NEELY & EZEL
[2019] FCCA 1294
•14 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NEELY & EZEL | [2019] FCCA 1294 |
| Catchwords: FAMILY LAW – Parenting – best interest of the child – therapeutic intervention – role of the court – coercive power. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 64B, 69ZN |
| Cases cited: Gordon & Gordon [2015] FamCA 616 |
| Applicant: | MR NEELY |
| Respondent: | MS EZEL |
| File Number: | PAC 5264 of 2015 |
| Judgment of: | Judge Harman |
| Hearing date: | 14 May 2019 |
| Date of Last Submission: | 14 May 2019 |
| Delivered at: | Canberra |
| Delivered on: | 14 May 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Capon & Hubert Lawyers |
| Solicitors for the Respondent: | Elringtons |
| Solicitors for the Independent Children's Lawyer: | Barker & Barker |
ORDERS
The trial directions made on 25 October 2018 are varied as follows:
(a)Both parties shall file and serve an amended application or response so as to particularise the relief that they propose to seek at trial no later than close of business on 14 June 2019;
(b)Both parties shall file and all affidavit material to be relied upon for the final hearing by no later than close of business on 5 July 2019.
The Order for a Court funded Family Report made on 25 October 2018 remains in force. It is requested, if possible, that the Family Report be released no less than 4 weeks prior to the final hearing and that appointments for the preparation of the Family Report occur after 5 July 2019 (being the date the parties are required to file their material).
THE COURT NOTES THAT:
A.The parties have handed up Terms of Reference in Court today, which are marked Exhibit “A”, however the Court has declined to make orders in accordance with the Terms of Reference.
IT IS NOTED that publication of this judgment under the pseudonym Neely & Ezel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
PAC 5264 of 2015
| MR NEELY |
Applicant
And
| MS EZEL |
Respondent
REASONS FOR JUDGMENT
These proceedings come before the Court today for the purpose of agitation for relief described as a therapeutic intervention.
The proceedings relate to future care arrangements for a child, [X] born … 2013. The therapeutic intervention that the parties urge the Court to order is expressed as assisting “in respect contact matters before this Court”.
The parties to the proceedings are the child’s parents – her father the applicant, and her mother, the respondent.
The parties have negotiated and agreed upon orders set out in a document, marked Exhibit “A” signed and dated by me today, headed Terms of Reference.
Whilst it is sought to appoint a therapist for the purpose of assisting “in respect contact matters before this Court”, the document also requires, indeed compels, by Court Order, that the therapist interview the child and that the parties do all things necessary to facilitate “the therapy as requested by the therapist”. It is then envisaged that a report will be provided by the therapist regarding certain matters, including:
a)The progress of therapy and what further work will be required;
b)The nature of the relationship of the child and each of her parents;
c)The emotional attachment of the child with each of her parents; and,
d)The likely effect (if any) on the emotional and psychological needs of the child if regular time with the father was commenced.
What might also be addressed, as a corollary to the last of the above considerations and in light of the case that will be presented by the respondent mother, is the likely effect on the emotional and psychological needs of the child if time does not occur, whether regularly or at all.
The proposed orders are suggested to have some mixed therapeutic and forensic purpose.
The parties indicate, through their counsel that they submit to Orders being made in accordance with Exhibit “A”. I do not propose to make those Orders. That is not a criticism of the parties or their legal representatives, the drafting of the document, or any other issue. It arises from a number of circumstances principally relating to the role of the Court and the role of therapy.
The Court’s role, as discussed, for example, by Judge Dowdy in Wardman & Ors v Macquarie Bank Limited [2019] FCCA 939, is to hear and determine judicial controversy. Nothing more, nothing less.
The role of a therapist is to provide therapeutic assistance and intervention. The two are, I am concerned, conflated to some extent by that which is proposed and set out in Exhibit “A”. Again, that is not intended as criticism of the parties or their legal representatives.
I must, in considering the making or any order or the taking of any step in the proceedings, focus upon [X]’s best interests as the paramount consideration. Section 60CA of the Family Law Act makes clear that [X]’s best interests must be the paramount consideration in all and any decisions made by the Court, including, I am satisfied, procedural Orders or Orders which fall within the broad umbrella of parenting Orders as defined in Section 64B Family Law Act.
The section 69ZN Family Law Act principles are also relevant in relation to Orders such as those that are proposed, and in the discharge of the Court’s duties in parenting matters generally.
The Court is bound by the five principles set out in section 69ZN Family Law Act. That is for good reason. The section 69ZN Family Law Act principles are designed to be, as it were, something akin to a Hippocratic Oath for the Court, to do no further harm.
The Court is required, by the first principle, to consider the needs of the child and the impact of the proceedings upon the child in determining the conduct of the proceedings. I will return to that fundamental issue.
The second and third principles provide that the Court must actively direct, control and manage the proceedings and must ensure that the proceedings are conducted in a way that does not expose or subject the child or any other person to abuse, neglect or family violence.
The fourth principle requires that proceedings be conducted in a way that will promote cooperative and child focused parenting. That, regrettably, would seem, to quote Lieutenant-General “Boy” Browning, to be “a bridge too far”, as it were, for this family.
The fifth principle is that proceedings should be conducted without undue delay and with as little formality, and legal technicality and form as possible. That principle would appear to be “a bridge too far”.
These proceedings have been on foot, from the Court’s prospective and, even more so from the perspective of the parties, for an inordinate time. The proceedings were commenced by an Application Initiating Proceedings filed 30 October 2015. That is nearly four years ago. Through no fault of the parties, the matter has not yet reached finality although hearing dates are now fixed in August 2019. Those dates may conclude the matter, albeit a little under four years since commencement.
During that period, there have been a myriad of interim and interlocutory applications. That is readily apparent from a cursory examination of the four folios of the file. There have been at least half a dozen or so applications. There have been interim orders made by consent and some following contested defended interim hearings.
There have been a number of attempts at supervised time. These would all appear to have failed. Culpability for that failure, if it is even relevant to seek to ascribe culpability, cannot be determined today. It is a matter for final hearing.
The cases that these parties will present at trial are stark in their opposition.
The father will seek orders regarding a regular regime of practice of his relationship with the child. That might first require some therapeutic assistance, in a move towards it as a possibility, in light of that which has fallen from submissions today as to the breakdown of even supervised time arrangements. The child is suggested to have refused to engage in visits until such time as the supervisory service discontinued attempts, focused, no doubt, upon the child’s best interest when presented with those circumstances.
The mother’s case is that there is no utility or, at least, practicality in attempting to resume a practice of relationship. Thus, a contact versus no-contact case in the old terminology.
The minute that is tendered creates some difficulties for the Court as regards the above section 69ZN principles, particularly the first principle.
Whilst it is suggested that the child will be referred to a therapeutic process, there are no therapeutic goals established. More fundamentally, it could not be suggested that therapeutic goals could properly be established until there is agreement between the parties, or an order of this Court, which requires the child’s participation in a relationship with the father.
That is not to suggest that any view is formed, that it is either good or bad, for this child to spend time with her father. Indeed, the Child Inclusive Conference memorandum, produced February 2018, some 15 months ago, reports that the Family Consultant who conducted that intervention was of the view that there may be a negative impact upon this child’s emotional wellbeing and upon the development of a meaningful and significant relationship with her father, of any further delay in time occurring. That must be seen, however, in the context of the attempts at commencing or recommencing a practice of relationship that have occurred through the supervised contact centre, which attempts have, to date, come to naught.
A number of other matters of significance are addressed in the Child Inclusive Conference memorandum, accepting the reportage of the child within that document as accurate. [X] is reported to have commented that she did not have a “daddy”. The family consultant expressed concern as to what such a statement might mean for the child’s emotional or psychological wellbeing, that would be particularly if the child’s time with her father was reinstated the relationship, at that point, having broken down.
It was suggested by the consultant that the court might wish to consider the appointment of independent psychologist to assist [X] in preparing her to spend time with her father. That might be inferred as one of the goals for the therapeutic process that is now proposed by Exhibit “A”. However, as the mother does not propose that a relationship be practiced that could not be so.
What is absent Exhibit “A” are clear therapeutic goals. Without clearly identified therapeutic goals, I am not prepared to use the Court’s coercive power to require the intervention. Without clear and agreed therapeutic goals, I am simply requiring that the child attend a therapeutic process without a known purpose.
The purpose of establishing therapeutic goals must be to facilitate change in behaviour. Therapeutic goals might be improvement of a child’s ability to establish or maintain a relationship, to assist the child in forming or maintaining a relationship and the effectiveness of any arrangement in meeting the child’s needs. A therapeutic goal might be to enhance the ability of a child to engage in a relationship. A goal might be to assist in promoting decision making between the parents (although that would achieved by any therapeutic engagement with [X]). A therapeutic goal might be to assist the child generally to address matters that arise from the attitudes held by the parents or their behaviour and the child’s reactions to the behaviour whether of the parents or other persons (although the better course might be to address the attitude or behaviour of the parent).
Without clearly established therapeutic goals the process in which the child is to engage cannot be described as therapeutic. It is not as simple as “Let’s send the child to a therapist to receive therapy”. The question is begged “To what end? For what purpose?”. The therapy must be goal driven. It must have a purpose. There must be a basis for it, demonstrated to the satisfaction of the parties and/or the court. Additionally, there must be a desire to engage with the therapeutic process and to address whatever circumstance arose and is recognised as requiring intervention. As all of that is absent here there is, potentially, some mischief in simply ordering the child to receive therapy. It is not a magic solution to problems. The problems must be identified. Joint goals must be agreed at least as to what the therapy will achieve as regards that problem, whether its amelioration or something as simple as assisting the child to learn to live with the problem.
In circumstances where a no contact case is to be presented and heard in only a few months’ time, there is the added difficulty, indeed mischief, that if the child is engaged in the therapeutic process with a view to assisting the child in moving towards a relationship with a parent and the Court then determines, by acceptance of the mother’s case, that there should be no relationship, the child is potentially disadvantaged and significantly so.
It must be remembered that any order must have at its genesis the child’s best interest. As discussed, for example, by Justice Forrest in Gordon & Gordon [2015] FamCA 616 (and specifically para 2 – 5 thereof) all else must yield to the child’s best interest if those interests are paramount.
There will be a need for this child to receive therapeutic assistance following the hearing. That is so whether an order is made for the father’s practice of relationship or an order made effectively terminating that relationship. This child will require some significant support and assistance to come to terms with whatever reality may apply at the conclusion of the proceedings. However, it is somewhat premature, putting the cart before the horse as it were, to provide a process, albeit without definition or goal, until that determination is made.
The Court would certainly be assisted by a report from a well-qualified and experienced therapist such as the therapist nominated. However, that would appear to be the predominant purpose of the child’s engagement with that therapist. The child has already been engaged with a Family Consultant. The child will, in only a few weeks’ time be further engaged with a Family Consultant, possibly the same consultant or possibly a different consultant. That will be for the purpose of a family report being prepared at the court’s expense.
The child has previously engaged, as have the parents, with a different therapist, a psychologist from a different practice to that which is now proposed. A report was prepared for the Court by that therapist, a lengthy and detailed report. That report may well be relied upon by one or both parties, or by the Independent Children’s Lawyer, in the conduct of the proceedings.
Fundamentally, I am concerned as to the efficacy of the Court’s coercive power, as the judicial branch of executive government, being exercised by Orders made in accordance with Exhibit “A” and compelling the child to engage in a process that has no therapeutic goal, which would then become essentially forensic in nature and which is unnecessary. There will already be three forensic reports before this Court addressing this child’s presentation, this child’s present state of mind and offering comment and opinion, having regard to all the information obtained either from the child, the parents or otherwise, as to what might best meet this child’s needs and interests in the future. Once that determination is made then, certainly, as already indicated, this child will need therapeutic support and assistance. Even then, any therapeutic process will need to have clear and established goals. Goals will be fair easier to establish and identify for the therapist once there is clarity as to what is to occur.
It is for those reasons that I decline to make Orders in accordance with Exhibit “A”. I will, instead, make amended trial directions to move this matter towards certainty and, one would hope, finality as soon and as possible.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Harman.
Date: 17 May 2019
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