MENSER & TATLOW

[2020] FCCA 2879

FEDERAL CIRCUIT COURT OF AUSTRALIA

MENSER & TATLOW [2020] FCCA 2879

Catchwords:
FAMILY LAW – Interim Parenting Issues.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC(2), (3)

Cases cited:

Goode & Goode (2006) FLC 93-286

Eaby & Speelman (2015) FLC 93-654

SS v AH [2010] FamCAFC 13

Applicant: MR MENSER

Respondent: MS TATLOW

File Number: LNC 745 of 2020

Judgment of: Judge McGuire

Hearing date: 21 October 2020

Date of Last Submission: 21 October 2020

Delivered at: Launceston

Delivered on: 23 October 2020

REPRESENTATION

Counsel for the Applicant: Ms Vohra

Solicitors for the Applicant: Hargreaves Family Lawyers

Counsel for the Respondent: Mr Williams

Solicitors for the Respondent: Glynn Williams Legal

ORDERS

1. That the final parenting orders of 15 December 2015 remain in full force and effect in respect of the children X born in 2008 and Y born in 2012 (“X”) and (“Y”) (“the children”).

2. That the children forthwith be returned to the care of their mother.

3. That pursuant to Section 68L(2) of the Family Law Act 1975 the child/ren X born in 2008 and Y born in 2012 be independently represented AND IT IS REQUESTED that the Legal Aid Commission of Tasmania expedite such independent representation.

4. That forthwith upon appointment by the said Legal Aid Commission of Tasmania or otherwise the Independent Children’s Lawyer (“the ICL”) file a Notice of Address for Service.

5. That within 48 hours of notification of such appointment the parties or their solicitors must provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

6. That upon their appointment, and after filing of an Notice of Address for Service, the Independent Children’s Lawyer (ICL) may INSPECT and COPY all documents previously produced to the court in response to a subpoena issued in the proceedings and released to the parties. The ICL may provide a copy of any such material to any expert, person or agency who is preparing a report or treating the parties or children, for the purposes of assisting them to do so, whether by court order or the agreement of the parties EXCEPT for material produced under subpoena to the Department of Health and Human Services.

7. That pursuant to Section 11F of The Family Law Act 1975 the parents and the children X born in 2008 and Y born in 2012 are to attend a Child Inclusive Conference with a Family Consultant nominated by the Manager, Child Dispute Services of this Registry of the Court for help in resolving their dispute (noting an appointment on Wednesday 28 October 2020 at 9.15 a.m.) and otherwise as directed by the family consultant.

8. That the parties are to attend at any conference convened, directed and conducted by the Independent Children's Lawyer.

9. That the parents co-operate in permitting the Independent Children's Lawyer to reasonably meet with X and Y.

10. that each of the parties be and hereby restrained from engaging any counsellor, psychologist or other behavioural scientist for the child X other than Ms B without Court order or express written agreement between the parents.

11. That these orders specifically enable each of the parents to be provided with any and all information normally provided to parents by any medical practitioner or counsellor engaged for the children or either of them.

12. That the matter is otherwise listed for mention and directions in the Federal Circuit Court at City K on Monday 9 November 2020 at 2.00p.m. by telephone hook-up unless otherwise advised.

NOTATION:

1. AND THE PARTIES ARE TO NOTE that Section 11G of the Family Law Act 1975 provides that if a person ordered to attend an appointment with a Family Consultant under section 11F fails to comply with that Order or any instruction given by the Family Consultant, the Family Consultant must report the failure to the court and the court may then make any further Orders it considers appropriate.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

LNC 745 of 2020

MR MENSER

Applicant

And

MS TATLOW

Respondent

REASONS FOR JUDGMENT

Applications

1. I am asked to deal with the interim parenting issues in respect of the parties’ two children X born in 2008 (aged 12 years) and Y born in 2012 (aged eight years).

2. The applicant is the father.  He seeks orders as follows:

   1.That the Final Parenting Orders made on 15 December 2015 relating to the children of the relationship X born in 2008 and Y born in 2012 (“the children”) be suspended, pending further order.

   2.  Until further order, the Respondent Mother, her servants and agents be and are hereby restrained from removing or attempting to remove the children or either of them from the care of the Father, including from the home of his parents or the children’s school(s).

   3.That Ms C be permitted to spend time with the children whilst they are in the Father’s care in Tasmania and that interstate travel by her is considered essential travel.

   4.That pursuant to sec 11F of the Family Law Act 1975, the parties and the children attend upon a Family Consultant of the Federal Court of Australia (sic) for the purposes of an urgent Child Inclusive Conference.

   5.That the Applicant Father be excused from further particularising the interim parenting orders sought pending the outcome of the sec 11F Report.

   6.That pursuant to sec 62G of the Family Law Act 1975, the parties and the children attend upon a psychologist for the purposes of a Family Report with the costs to be shared equally between the parties.

   7.The children continue to attend upon Ms D, psychologist, for the purposes of ongoing therapies directed by Ms D.

   8.That the father have leave to file further affidavit material upon receipt of the sec 11F Report in support of any amended Application. 

   9.Such further or other orders as the Court deems necessary.

3. The respondent mother asks for the following orders:

   1.That the children X (born 2008) and Y (born 2012) be returned to the Respondent Mother forthwith. 2. The Father's Application filed 13/10/2020 be dismissed. 3. That the children be independently represented in these proceedings and it is requested that Legal Aid Commission of Tasmania arrange such representation, and that the independent children's lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Court Registry. 4. That the Father be restrained from; (a) Seeking any further forensic medical or psychological reports on the children unless agreed or as ordered (b) Changing the school enrolment of the children; (c) Seeking medical treatment for the children unless in an emergency. 5. That the Applicant Father pay the Respondent's costs of and incidental to this application.

4. I pause to observe that I expect the mother seeks the dismissal of the interim application of the father because to dismiss his application per se would not to give me the power to then make orders 3 – 5 sought by the mother.

Relevant Background

1. The parties commenced cohabitation in 2007.  They married in 2010 and separated in December 2013.  A divorce order was made 14 May 2015.

2. X and Y are now 12 and eight years of age respectively.

3. On 15 December 2015 final parenting orders were made by consent providing for equal shared parental responsibility in the parents for X and Y together with an order that that the children were to live primarily with the mother.  The children were to spend alternate weekends and half holidays with the father.  The orders provided that the children's time with the father could be spent in Melbourne every second fortnight.

4. The father has re-partnered with Ms C and that relationship has now endured some six years.  They live in Melbourne where the father is employed as a Manager.  The father deposes that he and Ms C regularly travel to Tasmania to spend time with the children in accordance with the final orders and that the children travel regularly to Melbourne.  Ms C is employed as a Manager.

5. The mother has re-partnered for four years with Mr E.  Mr E is a Manager.  The mother is employed as an allied health worker. The mother, Mr E and the children live at Town F in Region G Tasmania.  The children attend the H Primary School after orders were made in this Court on 13 February 2018 on the mother's application that she be permitted to move their school from the J Primary School in City K.

6. The father has been travelling to and from Tasmania in the last months subject to Covid-19 permits.  He collected the children for school holiday time on 2 October 2020 and they remain in his care.  He is accommodated at his parents’ home in Tasmania.  It seems that Ms C has been unable to obtain permits to accompany him.

The Father's Case

1. The father says that he has long held concerns as to the well-being of the children in the mother's care. It is agreed that the parties engaged in mediation, apparently pursuant to s.60I of the Family Law Act 1975 (‘the Act’) in about July 2020.

2. Specifically the father says that on 5 October 2020 X disclosed to him that she had been self-harming by cutting herself with a knife or scissors at both home and school.  She showed him cuts on her arms and legs.  He says that the mother had not disclosed this to him.  Secondly, X disclosed that she is unhappy in her mother's home where she witnesses arguments between the mother and her partner and says that she has received threats of assault from the mother's partner.  Thirdly, X's disclosed to the father that she has been bullied by girls at her school, who has also threatened to assault her.  The father says that he has viewed threats on X's telephone.

3. The father says that he attempted to obtain professional assistance for X from Tasmanian psychologists and approached six different venues but that there was no availability.  He says that he again made enquiries in Melbourne and obtained in an urgent appointment with Ms D at L Consulting Services for Friday 9 October 2020. 

4. The father says that X further disclosed that she may have an eating disorder in that she is not eating properly and that she vomits after eating.

5. The father says his concerns are compounded by this information coming from X but not from the mother and particularly in circumstances where X disclosed that she had already consulted with a Counsellor or psychologist in City M apparently arranged by the mother.

6. The father deposes that his concerns were repeated by X to Ms D in a consultation of 9 October 2020.

7. The consultation was obtained via a mental health plan itself obtained from a Telehealth appointment with the father's general practitioner

8. The evidence suggests that Ms D saw X on 8 October 2020 and further saw both X and Y on 14 October 2020.  In the circumstances it appears that the consultations were carried out by way of a medium called ‘Telehealth’ and were certainly not face-to-face consultations.

9. The children remain in the father's care.  They were not returned to the mother on the 12 October or to school within the last week.  They remain in Tasmania with the father.

10. The father relies on his affidavit sworn 12 October 2020 together with an affidavit of his partner, Ms C, filed 13 October 2020 and his father, Mr N, sworn 16 October 2020 together with the affidavit of Ms D affirmed 16 October 2020.

11. Ms C confirms her relationship with the father and having spent significant time with X and Y in both Melbourne and Tasmania.  She has not spent time with the children since February 2020 as a result of the virus and interstate travel restrictions.  She says that she keeps in contact with the children by telephone on a weekly basis.  She deposes to a mutually comfortable relationship with X.

12. Mr N is the paternal grandfather.  He lives on a 50 acre farm near City K.  He deposes to a very close relationship with X and Y.  He says that he and his wife continue to provide support for the mother following the separation of the parents.  He says that his relationship with the mother has broken down since the mother entered into a new relationship with Mr E but continues to see the children when they are with their father in City K and apparently on weekend times when the travel restrictions prevented Mr N from travelling to City K.  He says that he has noticed some changes in X's demeanour of late.

The Mother’s Case

1. Both the mother and her partner, Mr E, have provided affidavits.

2. The mother says that she learned of the children being retained by the father only by way of a telephone call from her solicitor on 12 October 2020 which is consistent with a letter annexed to the father's affidavit from his solicitors of the same date apparently advising the mother for the first time of his concerns and his intentions at least formally.

3. The mother denies allegations of abuse, neglect and ill-treatment of the children levelled at both her and Mr E.

4. The mother's affidavit suggests that the father has aggressively pursued different orders with the children throughout 2020 including the father claiming that he was seeking ‘shared care, even though he lives in Victoria’. She says that she attended mediation pursuant to s.60I of the Act and annexes a report from O Family Services Tasmania[1]. The mother says the mediation was unsuccessful and annexes a letter to her from the mediator advising that the father did not agree to pursue further mediation and that the s.60I certificate had been issued.

   [1] No Objection was taken by Counsel for the father as to the disclosure of the mediation report.

5. Given that Counsel for the father specifically stated that she has no objection to the material from the mediation, the mother emphasises paragraph 1 of the mediation report of 24 July 2020 as follows:

   Unfortunately, no agreement was reached on the following agenda items discussed:

   1.    The time for a follow-up mediation to discuss (among other issues) travel restrictions, Mr Menser's relocation situation and its implications for whether any prior agreement reached about care arrangements for the children is working satisfactorily.  You want this mediation to occur after Mr Menser relocates to Tasmania, but he is not willing to wait that long unless a Certificate is issued now to state that the current mediation is unsuccessful.  I do not intend to issue that certificate unless the follow-up mediation which you have both agreed to attend to complete the issues on yesterday's agenda is unsuccessful. 

6. The mother says that she was contacted by X's teacher on about 31 July 2020 advising that X had been self-harming by 'cutting her skin superficially'[2]. The mother reports that X had consented to the teacher calling the mother but specifically asked the teacher not to call the father.  The mother says that she consulted the Principal of the primary school together with a local general practitioner, Dr P.  Dr P provided a mental health referral of 4 August 2020.  Such annexed to the mother's affidavit at annexure '3'.  Dr P’s referral states the following:

   [2] [13] of mother’s Affidavit sworn 16 October 2020

   Thank you for seeing X, aged 12 years, who is hoping you might be able to help her with her current stressors.  She has started to self-harm and is quite depressed as her dad (lives with Mum) is planning to return to Tasmania and wants her to change schools etc.

   History:

   bib mum, Ms Tatlow

   psychology referral – issues with dad, self-harming cutting herself with scissors

   broke down in school the other day

   father lives in M'bourne

   parents separated, but brother (age 8) and X live with Mum

   dad is planning to move back to Tasmania

   school is good, has friends, doing well academically

   mother had depression 2013 after she separated from her ex-

   Past History:

   Not recorded.

   Allergies:

   Nil Known.

   Current Medications:

   Phenoxymethylpenicillin 250mg/5ml Suspension      6ml Twice a day x10/7 take one hour before food

   Thank you for your care and assistance.  Please advise us if patient does not attend the appointment.  I shall await your reply.

1. It seems that Dr P preferred counsellor/psychologist was not available until later in the year but that the mother and X were directed to Region G Counselling Service in City Q where they consulted a Ms B.  The mother's solicitors have sought a report from Ms B.  None has been forthcoming and apparently can only be obtained by way of subpoena.  Annexed to the mother's affidavit, however, is confirmation that:

   Counselling support provided, included time with Ms Tatlow the mother at the end of each session to help with collaboration and implementation of the strategies, progress and feedback.

2. Notably X had attended five sessions up to and including 30 September 2020.  A further session is arranged for 21 October 2020 after the proposed session of 12 October 2020 was cancelled by the mother given that the children had not been returned to her.

3. The mother deposes at [21] that X did not want the mother to advise the father of her issues with self-harming.  At [21] she deposes:

   X did not want me to tell her Father.  I wanted to be able to tell him but given the steps I was taking in the absolute certainty as soon as I did that, he would get lawyers involved, as he has done.  I felt it was not worth the risk to tell him.  The downsides were much greater than telling him as he is impossible and is always trying to get an angle on me to take me on legally.  Even when the kids are with him, he bitches to me.

4. The mother deposes that the children had not seen their father since pre-Easter until the father's day weekend in September.

5. The mother says that she was not consulted by the father in respect of him having the children consult with Dr R and Ms D.  The mother says that Y is progressing satisfactorily and presents with no issues.

6. The mother says at [39] that she is aware of the bullying issues and has 'told X to block these girls and tell the teacher at school if they continue with this behaviour.  I also told X that when she went back to school this term I would go into the school and speak to the teacher and the principal.' 

7. The mother's affidavit annexes reports from the children's schools.  X's report for mid-year 2020 is unremarkable as to any concerns and says as a general comment:

   X is a cheerful student with a gentle nature and a willingness to help others.  She can be relied upon to work productively without supervision and will seek clarification when unsure of task expectation'.

8. It is clear that that report was prepared prior to the concerns which became apparent to the mother in August and the father in October.  Similarly, X's report from the end of 2019 and Y’s report from the end of 2019 are unremarkable in respect of any concerns.

9. The mother's affidavit annexes correspondence which suggests that there have been ongoing negotiations and complaints articulated through the parties’ current solicitors, at least from 5 July 2019 and into 2020.

10. Mr Menser in his affidavit 'strenuously' denies the allegations of abuse levelled at himself and the mother.  He deposes to a happy family unit in which his 16-year-old son S is a frequent visitor.   Mr E deposes to a stable and secure relationship with the mother.

11. The mother’s Counsel alerted me to a s.67ZW report from the Child Safety Department dated 14 October 2020 which raises no concerns in respect of the children.

Relevant Law

1. The orders that I am asked to make are parenting orders and as such, I am to have the children's best interests as my paramount consideration pursuant to s.60CA of the Family Law Act. In determining those best interests I am to reference the parties’ proposals and the probative evidence to the numerous considerations set out in s.60CC(2) and (3) against a background of the objects and principles of the legislation set out in s.60B.

2. Not unusually in urgent interim applications before these Courts, this matter has been brought on quickly and without the benefit to the parties and the Court of a full forensic investigation and the use of the various tools that these Courts can provide to parents. Not surprisingly, each party and their witnesses provide affidavits setting out assertions of fact and allegations met with blanket denials.  As such, it is acknowledged that it is extremely difficult for judges at interim hearings to make findings of disputed fact and credit and where the hearing is conducted by way of submissions with affidavit material untested by cross-examination. Nevertheless, and despite these limitations, the Court remains obliged to follow a course of statutory and intellectual consideration observed in the well-known decision of the Full Court in Goode & Goode[3] where their Honours noted at [68] the following:

   … the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”.  Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future. 

   [3] (2006) FLC 93-286

1. Nevertheless, and as emphasised in the submissions of Senior Counsel for the father, and as the Full Court observed in Eaby & Speelman[4] in respect of the difficulties of making findings of fact and credit in interim hearings where their Honours said at [18]:

   … That does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

   [4] (2015) FLC 93-654

2. Similarly, the majority of the Full Court in SS v AH[5] (Boland & Thackray JJ ) stated at [100]:

   … apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh 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 into issue.

   [5] [2010] famCAFC 13

3. These, therefore, are the difficulties confronting judges at interim hearings where the issues are often complex; the assertion/allegations serious in respect of children's welfare and best interests; where the evidence, such as it is, is not tested but often simply the subject of denials; and where supporting or corroborative evidence is often not available but where the Court must consider, weigh and balance the evidence ultimately towards the best interests of the children and frequently in respect of issues of safety and welfare. 

Consideration

1. There are some agreed or non-controversial facts.  I am able to find that the children have lived primarily with their mother, at least since the making of the final parenting orders in 2015.  I find that they have continued a frequent relationship with their father but that this has been impacted to a degree by the recent virus and despite the father's best efforts to continue his time with the children.

2. It is clear on the affidavit material, noting the correspondence between solicitors, that relations between the parties remain antagonistic in respect of their children and I can find that further parenting proceedings in these Courts has been anticipated in 2020.

3. Both parties agree that X has self-harmed.  They disagree as to the seriousness of and initiative for this behaviour.

4. The evidence shows that each of the parties has engaged a counsellor or psychologist for X through mental health plans obtained from different general practitioners.

5. I am able to find that neither party advised the other of, firstly, X's disclosures to that parent of her self-harming and, secondly, that counselling assistance had been obtained for X.

6. I find that X has attended five sessions with the counsellor arranged by her mother between 19 August and 30 September 2020.  X has attended two sessions with the counsellor/psychologist arranged by the father.  The sessions with the counsellor arranged by the father have not been face-to-face.  I am unsure of the circumstances of the sessions with the counsellor in Tasmania arranged by the mother.

7. The children have been in the father's care since 2 October 2020,  initially pursuant to Court orders for school holiday time and then not returned on 12 October 2020 to the mother in accordance with those orders.

8. Both parties are currently resident in Tasmania, although the father is habitually resident in Melbourne with the evidence suggesting that he contemplates a return to Tasmania as his primary place of residence. 

s.60CC Factors

s.60CC(2)(a) - the benefits to the children of having a meaningful relationship with both the parents stop

1. The evidence, such as it is, and within the context of what is obviously an ongoing acrimonious relationship between the parents, suggests that the children have developed close and meaningful relationships with both their mother and their father.  This is within the context of the children having lived primarily with their mother since separation but with frequent weekend and holiday time with the father.

s.60CC(2)(b) - the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence

1. This factor is very much at the crux of my consideration.  As submitted by Counsel for the father, the process is effectively one of a risk-assessment.  Both parents have learned of X’s self-harming.  Unfortunately, due to their own lack of communication, neither parent informed the other resulting in each unilaterally taking X to counselling.  The only substantive report I have is from the father's preferred counsellor, Ms D.  She has seen X twice and Y on one occasion.  Two reports are annexed to her affidavit.  She says that X was experiencing severe anxiety and depressive symptoms.  The source is reported as arguments in the mother's home and bullying at school.  Of most concern is X's reports of self-harm over approximately six months involving cutting herself with a knife or scissors in both her mother's home and at school.  X also reported a form of eating disorder or, at least, vomiting after eating accompanied by stomach pains which are probably associated with her anxiety.  X reported not self-harming whilst in her father's care since 2 October 2020.

2. More generally X reported as 'feeling isolated, insecure and in some ways neglected in her mother's care’. Significantly she reported that also 'that she loves her mother'.

3. Ms D recommended in her first report of 9 October 2020 ‘That X be in an environment in which she feels safe, secure and unconditionally supported; such as her father's care’.  Ms D made various recommendations as to treatment/therapy and concludes, 'The fact the X has continued to self-harm for six months highlights how vulnerable she has felt and the extent of her psychological symptomatology’.

4. Ms D’s second report is dated 15 October 2020.  Y was seen on this occasion.  She reports as both children describing 'Consistent intense conflict in their mother's current home with her new partner ‘”Mr E”.’ X again reported self-harming and four specific incidents.  She reports 'When I cut myself I feel stressed, overwhelmed and angry'.  She related to arguments with her mother or bullying from peers.  She repeated her anxiety from conflict in her mother's home.  She says that she feels 'distressed, insecure and unsupported'. In respect of her school, X reported bullying and as being 'frightened, traumatised and unsafe at her current primary school'.

5. Y reported to Ms D '… he was able to tell me spontaneously that although he missed his mother, he didn't want to see her right now…’  He also reported conflict between the adults in his home.  He reported previous bullying at his primary school but with no positive response from his mother.  Y echoed his sisters’ reports that the mother does not like them to inform the father about problems such as the self-harming and bullying.  At [10] Ms D reports ‘Y has described his father in unequivocally positive terms, as a source of unequivocal comfort, attention and nurturance in … ‘

6. At [11] of Ms D’s report 'Y told me he loves both his parents.  Although, he wants to see his mother eventually, he's made it very clear that he'd prefer to live predominantly with his father and his father's partner Ms C.’ Y is reported as being extremely unsettled at the idea of returning to his mother's care immediately ' … asking questions about what to do if his mother gets angry at him for wanting to stay with his father.'

7. Ms D concludes that both X and Y ‘show distinct features and signs of trauma that appear to be directly related to the intense incidents of school, peer be doubly and bullying and dysfunction in their current primary residence’.

8. The mother also deposes as to X's recent to self-harming.  As with the father, she did not report these revelations to the other parent.  It is clear, however, that the mother responded appropriately in arranging a consultation and mental health plan from her general practitioner and consultations with a counsellor.  As yet, the Court does not have the benefit of a report from the five sessions with the counsellor arranged by the mother. The mother describes the physical manifestation of X self-harming as 'superficial'.

9. The mother reports X as asking both the teacher and the mother not to report her self-harming to her father.

10. The implication of the mother’s evidence and particularl7 at [13] of her affidavit is that X related her self-harming at school to ‘family matters and things to do with her Dad and this is why she had cut herself’.

11. The mother reports X’s self -harming as being contemporaneous with the mediation arranged by the father apparently pursuant to s.60I of the Family Law Act and hence in anticipation of further family law proceedings. Dr P, the general practitioner consulted in City M, reports for X that 'school is good, has friends, doing well academically.'  The school reports would appear to corroborate this fact and make no reference to anything untoward in X’s demeanour at school albeit such reports probably pre-date the recent incidents of self- harming.

12. At [21] of her affidavit the mother deposes:

    X did not want me to tell her Father.  I wanted to be able to tell him but given the steps I was taking and the absolute certainty as soon as I did that, he would get lawyers involved, as he has done.  I felt it was not worth the risk to tell him.  The downsides were much greater than telling him as he is impossible and is always trying to get an angle on me to take me on legally.  Even when the kids are with him, he bitches to me.

13. At [16] the mother deposes:

    This is untrue.  X asked me not to speak to him about this.  Also when Ms U called me, she told me that X had expressed to her that she did not want her father to know.  As for the vomiting, this is the first I am hearing of this.  X has access to food in our house whenever she wants.  She often comes home from school and cooks herself toast and eats whatever she feels like. 

s.60CC(3)(a) - any views expressed by the children and any factors such as their maturity level of understanding that the Court thinks are relevant to the weight it should give to the children's views

1. The father argues that the children express a preference to live with him if only as a reaction to their unhappiness in the mother's home.  Y’s interview with Ms D provides some corroboration.  Without being expressly stated, the implication from X's interviews with Ms D are similar.  Significantly, however, each of the children, to Ms D, express their love for their mother and the fact that they were missing and would miss her.

2. The mother and Mr E deposed to a relatively normal, happy and adjusted household including X and Y.

s.60CC(3)9b) - the nature of the relationship of the children with each of the parents and any other persons including grandparents or other relatives

1. The children have lived primarily with their mother and Mr E.  The father and Ms C have frequent and regular contact with the children although this has been punctuated to a degree due to the Covid virus and the evidence suggests that the children's recent time with their father has been relatively limited.

2. The mother's evidence is indicative of a close and communicative relationship between the 12 year old X and the mother.  The mother indicates X’s reluctance to involve the father in her issues of self-harming and bullying. The hearsay evidence is that X’s teacher Ms U received similar requests from X not to involve the father.

3. It seems highly likely that the nature of the relationship of the children with each of their parents is grounded to a large degree by the fact of, and the children's awareness of, the highly antagonistic and litigious relationship between the parents.  The evidence strongly suggests further pending litigation and perhaps at the instigation of the father.  Despite the final parenting orders in 2015, the mother was required to return to Court in 2018 to litigate the issue of the children's change of primary school.

4. It is reasonable to conclude, therefore, that the children tread very carefully between their relationships with each of their parents and highly likely that there is some substance to the evidence of each parent that the children show trepidation in making common disclosures to their parents.

S.60CC(3)(c) - the extent to which each of the parents has taken or failed to take the opportunity to participate and make decisions about long-term issues in respect of the children, to spend time with the children, to communicate with the children, and to maintain the children

1. The only issue for the Court here is the fact that each of these parents have shown a propensity to keep relevant and important information about the children from the other parent.

s.60CC(3)(d) - the likely effect of any changes in the children's circumstances and the likely effect on the children of any separation from either of their parents or any other child or any other person with whom they have been living

1. These children have lived primarily with their mother.  The parents separated when the children were young.  If only by reason of the father's residence in Melbourne, the children's time with the father has occurred primarily during weekends and school holidays.  Although the father does not specifically ask for a change of primary residence for these children at this stage, this is the implication of his application and, in any event, he seeks orders that the children, in the short, term, remain in his care.  This in itself would be a significant change in these children's understanding of their parents’ historical roles.

s.60CC(3)(e) - the practical difficulty and expense of the children spending time and communicating with the remaining parent and whether that difficulty or expense will substantially affect the children's right to maintain personal relationships and direct contact with both parents on a regular basis

1. Counsel for the mother describes the father's application as an 'interim relocation application’.  This is this, not as yet, a consideration for the Court.  The father gives no indication in the short term that he intends to remove the children to Melbourne.  Rather, he seeks interim orders for further and expert assessment and assistance for the children in the form of Child Inclusive conferences, the appointment of an Independent Children's Lawyer, and risk assessment.  He does so, however, with an indication that the children stay primarily in his care during that period.

s.60CC(3)(f) - the capacity of each of the parents to provide for the children's needs, including physical, emotional and intellectual needs

1. The father emphasises this consideration.  He says that the children are unhappy in their mother's home.  He says that they are exposed to adult conflict in the home.  He says that X’s consequent anxieties have manifested in self -harm.  He says that the children are subject to bullying at school.  He says that the mother’s responses have been inadequate and/or lacking insight.

2. The mother says that she has been the primary parent of these children but without the support of the father.  She says that the father is vigilant, opportunistic and potentially litigious.  She says that consequently her parenting of X and Y is therefore under constant scrutiny from the father.

3. The father's capacity to care for the children on a full-time basis is an unknown in that he is not had this role at least since 2015.

s.60CC(3)(g) - the maturity, sex, lifestyle and background of the children and either of the children's parents and other characteristics of the children the Court thinks are relevant

1. The children are now twelve and eight years of age.  They were just seven and three when the final orders were made in 2015.  X is of an age where she is also negotiating the vagaries of entering her teenage years and soon to high school.

s.60CC(3)(h) – if the children are Aboriginal or Torres Strait Islander

1. Not relevant.

s.60CC(3)(i) - the attitude to the children, and the responsibilities of parenthood, demonstrated by each of the children's parents

1. Each of these parents is culpable to a high degree in acting unilaterally in respect of their children's issues and, in particular, failing to communicate important issues to the other parent.  The result of this has been that X has been engaged with two separate counsellors who have clearly not had the benefit of mutual communication themselves.  She has attended one counsellor with her mother.  She has attended the other counsellor with her father.  The parents are highly antagonistic.  It is therefore very likely that the counsellors have received different versions of history or at least two different emphases from each of the parents consistent with each parent’s suspicion of the other.

s.60CC(3)(j) and (k) - any family violence involving the children or any members of the children's of family and any family violence orders that are applicable

1. This matter has been dealt with above.

s.60CC(3)(l) - the orders that would be least likely to lead to the institution of further proceedings in respect of the children

1. The application before me now are very much at its early stage.  I do not have the benefit of a full forensic preparation.  The material from the experts is, in my view, inadequate at this stage and, in fact, I do not yet have material from the counsellor arranged by the mother for X. 

Findings and Consideration

1. Despite the limitations set out above in respect of interim hearings, I am able to make some findings including the following:

   (a)I find that these parents are highly antagonistic and suspicious of the other in respect of their children and hence with little or no cooperative parenting and or positive communication;

   (b)The children have the lived primarily with their mother since at least the making of final parenting orders in 2015;

   (c)I am able to find that X has self-harmed on at least four separate occasions commencing in the second half of 2020;

   (d)X’s self-harming has occurred contemporaneously with the further agitating of parenting issues between the parents including a suggestion that the father will relocate back to Tasmania from Melbourne and the parents attending s.60I mediation as a precursor to litigation. I am unable, however, to find that X’s self-harming is or is not related to these recent events between her parents;

   (e)I find that X has disclosed to each of her parents independently her self-harming.  She did so firstly to her mother who then appropriately arranged counselling for X.  She made a later disclosure to her father whilst in her father's care who then appropriately arranged immediate counselling. What was inappropriate in respect of each parent was the failure of each to advise the other of their actions in arranging counselling;

   (f)I am of the view that it is inappropriate for X to be continuing counselling with two separate practitioners where the indication is that each has no communication with the other;

   (g)As a consequence, I am able to find that X is at risk to her health and welfare by reason of her recent self-harming and that this must be addressed appropriately;

   (h)Whilst Y has expressed to Ms D a preference to live with his father, I cannot give any great or determinative weight to these preferences at this time.  The statements were made to a counsellor arranged by the father and whilst Y was in his father's care but having been held-over from Court ordered time by the father.  The interviews with Ms D were not to face-to-face and, in respect of Y, there has been only one interview.  My reading of Ms D’s report does not disclose any affirmative statement by X as to her living arrangements although the implication is perhaps that she prefers to stay with the father.  Nevertheless, each of the children are somewhat equivocal in respect of their relationships with their parents with each noting that they ‘love their mother' and 'miss her…’;

   (i)There remain unresolved issues in respect of the capacity of each of these parents.  The mother says that the father is vigilant, critical and litigious in respect of her parenting.  The father says that the mother is neglectful, lacking insight, and does not prioritise the children's needs in her care.  These are unresolved issues.

Conclusion

1. The form of the father's application is somewhat unusual.  He does not ask for orders immediately changing the residence of the children on an interim basis.  He does, however, seek an order that they remain in his care whilst the full forensic process is completed including expert risk assessments.  The effect, however, for the children is the same.  They have primarily lived with their mother since their pre-school years.  The roles of these parents have been substantially different and, without criticism, due primarily to geographical considerations where the father has lived in Melbourne.  The father has over-held the children in circumstances where he properly identifies a risk and particularly to X.  Nevertheless, the mother has already identified that same risk and, in fact, did so before the father and commenced addressing that risk by consulting with a general practitioner, obtaining a mental health plan, and engaging counselling for X.

2. Undoubtedly there are concerns in respect of X.  However, my collateral and significant concern is that X has now been exposed to two different counsellors at a time that she is vulnerable and in need of emotional care.  It is reasonable to suspect that the two counsellors have received varying versions of history.  This cannot be in X's best interests.  The important and urgent consideration for the Court is the addressing of X's self-harm.  I am unable to make, at this stage, findings as to the source of X's difficulties.  She has made certain revelations to Ms D.  This, however, was at a time she is in the father's care.  The father's relationship with the mother is not communicative or cooperative.  Each party is culpable in this regard.   The other matters raised by the children to Ms D are also of concern but perhaps not such that either individually or cumulatively might lead to an effective change of primary residence at an urgent stage and, I understand, the father’s primary concern at this stage (understandably) to be focused on his daughter’s self-harming.

3. In conclusion, I am of the view that the children's best interests are served by them being returned to the care of their mother and hence the stability of the home and routine that they have known for at least the last five years. The father's concerns and echoed by the statements of the children to Ms D are disputed by the mother.  She makes contrary statements in respect of her relationship with the children.  This is a matter that may be resolved at a relatively early date by corroborative and and/or expert evidence and the assistance of an Independent Children's Lawyer. In short, I am content on the evidence that the mother has acted appropriately in obtaining professional support for X and hence a change in the children's primary living arrangements is not justified. 

4. I urge both parents to be cooperative and child-focused in the parenting process.

5. I will order the immediate and urgent appointment of an Independent Children's Lawyer together with a Child Inclusive conference pursuant to s.11F of the Act.

6. I urge the Independent Children’s Lawyer to obtain a report from the counsellor engaged by the mother for X and, if necessary, by subpoena together with any relevant information from the Department of Child Safety and the children's schools. 

7. As indicated in the reasons above, I am very much of the view that it is not in X's interest to be engaging with two separate counsellors.  Counselling for X from the mother's home commenced first in time.  There have so far been five visits.  At least until I have the benefit of an Independent Children's Lawyers submissions and further information, I am of the view that X's best interests are served by continuing with this counselling.  As such, I will make an order that neither party engage X with a counsellor or a psychologist other than Ms B save and except by Court order or express written agreement for the parties. 

8. Finally, I am asked to consider making an order in respect of the father's partner, Ms C, and effectively giving her exemption from the Covid-19 travel restrictions to allow her to come to Tasmania with a view to spending time with the children.  I am not inclined to make such an order which I consider to be primarily an administrative process.  Ms C has not been a primary carer for the children.  Hopefully, of course, such restrictions are lifted in the short term to allow Ms C to travel to Tasmania but I repeat, I do not see this as an appropriate matter for the Court in the circumstances of Ms C's relationship with the children.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Associate:

Date: 23 October 2020