Nowell & Nowell (No 2)
[2021] FedCFamC2F 381
•4 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nowell & Nowell (No 2) [2021] FedCFamC2F 381
File number(s): ADC 4285 of 2021 Judgment of: JUDGE DICKSON Date of judgment: 4 November 2021 Catchwords: FAMILY LAW – parenting –where father has withheld child from the mother’s care post separation – where there are mutual allegations of family violence – where mother alleges that the father has perpetrated coercive and controlling family violence – where the father alleges mother has longstanding mental health history – where parties mutually allege illicit drug and alcohol issues – where child’s school has been recently changed - nature of an interim hearing - best interests of the child – where there is no unacceptable risk in the child being returned to the mother’s primary care – where it is in the best interests of the child to be returned to the mother’s primary care but have substantial and significant time with the father Legislation: Family Law Act 1975 (Cth) Part VII, s 60CC Cases cited: Dieter & Dieter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
Hartland & Hartland [2020] FCCA 937
Slater & Light [2013] FamCAFC 4
Division: Division 2 Family Law Number of paragraphs: 90 Date of hearing: 3 November 2021 Place: Adelaide Counsel for the Applicant: Mrs Read Solicitor for the Applicant: CG Family Law Counsel for the Respondent: Mr Bowler Solicitor for the Respondent: Jordan & Fowler Family Lawyers Solicitor for the Independent Children’s Lawyer Mr Frazer appearing from Stevens Law ORDERS
ADC 4285 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NOWELL
Applicant
AND: MS NOWELL
Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
4 NOVEMBER 2021
UPON NOTING THAT
A.The undertaking filed by the father this day that he will pay all school fees and outgoings with respect to the attendance of the child X at B School
THE COURT ORDERS THAT UNTIL FURTHER ORDER:
1.Each of the parties be released from the Undertakings provided to this Honourable Court on 23 September 2021 and 11 October 2021.
2.The child X born in 2012 (‘the child’) do live with the mother unless otherwise provided for herein.
3.The child spend time with the father as follows:
(a)Each alternate weekend from the conclusion of school (or 4:00pm if a non-school day) Friday to 5:00pm Sunday, commencing Friday 12 November 2021; and
(b)Each intervening Wednesday from the conclusion of school (or 4:00pm if non-school day) to the commencement of school Thursday (or 9:00am if a non-school day), commencing Wednesday 17 November 2021; and
(c)From 4:00pm on 24 December 2021 to 2:00pm on 25 December 2021 PROVIDED THAT the child is with the mother from 2:00pm on 25 December 2021 to 5:00pm on 26 December 2021; and
(d)During the Christmas 2021/2022 school holidays as follows:
(i)The alternate weekend time referred to in paragraph 3.1 herein be extended from 9:00am Friday to 5:00pm Monday on each alternate weekend; and
(ii)The intervening Wednesday time referred to in paragraph 3.2 herein be extended from 9:00am Wednesday to 5:00pm Thursday.
(e)At such other times as agreed between the parties in writing.
4.Without admission as to the need for same, the father be restrained and injunctions be granting restraining him during the period from the making of the orders herein until the conclusion of school on Friday 12 November 2021 from:
(a)Approaching, entering upon, loitering or contacting the child at the B School; and
(b)Communicating with the child either directly or indirectly, unless otherwise agreed between the parties in writing.
5.Any handover not taking place at the said child’s school do occur at the D Cafe, Suburb E.
6.Without admission, the parties be restrained and injunctions be granted restraining each of them from:
(a)Discussing these proceedings with or in the presence of the child; and
(b)Showing the child any documents arising from these proceedings, or allowing anybody else to do so; and
(c)Denigrating or criticising the other in the presence of the child, or allowing anybody else to do so; and
(d)Consuming any illicit substances or alcohol to excess 12 hours prior to or during any period the child is in their care; and
(e)Attending at or loitering near each other’s home, without the prior written consent of the other having first been obtained; and
(f)Physically disciplining the child or allowing anyone else to do so.
7.The mother comply with any directives from her treating medical practitioners including Dr F her psychologist, in relation to any medication or appointments.
8.The mother file and serve a copy of liver function test undertaken on 18 October 2021 as soon as it becomes available.
9.Each of the parties be at liberty to attend school events to which normally are ordinarily invited to attend.
10.Each of the parties are at liberty to obtain copies of the child’s school reports, photographs and newsletters at their own expense.
11.Each of the parties do advise the other forthwith in the event of the child suffering any medical emergency or being hospitalised.
12.The parties do enrol in and complete the Kids Are First parenting program and do file proof of same as soon as it comes to hand.
13.Pursuant to Section 67Q of the Family Law Act 1975 (as amended), a Recovery Order do urgently issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)to find and recover the child X born in 2012; and
(b)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child may be found; and
(c)to deliver the child to the mother MS NOWELL born in 1969 at such a place as the mother and the person effecting such recovery agree to be appropriate.
14.The Recovery Order pursuant to paragraph 13 herein be stayed during the period of the adjournment.
15.The father’s Affidavits filed on 2 September 2021, 1 October 2021, 29 October 2021 and 2 November 2021 be uplifted and refiled in a properly executed form and witnessed by a Commissioner for taking Oaths in the Supreme Court of South Australia.
16.The parties and legal representative (and the Independent Children’s Lawyer) attend a Family Dispute Conference at the Legal Services Commission of South Australia on 2 February 2022 at 9:30am
UPON NOTING that in the event that the parties are seeking an extension of legal aid funding to attend the Conference, they forward a request for an extension of funding to the relevant assignments officer at the Legal Services Commission of South Australia within forty eight (48) hours of the date of this order.
17.The parties, or their solicitors, each forward to the Legal Services Commission of South Australia, Family Dispute Resolution Unit, within seven (7) days of this Order the following:
(a)a copy of the said Order; and
(b)the current contact details of the parties (including current postal and telephone details).
18.All interim parenting applications be dismissed.
19.Each of the parties do file and serve a Rule 12.06 cost notice and forward a copy to the Chambers of Judge Dickson no later than 4:00pm on 17 November 2021.
20.The mother have leave to file an Affidavit in reply limited to 5 pages no later than 1:00pm on 18 November 2021.
21.Each of the parties do file and serve Minutes of Order setting out the orders to be sought by each of them at the adjourned date for argument no later than on 2:00pm on 18 November 2021.
22.The interim applications with respect to property be listed on 19 November 2021 at 12:15pm for interim argument on a face to face basis in line with Court protocols NOTING that such argument is confined to period of 45 minutes for Counsel’s submissions AND FURTHER NOTING that the Independent Children’s Lawyer is excused from attendance.
23.The parenting applications be listed on 25 February 2021 at 9:30am for directions.
24.Liberty to apply for the recovery order to be executed upon application to the Chambers of Judge Dickson on 48 hours’ notice.
AND BY CONSENT IT IS FURTHER ORDERED THAT:
25.The father do forthwith and by no later than 5:00pm on 4 November 2021 provide to the mother’s solicitors the keys, remotes and lift fob for the mother’s apartment in Suburb G and the former matrimonial home.
26.The father do file and serve his responding documents (as they relate to property matters only) including an Affidavit, Financial Statement, Financial Questionnaire, Undertaking as to Disclosure by no later than 4:00pm on 15 November 2021.
27.The father be restrained and an injunction granted restraining him from selling, transferring, withdrawing from, encumbering, or otherwise dealing in any way with the assets of the relationship (save and except for the father is permitted to operate his business interests to enable their daily function) including but not limited to:
(a)The property at H Street, Suburb J, SA;
(b)The Motor Vehicle 1, Motor Vehicle 2 and Motor Vehicle 3 motor vehicles.
(c)His superannuation.
28.The parties be restrained and an injunction be granted restraining the parties from pledging the credit of the other.
29.If the parties are not able to agree upon the value of any items within the asset pool, that a valuation be obtained not less than 14 days prior to the Conciliation Conference, with such valuer to be agreed upon and jointly instructed by the parties.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Nowell & Nowell (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Ex tempore reasons settled from transcript)JUDGE DICKSON
The reasons for judgment in this matter were delivered orally following the hearing between the parties concerned. These reasons have been corrected for errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
INTRODUCTION
This matter comes before the Court by way of an Initiating Application filed on 6 September 2021 by the applicant father, Mr Nowell (‘the father’), and a Response, recently amended, filed on 21 October 2021 by the respondent mother, Ms Nowell (‘the mother’).
These reasons are provided orally and on an ex tempore basis in order to ensure that orders are made today progressing the matter. The Court is cognisant that these proceedings have now been on foot for some period of time since the father filed his Initiating Application on 6 September 2021. The matter has already had hearings before the Senior Judicial Registrar, which did not proceed, and an Application for Review of Registrar’s Decision before the learned Chief Justice of this Court, which upheld a decision for the matter at that time to be placed into the Evatt List.
As Counsel are now aware, the matter has been removed from the Evatt List as a consequence of the mother filing an Amended Response seeking orders for property settlement.
BRIEF BACKGROUND
The father was born in 1969 and is now 51 years of age. The mother was born in 1969 and is now 52 years of age. The parties commenced cohabitation in 2006 and were married in 2007. The parties separated for the final time on 25 August 2021 in controversial circumstances.
There is one child of the marriage, X (‘X’), born in 2012. X is now nine years of age. The father is self-employed in a business called ‘Company K’. The father is a professional worker who has a qualifications. The mother, for the majority of the relationship, has been a stay-at-home mother undertaking domestic duties and supporting the father in his pursuit of his finance business. The parties’ child, X, aside from some health complaints which do not impact on the orders that will be made today, is a boy much loved by each of his parents. He has recently commenced at B School, again in controversial circumstances which I will refer to later in these reasons.
The father commenced these proceedings by way of an Initiating Application filed on 6 September 2021. I have had regard to the following documents which have been filed by the father:
(a)Initiating Application, filed on 6 September 2021;
(b)Parenting Questionnaire, filed on 2 September 2021;
(c)Notice of Child Abuse Family Violence or Risk, filed on 2 September 2021; and
(d)The father’s Affidavits, filed on 2 September 2021, 1 October 2021, 22 October 2021, 29 October 2021 and 2 November 2021.
I have had regard to the contents of the father’s Affidavits before me, notwithstanding my concerns raised at the hearing on 3 November 2021 that the father’s Affidavits have not been properly witnessed by his solicitor. I will direct that those Affidavits are uplifted, re-filed, properly executed, and witnessed by a Commissioner for the Taking of Oaths.
I have also had regard to the father’s Written Submissions and Outline of Case Document, filed on 3 November 2021.
I have had regard to the following documents which have been filed by the mother:
(a)The mother’s Response, filed on 13 September 2021;
(b)The mother’s Notice of Child Abuse, Family Violence or Risk, filed on 13 September 2021;
(c)Parenting Questionnaire, filed on 13 September 2021; and
(d)The mother’s Affidavits filed on 13 September 2021 and 21 October 2021, as they relate to parenting applications.
I have not had regard to the mother’s Affidavit in relation to property matters which have not yet been answered by the father. I have also had regard to the mother’s Outline of Case Document filed on 1 November 2021.
In relation to the Independent Children’s Lawyer, I have had regard to the submissions filed by Mr Frazer on 1 November 2021.
I have also had regard to the following documents:
(a)The Department of Child Protection notification, dated 9 September 2021;
(b)Email with attachments from the SAPOL Embedded Officer, dated 16 September 2021; and
(c)The Child Impact Report of Dr L, dated 1 November 2021.
PARTIES’ COMPETING POSITIONS
In relation to the parties’ competing proposals before the Court for the purposes of the argument, the father filed an Outline of Case Document which promotes orders that deviate from the orders promoted in his Initiating Application. It is pertinent that I now refer to the orders promoted by each of the parties and the Independent Children’s Lawyer.
The father promotes the following orders until further order:
(a)That X live with the father.
(b)That X spend time with the mother at times as may be agreed between the parties or, in default of agreement:
(i)each alternate Saturday and Sunday, between the hours of 9:00am and 5:00pm;
(ii)each Wednesday, from the conclusion of school or 3:00pm until 7:00pm during school terms; and
(iii)an additional two days per week during the Christmas 2021/2022 school holidays between the hours of 9:00am and 5:00pm and some additional time on Christmas Day.
The father further promotes video calls and an order that X remain enrolled at B School. The father seeks orders that the parties pay for the child’s attendance upon either Ms M or Mr N for the purposes of ‘reportable therapy’, with a report to be made available at the joint expense of the parties. The purpose of the father’s proposed therapy was not clear until I pressed Mrs Read, counsel on behalf of the father, to explain what the ‘reportable therapy’ was intended to address.
The father further seeks orders that the mother undertake a hair follicle test for the detection of illicit substances and also a liver function test at her own cost. In addition, the father seeks that the mother attend, at her expense, upon either Dr O or Dr P, psychiatrists, for the purposes of a psychiatric report being prepared. The father promotes that the proceedings be adjourned to a date not prior to 17 December 2021 for the purposes of assessing unsupervised overnight time once the abovementioned material has presumably become available.
Importantly, and as an alternate position, the father promotes that in the event that the Court finds that there is no unacceptable risk at this interim stage, the father seeks orders that X live with each of the parties on a week-about basis.
Finally, the father promotes the filing of further material by way of affidavit prior to argument.
The mother seeks orders which might be described as ‘polar opposite’ to those promoted by the father. The mother seeks orders that:
(a)She be able to collect X from the B School at the conclusion of this hearing.
(b)In the event that there is any difficulty with a collection of X, or if he was not delivered up, if the Court was minded to make that order, that a Recovery Order do issue.
(c)The mother have sole parental responsibility for X and that X live with her.
(d)X spend time with the father:
(i)each Wednesday from after school (or 3:30 pm if a non-school day) until 6:30 pm; and
(ii)each alternate weekend on Saturday and Sunday from 9:30am until 4:00pm.
(e)The mother proposes that handovers which do not take place at the school occur at the D Cafe at Suburb E.
Whilst the father has not formally sought an order in relation to handovers, it is my observation that the handover location is perhaps one of the very few issues which have been agreed between the parties in this hotly contested interim litigation.
I return now to the orders sought by the mother on an interim basis. The mother further seeks orders that:
(a)The father be restrained by way of injunction:
(i)from consuming illicit drugs and alcohol when the child is in his care or 24 hours prior to coming into his care; and
(ii)attending at the mother’s home or the home of the maternal grandmother.
(b)The father undergo a hair follicle drug analysis test, and that the father be subject to random alcohol and drug testing.
(c)The father be psychiatrically assessed.
(d)The child be re-enrolled and recommence at the Suburb E Primary School.
The orders sought by each of the parties are in direct opposition to each other in terms of X’s interim living arrangements, the school at which X is to attend, whether or not there should be psychiatric assessments, drug testing and liver function testing and the arrangements with respect to time spending in the favour of either party.
The Independent Children’s Lawyer filed Written Submissions on 1 November 2021. As identified in Part E on page 2 of 3 of that document, the Independent Children’s Lawyer promotes the following orders:
(a)That the child live with the mother.
(b)That the child spend time with the father:
(i)from the conclusion of school Friday until the commencement of school Monday each alternate week;
(ii)from the conclusion of school Wednesday until the commencement of school Thursday in the intervening week; and
(iii)Christmas and school holiday time as agreed between the parties.
(c)That both parties be restrained and injunctions be granted restraining them from:
(i)drinking alcohol to excess or using prescription medication or illicit substances 24 hours prior to or during their time with the child;
(ii)physically disciplining the child;
(iii)discussing the proceedings with the child, showing the child any documents or allowing any other person to do so; and
(iv)denigrating the other party in the presence of the child or allowing any other person to do so.
During the course of his submissions, Mr Frazer, the Independent Children’s Lawyer also submitted that:
(a)X was not at any level of unacceptable risk in being returned to the primary care of the mother.
(b)The Independent Children’s Lawyer did not object to ongoing drug testing.
(c)The Independent Children’s Lawyer supported independent psychiatric testing, if the Court considered that this was appropriate.
(d)The Independent Children’s Lawyer was not supportive of therapy for whatever purpose for X.
(e)X should continue at B School in the short term and that there should be no immediate change to X’s schooling.
(f)The parties should be referred to a Family Dispute Resolution Conference or a Section 13C Dispute Resolution Conference following the orders regulating X’s living arrangements being made at the conclusion of this hearing.
As I have foreshadowed by virtue of the summary of the parties’ respective positions, there is very little by way of agreement between the parties. An observation of the parties’ competing applications would show that the central issues in dispute are:
(a)The question of whether or not the Court should exercise its discretion in making an order for parental responsibility;
(b)Who should be the primary care giver for X;
(c)What time-spending orders should be made in favour of either parent; and
(d)The question of whether or not there should be drug testing, liver function testing, therapy and psychiatric assessments.
The only issues which appear to be agreed relate to the location of handovers and also with respect to the making of injunctive orders.
In the face of the volume of material that has been filed since these proceedings commenced on 2 September 2021, it is obvious that the level of conflict between the parties at this current juncture is at a high level. I also observe that it is also very difficult at this interim stage to determine with any certainty, other than in circumstances where there are matters of agreed fact, any issues upon which the Court can safely proceed in terms of allegations or facts which are uncontested.
APPLICABLE LEGAL PRINCIPLES
The overarching legal principle is to make orders which the Court determines are in X’s best interests. In deciding whether to make any particular parenting orders in relation to a child, the Court must have regard to the best interests of the child as the paramount, or most important, consideration as set out in section 60CA of the Family Law Act1975 (Cth) (‘the Act’).
The matters which the Court must take into account in deciding how a child’s best interests are to be served are set out specifically in section 60CC of the Act. This section creates two classes of considerations which are relevant, the primary considerations and additional considerations. The Court should give greater weight to the primary considerations which closely tie in with the overall objects and principles as set out in section 60B of the Act.
There are two primary considerations, which are as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[1]
[1] Family Law Act 1975 (Cth) s 60CC(2).
As a result of the insertion of section 60CC(2A) into the Act, the Court is now directed in applying the primary considerations to give greater weight to the primary consideration relating to protective concerns applicable to children who are the subject of relevant proceedings.[2] Accordingly, the rationale of the Act is that children derive benefits from having a meaningful relationship with each of their parents, subject, of course, to the children being protected from the issues of neglect, abuse or family violence.
[2] Ibid s 60CC(2A).
The Court is also directed to consider the additional considerations in making orders in relation to the best interests of the children. These are set out in section 60CC(3) of the Act. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore and I will return to those issues in a moment.
CONSIDERATION OF PARTIES’ COMPETING ALLEGATIONS
Father’s allegations
In this case there is an allegation made by the father that X would be at a level of unacceptable risk in the mother’s care for any period of unsupervised overnight time. The father’s position, as submitted by his Counsel, was that the issue of overnight time should be deferred and that the mother should be restricted to having unsupervised day time with X pending the mother undertaking the steps I have outlined earlier in these reasons.
The father’s position in relation to time spending has changed since his Initiating Application was filed on 6 September 2021. The father’s Affidavit filed in support of that Application, together with the matters identified in the Notice of Child Abuse, Family Violence or Risk, suggest the following issues present as a level of risk in relation to X being placed into his mother’s primary care:
School attendance
·The father alleges that the mother has failed to attend to X’s schooling. In paragraph 34 of the Notice of Child Abuse, Family Violence or Risk, the father refers to the fact that X had missed 33 days of school in 2019 and 37 days in 2020. It is the father’s evidence that it was not until July 2019 that he became aware that X had been absent from school at the level raised by the school with him as being a level of concern.
·The mother addresses these issues in her affidavit filed on 13 September 2021. It is the mother’s evidence that X was absent from school due to a combination of ill health, restrictions being imposed due to the COVID-19 pandemic and the father’s request that the child be home schooled.[3] The mother observes that there is a tension between the father’s allegations of poor schooling attendance and the father’s assertion that he was, at least, an equal care giver to X in this period. This is an area of contention between the parties.
[3] See mother’s Affidavit filed 13 September 2021 at [102].
Family violence
·The second issue that the father raises as one of risk, relates to questions of family violence. Those matters are identified in the father’s Notice of Risk and also in his Affidavit. In the father’s Affidavit, filed on 2 September 2021, he refers to an incident which occurred on 9 May 2021 where the father complains inter alia that the mother was not in a good mood and the parties were attending at the Q Apartments. The father alleges that the mother had commenced drinking and started arguing and pursuing the father and X to each room that they occupied. It is the father’s evidence that the mother acted in a way which, in effect, frightened X and that the child was present when he saw the mother physically hit the father which upset him and he commenced crying. The father alleges that he repeatedly requested that the mother leave the room, but she refused. The father alleges that the mother persisted and cornered X in the corner of the room. He says that X became distressed and, after several minutes, the mother then vacated the room which X had occupied.[4]
·The allegations raised by the father in relation to the incident on 9 May 2021 are answered by the mother in her Affidavit filed on 13 September 2021. The mother denies the allegations raised by the father in relation to the incident on 9 May 2021 and paints a very different picture. The mother says that there was arguing and that the father had been drinking. The mother describes the father as being an “evil drunk”.[5] She admits that the parties argued in front of X and describes that as an incident of regret. The mother deposes that she attempted to provide X with a physical hug goodnight, but was prevented in doing so by the father. The mother considered that the actions of the father in preventing her from hugging her son on Mother’s Day to be “especially cruel”.[6] The mother denies shaking X. She admits lying next to X in bed, as she would as a matter of practice do. She admits that she was upset and that X was crying because the father was yelling at her and the child.[7]
·The second incident referred to by the father with respect to matters of family violence relates to an incident which occurred on 29 May 2021. The father alleges that on this occasion the mother displayed a “short, erratic outburst of anger”[8] on Saturday, 29 May 2021 wherein the mother yelled at X and the father, threatening him verbally and standing in the father’s personal space with her hands raised. The father alleges that the mother also confronted X by grabbing his arms, shaking him and pulling his arms to get attention. The father contends that later in the evening the mother’s behaviour deteriorated and that she commenced yelling to both X and the father, “I will kill you. Get out or I will kill you. Get out”.[9] It is alleged that the mother also made threats to X that she intended to leave and that he would never see her again and that she would “kill herself”.[10] The father alleges that the mother kept repeating, “If I had a knife, I would not know what I might do”.[11] It is alleged that the mother then requested that the father hide his knives because she would not know what to do with them.
·The mother answers the incident of 29 May 2021 in her Affidavit filed on 2 September 2021, both in paragraph 56 and also at paragraph 106, wherein the mother denies the allegations made by the father about an incident on 29 May 2021 in their entirety.
·The third issue of family violence alleged by the father occurred on 22 August 2021 and is identified in paragraph 56 onwards of his affidavit of 2 September 2021. The father alleges that on 22 August 2021 the mother was again physically violent towards him in front of the child. The father alleges that X became distressed and was shaking and crying. It is alleged that the mother struck the father with a steel coat hanger while he was walking away from her.[12] The father alleges that the mother was drunk, angry and uncontrollable. The father alleges that he had sought medical assistance with respect to the injury and severe bruising. He says that he had also found a need to attend with a psychologist as he found the mother’s behaviour so disturbing that he needed to talk though the issues with a professional.[13] No report from the psychologist has been produced.
[4] See father’s Affidavit filed 2 September 2021 at [32]-[35].
[5] See mother’s Affidavit filed 13 September 2021 at [105].
[6] Ibid.
[7] Ibid.
[8] See father’s Affidavit filed 2 September 2021 at [36].
[9] Ibid at [37].
[10] Ibid.
[11] Ibid.
[12] Ibid [56].
[13] Ibid [57].
At the hearing on 3 November 2021, I pressed Mrs Read, Counsel for the father, with respect to paragraph 57 of the father’s Affidavit. It would appear that the father did not see fit to take photographic evidence of what was described as “severe bruising” arising out of the alleged assault on 22 August 2021. Mrs Read, on instructions, submitted from the bar table that the father has now been referred for an MRI in relation to numbness, which the father asserts arises as a consequence of injuries sustained after being struck with a coat hanger by the mother.
The mother answers the allegations contained in paragraphs 56 and 57 of the father’s Affidavit in her Affidavit filed on 13 September 2021. The mother says that she denies the father’s allegations, that there was no assault, no Police report, no attendance by the father on a doctor, and, as I have already referred to above, no photographic evidence of the injury sustained by the father as a consequence of this assault.[14]
[14] See mother’s Affidavit filed 13 September 2021 at [113].
Mother’s mental health
The father alleges that the mother’s psychiatric functioning places X at risk. It is the father’s contention that he came across private and personal documents relating to the mother in a drawer of a cabinet in the Suburb E property and many of those documents have been attached to the father’s Affidavit filed on 2 September 2021. It is the father’s contention that he was unaware until recently of the mother’s psychiatric history and given the behaviour that he has observed in the period pre-separation, that the mother is still a risk to X and that she should be restricted to daytime contact accordingly.
The mother denies the father’s allegations. The mother has attached to her Affidavit, filed on 13 September 2021, two reports which I consider to be significant, noting that this is an interim hearing and that the authors of those reports have not been made available for cross-examination. However, both the report of Dr F, who is a clinical psychologist treating the mother, and the report from Dr R, who is the mother’s treating General Practitioner, are reports prepared by medical practitioners who have had longstanding professional relationships with the mother. I will refer to those reports in more detail shortly.
Mother’s allegations
Family violence
The mother also alleges that the father has engaged in family violence. The family violence alleged by the mother takes the form of physical and verbal abuse, some of which is admitted by the father, but is otherwise behaviour which would be described as “coercive and controlling family violence”. The mother asserts the father’s behaviour is longstanding and which Mr Bowler, Counsel for the mother, submitted involved the father raising allegations which were “concocted and confected” and “done to support his controlling behaviour”.
The mother alleges that the father enrolled X at B School in a manner that she would have the Court accept was surreptitious. The mother alleges that she was asked to sign a document with respect to X’s attendance at B School not understanding that, in fact, it was an enrolment form. The reality is that X is now attending at that school. The mother has engaged with the B School and has not been prevented from doing so since he commenced about the middle of this year.
The mother also alleges that the father withheld X from school for two weeks post-separation. There does not appear to be on the material provided any dispute that the father withheld X from school. The SAPOL documents confirm that the father withheld X and quarantined him from his peers as a consequence of an alleged concern that the father asserts, being that the mother would attend at the school and remove X from B School, prior to the application for parenting being determined by this Honourable Court.
The mother’s allegations of coercive and controlling family violence are set out in her Affidavit filed on 13 September 2021, namely:
(a)The questionable manner of enrolment and withholding of X from B school without the mother’s consent.
(b)The father unnecessarily restricting the mother’s contact with X post-separation in a manner that was unwarranted. The mother alleges that, initially, the father restricted any time spending between X and his mother. It then moved to supervised time and more recently has again amended to promote unsupervised daytime. It is the mother’s allegation that the father has deliberately withheld X from spending time with his mother in order to promote the father’s position at this hearing.
(c)The father purchased, without her knowledge and consent, a property at H Street, Suburb J (‘the H Street, Suburb J property’) in December 2019. The father does not dispute that he has purchased this property without the mother’s knowledge or consent, but asserts that he has done so in order to have what he has described as a “safety net” in the event that he and X needed to leave the former matrimonial home situated at S Street, Suburb E (‘the Suburb E property’). The father asserts that because the Suburb E property has a connection with the maternal grandmother, the father felt that it was necessary for another property to be purchased as a place that he could retreat to if the situation in the Suburb E property became intolerable.
(d)The mother further alleges that the father engaged in behaviour which would colloquially be called ‘gas lighting’. She says that the father attempted to undermine her role as a mother, particularly across 2020 and into 2021. The mother asserts that the father behaved in a manner which she now sees as suspicious and likely to support her contention that the father was contemplating and planning for a separation well in advance.
Drug and alcohol abuse
The mother alleges that the father has had issues in the past with cocaine. The mother is candid in her Affidavit in deposing that the cocaine exposure occurred in or about 2005/2006 and the mother has not observed any obvious signs of illicit substance abuse since then.[15] The mother alleges that the father abuses alcohol to excess and that he has engaged in verbally abusive, aggressive verbal and physical family violence when under the influence of alcohol. [16]
[15] Ibid at [34].
[16] Ibid [46]-[47].
The mother’s responses to the father’s allegations, and the mother’s allegations in relation to the father, as I have just identified, are answered in the mother’s Affidavit filed on 13 September 2021.[17] The father, for his part, denies the allegations made by the mother and his denials are set out in his Affidavit filed on 1 October 2021.[18] The father also denies deceiving the mother with respect to the enrolment of X at B School. The father denies the allegations of physical violence, but admits that he, at times, has engaged in verbal abuse of the mother, including referring to his wife as “vomitball”.[19]
CONSIDERATION OF EVIDENCE
[17] Ibid at [11], [13], [15], [34], [46] and [47].
[18] See father’s Affidavit filed 1 October 2021 [3.50] and [3.51].
[19] Ibid at [3.43].
Mother’s medical evidence
I now turn to the reports of Dr F and Dr R in relation to the matters raised by the father as representing risk which would prevent X from returning to his mother’s primary care or spending overnight unsupervised time with this mother.
Dr F & Dr R
As the mother’s treating health professionals, they are in a unique position to be able to put evidence before this Honourable Court in relation to the mother’s attendance upon them for treatment and assistance in relation to her mental health, with respect to her compliance and any other comments that may be of assistance, particularly given that the father has sought to rely on material that is 15 years old in relation to an earlier diagnosis of the mother suffering from Bipolar Disorder.
The report of Dr F, dated 6 September 2021, is Annexure ‘5’ to the Affidavit of the mother filed 13 September 2021. In that report, Dr F observes that the mother has been attending upon her since September 2013. She was seen on four occasions during 2013 and on two occasions during 2014. There were no attendances during 2015 and 2016, but attendances resumed in 2017 and, since then, the mother has attended upon Dr F approximately every 4 to 6 weeks. For a period then of nearly four years the mother has been in close contact with her treating psychologist.
It is the view of Dr F that the mother has not been assessed as having Bipolar Disorder. The mother, however, has a history of anxiety and depression without anxiety symptoms being predominant. There is also a background of childhood trauma and previous domestic violence. According to Dr F “Ms Nowell’s anxiety condition has fluctuated and has flared up in response to stress experienced”.[20] Currently, the mother is reporting symptoms of anxiety and depression in response to extreme stress arising from the father’s removal of X. Dr F refers that she has been providing support to the mother throughout this incident and will continue to do so.[21]
[20] See mother’s Affidavit filed 13 September 2021 at Annexure 5.
[21] Ibid.
On Page 2 of the Report, and under the heading titled whether “Ms Nowell currently or has at any time poses/posed any risk to herself, X and/or Mr Nowell”,[22] Dr F opines:
In my opinion, based on information provided by Ms Nowell, she has not and does not pose any risk to her herself or to X or to Mr Nowell. Throughout the time that I have seen Ms Nowell, she has not been suicidal or expressed thoughts of self-harm nor has she expressed any thoughts about causing harm either to X or Mr Nowell.[23]
[22] Ibid.
[23] Ibid.
The Report goes on to refer to the mother’s response to the father vacating the home unannounced in August 2021 and under the heading of “Impact on Ms Nowell and X of being separated on their respective mental health”, Dr F opines:
In my opinion, it is detrimental to the psychological health and well-being of both Ms Nowell and X to remain separated from one another.[24]
[24] Ibid.
I do not place weight on Dr F’s reference to X, given that X is not her patient. I do, however, take note of the observation of Dr F that the mother’s mental health has been detrimentally affected by the separation in August 2021 when the mother returned to the former matrimonial home to discover that the father had vacated the premises with X. It was only later that the mother learnt that the father had moved into the property at H Street, Suburb J which, at that time, she was unaware that the father had purchased.
I refer now to the Report of Dr R. Dr R’s Report is dated 10 September 2021 and is Annexure ‘6’ to the Affidavit of the mother. Dr R has been the mother’s General Practitioner since June 2018. Prior to that, the mother attended at the T Family Practice and was consulting with another General Practitioner, Dr U. Dr R makes it clear that, in preparing his Report, he has consulted with Dr U in relation to a period in the mother’s attendance upon that practice which was not within his knowledge, but has referred more recently in relation to her recent attendances. It is the opinion of Dr R that he does not believe the diagnosis of Bipolar Disorder to be currently relevant for the mother as she is currently receiving no treatment, nor has she received any treatment for Bipolar for the past 15 years.[25] Dr R says that he has not seen any manic nor hyper-manic behaviour in the mother. In paragraph 6 of the Report, Dr R opines that he has no concerns whatsoever regarding the mother’s ability to care for X.[26] The doctor confirms that the mother has attended appointments on time regularly with X, that X and the mother are always clean and well-dressed, X appears happy and relaxed in his mother’s company and he goes on to note that he has also been the GP for X as the family medical practitioner. Dr R indicates that he has not yet seen the father bring X to a medical appointment. Importantly, in paragraph 11 of his Report, Dr R opines that, in his view, there was no indication for the mother to be psychiatrically assessed and there has been no need for psychiatric input for over 15 years.
[25] Ibid Annexure 6 at [1].
[26] Ibid.
Department of Child Protection
In further addressing the issues of risk, I refer now to the material provided by the Department for Child Protection (‘the Department’) under cover of letter dated 9 September 2021. Departmental records confirm that the Department has had no investigative involvement in relation to this family. Records indicate that there have been a total of four notifications reported, one in 2017 and three reported in 2021. All four notifications did not meet the threshold required for statutory intervention and all four notifications were assessed as Notifier Concern only.
South Australian Police Co-located Information Release
I refer now to the information provided by the South Australian Police (‘SAPOL’) under cover of email dated 16 September 2021. The SAPOL Co-located Information Release confirms that, in more recent times, SAPOL officers have either been called to attend upon the parties or the parties have attended upon them in relation to events which appeared to have occurred at or about the time that the parties separated. Under the heading of, “Police made notes of the following interaction with both parties as summarised below,” the following entries are made:
(a)On 10 June 2021, the father attended at a police station wishing to make police aware of the mother’s 14 years’ of declining mental health. The father is reported as presenting to the police station with a pre-prepared letter which contained his concerns regarding the mother’s behaviour and alleging assaults and threats. Police spoke with the father regarding the alleged offences. The father declined to provide a statement in support of the charges stating that he did not want the mother arrested at the time of reporting. The father stated he was in fear of the mother’s declining mental health and stated that she had threatened to take their child away on a number of occasions. The entry goes on to describe a number of complaints in relation to the mother’s behaviour, largely which were identified in the earlier passage of these reasons surrounding events which occurred in May and June 2021.
(b)On 24 June 2021, the police made further contact with the father in which he reiterated that he did not want to provide a statement in support of charges and that he was mainly concerned for X. The father stated that he did not want a separation where X was left alone in the mother’s custody and the outcome is recorded as finalised.
(c)On 25 August 2021, the father attended a police station to report an alleged assault by the mother on 20 August 2021. Later the same evening, the mother calls police to report that she had returned home to find that the father, X, and their dog were no longer at that address. The effect of the police notes of 25 August 2021 is that the police recorded that the mother presented as “normal and reasonable” in the circumstances and that she did not display any mental health symptoms which the father appears to have notified the police were evident.
(d)On 26 August 2021, the police were advised that the father was preventing X from attending school.
(e)On 27 August 2021, the father takes X to school to collect books and meet with staff. X was observed to be in good spirits.
(f)On 28 August 2021, the police spoke with the father who was concerned that if he let X attend school, the mother could collect him. The father stated that he was in fear of being hit and abused by the mother, that “her behaviour is unpredictable and that she gets very cross”. The father stated he left the family home as he felt it was an unstable and unsafe environment for X. The father presented as quite upset and emotional and was provided with support referrals.
(g)On 29 August 2021, the father attended a police station to express his concerns that, if X attended school, the mother could collect him. The father presented as very upset and it is reported that he was advised not to take any action that could get him into trouble.
(h)On 30 August 2021, the mother was formally interviewed in relation to the allegations, upon which she declined to comment. It was reported that nil charges would follow. Following the interview, the mother is reported as stating that she had been putting up with the father’s behaviour for a long, long time and was not surprised he had made allegations against her. The mother was reported as saying that she firmly believed that the father is only reporting matters for Family Court purposes. The mother expressed that she just wanted to see her son and advised that she was engaging a lawyer for that purpose. Police observed that the mother presented well and did not display any outward mental health symptoms.
(i)On 31 August 2021, the police spoke with the father who was reported to be agitated and belligerent towards police. Police advised the father that there was insufficient evidence to substantiate an offence and that the matter would be finalised without charges. The father was reported as being upset by this information and stated he had further evidence in support of charges that he would provide via his lawyer. Police advised the father that they would keep the occurrence open for a week to allow him to present any further evidence he had reportedly collected. The police are noted as recording a belief that the father made the police report in support of Family Law proceedings and that whilst the father stated that he was in fear and at risk of the mother, he appeared to have planned an exit from the relationship for a period of at least six months or more. Police noted that the father had secretly bought a new vehicle and a new house prior to leaving the relationship and then attempted to have the school block the mother’s access to X. Police noted that the father was applying for a private Intervention Order for himself and X with allegations that X was subjected to some form of abuse. Police queried why these concerns had not been raised with police. The father accused police of lying and misreporting and threatened legal action.
(j)On 5 September 2021, the occurrence was finalised as the father did not present any further supporting evidence which he had been invited by the police to do.
Child Impact Report
I refer now to the Child Impact Report of Dr L dated 1 November 2021. The appointments involved interviews with each of the parties and with the child, X.
I permitted the father to rely upon an Affidavit filed on 2 November 2021 (filed without leave) as it relates to his complaints regarding Dr L’s conduct of the interviews and what the father describes as “X’s reported distress during the course of an interview with Dr L in another room”. The father complains that those matters were not referred to in the Child Impact Report of Dr L. I have regard to the matters raised by the father in his Affidavit. However, I place greater weight on the Report prepared by a very experienced Court Child Expert and on her observations and recommendations that are made regarding X.
In paragraph 7 of the Child Impact Report, Dr L observes that there was differing views about X’s relationship with each of his parents. In interview, X was described as suggesting that he had a close relationship with his mother. In formal observations, Dr L observed a suggested warm and loving relationship between the mother and X. The mother demonstrated a natural and easy style of interaction with X and an ability to support his exploration and his imagination with apparent genuine interest and delight. This capacity was described as being at notable odds with the allegations of risk raised by the father.
In paragraph 8 of the Child Impact Report, Dr L observes that the father’s interactions, both in interview and in the observation with X, gave the overall impression that the father’s focus on X was not a focus that X is accustomed to. In the observations with his father, X seemed less relaxed and was notably less interactive. The interactions seemed to suggest that the father was not accustomed to interacting with X in a play-based child-focused way. Dr L opined that, whilst the father implied that he had been heavily involved in X’s care, his interactions with X tended to support otherwise.
Under the heading of “Child Impact Analysis, Risk and Harm Considerations” of the report, Dr L opines that:
This preliminary assessment could find no support for the information provided by the father about the nature of X’s relationship with his mother. The changes to X’s routine and removing him from his familiar environment is likely to have undermined X’s sense of confidence and his relationship with his mother. As well, X has moved to a new school, seemingly without the mother’s informed consent. One of these changes is significant for a child. X has experienced two significant changes in his life in the space of less than 12 months.[27]
[27] See Child Impact Report dated 1 November 2021 at [10].
Dr L observes that this is likely to create a “sense of confusion and emotional vulnerability for X”.[28]
[28] Ibid.
Under the heading of “Developmental Considerations”, Dr L observes that:
Parental separation can be difficult for children of any age, especially in the context of a high parental conflict. However, as X is at a critical stage of his development of self-identity and exploration of autonomous ideas, thoughts and pursuits, being entangled in conflict about his care arrangements has the potential to delay these key developmental tasks, as well as render X emotionally and socially vulnerable which, in turn, will impact on his educational progress, an area in which X already requires additional support.[29]
[29] Ibid [12].
Under the heading of “Key Considerations and Opportunities for Resolution”, Dr L opines:
While the assessment is preliminary, there appears to be sufficient information to suggest that the mother’s relationship with X is warm and supportive and this, in itself, is a protective factor for X as warm and supported parent/child relationships are linked to sensitive parenting skills.[30]
[30] Ibid [14].
She goes on to opine that:
While the father clearly loves X, the father seems to lack the degree of attunement, warmth and supportiveness that the mother seems to demonstrate.[31]
It appears to be critical for X’s ongoing development at this stage that he return to the mother’s care. The father’s narrative about the mother seems to be echoed in aspects of X’s narrative and this gives cause for some degree of concern about the future of X’s relationship with his mother should he remain in the father’s care.[32]
[31] Ibid.
[32] Ibid [15].
Dr L’s ultimate recommendation at this stage of this matter was that:
The parties’ separation is recent and that parenting behaviours can be reactionary and out of character in the throes of separation. At this time, X’s parents would do best to understand that he needs a period of stability and normalcy in his life and this assessment suggests that this would be best provided by returning X to his mother’s primary care and by supporting the continued development of X’s relationship with his father by the provision of time with his father as suggested above. The court may also need to consider whether X should return to Suburb E Primary School for 2022. [33]
[33] Ibid [17].
EVALUATION
In relation to the issue of risk, given the father’s change of position since the filing of his Initiating Application and the allegations which I have referred to in the father’s Affidavit, I pressed the father’s counsel, Mrs Read, to clearly articulate for the Court those issues that the father now says place the child at risk in having unsupervised overnight time or, in the alternative, a return to the mother’s primary care.
Mrs Read submitted that the risks can be summarised as follows:
(1)The child will be left alone with the mother.
(2)The mother will yell at the child.
(3)That the mother may revert to the behaviour which the father complains of, which I have already referred to in these reasons.
(4)That the mother may frighten the child because of mood swings.
(5)That the mother may become agitated.
(6)That, in such a state, the mother may not be conscious of X being distressed by her behaviour.
(7)That the mother may not take the child to school because she is too depressed.
(8)That the mother may continue to infantize the child.
It is the father’s position that those matters, as outlined by his Counsel, involve unacceptable risk. In Deiter & Deiter,[34] the Full Court said:
in assessing the degree of risk incumbent in any particular parenting scenario, that the Court must look to the degree of probability that a harmful event will occur in future and what will be its severity to any individual, particularly any child who will be potentially affected by it.[35]
[34] Deiter & Dieter [2011] FamCAFC 82.
[35] Ibid at [61] (Finn, Thackray & Strickland JJ).
A useful summary of the law as it relates to ‘unacceptable risk’ was referred to by his Honour Judge Brown of this Court in the decision of Hartland & Hartland.[36] As his Honour observed:
The Court is required to assess risk and put in place a proportionate response to the degree of risk involved. Risk arises in every aspect of human endeavour. No individual’s life, including the life of a child, can be rendered entirely free of all risk. In this Court, as in life, it is a question of balancing and assessing the degree of risk arising, on an objective basis.
The Court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it. These risks include the risk of exposing a child to a parent, who is incapacitated by the consumption of drugs or alcohol; compromised parenting, as a result of psychological illness or personality disorder; possible risks relating to the exposure of a child to an angry and unpredictable parent; the risk of a child being exposed to a parent’s sexual behaviour or more seriously the child being sexually assaulted or used as an object of sexual gratification.[37]
[36] Hartland & Hartland [2020] FCCA 937.
[37] Ibid [112]-[113].
His Honour goes on to refer to the Full Court decision of Slater & Light,[38] where the Full Court expressed the task of assessing risk in the following terms:
The nature of the risk is best expressed by the term “unacceptable risk”. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.[39]
[38] Slater & Light [2013] FamCAFC 4.
[39] Ibid [37].
I have considered all of the evidence in this case as set out above. I have considered the Act and the Full Court decision of Goode & Goode[40]. I acknowledge that this is an interim hearing whereby I am not in a position to make findings with respect to any issues of contested fact. However, it is the Court’s view that there is no unacceptable risk in making orders for X to be returned to his mother’s primary care and that the probability of events described by the father as constituting risk are low. I say ‘returned’ because I acknowledge the father’s assertion that there was an arrangement whereby he participated equally in the care of X prior to separation and particularly in the period from 2019 until August 2021.
[40] Goode & Goode (2006) FLC 93-286.
The reality, however, and this is not a criticism of the father, is that the father has been the primary breadwinner for this family. The parties have organised their affairs in a very traditional way. The mother has been at home undertaking domestic duties and caring for X. The father, for the most part, has been working and providing necessary funds to support the family, including his son at B School and that is to his credit as well. Given the arrangements that were in place regarding X’s care prior to separation, the father continued to work and it is open to me on the material that I have before me to find that the predominance of care for X fell to the mother.
The Court does not accept that the risks identified by the father’s Counsel during submissions yesterday are sufficient to prevent a return for X to some form of normalcy in relation to his care arrangements during the next tranche of these proceedings. In saying that, the Court also supports X maintaining appropriate and ongoing time spending with his father.
I decline at this juncture to exercise my discretion to make an order for parental responsibility. Each of the parties seek an order for sole parental responsibility in their favour. I decline to make any order in relation to parental responsibility in circumstances where there remains contested allegations in relation to family violence by each of the parties. I also do not consider the parties at this stage to be able to cooperate in relation to those longer-term issues.
In this case, I decline to make any order for parental responsibility, as such an order would not be in X’s best interests.
In relation to the primary care arrangements, the Court considers that it is in X’s best interests that he live primarily with his mother and spend substantial and significant time with his father. I decline on an interim basis to make an order for shared care of X as sought by the father as I am not confident that the parties’ co-parenting relationship could sustain it for X’s benefit.
In relation to the ancillary orders that are sought by each of the parties with respect to drug testing, liver function testing and the like, it is appropriate that I give my rulings in relation to those matters.
Each of the parties seek orders for drug testing and/or a hair follicle test. The father has obtained a drug test which is negative for illicit substances. I decline to make any order for drug testing or ongoing hair follicle testing in this case. It is my view that, notwithstanding the allegations made by the parties in relation to illicit substances and alcohol consumption, that those allegations are not a significant feature of this case. They arise as sequelae in relation to the allegations made by the parties concerning behaviour pre-separation.
It is the Court’s view on the available evidence to date, that drug usage and alcohol consumption are not significant features of this case. Any concerns can be regulated by orders of the Court.
This is a case which relates to serious issues regarding poor co-relationships between the parents, competing allegations with respect to family violence and the mother’s allegation of the father engaging in coercive and controlling family violence over a lengthy period of time.
I do not consider it appropriate to make any further orders for drug testing or hair follicle testing. I note the advice provided by Mr Bowler on behalf of the mother at the hearing on 3 November 2021, that the mother has undertaken a liver function test and I will order that that test be filed as soon as it becomes available.
In relation to the application by each of the parties for each of them to be psychiatrically assessed, at this stage I decline to make those orders. The mother has provided a Report from her treating psychologist and from her treating medical practitioner. It was the expressed view of Dr R that the mother did not need to be psychiatrically assessed and that there had been no psychiatric involvement for a period of some 15 years. The mother is consulting with Dr F regularly and has done so for the past seven years.
The issue for the Court is, what is the best evidence? The best evidence with respect to psychiatric or psychological functioning, in my view, comes from a treating practitioner. I do not consider that the parties attending upon a psychiatrist for the purpose of a one-hour appointment is going to be the best evidence at this stage. However, I may revisit the issue of psychiatric assessment for either party in the event that this matter proceeds further on in the litigation pathway towards a trial.
Both parties seek different orders in relation to X’s schooling. The father seeks that X continue at B School where he is now attending. The mother seeks that X return to the Suburb E Primary School. At this stage, the Court declines to change X’s school from B School to Suburb E Primary School. X has already had a number of disruptions to his young life across the course of this year. The impact of COVID-19 and his inability to attend school across 2020 and 2021 due to a number of reasons compel me at this stage to consider favourably the father’s application that X continue to attend at B School. It is to the father’s credit that he has agreed to continue to meet X’s educational expenses at that school and the Court acknowledges his Undertaking in that regard.
In relation to the application filed by the father for X to have what is described loosely as ‘therapy’, I decline to make that order. The order for therapy is not directed to anything in specific terms. Mrs Read did flesh out the basis for that order in her submissions. Despite those submissions, it is my view at this stage that therapy for X is not warranted. Nor is it supported by the Independent Children’s Lawyer.
X’s best interests would be served by him returning to a normal routine where he spends time with each of his parents and that he returns to the sorts of activities that boys of his age should be enjoying without any ongoing parental conflict. In the event that therapy for X needs to be revisited at some point in time, I will consider the application, but it is my preliminary view in this case that therapy is not warranted. A return to a normal life, insofar as it can be achieved, is what X needs. X requires each of his parents to put aside the conflict and to attempt for the next tranche of these proceedings to co‑parent in a calm and respectful manner towards each other.
Ultimately, it is in X’s best interests to experience overnight time with his father each week and for the father to be involved with X’s schooling such that I have included an overnight time on the intervening week so that the father is able to take X to and from school and be involved with his teachers.
The Court declines to extend X’s time with the father to the Monday morning at this stage, pending the parties having an opportunity to attend the Family Dispute Resolution conference in 2022. Similarly, the Court declines to make any extension of time spending in relation to the school holidays other than that set out in these orders.
The Court continues to have an overarching interest in X’s relationship with his father and how this may impact on X’s relationship with his mother. With respect to the issue of the recovery order, that order is made out of an abundance of caution in the event that these orders are not complied with. The order is stayed, but, in the event that there are difficulties, I grant liberty to apply for the recovery order to be executed upon application to my chambers on 48 hours’ notice.
CONCLUSION
For all of the above reasons, I make the orders as set out at the commencement of these reasons for judgment.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 18 November 2021
0
3
1