McFadden & Eaglin
[2022] FedCFamC2F 1745
Federal Circuit and Family Court of Australia
(DIVISION 2)
McFadden & Eaglin [2022] FedCFamC2F 1745
File number(s): MLC 11091 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 15 November 2022 Catchwords: FAMILY LAW – interim parenting orders – reintroduction of father to children – family therapy to reintroduce parent – whether reintroduction should begin with the children’s wishes or not –child with anxiety disorder – father with criminal history. Legislation: Family Law Act 1975 (Cth) s 69ZL Division: Division 2 Family Law Number of paragraphs: 23 Date of hearing: 15 November 2022 Place: City B Counsel for the Applicant: Mr D Carne Solicitor for the Applicant: Morrison and Sawers Counsel for the Respondent: Mr J Korke Solicitor for the Respondent: Docherty Legal Counsel for the Independent Children's Lawyer: Mr R Allen Solicitor for the Independent Children's Lawyer: Melanie Wyatt Family Law ORDERS
MLC 11091 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MCFADDEN
Applicant
AND: MR EAGLIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
15 NOVEMBER 2022
THE COURT ORDERS BY CONSENT THAT:
1.The Mother have sole parental responsibility for the children being:
(a)X born in 2009; and
(b)Y born in 2011.
2.The children live with the Mother.
3.The Mother keep the Father informed of the following:
(a)the school the children attend;
(b)any significant health issues relating to the children; and
(c)whether the children are to be taken overseas including the countries being visited and the period of the holiday.
4.The Father be at liberty to liaise directly with the children’s school at his own expense for the purpose of:-
(a)obtaining school reports
(b)obtaining school photos
(c)receiving school newsletters.
AND THE COURT ORDERS THAT:
5.The children, the mother, and the father attend upon Mr C (“the family therapist”) for family therapy at times and places as directed by the family therapist, at the cost of the Father, for the purpose of therapeutically reintroducing the children to the Father at a pace (if any) that the family therapist determines is in the best interests of the children.
6.Other than time occurring in the context of family therapy and in the presence of the family therapist, no time between the father and the children shall occur without further order of the court.
7.The family therapist is requested to undertake such therapy in the City B area if possible and practical.
8.The ICL provide to the family therapist a copy of the documents filed by the parties, Dr D’s Report, Section 67Z, Child Impact Report and these Orders.
9.The parents do all acts and things to authorise any counsellor, therapist or mental health practitioner or consultant treating the children or either of them to provide such information concerning the children as the family therapist requests.
10.The family therapist be requested to prepare a report prior to the next Court date (to be filed by the ICL) and Victoria Legal Aid are requested to bear the cost of the report, but in the event that is refused then the father shall bear the cost of the report.
AND THE COURT ORDERS BY CONSENT THAT:
11.The Father continue to engage with his general practitioner and undergo treatment for depression.
12.For the purpose of paragraph 3 of these Orders, communication between the Mother and the Father shall be by way of ‘AppClose’ or such other parenting app as may be agreed from time to time and for that purpose the parties download and enrol in that app within 7 days of these Orders.
13.The matter be listed for mention on Monday 29 May 2023 at 10.00am in the May 2023 sittings of the City B circuit.
AND THE COURT NOTES THAT:
A.This matter was rolled over from Monday 14 November to today in the City B Circuit. No orders were made on the Monday.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym McFadden & Eaglin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations added and an attempt has been made to make the orally delivered reasons easier to read.
The question I must answer is how family therapy to reintroduce the Father to the children should be attempted.
The background is that the Mother is 39 years old and a professional. The Father is 35 years old and is employed in less skilled employment. The parties have two children who are now 13 years old (‘the older child’) and 11 years old (‘the younger child’). The older child has an anxiety disorder, or has behaviour consistent with that anxiety disorder. The parties lived together in 2003 and married in 2006. They separated in 2014. The Father's time with the children was not consistent from 2014 until 2018. At one point, the Father was suffering depression.
The proceedings were commenced in October 2021. The gist of the Mother's affidavit is to complain of a lack of interest on the Father's behalf with the children or with both of them, during the relationship and after.
The Father was imprisoned in 2020 for matters unrelated to these children or these proceedings. Those matters would be distressing to the children were they to learn of it and it appears that the Mother has protected the children from that knowledge at least at this time.
When the proceedings commenced, the Father, as ordered, undertook a psychosexual examination by Dr D. After a detailed examination, Dr D wrote a report and assessed the Father as being at a low risk of offending. That report includes the following:
53 I have read more complete affidavit material by the mother. She cited emotional control and practical control in the relationship, the father taking little interest in the children. As indicated, there are allegations that the father inappropriately disciplined the children and also left the children unsupervised. Additionally, she described inconsistent time between the children and the father from 2015 onwards particularly. She cited issues of care of the children when they are with their father. The father also indicated five years ago that he wanted to have [the younger child] on visits but not [the older child] and the father saying that [the younger child] should live with him, and [the older child] with the mother. [The younger child] began wetting the bed related to time with the father and [the older child] became anxious. In 2018 [the older child] became suicidal. The father was reportedly threatening and abusive towards the mother. There has been no contact between the father and the boys since October 2018. Reportedly, [the older child] does not want to have time with the father, and he does not like males. [The younger child] is inclined to do anything to please adults. It is reported by the mother that neither of the boys wish to have contact with the father.
…
59 [The Father] is a 37-year-old man psychologically evaluated in the context of Family Law proceedings concerning the care and custody of his children, [the older child] and [the younger child] aged 12 and 11 years from his relationship with [the Mother], and [[F]] aged five years from his relationship with [[Ms E]]. There are Family Law matters related to the children. The evaluation was undertaken to assess psychosexual risk. This factor was addressed via the RSVP and more general parental risk was undertaken via the FSNA as well as other psychometric and clinical instruments.
…
62.Psychosexual evaluation via the RSVP showed [the Father] to be low risk for sexual offending generally, and in relation to the children is at low risk of offending.
63 [The Father] has had some more general mental health issues with vulnerability towards depression and has been appropriately treated. Nevertheless, he had a period of suicidality related to the separation, although these matters appear to have been appropriately treated. He remains on antidepressant medication, and can be said to be functioning, at this point, without a psychological disorder, despite the vulnerability factor.
…
65 It would be of benefit for [the Father] to continue to have ongoing psychological assistance for more general mental health reasons, and also to gain further understanding of the child pornography issues. I would suggest a clinician such as [[Dr G]]… It would be helpful to see this clinician over the next two years. Additionally, it is appropriate for him to have intermittent consultations such as every six – twelve months with a psychiatrist to ensure issues around depression and medication are appropriately managed.
After the proceedings were commenced, the parties were ordered to undertake a child impact conference and that conference was undertaken in September 2022, with the report released on 4 October 2022. It is common ground that the children have expressed a wish not to see the Father or engage with him at all. That report includes the following:
7. [The older child] requested [the Father] not be referred to as his father and stated he now refers to him as [the Father’s first name]. When asked about positive things about each parent, [the older child] was unable to provide a response regarding [the Father] and was unable to provide insight into what would need to occur for [the Father] to improve his relationship with him. He stated he was not open to forming a relationship with [the Father] and stated he did not think it would be safe for him to be in the care of [the Father]. When queried as to why he felt this way he spoke of his recollection of [the Father] threating physical discipline of himself and [the younger child] as evidence of him not being a safe parent. [The older child] was asked about the length of time spent apart from [the Father] and the possibility of him having changed and [the older child] remained adamant of his opinion returning to his previous statements of not wanting to see him.
8. [The younger child’s] opinion differed from that of [the older child’s]. He recalled [the Father] as being ''funny" and when asked about what he could do to improve he stated [the Father] could learn to be a better cook and not threaten to hit him and his brother with a wooden spoon. He stated he would be open to receiving written correspondence from [the Father] but was not open to face to face contact at this point in time.
…
KEY CONSIDERATIONS AND PATHWAYS FOR DECISION MAKING
20. Children to continue to remain in the primary care of [the Mother].
21. The children may benefit from engagement with a family therapist who can assist the family to therapeutically reintroduce the children to [the Father] at a pace that is in line with the children's emotional resilience and willingness.
22. The Court may wish to consider Orders that allow [the Father] to engage with any professionals, including schools, whom the children engage with so as to remain informed about their development.
23. [The Father] may benefit from continued engagement with his GP regarding his depression and medication.
24. [The Father] will benefit from completing the recommendation of [[Dr D]] and engaging with a clinician to further support his mental health.
25. [The Mother] and [the Father] may benefit from the use of a parenting app to communicate any additional information as this will allow them to remain buffered from one another yet informed.
The long and the short of it is that the recommendations of the court child expert were that the children should remain in the care of the Mother, which I might add has never been in issue, but also that children may benefit from engagement with a family therapist. It is that recommendation that has given rise to the limited but very significant dispute that I must determine today.
The Mother's affidavit has attached a report from a Dr G from a counselling service, who has examined the older child. Dr G had examined the older child on 17 March 2022 and again on 8 April 2022 and at that time observed as follows:
[The older child] expressed significant anxiety about his father's harmful behaviour and experiencing relief with his incarceration. He described feeling afraid of his father's release from prison. He also expressed a range of worries about a variety of things which fit the criteria for a diagnosis of generalised anxiety disorder with symptoms of post traumatic stress disorder. His symptoms were moderate in severity and clearly impacting his function. I will surmise and state that adverse childhood experiences will lead to anxiety. Our goal for [the older child] will be to recover from his debilitating symptoms, which would encompass reducing stress in his environment, medication and therapy.
It appears to me that the report of Dr G was before the child expert, that report having been attached to the May 2022 affidavit of the Mother. It is necessary to recite those background details to better understand the parameters of the dispute.
The parties agree upon the following orders:
1. The Mother have sole parental responsibility for the children being:
a. [The older child] born [in] 2009; and
b. [The younger child] born [in] 2011.
2. The children live with the Mother.
3. The Mother keep the Father informed of the following:
a.the school the children attend;
b.any significant health issues relating to the children; and
c.whether the children are to be taken overseas including the countries being visited and the period of the holiday.
4.The Father be at liberty to liaise directly with the children’s school at his own expense for the purpose of:-
a. obtaining school reports
b. obtaining school photos
c. receiving school newsletters.
…
8.The Father continue to engage with his general practitioner and undergo treatment for depression.
9.For the purpose of paragraph 3 of these Orders, communication between the Mother and the Father shall be by way of ‘AppClose’ or such other parenting app as may be agreed from time to time and for that purpose the parties download and enrol in that app within 7 days of these Orders.
10.The matter be listed for mention in the May 2023 sittings of the City B circuit.
The further orders as to therapy contended for by the mother are:
5.The Independent Children’s Lawyer be at liberty to liaise with the children’s respective [counselling service] counsellors with respect to whether the children or either of them have expressed a wish to commence family therapy pursuant to paragraph 6 of these Orders.
6.Subject the children expressing a wish to do so through their [counselling service] counsellor(s), they attend upon a family therapist (and in default of agreement, [[Mr C]], provided that he can conduct such therapy in the [City B] area) at the cost of the Father for the purpose of assessing the ability to therapeutically reintroduce the children to the Father at a pace that the therapist determines is in the best interests of the children.
7.Any time recommended by the family therapist shall be supervised either at the [contact centre], [City B], or a person nominated by the Mother.
Further orders as to therapy contended for by the Father are:
6.The children, the mother, and the father shall attend upon [[Mr C]] (“the family therapist”) for family therapy, at the cost of the Father, for the purpose of therapeutically reintroducing the children to the Father at a pace (if any) that the family therapist determines is in the best interests of the children AND IT IS NOTED that the family therapist may conclude that reintroduction is not in the circumstances feasible or is not in the best interests of the children and therefore not commence any reintroduction.
7.Other than time occurring in the context of family therapy and in the presence of the family therapist, no time between the father and the children shall occur without further order of the court.
8.The ICL provide to the Family Therapist a copy of the documents filed by the parties, [[Dr D]'s] Report, Section 67Z, Child Impact Report and these Orders.
9. The Family Therapist prepare a report prior to the next Court date to be filed by the ICL and Victoria Legal Aid are requested to bear the cost of the report, but in the event that is refused [sic] then the father shall bear the cost of the report.
In the end, the additional notation to what was #6, that is the therapy order sought by the Father, was not pressed after I expressed some doubt about the appropriateness of such a notation being included in an order.
The Mother's counsel claims that the Mother supports the concept of therapy between the children and the therapist, with a view to whether it is possible to reintroduce the children. However, she seeks that only commence after the children have expressed a wish to do so through their counsellor. The Mother's counsel qualified that it was not so much a matter of a wish but an indication of readiness for that. The Father, by his counsel, indicated from their perspective a difficulty with the concept of the children expressing a wish or indicating a readiness for therapy before therapy occurred. That argument was on the basis that it was common ground that if asked, the children would now and have in the past, opposed any such therapy. It is common ground that the children’s wish was that no such therapy with the purpose of reintroduction with their father occur.
It is also common ground between the parties that were it safe to do so, there would be a benefit to the children of re-establishing a relationship with the Father. The Mother presses the more cautious and conservative approach of that not being attempted until there is an indication from the children of readiness to do so. The Father's approach, supported by the Independent Children’s Lawyer (“ICL”), is more direct and moves directly to the commencement of the therapeutic process. However, the very wording of the orders that the Father seeks is of itself significant, including the notation that was previously pressed and order number 7 making it explicit that there would not be time otherwise, if any. The Father is also proceeding at a most cautious and careful pace. Each of the parties' positions have a logic to them and are sensitive to the position that the children are in at this time.
I have raised with counsel the issue that, at first blush, paying significant weight to the wishes of the children can be regarded as child-focused. However, in this case, to have the responsibility on the children of determining whether or not they will have therapy to see about a reintroduction of their relationship with their father places too much of a burden on the children. Such a decision is a parental decision. The parents cannot agree and hence, ask that I determine that matter as a parental decision.
I take into account all of the matters under Part VII of the Act and all of the matters that the parties have addressed to me. I particularly take into account the observations of the treating psychiatrist, Dr G. I also place considerable weight on the fact that it is agreed that Mr C, the proposed family therapist, is an experienced expert and therapist.
I am concerned that if it is left to the children to indicate a readiness through the counselling process, that that may never happen and the children may or may not be ready for it. I am also concerned that the purpose of the counselling is not the relationship with the Father. That may well be one of the matters covered, but the counselling, in particular for the older child, is to deal with his significant anxiety, which is not just about his father.
In my view, the counselling should proceed, as it will, at the direction of the experts involved in that counselling. Separate to that, there should be the attempt at the reintroduction of the Father to the children's lives through the sensitive process of family therapy. The counselling information or counsellor (Dr G) should inform, but not direct, the family therapist. The family therapist, no doubt, will provide information to the counselling service and again, that information from the family therapist should or may inform the counselling service but not direct it. I am confident in the sensitivity and caution that Mr C will inevitably bring to this task.
The orders that the Father presses have contained within them, or had contained within them, safety valves that were obviously for the purpose of trying to reassure the Mother that there was going to be no railroading of either herself or the children into any therapy.
I indicate also that upon my pressing for clarification, #6 as sought by the Mother became that it was not just the children to attend the therapy with Mr C, it was for the children and the parents to attend, as directed by Mr C, but after the children had indicated a readiness.
For all of those reasons, I am determining that the orders with some slight modification as pressed by the Father and the ICL should be made. There should be a further orders that the parents do all acts and things to authorise any counsellor, therapist or mental health practitioner or consultant treating the children or either of them provide such information concerning the children or either of them, as the family therapist requests. There should also be the further order that the family therapist is requested to undertake such therapy in the City B area. That is a request, not a direction. Order 6 should include “Mr C (“the family therapist”) for family therapy at times and places as directed by the family therapist” and I will not include the notation requested. I will also make orders number 8 and 9 under the Father's orders, which were also to have added “if possible and practical”.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 15 December 2022
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