Barkus Doolan Kelly

ORDERS

IT IS ORDERED

1. That the orders of Federal Magistrate Sexton insofar as they relate to the child J born … July 1997 be discharged.

IT IS NOTED

1. That the parties are agreed that J will live with the father and spend time with his mother and with his sisters in his mother’s home in accordance with the arrangements that J will make directly with his mother.

IT IS REQUESTED

1. That the independent children’s lawyer advise J of the effect of that notation and advise J that both of his parents have told the Court that they will encourage his relationship with his mother and that the mother hopes that J will come and stay with her at times when the girls are living with her overnight.

IT IS FURTHER ORDERED

1. That the children D born … August 2000 and G born … September 2002 live with the mother.

2. That D and G spend time with their father each alternate weekend from Thursday afternoon after school until Monday morning when he will cause them to be returned to school in each alternate week commencing on Thursday 16 August 2012.

3. That in each other week commencing Thursday 9 August 2012 D and G will spend time with their father from after school on Thursday until the commencement of school on Friday.

4. That D and G will spend time with their father for one half of all school holidays including Christmas school holidays being the first half of such school holidays for years ending in odd numbers commencing 2013, and for the second half of such school holidays in years ending in even numbers commencing 2012.

5. That within 7 days of the date of these orders the mother and father contact Ms B, Clinical Psychologist of … Sydney NSW (tel: 02 …) to make an appointment for the children to attend an appointment with her for therapeutic counselling, and thereafter do all acts and things necessary so as to cause the three children of the marriage J, D and G to attend therapeutic counselling with Ms B.

6. That the Court NOTES that the goals of the therapeutic counselling, referred to in Order 7 above include:

   a.Assisting the children to adjust to the separation of the parents;

   b.To assist each of the parents to appropriately respond to the children’s distress arising from the separation of the parties;

   c.To assist the children to strengthen their sibling relationships; and

   d.To restore and repair the relationship between J and the mother.

7. That in order to give effect to order 8 above, the mother and father shall do all acts and things necessary to comply with any reasonable request by Ms B including their attending any sessions Ms B may request from time to time and causing the children, with or without the mother and / or the father to attend upon Ms B from time to time as may be determined by Ms B.

8. That for the purposes of these proceedings, the conferences and attendances upon Ms B be confidential and:

   a.No party or the independent children’s lawyer shall subpoena Ms B’ clinical notes in respect of the therapy; and

   b.No party or the independent children’s lawyer shall request Ms B to prepare a report for these proceedings or otherwise require Ms B to give evidence in these proceedings.

9. That all parties be and hereby are restrained from arranging any further counselling or therapy for the children without the written consent of the independent children’s lawyer or order of the Court or as recommended by Ms B.

10. That for the purposes of counselling with Ms B, pursuant to order 11 above, Ms B shall be entitled to all information from:

    a.Each of the children’s respective school and school Counsellors; and

    b.Any treating medical or therapeutic professionals upon whom the children have attended from time to time or might attend from time to time.

11. That the father shall be responsible in the first instance for the payment of Ms B’s costs the apportionment of the said costs to ultimately be determined at trial.

12. That pursuant to Sections 65DA(2) and 62B 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 Fact Sheet attached hereto and those particulars are included in these orders.

IT IS FURTHER NOTED

1. That the agreement of the parties is that the mother will collect the children D and G on Saturday 4 August 2012 after their respective netball games and that the father will ensure that the children’s belongings are delivered to the mother’s home during the day on Saturday 4 August 2012.

2. That the balance of the interim applications are adjourned in the Judicial Duty List at 9.30 am on 19 October 2012.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2198 of 2012

Ms Masoud

Applicant

And

Mr Masoud

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court concern interim parenting arrangements for three children, J, who is 15, D, who is 11, and G, who is nine years of age.  The parties separated on 13 April 2012, and just over a week later proceedings were heard in the Federal Magistrates Court.  Sexton FM delivered reasons for judgment on 24 April 2012 and made orders that the three children live with their father.  It is suggested on behalf of the father in these proceedings that there has been no change in circumstances which would justify the Court’s revisiting the orders that her Honour made.  In order to deal with that suggestion, it’s necessary to look at her Honour’s reasons for judgment. 

2. The overwhelming reason that her Honour adopted in moving the children’s place of residence to that of the father was the father’s allegation that the mother had an addiction to a prescription drug, Duromine, and that the use of the drug was affecting the mother’s parenting.  Her Honour notes at paragraph 46 of the judgment that the father, at paragraph 54 of his affidavit says that ‘if the mother were not on Duromine, she would again be a good mother as she had been prior to her abuse of Duromine.’  There was no dispute between the parties, and remains no dispute, that these children were primarily cared for by their mother for the whole of their lives until the separation in April 2012 and that the father worked long hours as a professional.  Her Honour, in the judgment, makes it clear at paragraph 54 that she decided to leave the children with the father while the father’s allegations against the mother were adequately investigated and the independent children’s lawyer’s appointment was processed.

3. Her Honour noted at paragraph 55 that the children were to return to school in the following week, and it is important that their place of residence be as stable as possible.  She said:

   If they are to return to live primarily with the mother after the investigations have been undertaken, and the relevant evidence available, there will be one move back to [Suburb K].

   It is clear that her Honour’s judgment on an interim basis was to remove the children from the asserted risk of residence with their mother, only for such a period of time as would be necessary to investigate the father’s allegations of addiction.  I do not accept the submission that it is only appropriate for those orders to be revisited if there is a substantial change in circumstances.  In any event, I find that there has been a substantial change in circumstances in that the evidence of the children’s wishes, which was available before her Honour, is not the evidence which is before me today, and this matter will be referred to later. 

4. Before me, Ms F, the family consultant, gave evidence.  She had the opportunity to interview the children only yesterday, and it is important to note that she interviewed each of the children separately.  Both of the girls independently told Ms F that they had been smacked by their father.  D told Ms F that she had been locked in her room on more than one occasion, and that on the last occasion it was for a full day.  G corroborated D’s statements to Ms F and said that she, G, had tried to smuggle in a banana to D on the occasion that she was locked in her room. 

5. J told Ms F that he had a stronger relationship with his father and he wanted a more flexible arrangement.  Ms F felt that J was more strongly aligned with his father and was concerned about J’s level of responsibility for his sisters.  J told Ms F that he wanted to spend time with his mother and his sisters, but that he preferred to continue to live with his father.  J indicated to Ms F that if his sisters moved to live with their mother, then he may rethink his position.

6. Ms F gave evidence that J’s relationship with his mother had broken down since about early June and that J was not spending time with his mother.  Ms F’s evidence was that J’s relationship with his sisters was fraught and both of the girls said that J had hurt them. 

7. Ms F’s preliminary view was that the girls should live with their mother, and she said that both of the girls were very strongly of that view.  The girls both told Ms F that if they lived with their mother, they would spend time with their father.

8. J wants to live with his father and is felt by Ms F to have a positive relationship with his father. 

9. Ms F was cross-examined by Mr Lethbridge SC for the father, but did not agree with the proposition that it was important that the children live together in the same home.  Ms F’s evidence was that it was important to look at sustaining and rebuilding the sibling relationship, but that the children did not have to live together in order for that to be effected.  Ms F stressed that the relationship between J and his mother is stressed and needs repair.  The mother had requested of J in a text that they see one another separately from the girls, and Ms F saw some benefit in that proposal.  She said that J has different needs from the girls and needs to be treated differently.  Ms F expressed the view that J may benefit from individual time with the mother.  Both of the girls, according to Ms F, understood the implications of being separated from J, but nevertheless wished to live with their mother.  G suggested to Ms F that if they lived with their mother, they could see their father and J on Friday and Saturday. 

10. The suggestion which was put to Ms F that the children were at risk if they were separated, was rejected by her, and she expressed the view that the children are at much greater risk from the level of conflict between their parents than the separation of the siblings. 

11. Both of the girls separately referred to physical violence in their father’s home.  Ms F said that if that evidence were untrue, if they were making up those allegations, then that was evidence of further emotional disturbance of the children in the father’s home. She accepted that there would need to be a further assessment to determine if the children’s allegations were factual, but nevertheless suggested that it was necessary for the Court to take a careful and protective view of the children.

12. Ms F was aware that the children had expressed different views at a time when they had been interviewed by Ms R, the Family Consultant, shortly before the orders were made by Sexton FM.  She expressed the view that the reality of the situation, where they did not live with their mother, had not set in for the girls at that time, but that now it has.  She said that it was important to monitor the girls’ progress and recommended counselling.  Ms F stressed that the girls are very distressed about not living with their mother.  Both of the girls said that she was their primary carer and that they were missing her greatly.  She said that it would be very difficult for them to be left in their current situation.

13. There is no dispute between the parents in these proceedings that the children will benefit from having a meaningful relationship with both of their parents. 

14. In regard to the need to protect the children from physical or psychological harm, the evidence at the present time and the allegations and counter-allegations of each of the parents does not permit me to make any findings about the respective allegations. 

15. The views expressed by the children, however, are abundantly clear.  The girls have made it very clear, both to the independent children’s lawyer and to Ms F, that they miss their mother and they want to live with her.  J has made it equally clear that at this time he wants to live with his father, although he has told Ms F that that position may change at some time in the future.  All of these children are of an age where their respective wishes should be given weight. 

16. As to the nature of the relationship of the children with each of their parents, the girls have made it clear that their mother was their primary carer and that they miss her and wish to return to her primary care.  J, at the present time, has a stronger and more positive relationship with his father, although he wishes to continue to see his mother. 

17. The willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship with the other parent is a matter which causes some concern.  The manner in which the husband removed the children from the mother’s care by subterfuge does not reflect well upon his willingness to encourage their relationship with her; neither does the fact that the father has not permitted the children to have overnight contact with their mother since April 2012, despite the fact of the overwhelming drug tests which showed that she was not using any substance. 

18. I make that statement bearing in mind that the father told Sexton FM that it was only the use of the drug which was affecting the mother’s parenting.  It was in his gift, had he so chosen, having seen, perhaps, 10, 15 or even 20 tests which showed that the mother was not using any substance, to relax the regime that had been imposed by the Court. 

19. In relation to the effect of the changes in the children’s circumstances Ms F made it clear that it would not be in the girls’ interest to continue to separate them from their mother. 

20. There is no difficulty for any of these parties in implementing any arrangement which I might put in practice. 

21. As to the father’s capacity to care for the children it is clear that his care of the children has been able to be effected only with the assistance of some three or four professionals.

22. The father is not available to care for the children on a full-time basis.  The mother is available to care for the children on a full-time basis and if she should require assistance it is my understanding from the affidavit of the former nanny that she would be available to assist the children. 

23. There is no dispute that each of these parties is able to provide for the children’s intellectual needs.  Whether they are each able to support the children’s emotional needs is a matter that will be examined further.

24. I am not able to make any finding in relation to the allegations of family violence that each of the parties makes.  I am, however, able to give weight to the fact that the children, that is, D and G, make allegations of violence against both their father and their brother in their father’s household.  I cannot find that those allegations have substance, but the mere fact that they are being made is a matter for concern.

25. In my view the proper view to be made in this case is an order that the girls return to live with their mother.  I turn now to deal with the issue of counselling with Ms B.  Both of the parties agree that Ms B is an appropriately qualified counsellor to provide to the children the sort of supportive counselling that Ms F says is imperative. 

26. The only issue between the parties is whether or not any party, including the independent children’s lawyer or any expert, who may at a later time be appointed by the Court, should have the right to be given information by Ms B or whether that counselling should be entirely confidential.

27. It is my view that the role of therapist and the role of reporter are inimical.  The children are either in a therapeutic relationship with Ms B or in a reporting relationship with Ms B.  I am of the view that no person should speak to Ms B about the counselling except for the parties and the children, and that each party should be restrained from issuing any subpoena in relation to Ms B’s notes.

28. I note the agreement of the parties that the mother will collect the children on Saturday 4 August 2012 after their respective netball games and that the father will ensure that the children’s belongings are delivered to the mother’s home during the day on Saturday, 4 August 2012. 

29. The balance of the interim applications are adjourned in the judicial duty list at 9.30 am on 19 October 2012.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 3 August 2012.

Associate: 

Date:  18 September 2012