Meese and Meese (No. 4)

[2018] FamCA 843

FAMILY COURT OF AUSTRALIA

MEESE & MEESE (NO. 4) [2018] FamCA 843

FAMILY LAW – CHILDREN – Parenting – interim – where orders provide for time between the father and child - where child spending no time with father – where child demonstrating distress and self-harming behaviours – where mother seeks reduction in child’s time with the father - link between child’s behaviour and time with the father – benefits of meaningful relationship.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA
Family Law Rules 2004 (Cth) r 12.10A

SS v AH [2010] FamCAFC 13

APPLICANT: Mr Meese

RESPONDENT: Ms Meese

INDEPENDENT CHILDREN’S LAWYER: Mr P Smith

FILE NUMBER: CAC 773 of 2017

DATE DELIVERED: 19 October 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 9 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney, SC

SOLICITOR FOR THE APPLICANT: Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT: Dr Behrens

SOLICITOR FOR THE RESPONDENT: Alliance Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, ACT

Orders

1. Order 3 of the Orders of 27 August 2018 is discharged and in substitution it is ordered:

   (a)That unless otherwise agreed between the parties in writing, Z shall spend time with the father overnight each Thursday night subject to the following:

   (i)In the event that the Thursday or the Friday are school days, handover is to take place immediately following the end of school and/or immediately upon the commencement of school, at the school;

   (ii)In the event that the handover day is not a school day, then the handover shall take place at F Town.

   (b)The Mother shall be and hereby is restrained from attending at, or being in the vicinity of, Z’s school for 15 minutes prior to, and following, the scheduled commencement or conclusion of Z’s time with his Father.

BY CONSENT

1. That each party be restrained from causing or permitting Z to attend upon any health institution or health professional, including but not limited to any medical practitioner, without the prior written consent of both parties, except in the event of an emergency, and save for the following professionals:

   (a)Ms R; and

   (b)Dr W, or, if Dr W is not available, any other practitioner at the AA Medical Centre, excluding Dr BB.

IT IS FURTHER ORDERED THAT

1. The Mother will as soon as practicable arrange for Z to attend upon Ms R and upon the Independent Children’s Lawyer (‘ICL’) for the purposes of ascertaining how Z is managing generally, and what would be the appropriate steps (if any) for progressing Z’s time with the Father.

2. That the parties will arrange to attend separately upon Ms R for the purposes of receiving feedback following her meeting with Z pursuant to Order (3) above. 

3. That the Mother ensure Z’s attendance upon Ms R and the Child and Adolescent Mental Health Service (CAMHS) as recommended by Ms R and CAMHS.

4. That immediately upon the delivery of these Orders the parties shall make Z available to meet with the ICL in order for the ICL to explain the effect of the Orders to Z.

5. The ICL is at liberty to relist the matter on short notice to the parties.

6. The child related proceedings will be expedited within the list.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meese & Meese (No. 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 773 of 2017

Mr Meese

Applicant

And

Ms Meese

Respondent

REASONS FOR JUDGMENT

1. The parties are currently involved in litigation concerning the adjustment of their property interests and the arrangements for the three children of their relationship.  Recently, on 27 August 2018, interim orders were made concerning arrangements for Z, the parties’ youngest child.

2. The particular context of those orders was that the father’s time with Z had been suspended in early August 2018, following the release of the single expert’s report.  The interim hearing on 23 August 2018 was particularly focused on whether time between the father and Z would recommence, in the context of Z having a tic, engaging in self-harm and otherwise acting out at school.  These behaviours were, at that stage, suggested by the mother to be connected to Z spending time with the father.  That causal link was not made out in those proceedings, with Z’s stress being more readily attributable to his exposure to conflict within the family and between the parties.

3. Orders were made for equally shared parental responsibility, for maintaining Z’s primary home with the mother and for Z to spend four nights per fortnight with his father, structured so that the parties would not need to come into contact with each other.

4. Since the making of those orders Z has spent no time with his father.  Although there have been contravention proceedings brought, unsuccessfully, by the father, it was common by the time of the hearing in relation to this application that Z had spent no time with his father.

5. The twin focus of these proceedings is upon whether the mother is being obstructive in relation to Z’s spending time with the father, or whether the prospect of Z spending time with his father is the cause of unacceptable stress being placed on Z, such that he has threatened serious self-harm since the making of the previous interim orders.

6. While the background of the current application forms an important context to the consideration of what is in Z’s best interests, the key factual determinants are those arising since the making of interim orders on 27 August 2018.

Orders sought

1. The Applicant Father sought:[1]

   [1] Amended Application in a Case filed 5 October 2018.

   1.That the parenting proceedings be bifurcated from the financial proceedings and the parenting proceedings be listed for final hearing on an expedited basis.

   2.That Order 2 of the Orders of 27 August 2018 be varied such that the child, [Z], born … 2009 (“[Z]”) live with his Father.

   3.That Orders 3 and 4 of the Orders of 27 August 2018 be discharged.

   4.That, unless otherwise agreed between the parents, the parents do all things necessary to facilitate [Z] spending time with his Mother as follows:

   4.1During school terms, in a fortnightly cycle, commencing on the first Friday after the date of these Orders, as follows:

   4.1.1In week one, each alternate weekend from after school (or 3.20pm) on Friday until before school (or 9.00am) the following Monday;

   4.1.2In week two, from after school (or 3.20pm) on Thursday until before school (or 9.00am) the following Friday;

   4.2For the second half of each school holiday period in years ending in an even number; and

   4.3For the first half of each school holiday period in years ending in an odd number.

   5.That the parent with whom [Z] is living facilitate him communicating with the other parent by telephone, FaceTime or similar each Wednesday and Sunday at 6.00pm and at any other reasonable time in accordance with his wishes. 

   6.That in the event that an Order is not made for [Z] to live with his Father as sought in paragraphs 2 and 4 above, then Order 3 of the Orders of 27 August 2018 be varied such that:

   6.1The parents do all things necessary to facilitate [Z] spending time with his Father from 5.00pm on 9 October 2018 until before school on 15 October 2018;

   6.2Each party do all things necessary to ensure that [Z] attends school for the whole of the school day on scheduled school days, save only in circumstances of medical illness, and shall not cause or permit [Z] to be removed from school other than in such circumstances;

   6.3Should [Z] have a medical illness that causes him to be unable to attend school, and the Mother does not facilitate [Z] spending time with his Father in accordance with these Orders, the Mother forthwith provide the Father with a medical certificate from [Z’s] treating medical practitioner;

   6.4[Z’s] time with his Father shall commence forthwith upon the scheduled conclusion of the school day and shall conclude forthwith upon the scheduled commencement of the relevant school day;

   6.5In the event that [Z] is not otherwise in attendance at school on a day when time is to commence or conclude, changeover shall occur at [F Town];

   6.6The Mother shall be and hereby is restrained from attending at, or being in the vicinity of, [Z’s] school for 15 minutes prior to, and following, the scheduled commencement or conclusion of [Z’s] time with his Father.

   7.That in the event that an Order is not made for [Z] to live with his Father as sought in paragraphs 2 and 4 above, then Order 4 of the Orders of 27 August 2018 be varied such that:

   7.1The parent with whom [Z] is living facilitate him communicating with the other parent by telephone, FaceTime or similar each Wednesday and Sunday at 6.00pm and at any other reasonable time in accordance with his wishes.

   8.That each party be restrained from causing or permitting [Z] to attend upon any health institution or health professional, including but not limited to any medical practitioner, save for his usual general practitioner, and any professional whom the Court determines is appropriate for [Z], without the prior written consent of both parties, except in the event of an emergency.

2. The Respondent Mother sought:[2]

   [2] The Mother’s Case Outline Document filed 9 October 2018.

   1.That the Mother have leave to rely on the Affidavits and Family Report referred to below.

   2.That order 3 made 27 August 2018 is suspended pending further order.

   3.That the parties do all such acts and things as are necessary to ensure that [Z] spends supervised time with the Respondent Father for two hours each alternate weekend, commencing as soon as and at such times as can be accommodated by a Contact Service based not more than 2.5 hours’ drive from the Mother’s home (“the Contact Service”), with the Father to pay the cost of such supervised time, and the Mother or her agent to deliver [Z] to spend time pursuant to this Order.

   4.That, following [Z] having spent time on at least three occasions with the Respondent Father pursuant to Order 3 above, the parties do all such acts and things as are necessary to obtain from the Contact Service a report as to [Z’s] time with the Father, with the parties to share equally in the cost of such a report.

   5.The Mother will provide a copy of the report referred to in Order 4 above to [Ms R].

   6.That, following the provision of the report referred to in Order 4 above, the Mother will as soon as practicable arrange for [Z] to attend upon [Ms R] and upon the Independent Children’s Lawyer for the purpose of ascertaining how [Z] has experienced that time, how he is managing generally, and what would be the appropriate steps (if any) for progressing [Z’s] time with the Father. 

   7.That the parties will arrange to attend separately upon [Ms R] for the purposes of receiving her feedback following her meeting with [Z] pursuant to Order 6 above.

   8.That, following the provision to the parties of the feedback referred to in Order 7 above, or upon the Independent Children’s Lawyer indicating to the parties that he is of the view that a Family Dispute Resolution Conference should take place, the parties will attend at a Family Dispute Resolution Conference to be organised by the Independent Children’s Lawyer and to take place, if possible, prior to Christmas 2018.

   9.That the Mother ensure [Z’s] attendance upon [Ms R] and the Child and Adolescent Mental Health Service (CAMHS) as recommended by [Ms R] and CAMHS.

   10.That, as soon as practicable, the Father undertake a psychiatric assessment, with the psychiatrist to be appointed, terms of reference, and documents to be provided to the psychiatrist to be agreed between the parties or, if not agreed, to be determined by the Independent Children’s Lawyer.

   Directions sought by the Mother in relation to the financial aspects of the matter

   1.That, within 14 days, the Mother file and serve an Application in a Case in respect of the interim financial Orders which she seeks and an Affidavit in support.

   2.That, within 28 days, the Father file and serve a Response to the Application in a Case filed by the Mother pursuant to Order 1 above and an Affidavit in support.

   3.That the Mother file any Affidavit in reply within 7 days of compliance with Order 2 above.

   4.That the Mother’s Application in a Case in respect of Financial Matters be listed for hearing on a date which is approximately 6 weeks from today’s date.

3. The Independent Children’s Lawyer (“ICL”) sought:[3]

   1.That Order 3 made 27 August 2018, in relation to [Z], born … 2009 (“[Z]”) is suspended pending further order.

   2.The Mother will as soon as practicable arrange for [Z] to attend upon [Ms R] and upon the ICL for the purposes of ascertaining how [Z] is managing generally, and what would be the appropriate steps (if any) for progressing [Z’s] time with the Father.

   3.That the parties will arrange to attend separately upon [Ms R] for the purposes of receiving feedback following her meeting with [Z] pursuant to Order 2 above. 

   4.That the Mother will facilitate [Z] spending time with the Father in accordance with the recommendations of [Ms R].

   5.That, following the provision to the parties of the feedback referred to in Order 3 above, or upon the ICL indicating to the parties that he is of the view that a Family Dispute Resolution Conference should take place, the parties will attend at a Family Dispute Resolution Conference to be organised by the Independent Children’s Lawyer.

   6.That the Mother ensure [Z’s] attendance upon [Ms R] and the Child and Adolescent Mental Health Service (CAMHS) as recommended by [Ms R] and CAMHS.

   7.All parties will comply with the recommendations of [Z’s] treating medical practitioner including any recommendations for therapeutic intervention.

   8.That, as soon as practicable, the Father undertake a psychiatric assessment, with the psychiatrist to be appointed, terms of reference, and documents to be provided to the psychiatrist to be agreed between the parties or, if not agreed to be determined by the ICL.

   [3] ICL’s Case Outline Document dated 9 October 2018.

Documents relied upon

1. The Applicant Father relied upon:

   a)Orders and reasons for judgment dated 27 August 2018;

   b)Affidavit of Mr Meese, affirmed 10 September 2018;

   c)Further affidavit of Mr Meese, affirmed 5 October 2018;

   d)Tender bundle dated 12 September 2018 (exhibit F1);

   e)Tender bundle dated 5 October 2018 (exhibit F2);

   f)Subpoena material from D Hospital (exhibit F3); and

   g)Subpoena material from Dr BB (exhibit F4).

2. The Respondent Mother relied upon:

   a)Affidavit of Ms Meese, dated 28 September 2018;

   b)Affidavit of Ms R, filed 26 September 2018;

   c)Affidavit of Ms DD, filed 13 September 2018;

   d)Family report of Ms G, dated 13 July 2018; and

   e)Session notes/extracts of Ms S dated 8 February 2017, 18 February 2017 and 15 April 2017 (exhibit M1).

3. The ICL relied upon:

   a)Affidavit of Ms R, filed 26 September 2018; and

   b)Family Report of Ms G, dated 13 July 2018.

Key factual matters arising since the orders of 27 August 2018

1. The key factual matters raised following the making of the previous orders are set out below.

2. On 28 August 2018 the mother spoke to Z about the orders made the previous day that provided for him to spend time with his father.  She asked him how he would feel about spending further time with the father.  Z was reported to have said to the mother “I don’t want to.  I don’t want to see him.”  He went on to say that he wanted to make up his own mind like his sisters were able to.  The mother described Z as being “extremely distressed.”

3. The father alleged that, in the context of Z’s knowledge of the high conflict between the mother and father, this approach by the mother was likely to, or was designed to, undermine the new orders.  He rhetorically asked, under the circumstances of this case, what possible reaction could the mother have expected from such a question?

4. On 29 August 2018 Z returned home after school.  On that day he was being looked after by Ms DD.  She reported that Z threatened himself with a kitchen knife.  When he did so, he spoke of a conflict that he was having with the PE teacher at school. 

5. The father notes that Z did not appear to connect his behaviour to the father, but rather to the PE teacher.  The mother, however, notes that Z has previously described an issue with the PE teacher as being the teacher yelling in a manner that reminded him of his father’s yelling.

6. That evening when speaking to his mother, Z described his issue with the PE teacher.  He also spoke of his father not being a “good dad,” and said to his mother “it’s like dad is kidnapping me.  I don’t want to see him and definitely not for that long.  It has to be illegal what he’s doing.  It’s not right that I am being forced to go and see him.” 

7. The mother says that since the knife incident described above Z has said to her on a number of occasions “you can’t force me to go to dad’s.  If you do, I’m going to run away or kill myself.  I’m not going.”

8. Since this time the mother has ensured that Z has never been at school at the times allocated for the change-over to spend time with his father.

9. On 31 August 2018 the mother arranged for Z to see a general practitioner, Dr BB.[4] Dr BB provided a letter/report about the consultation, noting that Z had an anger issue at school, attempted self-harm with a knife, and felt that he would like to be dead.  He denied any current thoughts of self-harm.  He noted the ongoing custody battle between his parents, and also said that he thought that one weekend each two weeks was a reasonable arrangement for seeing his father.

   [4] Exhibit F4.

10. Z indicated to Dr BB that the conduct of the PE teacher (which was the precursor to the self-harm attempt) reminded him of his father, but that he also did not get on with the teacher, nor like sport.

11. Dr BB recorded:

    When specifically asked about how he feels about visits with father he denied being frightened by his time there, just not enjoying too often.. thinks a weekend night each fortnight is enough.  Denies father has hurt him was frightening… He looks forward to when his [sic] is 14 and can make his own decision about contact with his father.

12. The consultation occurred within one day of the self-harm incident.  Z did not express fear of his father and expressly wanted time with the father.  The mother suggested a caveat be placed upon these expressions by Z on the basis of a previously expressed concern by Z that professionals will report what he says to his parents.

13. The mother accepts that her description of comments about time with the father from Z are more strongly expressed to her than what Z expresses to third-parties.  She connects this to Z’s concern that the parties will report what he says to the Court or to the father.

14. The mother arranged for Z to see a psychologist whom he has previously seen and developed a therapeutic relationship with, Ms R. Ms R has prepared a report on 12 June 2018, a further report on 8 August 2018 and a further report on 11 September 2018, for these interim proceedings.

1. The earlier reports have recorded Z saying that he wanted to spend time with his father, but limited to once a week for one overnight.  He described to her that he liked to see his father and that they “have fun.”  He said that he did not want his time increased, but felt that he needed to keep to the current schedule “in order not to get mum into trouble.”  She assessed him as being “a very distressed little boy who only has one safety strategy to shut down, withdraw and get angry to make himself safe.” 

2. In the most recent report Z told Ms R that he was distressed at the changes (presumably the increase in time provided for in the interim orders) and wanted everything to stay the same.  He said that if he was made to go to his father’s home for more time he would “run away” or “have to try and kill myself again.”  He described methods he could use if he was prevented from running away.

3. The mother also booked Z in to see the Child and Adolescent Mental Health Service (CAMHS).  The first appointment available was on 4 September 2018.  The mother cancelled this appointment due to work commitments, rescheduling for 11 September 2018.  Z’s report on this occasion, where he attended with his mother, is primarily a recitation of the events involving Ms DD, as above.

4. As best can be deduced from the records from the D Hospital, Z attended a further appointment on or around 21 September 2018, initially with his mother, but then subsequently alone.[5] During this appointment Z stated that he ‘felt stressed that day because he had found out that he had to see his father on the weekend’ and that he was ‘going to stab himself in the chest’. When asked as to the source of his anxiety, Z responded that he was worried that his ‘father would be mean to him’. Z reportedly stated that he ‘was worried that his father would look like a good dad to the judge and then after it was all over would be cruel to him’. Z was ‘unable to articulate examples of this’, and was ‘fidgety and uncomfortable at times’.

   [5] Exhibit F3.

5. The mother’s position is that there are four unacceptable risks flowing from unsupervised time between Z and his father.

6. The first, is that Z may react again in the manner described on 29 August 2018 and physically endanger himself.  This was described by her counsel to be a more serious risk, but perhaps less likely to occur.  It should be noted that Z’s threats regarding self-harm as reported by Ms R relate to the concept of spending more time with his father.  The mother argued that the Court should not draw fine distinctions based on whether the Orders provided for “more time” based on this. It should also be noted that Z has reportedly told his mother that he cannot be forced to see his father.

7. The second risk is that Z may be unable to calm himself if he becomes distressed while with his father, given the comments made by Ms R regarding Z’s use of his mother to regulate his emotions, and the alleged deficiencies on the part of the father to meet the emotional needs of Z. Such an occasion was not identified in these proceedings.

8. The third risk is that the father may speak with Z inappropriately regarding what has occurred, thus making Z uncomfortable.  This question is said to flow from the father’s conduct during the interviews with the single expert, where the father later accepted that his discussions with Z in the presence of the single expert were inappropriate.  That, combined with the assessment made by Ms R and previously that the father is self-oriented, was said to be suggestive of such a risk. It may be accepted that there is some risk of inappropriate comments by the father.

9. The fourth risk was said to be a risk to the mother’s mental health posed by her reasonable anxiety, along with concerns expressed by X and Y (Z’s sisters) about Z spending time with the father.  This was said to be likely to impact upon the mother in such a way as to also impact upon the children. This is of limited significance at present. Although the mother appears to have been psychologically fragile in May 2018, she has also provided evidence to say her parenting is not compromised by mental fragility.

10. The mother noted that each of these four risks are able to interact with each other.

11. The father’s position is that it is the mother, rather than Z, who is adamantly opposed to the father spending time with Z.  He says that it is in Z’s interest to have a meaningful relationship with his father and that there is no basis to say that the father himself poses a risk to Z.  At its highest, he says, there is a temporal relationship between the incident of self-harm by Z and the prospect of spending time with the father.  He says that Z has clearly expressed that he wants time with the father and he will be placed under further pressure if the time of the father is stopped.

Other issues that were raised

1. In response to Z complaining to Ms R as to the presence of cameras in the father’s house that might record interaction supportive of the father spending time with Z, the father has indicated that he would remove those cameras.

2. The mother seeks that Z attend upon Ms R. While the father has reservations about Ms R, given that Z is familiar with her and has developed a therapeutic relationship with her he has indicated that he consents to Z continuing to attend upon Ms R.

3. The mother also proposed that Ms R would engage therapeutically with Z and determine what times he would spend with his father. This was opposed by the father for a number of reasons.  One related to Ms R’s previous involvement in the proceedings and hints at whether she would be able to approach the question neutrally.  The second related to this being the Court’s responsibility to determine the arrangements.

4. Even if it were permissible for the Court to have a third-party determine whether and on what terms the father should see Z, the evidence is insufficient to establish that a determination by Ms R would necessarily be in the best interests of Z.  Absent an evidential basis to establish this, it is not an order that ought to be made.

5. The father sought limitations on the taking of Z to attend upon medical professionals by the mother.  The parties agreed to formulate a list of treating professionals that they agree upon for Z to attend, and to be restricted to such a list (save in the case of emergency).

6. The mother and ICL both sought that the father be psychiatrically examined.  This application was raised without adequate notice.  The father was first placed on notice of this application on the day of the interim hearing.  The context of the application is that the single expert was asked, in the terms of reference, to deal with the issue as to whether there should be a psychiatric assessment.  Her response was equivocal, and accordingly did little to support the current application.  Additionally, the father has previously presented evidence from Ms U, a clinical psychologist, as to his mental health.

7. The circumstances, being that the application was made without proper notice, does not articulate who should undertake such an examination of the father, does not have the unequivocal support of the single expert, and where there is already evidence as to the issue by way of the report of Ms U, tell against making such orders at this stage of the proceedings.  This aspect of the mother’s application will be refused.

8. The mother’s application proposes that, initially, time with the father will be spent at a contact centre.  It was proposed by the mother that the centre would be able to provide a report as to the progress of the father’s time as spent with Z.  The evidence did not establish that the contact centre would provide such reports.

9. A significant question arises as to what benefit such supervision would confer.  That is what risk would be ameliorated by the use of a contact centre.  This was not made clear in the context where the mother’s case centres upon Z being stressed at the prospect of spending time with his father.  The evidence did not support the idea that the proposed supervision would alleviate the stress.

10. Further, the closest contact centre is approximately two hours from where Z lives, thus necessitating two hours travel each way for each period of contact.  This does not appear to be a circumstance that will support such visits being experienced in a positive manner by Z.  Additionally, the evidence raised considerable doubt about whether or not a place at the contact centre would be made available.  Of the criteria that was provided by the contact centre for admission, on a number of fronts this matter would be assessed negatively.  This does not equate to a finding that a place at the contact centre would necessarily be refused, but rather an inability to make a finding that it is likely that a place would be made available.

11. Absent such a finding, and in the context of the two hours travel each way, a contact centre does not constitute an appropriate or available option.

Discussion

1. The interim arrangements for Z fall to be determined by consideration of what is in Z’s best interests. This is to be determined by consideration of the matters set out at s60CC of the Family Law Act 1975 (Cth) (‘the Act’), following the reasoning framework as set out by s61DA (presumption of equal shared parental responsibility when making parenting orders), s65DAA (court to consider child spending equal time was substantial and significant time with each parent in certain circumstances), and as considered in the light of the objects and principles set out at s60B.

2. In determining the matter it is necessary to acknowledge the limitations inherent to an interim determination, where the evidence cannot be tested and where fact-finding about controversial matters is not available.  An interim determination is to rely, where possible, on uncontested matters.  However, in the pursuit of a child’s best interests, it is not always possible to rely simply upon uncontested matters.

3. In the circumstance where the interim arrangements for Z to spend time with his father have only recently been determined, the primary focus of the consideration of the changes sought by the parties is upon what has occurred since those orders were made.  It is appropriate that a consideration of what has occurred since the making of the orders takes place in an acknowledgement of the more general circumstances as identified in that previous judgment.

4. In the ultimate hearing of this matter it may be necessary to conclude whether Z’s stress and self-harm attempts (which are usefully corroborated by third-parties) are to be connected merely to the conflict between the parties, or to conduct on the part of the mother in placing pressure upon Z in respect of whether he is to see his father or not (whether consciously or unconsciously), or whether the history of the relationships between the father and Z, Emma, X and the mother has led Z to be highly stressed at the prospect of spending time with the father.  Those matters are not able to be resolved in the context of interim proceedings.

5. However, the corroborated issues of Z’s stress and self-harm cannot be disregarded simply because determinations as to the cause cannot be firmly made.  I note what was said in SS & AH,[6] that “(a)part from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative in the way the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”

   [6] [2010] FamCAFC 13 at [100].

6. In this case neither party sought the discharge of the orders previously made for equally shared parental responsibility.  The matters identified in the previous interim orders that dealt with parental responsibility do not appear to have been displaced.  Despite the difficulties between the parties, parental responsibility should remain equally shared.

7. None of the parties suggested by their proposals that there should be an equal sharing of time.  In the circumstances of the current case, where there is such high conflict between the parties, their position that there should not be an equal sharing of time may be readily seen to be consistent with the best interests of Z.

8. The pivotal matters are the consideration of the benefits of Z having a meaningful relationship (s60CC(2)(a)) with his father (a meaningful relationship with the mother being available on whatever set of orders proposed by the parties might be made), Z’s views (s60CC(3)(a)), the nature of Z’s relationships in particular with each of his parents (s60CC(3)(b)), the likely effect of a change in other circumstances (s60CC(3)(d)), and the capacity of each the parents to care emotionally for Z (s60CC(3)(f)) along with Z’s particular characteristics (s60CC(3)(g)).

9. The general scheme of a temporary suspension of time between Z and his father, predicated upon some determination being made by Ms R, is not available.  An option to have supervised time is neither available nor indicated as a means to alleviate the critical issue of stress experienced by Z.

10. It is the issue of stress, which is connected to the considerations identified above, and its corresponding potential connection to self-harm, that is pivotal in determining what time Z should spend with each of his parents.  The particular cause of the stress remains unidentified.  That is, it remains an open question whether it is simply a product of the parties’ conflict, connected to pressure applied by the mother, or connected to Z’s relationship with the father, or even caused by a combination of the above or by some other source.

11. However, the temporal coincidence of Z’s undisputed self-harming with the proposed increase of time with the father, along with Z’s reported comments, is significant in determining how to protect Z, despite Z’s immediate comments being about the PE teacher rather than his father on the last occasion of attempted self-harm.  That is, whichever of the above causes might be responsible for Z’s current predicament, how his time with his father is treated has the capacity to alleviate those matters, albeit at the expense of the benefits of a meaningful relationship with his father.  For example, if pressure from the mother is indeed the cause, then the occasion for that pressure diminishes with a reduction in time with the father.  If the occasion is the conflict between the parties, then again, if Z is exposed to less movement between the conflictual parties as a means of reducing his exposure to conflict, this may result in a reduction in time with his father.  Finally, if the cause relates to Z’s relationship with the father, then a reduction in exposure to the father presumably reduces the stress that Z is undeniably suffering.

12. A reduction in Z’s time does not equate to a finding that the father is responsible for whatever stress is being felt by Z.  It does deal with a particular factor, being spending time with the father, which could be connected with any of the causes so far raised on the evidence for the stress.

13. The question then becomes one of what particular orders should be made.  The question may be asked whether the circumstance of Z’s stress justify a complete cessation of the time that Z has with his father, or merely a reduction in that time. In determining this matter it should be noted that, to third parties, Z has said that he likes his time with his father, although he does not want an extension of the time (which was provided for in the last set of interim orders).  This matter is somewhat controversial given the reports of stronger assertions by Z and the mother pointing to a reason why Z might understate his view when speaking to third parties.

14. The evidence given by the third parties of Z’s expressions form the best basis in these interim proceedings to balance the considerations set out above, such that Z might extract some benefit from meaningful relationship with his father pending final determination and yet be protected from the effects of stress that have been manifested in his self-harm attempts.

15. Given what Z has variously said to Ms R, who has been accepted by the parties as a person with a therapeutic relationship with Z, the balance is struck by providing for a single overnight period for Z with his father each week.  In order to try to isolate Z from the conflict between his parents the pickup and drop-off mechanisms should occur at the school where there is no need for the other parent to be involved.  Orders will be made to provide for Z to spend overnight each Thursday night with his father being collected from and dropped back at school.  This arrangement should continue across school holiday time, with the venue for handovers during school holidays being as sought by the father.  Unfortunately, this means that there will be some need for interaction between the parties to resolve the venue for such a handover.

Bifurcation and expedition

1. The father seeks the expedition of the proceedings.  In order to assist in that process he asks that the financial proceedings be split off from the child-related proceedings.  The mother does not oppose this course, contingent upon there being an interim distribution in the financial proceedings, on the basis that it is necessary that there be such a resolution because it impacts upon her capacity to care for the children.  The mother has an interim application extant in relation to property.

2. Rule 12.10A deals with expedition.  A particular factor that supports expedition in this case is set out at r 12.10A(4)(g).  The current position of Z (in the context of being unable to determine the cause of his stress and the serious apparent consequences of that stress) means that a prompt hearing of the matter, insofar as such may be allowed by the state of the list, in the expectation that the hearing would resolve the cause of Z’s stress, would avoid serious emotional or psychological trauma to Z that is connected to his current circumstances.

3. The splitting of children’s and property matters has the potential to reduce the amount of hearing time that would need to be expedited.  However, it also has the potential to render the proceedings far more onerous.  Absent an identification by the parties as to the scope of the property dispute it is premature to make an order for the splitting of the children’s and property matters.  That may be a matter that requires further consideration once the scope of the property dispute has been identified.

4. At this stage an order for the expedition of the child related proceedings will be made.  The question of the splitting of the proceedings will be considered on further identification of the scope and urgency of the property proceedings. 

ICL

1. At the hearing of the matter, the parties indicated they would make Z personally available to the ICL for the ICL to communicate the Orders.  The ICL will be at liberty to relist at short notice. The ICL should take steps to deal with the potential for evidence of his interaction with Z being required following communication of this decision.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 19 October 2018

Associate: 

Date:  19 October 2018.