Michaels and Reese

FEDERAL CIRCUIT COURT OF AUSTRALIA

MICHAELS & REESE

[2018] FCCA 617

Catchwords:
FAMILY LAW – Final parenting – best interests of children – orders made.

Legislation:

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

Applicant:

MR MICHAELS

Respondent:

MS REESE

File Number:

PAC 1950 of 2015

Judgment of:

Judge Newbrun

Hearing date:

3 August 2017

Date of Last Submission:

3 August 2017

Delivered at:

Parramatta

Delivered on:

23 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr Cairns

Counsel for the Respondent:

Ms Grew

Solicitors for the Respondent:

Blackman Legal Pty Ltd

Counsel for the Independent Children’s Lawyer:

Mr O’Brien

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Parramatta Family Law

ORDERS

The Mother will have sole parental responsibility for the children X born (omitted) 2003 and Y born (omitted) 2005 (‘the children’).
The children will live with the Mother.
The children will spend time with the father in accordance with their wishes.
Notwithstanding Order 1 hereof, the Father is hereby authorised to request and receive medical reports from each child’s treating medical or health practitioners setting out any symptoms, diagnoses, prescriptions, a summary of any treatment that the child is currently receiving, and any requests by each child to contact the father, NOTING that any such report will be obtained at the Father’s own cost.
Each parent will contact the other as soon as reasonably practicable in the event of a medical emergency involving one or both of the children.
The Mother and Father will provide each other with their current contact details, including mobile telephone number and residential address and will advise each other within (7) days of any change to these details.
Each parent is hereby authorised to obtain from each child’s school a copy of all school reports, newsletters, photographs or other documents to which parents are ordinarily entitled at their own cost.
That the father may send a card and a present to each of the children on their birthdays and at Christmas each year, and the mother shall ensure that those cards and gifts are given to the children.
That the mother shall notify the father of any change in the children’s medical and health practitioners and school within 7 days of such change occurring, and the mother shall provide to the father contact details of same.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1950 of 2015

MR MICHAELS

Applicant

And

MS REESE

Respondent

REASONS FOR JUDGMENT

Introduction

This was the Final Hearing of parenting proceedings between Mr Michaels (“the father”) and Ms Reese (“the mother”) in relation to the children, X born (omitted) 2003 and Y born (omitted) 2005 (“the children”).

Parties’ proposals

The parties agreed that the children should live with the mother, and spend time with the father as per their wishes.
The main issues in contention at the Final Hearing were parental responsibility, and whether the children should attend counselling.
Specifically, the father sought Orders as set out in his Case Outline as follows:
1.      That all previous parenting orders in relation to the children, X, born (omitted) 2003, and Y, born (omitted) 2005, be discharged.
2.      That both parents shall have equal shared parental responsibility for the children.
3.      That the children shall live with the mother and spend time with their father as per their wishes.
4.      Y shall attend continued psychological therapy with Mr H at (omitted) Psychology in (omitted). This is to address her difficulties with school avoidance, emotional understanding, emotional awareness, emotional management for anxiety, social skills, self-esteem and to help improve her relationship with her father. In the event that Y is unable to travel to (omitted) then counselling shall take place at Y’s home. Modification to this order may only be made after written consent from both parents.
5.      For the purposes of Order 4 above, Y shall attend counselling at all times as suggested by Mr H.
6.      X shall attend continued counselling with psychologist Ms P at (omitted) Psychology in (omitted). This is to help improve her relationship with her father. Modification to this order may only be made after written consent from both parents.
7.      For the purposes of Order 6 above, X shall attend counselling at least four times a year.
8.      That each parent shall keep the other informed of their mobile phone number and shall notify the other parent within 7 days of any change.
9.      That each parent shall keep the other informed of the children’s email addresses and mobile telephone numbers and shall notify the other parent within 7 days of any change.
10.    That each parent shall keep the other informed of their residential address and shall notify the other parent within 7 days of any change.
11.    That each parent shall notify the other immediately in the event of any serious illness or injury affecting either of the children whilst in that parent’s care.
12.    That each parent shall make available to the other parent any medications prescribed for either of the children and the other parent shall thereafter administer the medication as prescribed or required.
13.    That each parent shall notify the other in advance of the children attending any new psychologist, psychiatrist, therapist or counsellor. Notification is to include names and telephone numbers.
14.    That each parent is authorized to have discussions and obtain information regarding the children from any medical practitioner, psychologist, psychiatrist, therapist or counsellor treating either of the children.
15.    That each parent is authorized to have discussions and obtain information from any school attended by either of the children, including copies of school reports and notices at the parent s [sic] expense (if any).
16.    That each parent shall be at liberty to take the children overseas provided that the parent taking the children overseas shall:
a)Provide the parent with a copy of the planned itinerary no later than 60 days prior to departure.
b)Provide the other parent with a copy of the tickets and an itinerary detailing where the children can be contacted whilst away, no later than 7 days prior to leaving Australia
17.    In the case of the children travelling overseas with the father then the mother is to provide the father with the children’s passports no later than 50 days prior to departure and the father is to return the passports to the mother within 7 days of return.
18.    That each party pay their own legal costs.
19.    That the mother request that a part of Y's NDIS plan be made self-managed. The mother shall do all things necessary to maximise the use of NDIS funding for payment of the psychological therapy detailed in Order 4 above.
20.    That each parent is approved to self-manage NDIS funding for Y and that both parents must be listed as signatories on any NDIS bank account for Y.
21.    That each parent is authorized to have discussions and obtain information from any home school liaison or school attendance officers.
22.    Y shall remain enrolled for high school at (omitted) School. Modification to this order may only be made after written consent from both parties.
The Respondent mother sought an Order for sole parental responsibility for the children.
The Independent Children’s Lawyer (“ICL”) sought Orders as set out in Exhibit B as follows:
1.      The Mother will have sole parental responsibility for the children X born (omitted) 2003 and Y born (omitted) 2005 (‘the children’).
2.      The children will live with the Mother.
3.      The children will spend time with the Father in accordance with their wishes.
4.      Notwithstanding Order 1 hereof, the Father is hereby authorised to request and receive medical reports from each child’s treating medical or health practitioners setting out any symptoms, diagnoses, prescriptions, a summary of any treatment that the child is currently receiving, and any requests by each child to contact the father, NOTING that any such report will be obtained at the Father’s own cost.
5.      Each parent will contact each other as soon as reasonably practicable in the event of a medical emergency involving one or both of the children.
6.      The Mother and Father will provide each other with their current contact details, including mobile telephone number and residential address and will advise each other within (7) days of any change to these details.
7.      Each parent is hereby authorised to obtain from each child’s school a copy of all school reports, newsletters, photographs or other documents to which parents are ordinarily entitled at their own cost.
8.      That the father may send a card and a present to each of the children on their birthdays and at Christmas each year, and the mother shall ensure that those cards and gifts are given to the children.
9.      That the mother shall notify the father of any change in the children’s medical and health practitioners and school within 7 days of such change occurring, and the mother shall provide to the father contact details of same.

Material relied upon

The father relied upon the following documents:
a)Case Outline filed 18 July 2017 (Exhibit C);
b)Amended Initiating Application filed 23 January 2017;
c)Affidavits of the father filed 23 January 2017 and 31 July 2017;
d)Consent Orders (interim) dated 1 July 2015;
e)Child Inclusive Conference Memorandum to Court dated 29 January 2016 (Exhibit A);
f)Family Report of Ms A dated 29 July 2016 (Exhibit A).
The mother relied upon the following documents:
a)Case Outline filed 1 August 2017 (Exhibit D);
b)Amended Response filed 3 August 2017;
c)Affidavits of the mother filed 30 June 2015, 20 July 2017 and 3 August 2017;
d)Child Inclusive Conference Memorandum to Court dated 29 January 2016 (Exhibit A);
e)Family Report of Ms A dated 29 July 2016 (Exhibit A);
a)Report of Dr T dated 28 July 2017.

Evidence

The father was born on (omitted) 1967. The mother was born on (omitted) 1969. The father works as a (occupation omitted), and the mother describes her occupation as home duties. The mother was previously employed in (employment omitted). Following the birth of the children, the parties decided that the mother would be a stay at home parent and the children’s primary carer.
In about July 2006, the mother had a brain haemorrhage and was hospitalised. Since the separation in 2006 the mother has been the children’s primary carer.
The mother suffers from thalamic pain syndrome as a result of her brain haemorrhage. She is unable to work due to this syndrome.
The parties separated at the end of 2006, having previously married in (omitted) 1995.
The father remarried in (omitted) 2009 to Ms E, and they had a child, A, who was born on (omitted) 2009. Ms E has a son Mr R, born (omitted) 2003, from a previous relationship, and that child spends time with the Ms E and the father.
The child X was in year 9 in 2017. She attends (omitted) High School. The child Y was enrolled at (omitted) School in (omitted) for year 7 in 2017, having previously moved to (omitted) Public School in January 2015 for year 5.
Previous parenting Orders were made on 2 May 2007, in the Family Court of Australia, 23 February 2009 (final Orders), 25 May 2011, and consent interim Orders on 1 July 2015 in this Court.
The father spent certain time with the children pursuant to the Orders of 2 May 2007. He attended and completed two courses pursuant to those Orders. The children spent time with the father regularly pursuant to the Orders of 23 February 2009. He took the children and A to the (country omitted) for a sixteen day holiday.
The father had difficulties with telephone communication with the mother after separation in 2006. Letters from legal representatives were regularly used to obtain agreement about issues relating to the children until late 2009.
Since 2010 the parties have not conducted telephone conversations. The mother has not replied to an email from the father or sent him an email since 2008.
A communication book was sought to be used by the parties for a period up until about mid-2014. There were difficulties due to the book mostly having to be sent between houses and in a child’s school bag.
Since 2010 text messaging has been the main form of communication between the parties, however the parties have difficulty even communicating with each other via this method. The parties have had difficulty communicating about major decisions in relation to the children since separation. For example, the mother has requested, without success, the father to pay half of the cost of the children’s passport applications, in accordance with a previous Court Order.
From March 2014 the time that the children spent in the father’s care happened less frequently. Around this time the child X would become angry, and, when at the father’s house, would repeatedly ask to be taken to the mother’s house. The father complied.
From March 2014, the father began to notice that the children became harder to engage on the telephone.
The father witnessed that the children’s anxiety problems continued to worsen during 2014. Around 2014, the child X would refuse to attend out-of-school activities with the father.
Sometime after March 2015 the father discovered that the child X was attending upon Ms P, psychologist, for therapy, about her relationship with the father.
Despite the interim consent Orders of 1 July 2015, the father did not spend time with children pursuant to those Orders. In November 2016, the father telephoned Ms P to ask about the child X. Ms P told the father that the child X was happy at school but was still determined not to see or talk about the father.
The father is up-to-date with his Child Support payments.
The child Y was referred to (omitted) Psychology by her GP on 31 May 2016.
The Report of psychologist, Mr H, from (omitted) Psychology, dated 13 December 2016, states in relation to the child Y, inter alia, that the child Y has a very strong and rigid view that she does not want to see the father; she reported that she believes he does not listen to what she says, has cited some occasions of verbal disagreements, and has cited some verbal slights from the father that she has held onto strongly. He made diagnoses of selective mutism, social anxiety disorder, adjustment disorder with mixed anxiety and depressed mood, and autism spectrum disorder.
In an email from the head teacher of the support unit at the (omitted) School, (omitted) campus, Ms K recommended to the parties that the child Y should continue to try to attend the school every day. The school staff would try to help the child come out of the car and encourage her to come into class. She also recommended that this child continue to see Mr H. She stated that hopefully this child would attend school for the remainder of the term, as when she is at school and in class she is engaged and learning. At a meeting on 27 July 2017 at the school, the father was informed that Y’s school attendance was much improved this term.
As at the date of the mother’s Affidavit filed 20 July 2017, the mother was of the view that the child Y, currently in Year 7 at (omitted) School, and being in a special needs class that was chosen to give her support for her autism, was not coping very well. This child was often refusing to attend school. The mother stated that over the past year or so, this child had developed selective mutism.
The mother states that to help the child Y, it was recommended by her psychologist Mr H that she see a consultant paediatric physician, Dr J. This doctor stated, inter alia, having seen the child on about 29 March 2017 and having observed this child’s depressed mood, body language and being less engaged and interactive than previously in terms of social conversation, that the child should be referred to a psychiatrist for her constellation of symptoms and issues around anxiety.
The paediatric psychiatrist, Dr T, assessed the child Y on about 17 July 2017 for her anxiety manifesting as school refusal and selective mutism, occurring within the context of an autism spectrum disorder, complicated by significant family stress, and further exacerbated by the transition to the high school environment. This doctor’s first Report is dated 17 July 2017. This doctor discussed antidepressant medication with the mother, together with possible referral to (omitted) Psychiatric Unit at (omitted).
In the mother’s Affidavit filed 3 August 2017, she annexes a further Report from Dr T dated 28 July 2017. The doctor states that she completed her assessment of the child Y on 25 July 2017. She had spoken with her clinical psychologist, Mr H, and had corresponded via email with the child’s teacher in July 2017.
The doctor stated that the mother explained that the child Y saw Mr H for weekly therapy until May 2017, but had not returned since, due to the mother’s pain condition which is exacerbated during the winter, requiring medication. She notes that since May 2017 the child Y’s school attendance has deteriorated, as the mother has been unable to drive the child to school on the days that the child refuses to catch the school transport van.
The doctor’s impression was that the child had autism spectrum disorder, selective mutism, school refusal and Alexithymia. There was strong evidence that the child displayed long-standing significant deficits in social communication and social interaction.
The doctor stated that the child Y would benefit from continuing her current therapeutic relationship with Mr H, psychologist, with whom she can continue to readily debrief about her experiences, further develop her mood, anxiety management and cognitive skills, and have her perceptions challenged within a safe and supportive environment.
The doctor stated that a concerted, consistent, intensive effort at cognitive and behavioural interventions was required, individually with the child, but also actively involving her school and family. The doctor referred to weekly attendance with a psychologist experienced in selective mutism.
The doctor referred, under the heading “Parent Interventions”, to educate and support the child’s parents in responding to her distress and to improve family communication styles. Regular (individual) parent sessions will assist the mother in developing her own effective menu of useful strategies and interventions she can use “in the moment” at home to scaffold and support the child.
On 23 December 2016, Ms P emailed the father in relation to the child X stating, inter alia, that she had not seen any change in this child’s attitude towards her relationship with the father over the past two years. She stated that she did not think that this would exclude any relationship from being built, but rather that at this current time, the child X was not receptive to building this relationship. She agreed that the child should continue to see her, and if it were to be reduced to consultations every three months this would be satisfactory.
The Report of Ms P, psychologist, dated 18 July 2017, in relation to the child X, states, inter alia, that she has been seeing this child for the past two and a half years. Prior to this she also saw a colleague for several months at the end of 2014. During this time, the main purpose of X’s sessions was to discuss her relationship with the father.
Ms P states that for the time that she has known X she has been determined that she does not wish to have contact with the father. Aside from the ongoing conflict this has created within the family, states the psychologist, the child X appears to be otherwise well adjusted. She states that at times the mother has had concerns about heightened anxiety in X, however it did not appear that her anxiety was so high that it was interfering with her well-being, and in fact X denies that it does interfere or even that she is anxious.

Ms P states that as such, it appears that at this time there is little therapeutic benefit that the child X stands to gain from the sessions, and she does not feel that it is necessary to have sessions on an ongoing basis. She states that should it be necessary for the child to see a psychologist in the future, she would be more than happy to recommence the sessions.
The mother asserts that between the date of the February 2009 Court Orders and November 2014, the children happily spent time with the father. She confirms that the children have not spent time with the father since November 2014. She confirms that the children are currently refusing to see the father. The children have not spent time or communicated with the father in accordance with the July 2015 Court Orders because they have flatly refused to do so.
Prior to November 2014, the father was inconsistent with spending time or communicating with the children.
The mother is happy for the father to obtain school reports and attend any school functions for the children, but trying to reach agreement with the father about major long-term issues for the children is too difficult.
The mother has never asked any healthcare professional to sign any confidentiality agreements excluding the father from speaking with them. She has told treating professionals that the father has the same legal rights to information as she does. However, the mother believes that some of the children’s therapists may have decided that sharing some information would not have been in the best interests of the therapist-client relationship and this may be why information was not shared.
The father was cross-examined.
The father confirmed that he had previously spoken with Y’s treating health professionals. He stated that he had been to see Mr H and had spoken on the telephone with him a few times, and that he had seen Ms P and sent her quite a few emails.
The father confirmed paragraph 14 of the Family Report which states, inter alia, that the father had reported that the parties had not been able to effectively communicate about the children for years. The father stated that the mother does not respect his decision making process.
When being cross-examined by the ICL, it was suggested to the father that there had been a lot of communication historically between the parties but there had been no real meeting of minds. The father responded by stating, inter alia, that the parties’ joint decision-making had not been working well for him. He stated that he would have liked to go away and get information and then meet with the mother to discuss issues. However the mother did not value his input.
The father stated that he would like to have the ability to make informed decisions with the mother in relation to the children. He stated that it had been a struggle to obtain information to make informed decisions. He would have liked to obtain relevant information to allow himself to make an informed decision and then seek to discuss the issue with the mother to come up with a joint decision.
The father referred to not liking the mother’s idea of putting the child Y into distance education.
The father’s attention was drawn to paragraph 19 of the Family Report in which it was stated, inter alia, that the father had accepted Y’s diagnosis of autism spectrum disorder, but thought that the mother attributed more of this child’s symptoms than was realistic of her diagnosis. The father agreed that the parties had differing views as to which of the child’s symptoms were directly referable to this disorder.
The father confirmed his view that the mother had alienated the children from him.
The father confirmed that he and the mother had struggled to get on in recent times.
The father was cross-examined as to how the father having a say in long-term decisions relating to the children assisted him in reconnecting with the children. The father responded by stating that it was important to keep engaging with the mother so that she would encourage the children to communicate with him. When it was suggested to the father that contact with the mother had been conflictual, the father suggested that the psychologists could be used as an intermediary to make contact with the mother.
The father’s attention was drawn to the recommendation of the paediatric psychiatrist Dr T dated 28 July 2017 that the child Y attend the (omitted) School at (omitted), being an inpatient facility for adolescents with significant psychiatric disorders and/or school refusal not amenable to outpatient treatment. The father was asked whether he accepted that recommendation. The father responded by stating that it was important to discuss these issues and that he would like to obtain further information from (omitted).
The mother was cross-examined.
The mother stated that she supported the child Y’s engagement with Mr H. This child was due to see Mr H on 4 August 2017.
The mother was cross-examined as to whether she would cease the child Y’s attendance upon Mr H prior to her becoming an inpatient at (omitted). The mother responded by stating that she would, to the best of her ability, take Y to see Mr H, but her pain condition might prevent her from doing so. The mother added that the child would not cope with Mr H coming to their residence; the child’s anxiety and selective mutism would arise and she would not speak. Further, she stated that she was not comfortable with other persons, including treating health professionals such as Mr H, coming to her residence when she was in pain.
The mother was cross-examined as to whether she believed it was important to the children to have a relationship with the father. The mother responded by stating that she had spent the last nine years trying to achieve this. She stated that a child had a right to know and be loved and cared for by both parents. In this context, she stated that she did not know the father, because she had had nothing to do with him for the last eleven years. She did not know what he could offer the children as they grew up.
The mother stated that she had experienced difficulty obtaining agreement with the father regarding the child Y seeing a psychiatrist since late 2016.
The mother confirmed that she did not think there could be productive communication with the father.
The mother confirmed that the child X was not presently seeing Ms P, and no appointment had been booked. She stated that she would facilitate this child seeing Ms P if she needed to see her. The mother stated that the child X was fourteen years of age and she might be able to make her own decision in this regard.
The mother would not agree to a Court Order that the child X attend upon Ms P at such times as that practitioner or any other therapist recommended.
The mother was asked whether she would agree to a Court Order that the child Y continue to see Mr H in accordance with his recommendations. The mother responded by stating that she would be more guided by Dr T. The mother stated that she had spoken to this doctor regarding the child Y seeing a specialist with expertise in selective mutism, which was this child’s current main problem.
The mother stated that her extended family lived in county Victoria. She did not work and had not done so since 2008. She spent her days caring for the children and herself with her pain condition. She stated that she was in constant and daily pain down the left side of her body.
The mother stated she was a trained (occupation omitted). She held a (qualifications omitted) from (country omitted). She had worked in the (omitted) area.
The mother stated that it was difficult to tell whether her own health conditions had contributed to the children’s anxiety, but it was possible. The mother confirmed that she had for a long time tried to encourage the children to see the father. She stated that if the children wanted to, they could contact the father, and in this regard she had placed the father’s name in the children’s mobile phones.
The mother stated that the children were usually not around when she texted the father, which was not often.
The mother was asked whether it was good for the children to know that the parents were jointly making decisions on their behalf. The mother stated that she was not sure in this regard, and she had made suggestions to the father which had been rejected. She stated that there was seldom agreement between the parties on such matters.
The mother was asked her position in relation to a possible condition applying to an Order for sole parental responsibility in her favour that she provide updates to the father. The mother stated that she would prefer to avoid providing such updates as it would increase antagonism between the parties. She stated that she would prefer the father to contact the children’s treating health professionals.
The mother was asked how the children would react to the father having access to the children’s doctor’s files. The mother stated that the child Y would get angry.
The mother stated that disputes in communications with the father caused her stress.
It was suggested to the mother that the child X had stated that she had noticed that the mother became distressed or unhappy when communicating with the father. The mother stated that she would probably have noticed.
The mother stated that she had participated in pain management courses. She had noticed how stress increased her pain. It affects one’s functioning. Nevertheless the mother asserted that her parenting ability had not been impacted by her heightened pain as she had learnt to manage her pain.

The Child Inclusive Conference

This conference was held on 29 January 2016. The family consultant was Ms A.
The father stated that he had not spent time with the children since November 2014. He reported that the interim consent Orders on 1 July 2015 for the children to spent time with him had not occurred.
Both parties reported nine years of previous litigation relating to the children, with numerous family and expert reports being completed.
As to the parties’ co-parenting relationship, the family consultant stated that the father stated that the mother did not discuss matters to do with the children with him. He stated that the mother sometimes sent him text messages about matters relating to the children, such as which high school Y should attend, and certain health issues.
The mother told the family consultant that she sent the father some text messages but tried to avoid communicating with him unless necessary. She said that the father was not able to listen. She stated that the father was not supportive, and had a history in this regard, as he had ended their relationship shortly after the mother had to undergo brain surgery.
The mother reported that Y had been diagnosed with autism spectrum disorder, but had high intelligence. She stated that this child attended occupational therapy and a group for autistic children on Saturday mornings. She reported that this child also had issues with noise and was affected by loud noises.
The father, on the other hand, considered that this child did not have autism spectrum disorder, as he had not noticed any behaviour consistent with this disorder in her. He considered her intelligent and able to make friends, but introverted.
The mother said that X attended counselling for anxiety.
The child X presented as a shy quiet girl, with a generally flat effect. She stated that she was in Year 8 at school, and had no problems there.
X said that she ceased spending time with the father because he would become angry and throw shoes at her. She stated that she did not like her step sibling. Nor did she like the father’s wife’s mother, who hated her and Y.
X stated that it was not impossible for her relationship with the father to improve, or for the father to address the issues that caused her to stop spending time with him. X thought that the mother did not like the father. She clarified that, “it’s more like not caring.” She said, however, that the mother told her and Y that they should spend time with the father.
Y presented as a child with behaviours consistent with autism spectrum disorder. She did not make eye contact, was tense and stiff and had difficulty expressing her emotions verbally. She appeared to be somewhat distressed at times throughout her interview. She mostly provided minimal responses or did not answer questions asked of her verbally, but instead clenched her jaw, stiffened her arms and exhaled loudly.
Y said that she stopped spending time with the father because he threw shoes at her. She said that she did not enjoy spending time with the father.
Under the heading “Future directions”, the family consultant stated, inter alia, that it appeared that the separation had a long history of litigation and had been acrimonious. It appeared that the children’s relationship with the father had ruptured, and they had ceased spending time or having contact with him.

The Family Report

The Family Report writer, Ms A, interviewed the parties, the father’s partner, and the children on 29 July 2016.
The mother reported that Y had begun attending “(omitted) Psychology” for therapy, and that the child X attended counselling with psychologist, Ms P.
The father reported that he and the mother had not been able to effectively communicate about the children for years. He clarified that there had been some text message communication between them.
The father stated that he called the children the previous week, and received a text message from them saying, “did you want something, children both claim to not have a father.”
The father stated that he accepted Y’s diagnosis of autism spectrum disorder, but thought that the mother attributed more of her symptoms then were realistic of her diagnosis.
The father stated that he sent messages to the children on occasion, but did not receive a response, and did not know if the children received them.
The mother reported that she suffered a severe pain condition (central pain syndrome) which was exacerbated by stress. She said that her health was otherwise stable and she took medication prescribed for her by her doctor.
The mother stated that the children did not see the father and ignored his emails and phone calls. She stated that she did not send the children to spend time with the father in accordance with the interim consent Orders because they did not want to go.
The mother stated that she had “pages and pages of vitriol” communicated to her by the father, going back to 2007, in a communication book. She stated that she had tried to communicate with the father previously about the children but he did not respond. She denied that he tried to contact her.
The mother stated that Y was currently attending school four days per week, on average. She stated that, in addition to her autism spectrum disorder, she also had anxiety, noise intolerance, and selective mutism.
The mother stated that X was average at school and also had anxiety. She stated that X’s psychologist, Ms P, did not think there was a solution to the situation that “anyone can listen to”.
The Family Report writer interviewed the children.
The child X said that she was attending a psychologist, with whom she spoke mostly about the father. She stated that she had been doing so once a month since the beginning of 2016. X said that she found this helpful and thought that “Ms P” was nice.
X said that she believed that the mother did not like the father. She said that she knew this because of how the mother acted, and said that “she doesn’t look very happy” when messaging him.
The child Y presented as a child with behaviours consistent with her diagnosis of autism spectrum disorder. This child would not engage verbally with the family consultant, so she was communicated with via typed words instead.
Neither child wished to attend an observation session with the father, and they became increasingly distressed when advised of this process by the family consultant.
Under the heading “Evaluation”, the Family Report writer stated that the children both expressed fears that were wholly rejecting of the father. They were unable to identify any positives about him and presented as hostile towards him.
The mother appeared to consider that the children would not benefit from having a relationship with the father, and did not appear to consider that the children needed both parents in their lives. She presented as hostile towards the father.
The Family Report writer stated that the children both have concerning mental health problems. Y’s autism spectrum disorder presented as severe, both during the Child Inclusive Conference and the Family Report process.
The Family Report writer stated that given the amount of time that had passed since the children had had contact with the father, it was considered unlikely that the children would now be able to spend time with him, or have a relationship with him in the short to medium term. It appeared that their positions had solidified over time and it was unlikely that therapeutic intervention regarding this issue would now be effective, particularly without the mother’s support.
The Family Report writer stated that both parties identified conflict in communicating with each other, and that it appeared that communication had not always occurred between the parties when it should have. It appeared that the parties were unable to communicate effectively regarding the children.
The Family Report writer stated that if the children did not spend time with the father, it was recommended that he continue to keep the lines of communication open to them, as they may, in the future, seek him out. It was noted that although the father could continue to text message the children occasionally, this would be ineffective if they changed phone numbers or contact details. Maintaining an online presence by which the father could be located and contacted may assist, if in the future either child sought to re-establish her relationship with the father or his child A.
The Family Report writer gave oral evidence.
The Family Report writer’s attention was drawn to aspects of the party’s oral evidence. She said it was a concern that equal shared parental responsibility had not worked over recent years and it was unclear as to how or why it could work in the future given the parties’ relationship.
The Family Report writer stated that a Court order that the father had permission to send cards or a letter and present on the children’s birthdays and Christmas would help the father to maintain his relationship with the children. The mother could be required to deliver such items to the children, and the father could text message the children, or he could have a Facebook profile that the children could engage with, if they wanted.
The Family Report writer was asked whether there was anything more that the father could do to assist the child Y. She stated that the father should continue to make his own direct contact with the children’s treating health professionals.
The Family Report writer referred to the potential for stalemates arising between the parties (for example, in relation to the schooling issue for Y), and decisions not being made in a timely manner in relation to the children, in the event that they had equal shared parental responsibility.
The family report writer stated that the mother should be required to at least inform the father of the children’s treatment providers.
The Court accepts the evidence of the Family Report writer.

Relevant legal principles

Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part 7 of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, the Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA(3).
If the presumption of equal shared parental responsibility in relation to the child applies and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an Order that the child spend substantial and significant time (as defined in section 65DAA(3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such Orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC and 65D.

The best interests of the children

Section 60CC considerations

Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration.

The children have a meaningful relationship with the mother and will benefit from a continuance of that relationship.
The children’s former meaningful relationship with the father has ruptured. They have not spent time with him since about November 2014. Since that time they have expressed strong wishes not to spend time with the father.
The children would likely benefit from a meaningful relationship with the father in the future. Should an order be made for equal shared parental responsibility, as sought by the father, there is a significant risk that the prospect of the children restoring their former meaningful relation with the father will be jeopardised. This is because there is a significant risk that the children will be exposed to conflict between the parents when they endeavour to reach agreement on major long-term issues affecting the children.
In this context, the Court does not accept the father’s submission that an Order for equal shared parental responsibility will provide a productive mechanism for the children to communicate/establish contact with the father (the father had stated that it was important to keep engaging with the mother so that she will encourage the children to communicate with him). On the contrary, in the view of the court, such an Order, again, would carry the significant risk of conflict between the parties, potentially exacerbating the mother’s pain condition as a result of stress, and militate against such communication occurring.
The Court does not accept that the mother has alienated the children from the father, and accepts her evidence in this context.
It will be in the best interests of the children to make Order 8 in Exhibit B, being the ICL’s proposed parenting Orders, relating to the father being permitted to send a card and present to each of the children on their birthdays and Christmas each year. The evidence of the family report writer is consistent with this view.
The Court gives significant weight to this meaningful relationship consideration.

Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

There is a significant risk of the children being exposed to psychological harm if an Order is made for equal shared parental responsibility, by reason of being exposed to potential conflict between the parties. In this regard, the Court refers above to its discussion under the meaningful relationship consideration.
Further, the Court refers below to its discussion under the heading “Parental responsibility”.

Section 60CC(3) - additional considerations

(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

The children have expressed strong views against spending time with the father.
Whilst the Court recognises that the Family Report writer was unable to clearly discern the underlying reasons for the children’s strong views, it would appear nevertheless that the children hold these views conscientiously.
Whilst having regard to the material before the Court from the children’s mental health professionals, the Court gives significant weight to their views.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

The Court refers above to the meaningful relationship consideration.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

Both parents have sought to take such opportunities.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

Both parents have fulfilled such obligations.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

Not applicable.

(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

Not applicable.

3(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

The mother would appear to have such capacities. The father would appear to have the capacity to provide for the children’s intellectual needs, however the Family Report writer opined that the father did not present as having the insight or ability to be able to manage the emotional distress that could arise if the children lived with him (whilst noting that this was not his proposal).

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant

The Court refers to the previously discussed reports of Ms P, Mr H, Dr J and Dr T, in relation to the children’s mental health issues.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right.

Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

Both parents would appear to have demonstrated appropriate attitudes to the children, and to their responsibilities of parenthood.

(j) Any family violence involving the child or a member of the child's family

Not applicable.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter

Not applicable.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

The ICL’s proposed Orders (Exhibit B), as supported by the mother, would be least likely to lead to the institution of further proceedings in relation to the children; inter alia, the father’s proposed Orders would carry the significant risk of the parties experiencing conflict or reaching a stalemate in relation to a prospective major long-term decision for the children, noting the children’s (in particular the youngest child Y’s) mental health issues.

m) Any other fact or circumstance that the Court thinks is relevant

The father’s proposed parenting Orders are set out in his Case Outline, Exhibit C.
It will not be in the best interests of the children to make proposed Orders 4 to 7 inclusive of the father’ s proposed Orders, relating to the children attending their respective psychologists for therapy and counselling.
The mother herself has been diligent in having the children attend upon their treating health professionals, subject to occasions when she has been physically incapacitated by reason of her pain condition from transporting the children. She has been responsive to their treatment recommendations, noting, for example, the youngest child’s attendances more recently upon Dr T, psychiatrist. The Court is confident, on the evidence before it, that the mother will continue to so act responsively and responsibly in this context.
There is a real risk that discrete Orders that the children attend upon their respective psychologists for therapy and counselling might compromise the treatment recommendations of the children’s health practitioners.
In this context, the Court takes into account the statement of the eldest child’s psychologist Ms P in her report dated 18 July 2017, inter alia, that there was little therapeutic benefit that the child X stood to gain from the psychological sessions with her, and she did not feel that it was necessary to have sessions on an ongoing basis.
Whilst the Court appreciates the recent recommendation, for example, of Dr T, that the youngest child continue to attend upon Mr H, again, the Court, accepting the evidence of the mother, is quite confident that the mother will act responsively to that recommendation. In this context, the Court notes the mother’s evidence that the child was due to recommence sessions with Mr H on 4 August 2017.
As to the father’s proposed Order 14, relating to each parent being authorised to have discussions and obtain information regarding the children from various health treatment providers, including psychologists, psychiatrists and counsellors, the Court is of the view that this proposed Order is too broad. It carries the significant risk that the children, if made aware of the father’s actions in this context, may regard such discussions and the provision of information as an intrusion upon their therapeutic relationship with the relevant treatment provider, and potentially jeopardise such relationship. Further, in circumstances where the children hold strong views presently against spending time with the father, such an Order may place the re-establishment of the children’s former relationship with the father in jeopardy. The ICL’s proposed Order 4, relating to the father being authorised to request and receive relevant medical reports from each child’s treating medical health practitioners, will likely enable the father to remain familiarised with the children’s relevant health professional treatment.
As to the father’s proposed Orders 8, 9, 10, 11, 13, 15, the Court is of the view that it will be in the best interests of the children to make the ICL’s proposed Orders in Exhibit B, being Orders 5 to 7 and 9.
As to the father’s proposed Orders 16-17, relating to overseas travel with the children, it will not be in the best interests of the children to make such Orders, particularly in view of the children’s present strong views in relation to not spending time with the father (noting the agreement of the parties that a final parenting Order should be made that the children spend time with the father in accordance with their wishes), and the Court’s proposed Order that the mother have sole parental responsibility for major decisions relating to the children, as discussed below.
As to the father’s proposed Orders 19 and 20, relating to the NDIS and the children, there is no evidence before the Court to enable the Court to properly consider these proposed Orders.
It was common ground between the parties that the children would live with the mother and spend time with the father in accordance with their wishes. It will be in the best interests of the children to make such Orders.

Parental responsibility

It will be in the best interests of the children for the mother to have sole parental responsibility. It will not be in the best interests of the children to make an Order that the parents have equal shared parental responsibility.
The Court refers to its discussion above under the meaningful relationship consideration.
The mother has been the children’s primary carer, at least post separation to date. Unfortunately, the father has not spent time with the children since about November 2014.
An Order that the mother have sole parental responsibility will likely remove the significant risk of the children being exposed to conflict between the parties should they otherwise be required to reach agreement on major long-term issues affecting the children. In this context, the Court notes the history of the parties’ prior litigation in 3 separate sets of proceedings.
An Order for equal shared parental responsibility, carrying the significant risk of conflict between the parties, may well lead to resultant stress in the mother, exacerbate her pain condition, and affect her parenting capacity; for example, she may become less mobile and less able to transport the children to school and health appointments.
The parties have been unable to consistently reach decisions on major issues relating to the children in a timely manner.
The parties’ ability to consistently and effectively communicate with each other in a timely manner is lacking.
The father’s own particular style of decision-making is another impediment to the parties being able to reach decisions together in a timely manner, in relation to major issues relating to the children.
The mother has been able herself to make child focused major decisions for the children in a timely manner.
The evidence of the family consultant, which the court accepts, is consistent with the above views of the Court relating to parental responsibility.

Summary

Evaluating the primary and additional considerations under section 60CC of the Act, as discussed above, the Court is of the view that it will be in the best interests of the children to make Orders in accordance with the ICL’s proposed Minute of Order, being Exhibit B.
The Court will make parenting Orders accordingly.

I certify that the preceding one hundred and seventy-one (171) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 22 March 2018

[2018] FCCA 617

23 March 2018

Key Legal Topics

Areas of Law

Family Law