Mickelson and Mickelson

[2017] FamCA 780

FAMILY COURT OF AUSTRALIA

MICKELSON & MICKELSON [2017] FamCA 780

FAMILY LAW – ORDERS – Contravention – Respondent found to have contravened order without reasonable excuse – makeup time ordered – application to vary parenting order made – interim parenting order varied
FAMILY LAW – INJUNCTION – Respondent restrained from taking children to specified psychologist – also restrained from taking children to any other therapist without first obtaining the agreement of the Independent Children’s Lawyer

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Goode v Goode (2006) FLC 93-286

APPLICANT: Mr Mickelson

RESPONDENT: Ms Mickelson

INDEPENDENT CHILDREN’S LAWYER: Norman & Kingston Solicitors

FILE NUMBER: BRC 791 of 2016

DATE DELIVERED: 22 September 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 8 & 21 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McDiarmid of Counsel

SOLICITOR FOR THE APPLICANT: Sunnybank Solicitors

SOLICITOR FOR THE RESPONDENT:	In person
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Kingston, Norman & Kingston Solicitors

Orders

IT IS ORDERED THAT

1. Pursuant to s 70NEB(1)(b) of the Family Law Act1975 (Cth) and by way of compensating the father for the time he did not spend with the children B, born … 2008, and C, born … 2012, as a result of the mother’s contravention, without reasonable excuse, on 26 March 2017, 2 April 2017, 9 April 2017, 16 April 2017, 23 April 2017 and 30 April 2017 of Clause 2(b) of the Order made on 4 April 2016 (as amended on 27 April 2016), those children shall spend time with the father as follows:

   (a)from 10.00 am Saturday, 23 September 2017 until 5.00 pm on Saturday, 23 September 2017;  and

   (b)from 10.00 am Saturday, 7 October 2017 until 5.00 pm on Saturday, 7 October 2017;  and

   (c)from 10.00 am Saturday, 21 October 2017 until 5.00 pm on Saturday, 21 October 2017;  and

   (d)from 10.00 am Saturday, 4 November 2017 until 5.00 pm on Saturday, 4 November 2017;  and

   (e)from 10.00 am Saturday, 2 December 2017 until 5.00 pm on Saturday, 2 December 2017;  and

   (f)from 10.00 am Saturday, 16 December 2017 until 5.00 pm on Saturday, 16 December 2017.

2. Pursuant to ss 70NBA(1)(a) and (1)(b)(ii) of the Family Law Act 1975 (Cth), the Order made on 4 April 2016 (as amended on 27 April 2016) is varied by:

   (a)       deleting the current terms of Clause 2(b) of that Order; and

   (b)ordering that, until further order, the children B, born … 2008 and C, born … 2012 spend time with the father as follows:

   (i)at D Contact Centre, Suburb E: on 1 October 2017 and each alternate Sunday thereafter, for two (2) hours or such other time as the Centre can make available;  and

   (ii)from 5.00 pm on Saturday, 23 September 2017 until 5.00 pm on Sunday 24 September 2017; and

   (iii)from 5.00 pm on Saturday, 7 October 2017 until 5.00 pm on Sunday, 8 October 2017;  and

   (iv)from 5.00 pm on Saturday, 21 October 2017 until 5.00 pm on Sunday, 22 October 2017;  and

   (v)from 5.00 pm on Saturday, 4 November 2017 until 5.00 pm on Sunday, 5 November 2017;  and

   (vi)from 5.00 pm on Saturday, 2 December 2017 until 5.00 pm on Sunday, 3 December 2017;  and

   (vii)from 5.00 pm on Saturday, 16 December 2017 until 5.00 pm on Sunday, 17 December 2017;  and, thereafter

   (viii)commencing from Saturday, 30 December 2017:  from 10.00 am on Saturday, 30 December 2017 until 5.00 pm on Sunday, 31 December 2017 and each alternate weekend thereafter.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The father shall not sleep overnight in the same residence in which the children are staying.

2. Unless otherwise agreed between the parties in writing, the changeovers for all of the time the children shall spend with their father that does not occur at D Contact Centre, Suburb E shall occur at the park at F Town.

3. The mother is restrained and an injunction issue restraining her from taking the children to see Ms G, clinical psychologist.

4. The mother is restrained and an injunction issue restraining her from taking the children to see any other psychologist or therapist of any kind without first obtaining the agreement of the Independent Children’s Lawyer to do so.

IT IS FURTHER ORDERED THAT

1. The father’s legal representatives have leave to inspect the documents produced under subpoena directed to Queensland Police Service being Bundles 9 and 10.

2. Whilst she remains acting for herself in these proceedings, the mother has leave to inspect the documents produced under subpoena directed to Queensland Police Service being Bundles 9 and 10.

AND IT IS FURTHER ORDERED

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 791 of 2016

Mr Mickelson

Applicant

And

Ms Mickelson

Respondent

REASONS FOR JUDGMENT

1. The Respondent mother accepts that she contravened the Order made on 4 April 2016 (as amended on 27 April 2016) on six occasions when she failed to provide the children, B, born in 2008, and C, born in 2012, to spend time with their father on a supervised basis on Sundays between 10.00 am and 5.00 pm. 

2. The occasions on which the contraventions occurred range from 26 March 2017 to 30 April 2017, but it is an accepted fact that the children did not spend time with their father from about mid-March 2017 until last Sunday, when they spent time with him at D Contact Centre at Suburb E. 

3. The mother says she had a reasonable excuse for the contraventions.  She bears the onus of establishing this on the balance of probabilities. 

4. The mother relies on s 70NAE(5)(a) and (b) in particular and submits that the Court will be persuaded, to the requisite standard, that she believed, on reasonable grounds, that not allowing the children to spend time with their father – supervised by persons particularised in the Orders who had provided an undertaking in the terms recorded in an Order made in January 2017 to, in essence, keep the children and father within earshot and observation at all times – was necessary to protect the children’s health or safety and the period during which the children and their father did not spend time together was no longer than necessary to protect their health and safety. 

5. In seeking to discharge the onus she bears, the mother relies on her evidence, which includes a report from Ms G, a clinical psychologist.   That statement of qualification is the limit of the evidence before me in relation to Ms G’s expertise, qualifications and experience.

6. For the purpose of determining this Application and for no other purpose, I am prepared to proceed on the basis that the mother believed that not allowing the children to spend supervised time with their father in accordance with the orders was necessary for their health or safety. 

7. Consequently, for the purposes of this Application only, the question to be determined is whether this belief was held on reasonable grounds. 

8. I am not persuaded that it was. 

9. I arrive at this conclusion for the following reasons.

10. The evidence before me suggests that the allegations which resulted in the imposition of supervision over the children’s time with their father are of similar kind and particulars to those the mother relies upon as the basis for her decision to cease the children’s supervised time with their father on the occasions particularised in the Application – Contravention before the Court. 

11. The mother’s affidavit of 20 March 2017 contains her evidence that the issues of the father’s asserted “sexualised behaviours to the children” had not yet been investigated and this provided her explanation/reason for not telling the father why she was ceasing time and also provided a justification for her decision to cease the children’s supervised time with their father.

12. However, two things need to be noted. 

13. The first is that there is nothing in the material relied upon about C making any allegations of any asserted behaviour by his father toward him. 

14. The second thing is that the mother’s affidavit of 27 August 2017 makes clear that she contacted the H Town Child Protection Investigation Unit on 17 March 2017 by telephone and that, during this conversation, I infer, an appointment was made for the mother and B to attend upon the police on 18 March 2017, at which time statements were taken from both the mother and I infer, B was interviewed and the investigation commenced.

15. The mother’s evidence is also that, when she was contacted by an officer from the H Town Child Protection Investigation Unit on 22 March 2017 (with a request for B to be interviewed), she told this person that that had already occurred on 18 March 2017.  Consequently, the police officer, in essence, told her there was no need to bring B in again for further interview.

16. This establishes that, by 18 March 2017, B’s evidence, or assertions, were captured by the police on video as a consequence of his interview by them:  in that sense, they are incapable of change in the sense that nothing within the father’s supervised interactions with the children could change what B had already said to police in his interview with them. 

17. There is no specific evidence before me in relation to information from the police about what was to happen thereafter. 

18. I also note the mother’s evidence of a comment she records “Ms J” from K Group to have made to her (albeit recorded as being Ms J’s expression of personal opinion) to the effect that her view was the children should not have unsupervised time with their father. 

19. There is no suggestion in the material that the Orders provided for unsupervised time. In fact, the imposition of supervision has been longstanding, and as a consequence of the Orders made in April 2016. 

20. Further, whilst it is clear that the mother was not happy with the fact that supervision of the father’s time with the children has been provided by those persons named in the Orders (who include the paternal grandmother), nothing in the evidence persuades me that there was, objectively viewed, reasonable grounds for the mother’s asserted belief that providing the children to spend supervised time with their father in accordance with the Order made in April 2016 (which had been occurring since then) was necessary to protect the children’s health and safety vis-à-vis any risk the father might behave toward them in an inappropriate or sexually abusive manner.

21. Further, to the extent that the mother relies on her evidence that B returned with sunburn and that the father provides lollies and sugary drinks to the children during their time with him as a basis for her asserted belief that preventing them from interacting with him on a supervised basis was necessary for their health or safety, I am not persuaded that these asserted parenting deficiencies amount to a reasonable ground for forming such asserted belief. 

22. Whilst Counsel for the father urged that further findings of fact be made, I am conscious that the matter is listed for trial before me in March of next year.  I consequently consider that these findings and reasons are sufficient to support my conclusion that the mother has failed to establish, on the balance of probabilities, that her contravention of the Order on the occasions particularised in the Application – Contravention occurred with reasonable excuse. 

23. Consequently, I conclude that, on the occasions particularised in the Application – Contravention, the mother contravened the Order made on 4 April 2016 (as amended on 27 April 2016) without reasonable excuse.

Father’s application for make-up time

1. I turn now to consider the application made by Counsel for the father for orders providing for the children to spend make-up time with their father.

2. Counsel for the father sought an order for make-up time. The power to make an order for such time is found within s 70NEB(1)(b) of the Family Law Act 1975 (Cth), which provides that the Court may make a further parenting order that compensates a person for the time the person did not spend with the children as a result of the contravention.

3. Given that the contraventions I have found are contraventions of a parenting order in relation to the children and that such contraventions resulted in the father not spending time with the children in accordance with that Order, I am obligated by s 70NEB(4) to consider making an order under s 70NEB(1)(b) of the Act to compensate the father for the time he did not spend with the children as a result of the contraventions.

4. Of course, as is provided by s 70NEB(5) of the Act, I must not make an order under s 70NEB(1)(b) of the Act, providing for make up or compensatory time, if it would not be in the interests of the children for that to occur.

5. I am not persuaded that it would not be in the interests of the children for there to be an order for them to spend compensatory time with their father. 

6. I have arrived at this conclusion for the following reasons.

7. I take into account the contents of Exhibit 1.  Also that, between about late August 2015 and November/December 2015, the parties implemented the terms of a Parenting Plan that saw the children spend time with their father each alternate weekend between 5.00 pm and 8.00 pm, each Wednesday and for half of the school holidays. 

8. I take into account that the children, in fact, spent, it seems, two weeks with their father during the December 2015/January 2016 school holidays. 

9. I also take into account that, between April 2016 and March 2017, it appears the children spent supervised time with their father in accordance with the April 2016 Order.

10. I also take into account that reference to Exhibit 1 (being a note from Ms J at K Group who had seen B, it seems, on occasions between about February 2016 and about mid-February 2017) records that, as at 27 February 2017, he had not disclosed sexual abuse. 

11. Even if those dates are incorrect (given that they are taken from Ms G’s notes of information provided to her), it seems uncontentious that, during whatever occasions of time B interacted with Ms J from K Group for the purpose of her providing him with therapeutic support, her evidence remains that he made no disclosures of sexual abuse during such appointments.  In fact, she records in Exhibit 1 that he enjoyed spending time with his father.

12. In addition, the notes of Dr L, the medical practitioner who prepared the mental health care plan for B which resulted, it seems, in his attendance upon Ms G, contain the assertion that the child likes going to see his father and going skateboarding. 

13. In addition, I have taken into account the contents of Ms G’s report to Dr L in relation to the sessions B engaged in with her between, I think, about 16 February 2017 and 3 May 2017 (according to her report).  Such notes include that, while B reported enjoying outings with his father (such as skateboarding), he also reported experiences that made him feel sad and annoyed and experience annoying feelings.  These seem to include a complaint of suffering a wedgie from his uncle; that his father had punched a hole in the wall when he (B) refused to get into bed with him and that, when the father walked around in the morning, his private parts were hard and out of his pants.

14. All of those matters, it seems to me, are addressed by the ongoing presence of supervisors and supervision in relation to the children’s time with their father. 

15. I also take into account and record the contents of the notes of Ms G, which seem to relate to a session which occurred on 6 March 2017:  these include that B told her about telephone calls with his father, that he feels good that he gets to talk to him and gets to know if they have him or not, and his comment that he is happy if he has his father. He said, according to Ms G’s notes, that he enjoyed himself during time with his father, because he likes doing skateboarding tricks. 

16. I take into account, also, the contents of the notes of Ms G of a session which appears to have occurred on 12 April 2017:  these include a note that B did not want to see him because he just wanted to be “safe” and did not want to talk to his father because of the police thing.

17. The safety issues can, I reiterate, be accommodated by the continuation of supervision imposed over the children’s time with their father. 

18. Ms G’s notes of the session on 12 April 2017 also include her recording B telling her about his father: namely, that he missed him sometimes.  He is said to have told her that his father should go to jail for a couple of years because he did not like what he had done to him, to C and to the mother, and that his father did not deserve as much time with them – but maybe five hours.

19. I also note that, when asked about contact during the session on 6 March 2017, Ms G’s notes include that, when she asked B about his “contact wants”, he told her he wanted to see his father on Friday night until Sunday after dinner every second weekend. 

20. I also take into account that, during a session which, according to my understanding of Ms G’s notes, occurred on 9 May 2017, it seems that B told her that the father did not do much with him, but then said he did a lot with him; he made the comment that:  “he’s nice.”

21. Her notes contain a record of interactions: camping, fishing, motorbike riding.

22. I also take into account that, given that B’s disclosure seemed to focus on the father being seen by him with an erect penis through his shorts in the mornings, or coming into his room at night or in the morning to watch television, with an erect penis through his shorts, or washing the children in the shower, any risk of exposure to this type of behaviour is capable of being eliminated by the continuation of ongoing supervision and a requirement that the father not stay overnight where the children are sleeping.

23. Whilst it is entirely a matter for him and his case, it seems to me that, at trial in March of next year, it would be of assistance to the Court if the witnesses called by the father include those with whom he obtains accommodation, so as to establish clearly his compliance with any requirement that he absent himself from the children’s place of residence during the time that they are sleeping overnight in that place.

24. In addition, the continuation of supervision over the children’s time with their father also obviously means that the paternal grandmother (or other person nominated as a supervisor) bears the responsibility for overseeing and supervising the children’s bathing arrangements during their time with their father – particularly, of course, given B’s reports of the father washing him and C in the shower.

25. I also take into account that it appears from Ms G’s notes of a session which occurred on 17 May 2017 (which is said to have followed on from an earlier session on 3 May 2017, at which the mother was present when Ms G completed “My Body.  What I Say Goes”) that the discussions were, it seems, about safe and unsafe feelings, discussions about the existence of a safety network and privacy and the topic or issue of secrets and supervisors etcetera. 

1. Consequent upon that, according to Ms G, C is recorded to have told her that B sucked his “willy and bum”; but, when she asked B, he denied touching his brother’s “private parts”.  It appears from Ms G’s notes that she then asked B directly if “another adult” or child had done so to him, or shown him pictures of “oral sex.”  He denied to her, in response to such questions, that those things had occurred. 

2. I note also that there is nothing in the mother’s evidence to provide any particulars of any allegation that C is said to have made, or that provides a foundation for a conclusion that C said anything, in relation to his interaction with his father, or his interaction with B, before Ms G’s involvement, to which I have already referred.

3. For those reasons, I am satisfied, as I have said, that the children’s interests are served by affording to them the opportunity to spend time with their father by way of compensatory time. 

Variation to existing parenting orders

1. I turn now to consider the application for a variation to the parenting order, that application having been made by Counsel for the father. 

2. The power of the Court to vary an existing parenting order in the circumstances in this case may be found within s 70NBA(1)(a) and 70NBA(1)(b)(ii) of the Act.

3. Counsel for the father seeks a variation to permit the children the opportunity to spend supervised time in and around (or to complement, perhaps more accurately) the supervised time they have just started to spend with their father at the D Contact Centre at Suburb E.  As I understand it, this time started last Sunday. 

4. The Respondent mother opposes any change to the existing orders. 

5. Any variation to the existing parenting orders should only occur if the same is determined to be something which is in the children’s best interests.  Of course, in arriving at such a conclusion, it is necessary to give consideration to those matters particularised in s 60CC, known as the “best interests” considerations, and to follow the process mandated by the Full Court of this Court in Goode v Goode[1].

   [1] (2006) FLC 93-286.

6. I rely on those matters to which I have already made specific reference and which I have relied upon as providing the basis for my conclusion that the children’s interests require the making of an order for make-up time with their father.  In addition, I have also arrived at the conclusion that it is in the children’s best interests to afford them an opportunity to spend increased supervised time with their father taking into account the father’s instructions to his Counsel (as conveyed to the Court during the course of submissions) that he will move out from the house at which the children and paternal grandmother spend time and stay elsewhere overnight if the children are to spend overnight with their paternal grandmother. 

7. I consider (in addition to the matters I have already mentioned and which form part of the basis for my overall conclusions) that it is in the children’s best interests to afford them an increased opportunity to spend supervised time with their father on an interim basis for the following reasons.

8. They have previously spent alternate weekends and a two week block of time in his care; orders permitting the children to spend overnight supervised time with their father will have the effect of ameliorating the impost of the travel associated with time on both the children and their parents.

9. I also take into account that an increase in the amount of supervised time the children can spend with their father will also be a return to something closer to that which they had previously spent with him in accordance with the implemented parenting plan.  It will also give them a greater exposure to, and experience of, their father, so as to provide them with a basis to form their own view of him as a person and a parent, albeit with the protective guise of the continuation of supervision by those persons previously identified as being appropriate to provide the same. 

10. I take into account, also, that, whilst it is highly likely there will be a negative impact on their mother of such orders to increase their opportunity to spend supervised time with their father, there is nothing in the evidence to suggest that any deleterious impact on her will be to the extent that it will negatively affect her parenting capacity to an extent that there would be a negative imposition on the children's well-being.

11. I also note that there is currently listed an interim hearing before the Senior Registrar towards the end of October of this year.  I consider that, if issues arise, or there are difficulties in the orders I intend to make that have not been addressed, the parties will have a relatively proximate opportunity to raise any such issues with the Senior Registrar – hopefully, after the receipt of a report from Mr M, that process being underway at present. 

12. I also take into account that, as I have said, this matter is listed for final hearing towards the end of March of next year.

13. Whilst the Independent Children’s Lawyer has not been involved in or accorded the opportunity to make submissions in relation to the variation of the parenting orders, I am confident that, if the Independent Children’s Lawyer considers the orders I intend to make do not meet the children’s best interests, he will have the opportunity to raise any concerns or difficulties associated with them with the Senior Registrar when the matter returns towards the end of October of this year (or, perhaps, some slightly later date).

14. In any event, parenting orders are, of course, not reflective of those matters an Independent Children’s Lawyer thinks are in the children’s best interests but, rather, what the Court entrusted with that obligation concludes are orders in the best interests of children.  Consequently, even if the Independent Children’s Lawyer had made submissions adverse to, and not supportive of, the proposition that the children will benefit from the opportunity to spend increased supervised time with their father, I would not have been persuaded by them because of the conclusion I have reached that such orders are, in fact, in their best interests on an interim basis. 

15. For these short reasons in relation to the issue of the variation of the existing parenting order on an interim basis, I intend to make orders which afford to the children an increased opportunity to spend supervised time with their father (with the consequent decrease in the travel requirements and number of changeovers for them) because I am persuaded, for the reasons I have expressed, that such orders are in their best interests on an interim basis.

Children’s attendance upon Ms G

1. I turn now to consider the application made by Counsel for the father for the imposition of injunctions in relation to the children’s attendance upon Ms G and in relation to the mother taking the children to see any other psychologist or therapist. 

2. Counsel for the father sought that the Court make an injunction restraining the mother from taking the children to Ms G in the future and in relation to her taking them to see any other psychologist or therapist. 

3. The Court’s power to make such injunctions is contained within s 68B(2) of the Family Law Act 1975 (Cth) which provides that a Court exercising jurisdiction under the Act may, relevantly, grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the Court to be just or convenient to do so.

4. The basis for the application, as I understand the submissions, rests upon and followed reference to notes provided by Ms G consequent upon her interaction with the children.  In particular, reference was made to Ms G’s notes of a session on 11 March 2017 with her supervisor (it seems) in which she recorded:

   Clear re why seeing [B].  No police investigation so can crack on with therapy. 

5. The notes also included, “Build rapport pre-disclosure” and, later, “To manage avoidance”.

6. In addition, reference to Ms G’s notes of the session conducted on 17 May 2017, to which reference has already been made, were also the subject of submission. 

7. In addition, I also note that reference to the notes of the 17 May 2017 session and their seeming reference to an earlier session on 3 May 2017 record that Ms G completed the “My Body! What I Say Goes!” and other protective behaviours topics with the children. 

8. Thus, it appears from reference to Ms G’s notes – given her use of the word “completed” – that she has completed at least one aspect, if not all, of her interaction and instruction to the children in relation to protective behaviours. 

9. I am satisfied that it is just or convenient to make interlocutory interim injunctions restraining the mother from taking the children to Ms G in the future and, also, restraining her from taking the children to any psychologist or therapist, however described, without first advising the Independent Children’s Lawyer and obtaining the Independent Children’s Lawyer’s agreement that the children attend upon such therapist.

10. I have arrived at that conclusion because, as I have said, it seems from the notes of Ms G that she has completed her protective behaviours sessions with the children;  I am also concerned about the children’s exposure during the sessions with Ms G to matters of an adult nature in circumstances where B at least has previously been the subject of police interview.

11. Should other matters arise from which it is asserted that the children need to see, and would benefit from interaction with, therapists of whatever nature then, of course, it is open to the mother (with the appropriate evidentiary basis) to seek such orders from the Senior Registrar when the matter returns before him.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 22 September 2017.

Associate: 

Date:    22 September 2017