MERTON & SUTTON

[2015] FamCA 1048

FAMILY COURT OF AUSTRALIA

MERTON & SUTTON [2015] FamCA 1048

FAMILY LAW – PARENTING – Interim Parenting – Application for family therapeutic intervention – Where consideration of the best interests of the child clearly indicative of the commencement of therapeutic intervention.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Goode and Goode (2006) FLC 93-286 47
Marvel & Marvel (No. 2) [2010] FamCAFC 101; (2010) 43 Fam LR 348
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
MRR v GRR (2010) 240 CLR 461

APPLICANT: Mr Merton

RESPONDENT:	Ms Sutton
INDEPENDENT CHILDREN’S LAWYER:	Legal Aid NSW Parramatta Family Law

FILE NUMBER: PAC 560 of 2013

DATE DELIVERED: 27 November 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 29 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Druitt

SOLICITOR FOR THE APPLICANT: Matthews Folbigg Pty Ltd

COUNSEL FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta Family Law

Orders Pending further order:

1. That the mother in the father do all things necessary so as to facilitate the child B born … 2003 attending upon Ms C psychologist or if she be unavailable or unwilling to engage such other therapist as is recommended by the single expert Dr D as soon as reasonably practicable.

2. That the for the purposes of giving effect to the previous order:

   (a)       the father if necessary obtain from the child’s general practitioner a mental health referral for the child to attend upon Ms C or such other therapist as is recommended;

   (b)       appointments for the attendance of the child upon the therapist be made by the father and notice of such appointments be communicated to the mother by the father’s solicitor with such communication to be to the mother’s email address not less than 72 hours prior to the scheduled appointment and for the purposes of this order the mother shall nominate the email address at which she will accept such notice within two days from the date of these orders;

   (c)       the mother shall do all acts and things necessary to ensure the prompt attendance of the child for the purposes of appointments with the therapist and if directed by the therapist remove herself from the therapist’s office and remain away therefrom until notified to return and collect the child;

   (d)       the father shall attend upon the therapist at such times and on such occasions as he may be directed by the therapist and shall engage with the child only at the request of the therapist and on such terms and conditions as are recommended by the therapist;

   (e)       the mother shall attend upon the therapist at such times and on such occasions as she may be directed by the therapist;

   (f)       the father shall be responsible for the payment of all fees due and payable to the therapist for the attendance of the child and himself over and above any fee that may be rebatable under the mental health plan;

   (g)       that the continuation of therapy shall be as directed by the therapist and for so long as is directed and recommended by the therapist; and

   (h)       that the commencement of any independent time between the father and child be as reasonably directed by the therapist and upon such terms and conditions as are reasonably recommended by the therapist and for the purposes of this order the mother and father shall obey all reasonable directions of the therapist in this regard.

3. That the independent children’s lawyer is granted leave to provide to Ms C or such other therapist as is nominated a copy of the report of Dr D dated 26 August 2015.

4. That the mother do all things necessary so as to facilitate the child attending upon the independent children’s lawyer within 7 days from the date of these orders.

5. That the independent children’s lawyer be granted leave to relist the proceedings on short notice in appropriate circumstances by application to the Associate in Chambers.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 560  of 2013

Mr Merton

Applicant

And

Ms Sutton

Respondent

REASONS FOR JUDGMENT

1. The matter for consideration and determination is limited in scope to a question as to whether a child now aged almost 13 should be given the opportunity through therapeutic intervention to remediate his relationship with the applicant father.

2. There are three children of the relationship between the applicant father and the respondent mother. The eldest child is now aged 22, the next child E attained 18 years of age on 7 November 2014 and the youngest child being the subject of this application, B, born in 2013 and almost 13 years of age.

3. There is a significant history of litigation between these parties with the present proceedings having been commenced in February 2013.

4. Fortunately the parties were able to agree on final property orders and those orders were made by consent on 12 June 2013. Thereafter proceedings have continued between the parties initially in relation to the two youngest children and now focused on the youngest child B.

5. On 5 September 2014 by reason of the ongoing conflict between the parents an Independent Children’s Lawyer was appointed to represent the interests of the two youngest children. That appointment ceased in relation to the child E when the child attained 18 years of age.

The parties’ relationship

1. The parties commenced cohabitation at the time of their marriage in 1992 and separated in July 2012, 20 years later.

2. It is common ground that the father’s abuse of alcohol became a significant issue in the parties’ relationship in the several years leading up to final separation with the mother and the two older children confronting the father in relation to the issue in about May 2012. The parties argued verbally and to the mother’s observation the father was “verbally abusive and thrown things during their relationship and had been emotionally volatile regarding financial matters”.

3. The father thereafter attended upon a Dr F and commenced a rehabilitation program as an inpatient at the G Hospital (Exh H). The father’s engagement in the program he describes as “very challenging” and initially involved education followed by more involved and intensive individual psychotherapy and small group therapy. The husband has not touched alcohol subsequently. Following his discharge from G Hospital the father completed a transition program run by G Hospital over a period of 10 weeks and thereafter engaged with Alcoholics Anonymous.

Post separation

1. Subsequent to separation the father complains of difficulties in spending time with the children. The father maintains a relationship with the eldest child by arrangement between the two of them. However his relationship with B  E has primarily been by text message since July 2014. The father maintained contact with the child B subsequent to his discharge from G Hospital. He saw the child at school when he was working and until mid-2014.

2. After an attempt at mediation the father filed on 11 June 2013 an amended application seeking orders in relation to parenting.

3. In summary in the father’s parenting application he sought orders to the following effect:

   a)That the mother and father have equal shared parental responsibility for the children E and B;

   b)That the child E spend time with and live with the mother or father in accordance with his wishes; and

   c)That the child B spend time with the father as agreed between the parties and failing agreement during school term from after school Wednesday to 7.00 pm Saturday, for half of the school holiday periods and on special occasions as agreed.

4. The parties and the then subject children attended upon a family consultant for the purposes of a Children’s and Parenting Issues Assessment report and a report subsequently issued in February 2014. The Family Consultant noted:

   [E] and [B] lived with [Ms Sutton] and spent time with [Mr Merton] on Saturdays. [Mr Merton] also took [E] to and from school on Tuesdays and Thursdays, [B] to basketball on Mondays and worked at [B’s] school. …

   [E] described [Mr Merton] as “helpful, straightforward and fun”… [and] said that there was not really anything negative about [Mr Merton] but subsequently said that there were a few small things that annoyed him....

   [E] stated that Ms Sutton was “strict”, wanted the best for everybody and had recently been “stressed out”... [He] attributed [Ms Sutton’s] reported stress to the court proceedings and her work…

   [B] stated that [Mr Merton] was “very odd I think” and became upset easily but was normally cheerful… He reported that [Ms Sutton] also got angry but did not get as angry as [Mr Merton]. [B] stated that [Mr Merton] became angry easily and yelled, look scary and stomped when he walked.

   [B] spoke positively about activities that he did with [Mr Merton] and stated that [Mr Merton] was knowledgeable about sport…

   When asked about his views, [B] said that he “sort of liked it how it is” and did not want to change the arrangements. He suggested that he could “maybe sleepover” during the school holidays once per week…

   [B] stated that he definitely did not want to spend overnight time with [Mr Merton] during school term.

5. It appears that following the release of the Children’s and Parenting Issues Assessment report the parties tentatively reached an agreement on 20 May 2014 that incorporated arrangements for B to spend time with the father being on the day of B’s sporting fixture from before that fixture to 7.00 pm, the first Saturday of each two week period from 9.00 am until 7.00 pm and the second Saturday of each two week period from 9.00 am to 2.00 pm on Sunday and otherwise as agreed.

6. Yet subsequently B has spent no time with the father since 31 May 2014.

7. Thereafter the father was informed by his school principal at H School that the mother had made application to transfer B to I School. The mother contends that the change of school was precipitated by the child’s refusal to spend time with the father and the fact that the father was employed part time at the child’s school. She contends that she was “fearful of what would happen if [B] had to stay at [H School]” and then “the longevity of the case is leading to my ongoing fear of [the father] fulfilling his threat that through his engagement with family law processes I would end up losing my home, my job and my children.”

8. On 28 June 2014 the father spoke to the child who said to him “I don’t want to see you until you let me change school” and thereafter the child has refused to have contact with the father.

9. The mother seems to have little capacity to reflect that indeed these proceedings relate to the best interests of her son and not a continuation of her complaints, grievances and criticisms of the father. She asserts that the child was fully conscious of the choices (not to see his father) that he was making. Yet she propounds no real rational basis for the child notwithstanding a continuing relationship with the father until June 2014, simply ceasing to spend time with him.

10. The mother’s resistance to any therapeutic assistance or resolution is reflected in the circumstances that she procured an affidavit from the eldest child Mr J, now aged 22 whereby he attests to the following “I do not intend to accompany [B] to see our father or to see a professional who has access to our father”.

11. The tenor of the mother’s affidavit in support of a dismissal of the father’s interim application is one of a rambling, confused and oppositional mindset wherein she represents herself as the victim. Her affidavit is reflective of the “family violence paradigms” that has been useful for the mother as referred to in Dr D’s report at [460].

12. These proceedings were before the Court on 5 November 2014 and on that day the report was ordered from the Single Expert Dr D. Dr D’s report dated 26 August 2015 was released to the parties on 27 August 2015 and proceedings listed for further case management on 11 September 2015. On that day directions were made to facilitate the father’s Application in a Case coming on for hearing and it was noted (inter alia):

    a)The prospective issue for determination on an interim basis is whether B should be engaged in therapeutic interventions in relation to his relationship with the father; and

    b)That Relationship Space has reasonably available dates for the commencement of interviews.

13. The father’s Amended Application in a Case filed on 24 September 2015 sought orders that provided for the child to live with the mother and for the recommencement of his time with the child over a period of four weeks in session with a psychologist/therapist and thereafter the resumption of unsupervised day time periods with the child. The father further sought orders that required the compliance by the mother with the engagement by the child in therapeutic intervention.

14. For the mother’s part, despite a somewhat convoluted response to the father’s Application in a Case, her position was that the father’s application should be dismissed.

15. The mother asserts that she has never prevented the child B from seeing the father when the child wanted to do so. If that be the case then it brings into sharp focus the need for therapeutic intervention in an endeavour to remediate the father/son relationship.

The Single Expert report

1. The report of Dr D is a voluminous document of over 500 paragraphs. It is only relevant in the context of the present application as to recommendations for therapeutic intervention as to the relationship between the father and B.

2. The mother for her part appears to take issue with significant aspects of Dr D’s report and those matters will be tested at a final hearing.

3. Dr D in the context of his recommendations for final orders that prospectively provide for a resumption of the child’s time with the father reports as follows:

   521.     In my view, the above process will only work if the mother feels strongly compelled to comply, and fears the consequences of not complying more than she is displeased with the prospect of their child re-engaging with the father. The order that the mother is to ensure that the child engage in contact (not just turn up at the drop-off point) needs to be unequivocal. The mother will then transmit the necessary “you have to, or…” to the child, which does two things:

   521.1.  Gives the child the containment and “push” he needs to get past his own initial awkwardness

   521.2.  Allows the child to attend contact without worrying about the mother viewing this as betrayal, because it is clear that “I didn’t want to, but I had to”.

   522.     One way to apply the necessary pressure would be to make clear that if this progressive contact regime does not commence and proceed, that the court will seriously consider a change of residence. I do not recommend this, because I am not convinced that this course of action would be in the child’s best interest, and it is directly contrary to the child’s wishes. I recommend consideration of a willingness and stated intent to utilise the available penalties associated with a breach, rather than change of residence. I restate my view that without this clear uncomplicated “threat” factor, this process is unlikely to succeed.

   And then:

   527.     Both parents consult a therapist skilled in providing parenting advice and family and individual child therapy. 

   527.1.  This therapy is to assist each parent to raise the child well, and to aid the transition to the new arrangements in each household, assisting each parent to assist the child with the transition and to deal with any emotional or behavioural challenges which might occur.

   527.2.  The therapy is also to assist the child to adapt to each parent and to having connection with both, and to develop his own differentiated perspectives on each of his parents.

   527.3.  A secondary purpose is to provide a forum where the child can express and have addressed any fears or worries about his experiences in either household, and where any adult concerns about coercion or abuse can be addressed.

   527.4.  Both parents should attend this therapist regularly, for separate appointments, at a frequency recommended by the therapist, with or without the child, and also for appointments with the child alone as recommended by the therapist.

   527.5.  This therapy should continue until the child is 14, then the therapist should be available until the child is 16, to play the role of considering the child’s wishes for time with the father, within the boundaries above.

   527.6.  This therapist should receive a copy of this report, and the final orders.

   527.7.  This therapist could be a psychologist, social worker or child and adolescent psychiatrist, with skills in working with adults, children and families, in particular with high-conflict families. I am happy to make a recommendation.

   527.8.  I would recommend that the father meet the therapist at least once prior to the first restoration of contact visit, to obtain some advice and guidance about how he might manage that. The mother would also have the option to meet the therapist prior to that first visit. I would suggest introducing the child to the therapy a little further down the track, when he has a current rather than a conceptualised relationship with the father to bring to therapy.

   527.9.  I recommend to each parent that they discuss the concerns that I have raised in this report about their personality functioning as it pertains to parenting, and their parenting of the child. I make this recommendation with respect, and an awareness that each parent has strong positive intention towards the child. My expectation is not that the parent submit to my professional judgement, but that they consider my opinions with the assistance of a professional third party. 

   528.     I do not recommend that the court order mental health review or therapy for either parent, but do recommend that either parent be able to initiate such therapy if they feel the need, and be able to provide a copy of this report to the therapist if they wish to do so.

4. Dr D then addressed his recommendations for interim orders, being conscious of there being the prospect of a significant delay in a final hearing. He said:

   532.     I am concerned that if some time between child and father does not commence within the next few months, and particularly if there is no “time” until a final hearing in 6 to 12 months, with all the blameful stress that will exist in the maternal leadup to the same, then the mother may gain a victory by default regardless of court orders after such a hearing.

   533.     My impression is that the mother’s history to date is one of delay and lack of engagement with court processes, and of proceeding on the basis of possession of/ influence over the child being “90 percent of the law” (my words)

   534.     I apologise for my part in delays to date, in particular the delay in provision of this report beyond my quoted “4 to 8 weeks” from interviews. This delay was due only to competing work demands, not to any sense of there being time to wait, in this case.

   535.     In my view, it would be of great benefit to the child, if this matter could be resolved quickly, and the child could commence time with the father on a foundation of maternal security provided by sole parental responsibility and solid majority time.

   536.     If there is to be delay, then so long as the court can be satisfied that any perceived risk is managed, I recommend that time between the child and the father (and the recommended associated therapy) commence on an interim basis.

   537.     Any aspects of the matter that could be resolved by consent in advance (for example a paternal expression of willingness to concede parental responsibility and to restate an intention not to threaten the child’s foundation of majority time with mother) would aid this process for mother and child, by reducing perceived threat.

   538.     I would only recommend proceeding with interim time if the court makes clear that an order (even if made by consent) is binding and that maternal compliance is expected.

   539.     The acting out of the “theatre” of brinkmanship of the child equivocating and experiencing distress over then refusing to attend or leaving part-way through recurrent optional contact times would create unproductive distress for the child, and would harm rather than assist the child-father relationship.

1. The issue for determination is limited to the simple question as to whether in the best interests of the child there should be therapeutic intervention in relation to the father child relationship. Dr D expresses significant concern that any opportunity for that relationship to be repaired and ameliorated will be lost by reason of the delay in final hearing.

The Law

1. In Marvel & Marvel (No. 2) [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the difficulties associated with making findings on contested evidence as follows:

   120.     As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   …

   122.     In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   123.     Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. 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 in issue.

2. The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286 47. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway.

3. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.

4. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

5. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

6. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of B for B’s parents to have equal shared parental responsibility. However in the context of this discreet application no issue arises as to parental responsivity and such will be determined at final trial. Thus the provisions of s 65DAA as to equal or substantial and significant time have no application.

The presumption

1. The Court is satisfied that in all circumstances of this matter the presumption should apply. The parties agreed.

Best Interests of the child

The primary considerations: s 60CC(2)

1. The primary considerations are:

   (a)      The benefit to the child’s of having a meaningful relationship with both of the child's parents; and

   (b)      The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Section 60CC(2)(a) – “meaningful” relationship

1. In Mazorski & Albright [2007] FamCA 520; Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

3. The discrete issue for determination in the context of the present application can almost be resolved by reference to this first primary consideration that requires the Court to consider the benefit to the child of having a meaningful relationship with both of his parents. There is no dispute between the parties that the father/child relationship continued until the ructions of June 2014 that appear particularly focused on the child’s change of school.

4. There is no method by which the Court can determine the benefit to the child of his relationship with the father in the absence of any existing relationship unless either there are such significant risks that there would be no question that for the safety and protection of the child that relationship should not continue or where such risks are not present there has been some attempt by way of counselling, therapeutic intervention or otherwise to recommence and restore that relationship.

5. It is noted that Exhibit J includes a report from Ms Cook psychologist dated October 2013, more than 12 months after separation, evidencing that B’s distress clearly stemmed from significant discord between his parents and he was having difficulty processing his conflicting feelings. The child at the time suffered anxiety symptoms at a clinical level which was leading to increased school refusal and increased distress. Following intervention over a period of about five sessions the child’s symptoms had decreased significantly, he was attending school every day and the mother reported a significant shift in the child’s psychological state. 

6. In the circumstances of this matter it would be appropriate to make the orders facilitating therapeutic intervention without further consideration. However it is necessary also to consider the second primary consideration.

Section 60CC(2)(b) – need to protect

1. Dr D in his report considers the question of any physical or psychological abuse that the child has been or is likely to be subjected to. In a detailed examination of the background circumstances he focuses firstly on the mother’s assertions as to violence in her relationship with the father: at [446] and following. Yet in the context of the present application where the child’s exposure to the father would only be within the confines of therapeutic intervention there would be no “unacceptable risk” to the child.

2. However the child’s exclusive parental relationship with the mother raises ongoing concerns.

3. It seems implicit in the recommendations of Dr D set out above and in the more general context of his report overall (Exh A) that he holds significant misgivings as to the mother’s capacity to promote B’s relationship with the father. Dr D sees the child’s wish to remain resident with the mother in part “because of partisan rejection of the father”. He then observes:

   174.    My impression is that the child is currently pulling back from time with the father mostly out of a loyal need to maintain maternal security, and in part because of his partial merging with the maternal projection of the father as malevolent, threatening, and potentially annihilating. That is, not because of any substantial negative lived experience of the father.

   175.    The child is thus experiencing a torn mix of grief at the current rupture of what was a significant, positive and valued father-son relationship, and fear about the dangers inherent in any recommencement of that relationship.

   176.    In the end, the child is prioritising the security of his foundation of care within the maternal household over the possibilities of rekindling connection with the father, and this is sensible in terms of his own security and survival.

4. In circumstances where Dr D says that:

   a)The mother has experienced significant symptoms of anxiety and low mood/despair over time, notably in the lead up to and since parental separation; and

   b)The mother has had other periods in her life of anxiety and low mood/despair, often associated with external stress soars in her personal and work life; and

   c)The most appropriate diagnostic description of the mother’s emotional struggles may be that she has experienced over time a DSM 5 recurrent depressive disorder (dysthymia) with anxious to stress, dating back to her childhood;

   then there is a strong inference that the child’s enmeshment in the mother’s perception of the father coupled with the child’s perceived loyalty to the mother and the mother’s personal frailties described above, that the child’s grief at the current rupture of a significant positive and valued father/son relationship may well expose to the child’s psychological harm.

5. Of further concern is Dr D’s various observations in the following terms:

   241.     My impression is that the mother has significant personality vulnerabilities, in terms of insecurity and instability in sense of self, emotions and relational dispositions, which might be termed borderline personality traits.

   242.     The mother’s mix of intense inner instability and strong outer behavioural control is sometimes termed “high functioning borderline” personality style, to distinguish from persons with less behavioural control, who often end up living quite chaotic, damaged and damaging lives. The mother’s suffering is mostly internal, or it plays itself out in relationships in terms of overcontrol, a guarded and suspicious stance, or cutting off. The mother does not act out in impulsive or uncontrolled aggression to self or others.

   …

   273.     It is my impression that the mother’s obsessional and controlling personality style, and her insecure drive to obtain certain (in her mind) self-evidently necessary outcomes, can lead the mother to herself be quite coercive, strategic and disrespectful in her behaviour towards others, including towards the father and the subject child.

   …

   473.     I am concerned that if the child is not restored to some lived experience of relating with his actual father, then he is likely to carry the heavy burden of a construction of the father as highly malevolent, manipulative, unpredictable, violent and dangerous, which is likely to be reinforced by therapy provided in a similar model to that currently being provided to E.

   474.     Whilst for the older boys, this is not highly developmentally damaging, as they are mostly acting out of loyalty to the mother, and their foundation of lived experience of the father protects them from fear and from the extremes of maternal good/evil splits, for the child there is a risk that his pre-age-9 experience of the father is lost to the current dominant construction of the father, in a manner that will burden him with reactive fear (as described in the mother’s letter of June 2015) and with the spectre of an evil element of self, present in 50% of his DNA.

The additional considerations: s 60CC(3)

1. Regard has been had to each of the additional considerations set out in s 60CC(3) of the Act. As discussed above, the application can comfortably be determined by reference to the primary considerations. None of the additional considerations contraindicate the proposed orders.

The Independent Children’s Lawyer

1. The Independent Children’s Lawyer supported the commencement of therapeutic intervention and the provision of the single expert’s report to the therapist.

Best interests - Conclusion

1. The discussion above is clearly indicative of the commencement of therapeutic intervention in the best interests of the subject child.

2. The proposed minute of order provided by the ICL (Exh C) provides a useful framework for appropriate orders.

3. Clearly it will be necessary to make orders requiring the mother’s compliance and that she facilitate the child’s engagement with therapeutic intervention and any reasonable recommendations of the therapist.

4. Otherwise there is some reservation as to the commencement of time between B and the father on an unsupervised basis unless recommended by the therapist and such circumstances should be a matter for therapeutic recommendation alone.

5. Orders will be made accordingly.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 27 November 2015.

Associate: 

Date:  27 November 2015