FAMILY COURT OF AUSTRALIA
| MILLSON & HALBERT (NO. 2) | [2019] FamCA 869 |
| FAMILY LAW – PARENTING – where the parties both seek an order for sole parental responsibility – where the mother alleges the father sexually assaulted her in front of one of the children – where the mother alleges the children disclosed the father physically abused the children – where the mother has taken the children to the police to make allegations against their father – where the father alleges the mother alienates the children from him – where the father alleges the mother abuses illicit substances – where the Court finds that the mother is an unacceptable risk to the children – change of residence – period of no time – gradual increase of time to commence with supervised time – therapeutic intervention required for the mother – family therapy ordered. |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65D, 65DAA, 65DAB, 65DAC Evidence Act 1995 (Cth) s 140 |
| Adamson & Adamson (2014) 51 FamLR 626 Jollie & Dysart [2014] FamCAFC 149 M v M (1988) 166 CLR 69 R & C [1993] FCA (Unreported, Fogarty, Baker and Lindenmayer JJ, 25 June 1993) R & R (Children’s Wishes) (2002) FLC 93-108 Re Andrew (1996) 20 Fam LR 538 Sigley & Evor (2011) 44 Fam LR 439 Tibb & Sheean (2018) 58 FamLR 351 |
| APPLICANT: | Mr Millson |
| RESPONDENT: | Ms Halbert |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 6260 | of | 2007 |
| DATE DELIVERED: | 27 November 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Harper J |
| HEARING DATE: | 1-3 July 2019 & 8-9 August 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Blackah |
| SOLICITOR FOR THE APPLICANT: | G & D Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Gould |
| SOLICITOR FOR THE RESPONDENT: | The Law Society of NSW |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Ladopoulos |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Sydney Central Family Law |
Orders
All previous parenting orders in relation to the children Y born in 2006 (13 years of age) and X born in 2011 (7 years of age) be (“the children”) discharged.
Parental Responsibility
The father have sole parental responsibility for major long term issues relating to the children.
Prior…
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- AGLC
- Millson and Halbert (No. 2) [2019] FamCA 869
- Case
- [2019] FamCA 869
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the extent of parental responsibility for major long-term issues, the children's residence, and the specific arrangements for the mother's time with the children, which was initially suspended. Key legal issues included the mother's compliance with psychiatric treatment recommendations and the phased reintroduction of supervised and then unsupervised time with the children. The court also considered the need for therapeutic intervention for the children and family, and the mother's obligations to engage with health professionals.
Justice Harper ordered the discharge of all previous parenting orders. The father was granted sole parental responsibility for major long-term issues, with a requirement to notify and consider the mother's written response before making decisions. The children were ordered to live with the father. The mother was directed to attend psychiatric assessment and follow all recommendations, with her time with the children suspended for three months. The reintroduction of time was contingent on psychiatric reports demonstrating her compliance, progressing from supervised to unsupervised contact over time. The court also mandated therapeutic counselling for the children and family therapy, with specific provisions for the sharing of relevant reports and documents with professionals involved.
Orders
Orders of the court
1.
All previous parenting orders in relation to the children Y born in 2006 (13 years of age) and X born in 2011 (7 years of age) be (“the children”) discharged.
Parental Responsibility
2.
The father have sole parental responsibility for major long term issues relating to the children.
3.
Prior to the father making decisions concerning major long term issues relating to the children, including but not limited to their health and education, the father shall notify the mother in writing, such writing to include SMS or email communication, of his proposal and seek her response in writing within 21 days and take into account the mother’s response, provided such response is received within the stated period, and notify the mother of his ultimate decision.
Residence
4.
The children live with the father.
Children to attend upon therapist
5.
The father as soon as practicable make an appointment for the children to attend upon Ms N or if Ms N is unavailable, a children’s therapist with similar qualifications as Ms N (“the children’s therapist”) for the purposes of therapeutic counselling and the children shall continue to attend on such children’s therapist on such occasions as recommended by the children’s therapist and for such period as recommended by the children’s therapist.
6.
The mother and father shall cooperate with all reasonable requests made by the children’s therapist for involvement by either or both of them in providing information to or in attending upon the children’s therapist.
7.
Leave is granted to the Independent Children’s Lawyer to provide to the children’s therapist a copy of the Single Expert Report of Ms B dated 11 June 2018, a sealed copy of the orders dated 27 November 2019, and the Reasons for Judgment of the Court dated 5 July 2019 and 27 November 2019 (“the Reasons for Judgment”) to the children’s therapist.
Mother to obtain psychiatric assistance
8.
The mother shall:
(a) Attend upon her General Medical Practitioner within 14 days of the date of these Orders and obtain a referral to a suitably qualified psychiatrist (“the psychiatrist”);
(b) Make an appointment to attend upon the psychiatrist at the earliest available date, such appointment to be made within 7 days of having obtained the referral;
(c) Advise the Independent Children's Lawyer and the father of the details of the psychiatrist and the scheduled appointment within 48 hours of having made the appointment;
(d) Attend upon the appointment with the psychiatrist.
(e) The mother follow all recommendations of the psychiatrist.
9.
Leave is granted to the Independent Children's Lawyer to provide to any of the mother’s treating health care professionals, including the mother’s General Medical Practitioner, Dr C, and the nominated psychiatrist a copy of the Single Expert Report prepared by Ms B dated 11 June 2018, a sealed copy of the orders dated 27 November 2019, and a copy of the Reasons for Judgment.
Family Therapy
10.
The mother and father take all necessary steps to make appointments and engage with a family therapist (“family therapist”) as nominated by the Independent Children’s Lawyer within 14 days of request by the Independent Children’s Lawyer to do so and follow the recommendations of the family therapist.
11.
Leave is granted to the Independent Children's Lawyer to provide to the nominated family therapist a copy of the Single Expert Report prepared by Ms B dated 11 June 2018, a sealed copy of the orders dated 27 November 2019, and a copy of the Reasons for Judgment.
12.
The father be responsible for the costs of his sessions and the children’s session with the family therapist and the mother be responsible for the costs of her sessions with the family therapist.
The mother’s time with the children
13.
The mother spend no time with the children for a period of three months and otherwise in accordance with these orders.
14.
Upon the expiration of three months after the date of these orders, the mother is to provide to the father and Independent Children’s Lawyer a report from her treating psychiatrist with such report to address the mother’s compliance with the psychiatrist’s recommendations.
Supervised Time
15.
The father shall, as soon as practicable, after the date of these orders:
(a) nominate a supervised contact service, offering free or subsidised places;
or
(b) if no such service is available within one month, a contact service requiring payment;
and
(c) the mother and father shall complete all necessary documentation and attend all appointments for the purpose of facilitation of time with the children as outlined in the Orders below.
16.
If the report referred to in Order 14 indicates that the mother has been compliant with the recommendations of her treating psychiatrist, the father shall take all necessary steps to arrange for the children to spend time with the mother for a period of three months, each fortnight for two hours supervised by the nominated supervision service and to be paid for by the father, until such time as a free or subsidised service is available.
17.
If the report referred to in Order 14 indicates that the mother has not been compliant with the recommendations of her treating psychiatrist:
(a) The mother’s time with the children will continue to be suspended;
(b) The mother shall continue psychiatric treatment in accordance with orders 8(a) and (e);
(c) After a further three months from the date specified in Order 14 for the provision of a report, the mother shall provide a further report from her treating psychiatrist to address her compliance with the recommendations of the psychiatrist;
(d) If the report indicates that the mother has been compliant with the recommendations of her treating psychiatrist, the father shall take all necessary steps to arrange for the children to spend time with the mother for a period of three months, each fortnight for two hours supervised by the nominated supervision service and to be paid for by the father, until such time as a free or subsidised service is available.
Unsupervised Time
18.
At the expiration of three months of supervised time the mother shall provide to the father and the Independent Children’s Lawyer a fresh report from her treating psychiatrist with such report to address the mother’s compliance with the psychiatrist’s recommendations.
19.
If the report referred to in Order 18 indicates that the mother has not been compliant with the recommendations of her treating psychiatrist, the mother’s time with the children will continue to be supervised.
20.
If the report referred to in Order 18 indicates that the mother has been compliant with the recommendations of her treating psychiatrist, the father shall arrange for the children to spend unsupervised time with the mother as follows:
(a) For three occasions of unsupervised time from 10am until 12pm each alternate Sunday;
(b) Thereafter, for a period of three months each alternate Sunday from 10am to 2pm;
(c) Thereafter, for a period of three months each alternate Sunday from 10am to 6pm;
(d) Thereafter, for a period of six months each alternate weekend from 10am Saturday to 6pm Sunday;
(e) Thereafter, for a period of six months each alternate weekend from after school Friday or 3pm if it is a non-school day until 6pm Sunday;
(f) Unless otherwise agreed in writing, thereafter, during the school term, each alternate weekend from after school Friday or 3pm if it is a non-school day to the commencement of school Monday or 9am if it is a non-school day.
School Holidays
21.
Unless otherwise agreed in writing and upon the mother spending unsupervised time with the children, the children shall spend time with the mother during school holidays as follows:
(a) For the school holiday periods at the end of Term 1, 2 and 3 as follows:
(i) From 9 am on the first Saturday of the school holidays until 5 pm on the following Saturday;
(b) For the school holiday period at the end of Term 4 as follows:
(i) From 10 am on 26 December to 5 pm on 1 January in each odd numbered year;
(ii) From 10 am on 1 January to 5 pm on 8 January in each even numbered year;
(iii) From 9 am on the second last Saturday of the school holidays to 5 pm on the last Saturday of the school holidays.
Special Occasions
22.
Unless otherwise agreed in writing and upon the mother spending unsupervised time with the children, the children shall spend time with the parties on the following occasions of special significance:
(a) Each Christmas as follows:
(i) The children shall spend time with the father:
A. From 9.30am on 24 December to 9.30am on 25 December in each even numbered year
B. From 10.00am on 25 December to 10.00am on 26 December in each odd numbered year
(ii) The children shall spend time with the mother:
A. From 9.30am on 24 December to 9.30am on 25 December in each odd numbered year
B. From 10.00am on 25 December to 10.00am on 26 December in each even numbered year
(b) Each Easter as follows
(i) The children shall spend time with the father:
A. From 9 am on Easter Sunday to 6 pm on Easter Monday in each even numbered year
B. From 9 am on Good Friday to 9 am on Easter Sunday in each odd numbered year
(ii) The children shall spend time with the mother:
A. From 9 am on Good Friday to 9 am on Easter Sunday in each even numbered year
B. From 9 am on Easter Sunday to 6 pm on Easter Monday in each odd numbered year
(c) On the children’s birthdays as follows:
(i) The children shall spend time with the father from 3.00pm to 7.00pm if the children are not already spending time with the father on that day pursuant to these Orders
(ii) The children shall spend time with the mother from 3.00pm to 7.00pm if the children are not already spending time with the mother on that day pursuant to these Orders
(d) In the event that the children are not already spending time with the father pursuant to these Orders, the children shall spend time with the father on his birthday, notwithstanding any other order herein as follows:
(i) If the father's birthday is on a weekday from 3.00pm to 7.00pm
(ii) If the father's birthday is on a weekend from 10.00am to 6.00pm
(e) In the event that the children are not already spending time with the mother pursuant to these Orders, the children shall spend time with the mother on her birthday, notwithstanding any other Order herein as follows:
(i) If the mother's birthday is on a weekday from 3.00pm to 7.00pm
(ii) If the mother's birthday is on a weekend from 1 0.00am to 6.00pm
(f) Notwithstanding any other order herein the children shall spend time with the father from 10.00am to 6.00pm each Father's Day
(g) Notwithstanding any other order herein the children shall spend time with the mother from 10.00am to 6.00pm each Mother's Day.
Changeover
23.
Unless otherwise provided, and upon the mother commencing unsupervised time with the children, changeovers for the children to spend time with the mother which do not occur at school will take place with the father or his nominee delivering the child to the mother’s nominated residence and the mother or her nominee returning the child to the father’s nominated residence unless otherwise agreed between the parties in writing, such writing to include SMS or email communication.
24.
That each party is to notify the other in writing 28 days prior of his or her intention to change their residence.
Communication
25.
The mother shall not communicate with the children by any means except as provided for in these Orders prior to the commencement of the children spending unsupervised time with her in accordance with these Orders.
26.
Until the mother commences spending unsupervised time with the children, the mother be and is hereby restrained from attending within 100 m of the children’s school when the children are in attendance.
27.
Upon the mother commencing unsupervised time with the children, the mother may attend events at the children’s school to which parents are normally invited including parent teacher interviews.
28.
The mother be at liberty to communicate with the children’s school and treating health practitioners and for such purposes, and the father shall do all things necessary to authorise such information to be made available to the mother as she may reasonably request.
29.
The mother and father shall notify each other of any serious illness or injury suffered by the children when they are in their respective care with such notification to include the name and location of any treating medical professional and an authority for the treating professional to provide to the other party information on the child’s treatment and prognosis.
30.
That each party provide to the other their email address within 7 days of the date of these orders and notify the other party within 48 hours of any change to their email address.
31.
That each party shall provide the other with their current mobile telephone number and in the event, they change that number, they shall within 48 hours notify the other of their new mobile number.
32.
These Orders are authority for the school that the children attends to provide to the mother copies of all school reports, newsletters, notices of events to which parents are invited and copies of correspondence relating to the children’s education.
33.
Both parties shall not denigrate or cause any third party to denigrate the other parent or members of the extended family in the presence or hearing of the children.
34.
That each party be restrained from using corporal punishment as a means of disciplining the children.
Travel
35.
That each party will give no less than 14 days’ notice in writing to the other party of their intention to travel with the children outside of NSW, and shall provide contact details for the relevant period.
Liberty to Re-list
36.
Should either child run away from their father’s home and return to the mother’s home, the mother shall forthwith take all necessary steps to notify the father and to cause the child or children to be returned to the father’s home as soon as possible.
37.
In the event the children or a child refuses to return to the father’s home, the father or the Independent Children’s Lawyer has liberty to restore this matter on 24 hours’ notice.
38.
The Independent Children’s Lawyer’s appointment will continue for a period of 12 months unless earlier discharged by the Court.
39.
Both parties and the Independent Children’s Lawyer have liberty to otherwise relist this matter in respect of any application which relates to the implementation of these orders on seven days’ notice. Any such application is to be listed before Justice Harper if he is reasonably available.
Application of these orders
40.
Upon delivery of Judgment, the Independent Children’s Lawyer is to notify the children’s school of the effect of the orders made on 27 November 2019, including that the mother is retrained from approaching the children’s school in accordance with Order 26.
41.
The Independent Children’s Lawyer is to provide the children’s school with a sealed copy of the orders made on 27 November 2019 as soon as practicable.
42.
The father is to take all necessary steps to bring the children to the Child Dispute Section of the Family Court, located on Level 2 of the Court, at 10:00am on Thursday, 28 November 2019 for the purpose of having these Orders explained to them by the Independent Children’s Lawyer and a Senior Family Consultant of this Registry.
Costs
43.
If any party seeks an order for costs, an appropriate application to the Court may be made within 28 days of today’s date (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my Chambers. If no such application is made within the time period specified, no order will be made as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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