O’TOOLE & NOAKES
[2015] FCCA 497
•23 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| O’TOOLE & NOAKES | [2015] FCCA 497 |
| Catchwords: FAMILY LAW – Practice and procedure – transfer of proceedings from Federal Circuit Court of Australia to Family Court of Australia – consideration of rule 8.02 of the Federal Circuit Court Rules 2001. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 13C, 68LA |
| Geremia v. Harb, 2008 19764 (ONSC) Other Articles Cited: |
| Applicant: | MR O'TOOLE |
| Respondent: | MS NOAKES |
| File Number: | PAC 329 of 2013 |
| Judgment of: | Judge Harman |
| Hearing date: | 23 February 2015 |
| Date of Last Submission: | 23 February 2015 |
| Delivered at: | Parramatta |
| Delivered on: | 23 February 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Michael Vassili Barristers & Solicitors |
| Counsel for the Respondent: | Mr Shaw |
ORDERS
Mark the proceedings not reached.
Adjourn the matter for call-over and possible interim hearing to 7 July 2015 at 10.30am.
Each party shall, should they wish to press their interim relief on the next occasion, file an Application in a Case or Response thereto, together with Affidavit material sufficient to comply with Federal Circuit Court Rules 2001, to be no longer than 12 pages of text and limit annexures to that which is necessary to identify and determine interim issues in dispute together with a Notice of Risk, same to be filed and served no later than close of business 1 May 2015.
Pursuant to s.68L an Independent Children’s Lawyer is appointed for the reasons and with ancillary orders as set out in the usual form of order Exhibit A hereto.
Pursuant to section 13C of the Family Law Act 1975, the parties and each of them shall forthwith and within seven (7) days contact the intake officer of Unifam (omitted) for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services by that organisation and, subject to the assessment of suitability, each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete such sessions of Family Counselling as are assessed as suitable and offered.
In the event that the provision of service is determined to be inappropriate or service is withdrawn or declined then the Family Counsellor or agency providing same is requested, pursuant to s.13D, to advise the Court in writing of that fact.
IT IS NOTED that the purpose of the parties’ attendance upon Family Counselling is to engage them with services to assist with managing parenting anxiety and with a view to developing appropriate and achievable parenting cooperation and alliance.
The parties and each of them are at liberty to provide to the intake officer or family counsellor upon whom they attend copies of exhibit A, B and C.
Exhibit A
Appointment of an Independent Children’s Lawyer
Pursuant to s.68L of the Family Law Act 1975 an Independent Children’s Lawyer shall be appointed to represent the interests of the child the subject of these proceedings, X born (omitted) 2009.
The Legal Aid Commission of NSW is requested to make arrangements as soon as practicable to facilitate the above order.
Each of the parties shall within seven (7) days of any request complete and provide to the Independent Children’s Lawyer a parenting questionnaire and/or such other information as may be requested.
Each of the parties shall within seven (7) days (or forthwith upon filing) forward to the Legal Aid Commission (Parramatta Office) copies of all any documents filed by them in these proceedings together with:
(a)Any medical reports they hold relating to the child;
(b)Any psychological or school counsellor or pre-school intervention reports they hold relating to the child;
(c)Any school reports they hold for the child;
(d)Any other documents they hold and wish the Independents Children’s Lawyer to see and/or that they intend to seek to tender to the Court or rely on in these proceedings.
Each of the parties shall present the child to such places and at such times and dates as are requested and/or advised by the Independents Children’s Lawyer for the purpose of the Independents Children’s Lawyer meeting with the child.
Leave is granted to the Independents Children’s Lawyer to inspect the Court file and any material produced to the Court pursuant to s.69ZW and/or in response to subpoena.
The appointment of the Independents Children’s Lawyer is made on the following bases:
(a)As per exhibit A, B and C; and
(b)The child is of tender years and requires protection from conflict.
IT IS NOTED that publication of this judgment under the pseudonym O’Toole & Noakes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT PARRAMATTA |
PAC 329 of 2013
| MR O'TOOLE |
Applicant
And
| MS NOAKES |
Respondent
REASONS FOR JUDGMENT
These proceedings involve competing Applications with respect to parenting arrangements for a young boy, X, born (omitted) 2009. X is a little over five years of age and has, this year, started school.
The parties to the proceedings are X’s parents, being his mother Ms Noakes, who is the Respondent and his father, Mr O'Toole, who is the Applicant.
The parties were engaged in a brief relationship with each other which would appear to have concluded prior to X’s birth. That is a matter that has, in the limited evidence considered today, assumed some real significance.
These proceedings are listed today for final hearing. The matter cannot be reached. That is through no fault of the Court or the parties. There is simply, and to be blunt, too much work before the Court.
The number of matters residing upon the Docket of any Judge within this Court and particularly within this registry is two and a half to three times that which it should be. There are far too many matters to be dealt with properly or effectively. The volume of work does not allow the Court’s workload to be dealt with in a fashion that would permit the casual observer to form the view that the resources allocated to the Court reflect the child’s best interests being genuinely treated as paramount.
This case cannot be allocated fresh hearing dates. That is for a variety of reasons, not the least of which is the simple reality that no dates exist. There is nowhere to adjourn the matter to.
All dates for 2015 have already been allocated to other matters at an over-listing ratio of three to four hundred per cent, meaning that the Court always has before it three or four times more work than can possibly be dealt with on any given day (unless matters resolve or for whatever other reason do not require the Court’s attention). A diary for 2016 is not even yet contemplated, let alone prepared and this matter will join the queue, albeit a relatively small queue, of matters waiting allocation of dates.
The parties have prepared their litigation for hearing. That must be commented upon. It is unfortunate that these reasons are delivered orally. Whilst they will ultimately be contained within a written document, it is a shame they will not be video recorded. If that were so then one could demonstrate the over 60 centimetre thick pile of material that constitutes the Affidavits filed by these parties. Each parties Affidavit is 30 centimetres thick and takes up a file cover by itself.
This matter was listed for hearing on the basis that it was a relatively straightforward contest between two parents who were both competent and capable and able to cooperate with each other. Certainly as regards the latter proposition, there is some real doubt, based on the limited evidence that has been considered today, as to the accuracy of that proposition, so much so that in light of the issues as they are presently unfolding between these parties, it is now suggested that the determination of the matter might require four, or possible five or even more days of hearing.
On the basis of the present time estimate and suggested “complexity” of the matter application is made to transfer the proceedings to the Family Court of Australia. I will deal with that issue separately and shortly. I must also determine what resources are necessary to assist in identifying and representing the best interests of this young child.
Transfer of proceedings
I make clear from the outset that I am not intending to be critical of the legal representatives for the parties for seeking a transfer of these proceedings to the Family Court of Australia. If nothing else it arises from the same desperation as the Court faces on a day-to-day basis in endeavouring to have matters completed in a timely fashion.
In all probability the case could be heard more quickly before the Family Court of Australia. However, in dealing with any transfer of proceedings I must be conscious of rule 8.02 of the Federal Circuit Court Rules 2001 and the protocols that exist between this and the superior Courts.
The protocol as between this Court and the Federal Court provides as follows:
In considering whether to transfer a matter to the Federal Court of Australia, the Federal Circuit Court of Australia should consider the issues, the number of witnesses and estimated length of hearing. A note should be sent by the Federal Circuit Court of Australia coordinating judge of the relevant registry to the coordinating judge of the Federal Court of Australia in the relevant registry addressing those matters and why it is a matter appropriate for transfer. Considerations that are relevant to that decision include the length of the matter, any additional cost (including court fees) to the parties of the hearing in the Federal Court, and the desirability of a transfer at an early, rather than late, stage of preparation. The Federal Court of Australia coordinating judge will then decide, in consultation with the local list judge, after any necessary further consultation with the relevant Federal Circuit Court of Australia coordinating judge, on acceptance or not.
Whilst a directly analogous protocol does not exist between this Court and the Family Court of Australia, I am conscious of the tensions that exist as regards the movement of matters between the two Courts particularly at a late stage in a matter. Those tensions are, to some extent, alluded to in Part 8 of the Federal Circuit Court Rules 2001. Those rules urge that proceedings should be transferred at an early, rather than late stage. That is not to suggest that circumstances wherein a transfer at a late stage do not arise and do not appropriately lead to a transfer of proceedings. However, I am not satisfied that this is one such case.
The protocol that exists between the Federal Circuit Court and the Family Court of Australia is generally based upon a “rule of thumb”, if it might be so described, that the hearing of the matter will take more than four days. There are however, the considerations in Part 8 of the Federal Circuit Rules 2001 to which I turn.
Part 8 provides that the Court may transfer proceedings of its own motion or on the Application of a party. It does provide, at rule 8.02(2):
Unless the court otherwise orders, a request for transfer must be made on or before the first court date for the proceeding.
These proceedings have regrettably been on foot for 25 months, having been commenced by an Application filed 30 January 2013. The matter however, has not occupied significant Court time to date.
The proceedings came before the Court by way of first Court event on 6 March 2013. On that date the proceedings were adjourned with directions for the filing of a Response and other material and a number of interim Orders were made. The parties were given the assistance of a Family Consultant by way of referral to a Child Dispute Conference pursuant to section 11F of the Family Law Act 1975.
When the proceedings came before the Court on the second occasion 8 May 2013, the proceedings were further adjourned. Further interim parenting Orders were made by consent.
The adjournment of the proceedings on both occasions occurred at the request of the parties. The Orders that were made by consent on 8 May 2013 also provided for the parties to engage in Family Therapy. The parties would appear to have done so.
The matter then returned to the Court in December 2013. An earlier date had been allocated to the proceedings, but was vacated in Chambers at the request of and with the knowledge of both parties.
When the matter came before the Court on 10 December 2013 it was noted that the parties had reached agreement with respect to a number of issues, including the commissioning of a private Report writer. It was noted that a Minute of Orders would be filed in Chambers. The proceedings were thus adjourned to enable that Report to be obtained. The Report that has ultimately been obtained has been prepared by Ms V, the person upon whom the parties had anticipated they would attend for Family Therapy.
On 18 December 2013 a number of Orders were also made by consent further prescribing time arrangements between young X and his father. At that time X, who had just turned four, was to spend time with his father each alternate Sunday for the day and each alternate Tuesday. The Court is advised that the parties have, since that time negotiated, whether directly between them or with the assistance of their lawyers, a further arrangement whereby X is now spending time with his father each alternate weekend from Saturday to Sunday.
That is significantly less time than is sought by Mr O'Toole by his Application. Mr O'Toole has, through his Counsel this morning, indicated his desire to pursue an Application for X to spend time with him during school terms from after school Thursday until before school Monday each alternate weekend and from after school Wednesday until before school Friday in each intervening week. That would mean that in any fortnightly period that X would be with his father for four days, return to his mother for two days, be with his father for two days, and return to his mother for six days and the cycle repeating.
The privately commissioned Report was prepared. Following release of the Family Report Orders were made for the parties to prepare for trial. Material was filed by the parties. As indicated, it is the most substantial, indeed, prolix material that has been filed. None of it has been read for the purpose of this determination. Indeed, the material is so prolix that I had suggested to the parties that if the matter could be reached and proceeded, that it would need to do so on the basis of the Affidavit material being struck out and the parties adducing oral evidence. That may now not be a necessary or a desirable course as issues between the parties would appear to be broadening rather than narrowing.
The matter returned before the Court for the call over on 6 August 2014. On that date a Judge of the Court listed the proceedings for hearing for two days, being today and tomorrow. The parties regrettably cannot have the Court’s time today and tomorrow as other matters with priority are running.
It is entirely unacceptable that a matter involving the interests of a child, a child whose interests would appear to be becoming increasingly complex and disadvantaged would now be further delayed. However, the Court can only conduct its business as best it can with the resources it has. The matter in competition for the Court’s time today is not reached from a prior occasion and has equal contention as to disadvantage as to the interests of children if it is not dealt with on this occasion. Accordingly, these parties will, through no fault of their own or the Court’s, be sent away to await the allocation of hearing dates as and when available and in all probability, 12-18 months hence.
The above history would make clear that this Court could not, in all conscience, suggest to the superior Court, the Family Court of Australia, that these proceedings are transferred either at or before the first Court date or in any timely fashion thereafter. Accordingly, and whilst it is not the dispositive issue, I am not satisfied that I can or should transfer the proceedings.
The Court must consider each of the factors set out in sections 39(3) and (4) of the Federal Circuit Court of Australia Act 1999 as well as rule 8.02(4) of the Federal Circuit Court Rules 2001. Those provisions are, to a large extent, overlapping.
Whether the proceedings are likely to involve questions of general importance such as that it would be desirable for the superior to court to deal with the issue
The issues that are raised in these proceedings do not give rise to significant legal issues. Indeed, in the sage words of Quinn J, of the Ontario Superior Court in Geremia v. Harb, 2008 19764 (ONSC):
Some day, a wise person in a position of authority will realize that a court of law is not the best forum for deciding custody and access disputes, where principles of common sense masquerade as principles of law.
The issues that are extant between these parties have little bearing upon legal principle, save that the Court must determine the child’s best interests and do so by reference to the available evidence and the factors which the Act identifies.
Whether if the proceedings are transferred it is likely to be heard and determined at less cost and more convenience
I am not satisfied that there is any issue as to reducing or increasing cost or convenience for the parties if the matter is transferred or stays. There is certainly a likelihood – a significant likelihood, in fact, that the matter might be heard more quickly in the superior Court. That is not the intention of the hierarchy of Courts, of which this Court is the inferior first instance trial Court, intended to and in fact handling the majority of work. That is all it should be. It is this Court’s role as a first instance trial Court.
The fact that the matter might be heard more quickly is not a sufficient basis for the transfer to occur at this late point in the matter and when the proceedings have been on foot for over two years. Absent compelling evidence to suggest that this child’s best interests, as against the best interests of all other children, compels expedition would not, to my mind, support a transfer.
Every child’s interests deserve a timely determination. Every litigant deserves timely access to justice and yet with present resourcing this is not possible and the barren and at times distressing task every Judge of this Court must face on a daily basis is determining who will be heard and who will not. Gone are the days when the traditional opening of Court “All persons with business before this Court are commanded to give their attendance and they shall be heard” has meaning. It must now be read with the caveat “if time and resources permit”.
It is not that time is not invested. 8-10 hour sitting days are the norm. And yet even that will not address the tsunami of work. And sadly it simply masks the problem.
Delay in determination of this and most other parenting cases before the Court will disadvantage and poorly serve the interests of children – the future of our society. As Nelson Mandela opined “There can be no keener revelation of a society's soul than the way in which it treats its children”. In years to come this young lad may look back and judge both his parents and this Court harshly for his treatment.
In this case this child has spent nearly half his life with his parents before the Court. He will have one if not two more birthdays before the matter is concluded. One shudders to consider the “cost”, (as discussed by Kirby J in AMS & AIF (1999) CLR 160), for this child and these parents of that reality.
This is not a new situation. The Australian Law Reform Commission had dealt with the issue in 2010 in their Report, Family Violence – ‘A National Legal Response’, Australian Law Reform Commission Report, 114 and quoting R. Chisholm, ‘Family Courts Violence Review’, (2009):
Additional judicial and other resources will be required if we wish to improve the family courts’ ability to protect children, especially from the consequences of important decisions based on inadequate and untested evidence, that might expose the children to risk of harm, whether by being exposed to the risk of violence or by being separated unnecessarily from a parent. Children would undoubtedly be much safer if through legal aid or otherwise the parties and the children were properly represented, and the number of judicial officers was such that each case could be given the attention it deserved, without causing unacceptable delays in the hearing of other cases.
Instead resources have gone backwards.
This situation is, for the Judges of this Court, analogous to a Doctor operating upon a patient in a busy emergency room with the known certainty that two more patients will bleed out and die in the corridor whilst working on this patient and knowing full well that with more resources, two more sets of hands, no life need have been lost. The burden that this knowledge places upon Judges is far greater than the regular 8-10 hours of sitting per day, with few if any breaks, or the scrutiny of Appeal Court’s and the media, that each day brings.
Whether the proceedings will be heard earlier
In all probability, the matter could be heard more quickly in the Family Court of Australia. However, the division of work between the Courts is conscious and deliberate.
The superior Court is intended to deal with matters with complex legal issues, complex factual circumstances or which require the attention of that Court. This case is not one such case.
The issues in this case fall well within the parameters of the matters dealt with by this Court. That they are becoming broader and that the interests of the parties or X might be disadvantaged through delay created by the Court’s workload, is not a compelling reason to transfer the proceedings.
It is certainly a temptation. However, this case is but one of more than 700 upon my Docket. If delay and the likelihood of the matter being heard more quickly before the superior Court were the only criteria for transfer then the majority of those matters would be transferred by me. However, there is no basis for that to be so.
That is not to suggest that children and parties should be disadvantaged through an absence of resources. In fact, none should. It is entirely unacceptable that our system of justice does not do better for litigants and particularly, the interests of children, those who are under a legal disability, who cannot protect and preserve their own interests or prosecute their own rights.
Steps will be taken by the Court to assist through the appointment of an Independent Children’s Lawyer. That will impose a burden upon another system, the Legal Aid Commission, struggling with limited resources. But it is necessary and it shall be so.
The absence of resources is the factor which obviates against an expeditious or timely address of the issues in this case. Every step will be taken to find dates to accommodate a final hearing of this matter as soon as possible. That may well lead to further disadvantage of other litigants who are similarly awaiting dates or already have dates allocated to hear and determine their case.
Part of the problem perhaps arises from the failure of litigants, some with and some without legal representatives, to resolve disputes which can and should be resolved, which clog up the system and unnecessarily use the system’s resources. This case is not, I make clear, one such case. The parties are moving further apart due to the dynamic of their relationship with each other and the unusual facts and circumstances of their case.
These parties are entitled to access the Court’s resources, but that must be balanced, as the High Court has identified in authority such as Haset Sali v SPC Ltd [1993] HCA 47, Aon Risk Services & ANU [2009] HCA 27, and like cases, with a balancing of the Court’s workload. It is artificial to expedite certain matters, whether they are not reached or otherwise, at the expense of other litigants who have similar, equal or even more compelling need for the Court’s assistance.
The availability of particular procedures
That is not a relevant consideration. I am conscious that the procedures of the Family Court of Australia are potentially advantageous, not only to these litigants, but most litigants. It is regrettable that resources do not permit such processes and perhaps other processes, not yet devised or in practice, which would better meet the needs of families and better identify, serve and address the interests of children, to be used by this Court. However, it is all a question of resources.
The wishes of the parties
Certainly, the father desires that the matter be transferred to the Family Court of Australia. However, that is on the basis of obtaining, as he hopes (and in all probability such hope would be achieved), a more expeditious hearing. However, I am not satisfied that sufficient criteria exist or sufficient merit is made out for that transfer to occur at this point in the proceedings.
Accordingly, I do not propose to transfer the matter. The proceedings will, however, need adjournment, and the matter will require the appointment of an Independent Children’s Lawyer. That arises as there are significant and concerning issues for this young child.
As I have made clear, the only material that has been considered comprises evidence by a Family Report writer together with two medical practitioners who have consulted with this child. Those documents are Exhibits A, B and C respectively.
The Family Report of Ms V makes clear, as the parties in one of their few areas of agreement concur, that the parties separated well prior to this child’s birth. This has led, as is suggested throughout the Report and commencing at paragraph 5, to have given rise to “...ongoing difficulties with negotiations for X to spend time with Mr O'Toole”.
It is suggested that the parties have attended mediation on a number of occasions from 2010 onwards and have reached several agreements with respect to time between X and his father. They have been slow and cautious steps and have required the assistance and intervention of neutral third parties to achieve even those small steps.
It would appear from the Family Report that by May 2012 difficulties were arising with respect to time and, in particular, comments made by X to his parents, one or other of them, and suggested difficulties and concerns with X’s separation from his mother. (Paragraph 6 of the Report).
Whilst the case has been presented to date as a dispute as to how the parents might both be meaningfully involved in the child’s life to the maximum extent, consistent with the best interests of the child and absent any concerns with respect to the child’s welfare, clearly that is no longer the case. Whilst the interaction between X and each parent is observed to be relaxed and at ease, it is apparent that the parents simply do not get on that well.
That can well be recognised from the quantity of material that these parties have filed. If they were able to cooperate in a child-focused fashion as is suggested and resolve disputes between them they would not be before the Court, let alone filing hundreds and hundreds of pages of documents, whether comprising annexures, text or otherwise.
The volume of “communication”, if it might be so described, and using that term in its loosest sense, that is required to achieve even the smallest agreement is substantial. The Report at paragraph 56, has the following to say:
The post-separation circumstances of the parties where there has been no history of cohabitation after a child is born are such that it is extremely difficult to create a climate where a child spends time regularly with the non resident parent. This puts the onus on the parties even more to place their own issues to the side and focus on their child. One parent visiting the child at the home of the other parent is far from ideal when there is tension and mistrust.
I pause to note that this is the basis upon which time between the child and the father occurred for the first year or two of the child’s life. The parents both suggest to the Report writer – in the same paragraph – that they have tried to resolve arrangements civilly and with the help of mediation. The Report, however, then offers the following:
Evidence of their capacity to achieve and maintain this with any level of success seems to have become increasingly remote as time has passed. Each party projects blame onto the other for the problems that have arisen between them and for their poor communication and neither takes the responsibility for the role they have played in that conflict.
There is some comment upon the importance of stable, consistent and primary placement of a child with one parent in the period from birth to three years of age. Curiously, that assertion is made in the Report, but without any material led as to a basis upon which the opinion is expressed, whether by reference to social science or the parties evidence. However, if one accepts that this is so then there is potentially further issue to explore in relation to the child’s attachment and the impact and effect upon the child’s attachment of the arrangements that had been put in place by the parties when this child was very young, and the circumstances which surrounded those arrangements, being, it would seem, largely founded in mistrust and poor communication.
Certain comments are offered by the Family Report writer with respect to Ms Noakes perceived “insecurities and fears”. There is something of a quantum leap between that which is expressed by the parties, and each of them, that which is observed by the Family Report writer and the opinions that are offered in respect of those “insecurities and fears” as expressed. On the basis of those opinions, however, it is then suggested that further factors may well have impacted or have the potential to impact upon X’s relationship with both parents, and, in particular, his father.
The Family Report writer ultimately concludes that the father’s proposal for equal time is: “...somewhat unrealistic given the level of ongoing conflict between the parties”.
The opinion is also offered at paragraph 68:
Although the parties say they are able to curb their conflict in front of X, one questions their capacity to completely shield him from the tension between them which is sometimes conveyed non-verbally.
From the Family Report, one then leads to Exhibits B and C to which I have referred.
Exhibit B comprises a Report under the hands of clinical psychologist, Dr T. Her resume or CV is also tendered with her Report and demonstrates, I am satisfied for the purpose of this determination, her abundant qualification and experience in offering opinion in the nature that she has led in her Report.
The Report from Dr T, dated 18 February 2015, raises the following:
Initially, any final formal diagnostic impressions are currently deferred until further comprehensive assessment is conducted. Nonetheless, on observation X did present as an anxious little boy. Clinical assessment with his mother revealed significant levels of Separation Anxiety, excessive worry consistent with childhood Generalised Anxiety; as well as poor emotional regulation.
It also opines:
There are some notable behavioural concerns developing, however my initial impression is that this is predominantly (at this stage) underpinned by his anxiety.
This is the child that has been produced after some five years of inter-parental dealings and conflict.
The Report does offer the following, however, which will require further examination by the parties initially and, if they are unable to resolve those issues in any positive fashion, no doubt further evidence to the Court. The Report indicates as follows:
Clinical assessment also revealed some “red flags” in terms of X’s development. It is important that these flags be contextualised in that I have only interacted with X on one occasion for an hour. Further, these flags are not in relation to a learning or intellectual problem; rather, a social communication issue. At this time my query is whether some of X’s emotional difficulties and particular behavioural characteristics are consistent with having an underlying High Functioning Autism Spectrum Disorder. Again, I emphasise that this was an initial impression on soft observation.
It makes clear that this possible area to be explored has been raised with both parents who have indicated their desire for it to be explored. Dr T offers the following:
Clinical impressions also revealed that X is experiencing intense levels of distress in relation to transition from his mother to his father. Ms Noakes indicated that X is incredibly distressed in the lead up to having contact; and throughout the week is often preoccupied by when he has to go to his fathers. Both parents indicate that historically drop-off has been difficult for X and typified by him showing resistance, behavioural outbursts and emotional distress. Of note, however, is that more recently when Ms R, Mr O'Toole’s partner, handles the drop-off there is less distress (for everyone).
That is consistent with the Family Report writer’s observations some 13 months ago. At that time the Family Report writer had observed that, “X transitioned smoothly into play with his father”, when the two parents were not both directly involved in the transition (paragraph 51).
Dr T also observes that the following symptomology would appear to be relevant to young X:
...reduced joint attention, preoccupation with “things” rather than relationships, under-developed social communication (e.g., pragmatic speech), high trait anxiety, and restricted/stereotypical play.
The following opinion is offered with respect to this.
I am not certain at this stage that these behaviours are consequent to his environment and parenting factors. This suggests that a full developmental assessment would assist in clarifying X’s needs in relation to all areas of his life.
What is required in that regard is set out and it would appear both parents have indicated their willingness and desire to participate.
Under the heading “Anxiety Treatment”, Dr T offers:
X has notable levels of anxiety. Assessments suggest that this is best characterised by both DSM-V Separation Anxiety and Generalised Anxiety Disorder. It is also notable that X has a significant startle response, and his anxiety may be elevated at a trait level.
It is then recommended that both parents independently engage in a parenting anxiety management intervention. No particular or specific recommendation is made. However, I propose to make Orders pursuant to section 13C of the Act that the parties engage in a Family Counselling service which will address that which is set out in the Report. To that end, I propose to grant leave to the parties to release to any such person upon whom they attend both a copy of the Family Report and the further two Exhibits - the Report of Dr T and a letter from the child’s treating general practitioner.
It is noted, in particular, by Dr T, although she is clear in her desire to not become embroiled in either offering recommendations or engaging with the parties as regards their litigation and recommendations as to future arrangements for X and each parent, that drop-offs are a particular difficulty. It is suggested that drop-offs would ideally occur between two neutral parties, such as Ms Noakes mother and Mr O'Toole’s partner and if this could not occur, at least between Ms Noakes and Mr O'Toole’s partner.
Ideally, it is suggested by Dr T in the context of providing treatment to this young boy for an anxiety disorder, that changeovers would occur without the parents coming into contact and through a venue such as his school. That of course is not what is occurring at the moment and this may require attention on an interim basis when the matter next returns before the Court.
Opinion is otherwise offered that it is important for X that he not be overloaded, but exposed to various activities to overcome his anxiety. It is opined that he needs help in building “resilience and experiences with social perspective - moving away from “things” to people”. In summary, Dr T indicates that:
X is a very anxious little boy who is most likely very confused about going from Ms. Noakes’s home to Mr. O'Toole’s home. He has a range of qualities and strengths that are currently being overshadowed by his anxiety and emotional distress. X has a very strong attachment to Ms. Noakes and currently he is relying on her to manage his emotions and keep his life predictable and to his satisfaction. The need for control is an indicator of his underlying anxiety; but may also be driven by an underlying developmental issue.
It is finally offered that:
If conflict is too high between Ms. Noakes’s and Mr. O'Toole, then parallel parenting may emerge. However, even if this was to occur, both parents need to be using the same language, strategies and visuals when managing X’s difficulties. This is an important goal of therapy.
What is abundantly clear is that this little boy is being harmed by ongoing disputation between his parents, whether that is active through physical or verbal abuse, one or the other, which I do not suggest that it is, or simply through an inability to cooperate and communicate with each other as effectively as might be ideal.
The general practitioner makes similar observations, reporting that: “The relationship between Ms Noakes and Mr O'Toole has been very antagonistic”. It is noted that X has met early developmental milestones in an appropriate fashion, although concerns regarding his “shyness” and “notable attachment to his mother” were readily apparent from the age of about two.
A number of impressions and recommendations are offered to the parties and included within a referral for the child, (ultimately resulting in him seeing Dr T), including opinion that this little boy has significant clinical anxiety which is “uncommon” in a child of his age and that a “structured and methodological approach is required”. All of those factors overwhelmingly point to the need for this child’s best interest to be represented in these proceedings by an Independent Children’s Lawyer.
The Independent Children’s Lawyer may have some significant role to play in seeking to guide the parties towards services which might be of assistance to them in acting as an “honest broker of settlement”, but importantly discharging the obligations in section 68LA of the Act, to ensure that the best decision that can possibly be made with respect to this child’s best interests is, in fact made. It is on that basis that the matter would need some adjournment to enable a solicitor to be appointed and become engaged.
The Court does not have a mention date for such a purpose available until August 2015. Accordingly, and as this matter requires, in fact, cries out for some attention to resolve the presently unresolved conflict and tensions between the parents, a date will be created, but it cannot be earlier than 7 July 2015. There is simply no space to list any matter earlier than that without creating significant disadvantage to other users of the Court and my staff.
The Court’s sitting hours at present are problematic. They need not be made more problematic through more work being listed than can possibly be attended to. There is a reason that Test cricket is played in three blocks of two hours. That is about as long as one can expect full concentration (and hence wickets fall and catches are dropped in the period immediately after and before breaks).
Delays are matters which require resources, not harder work. The Court simply cannot work any harder than it does at present, routinely sitting eight to ten hours a day, usually without break. Nor should the Court be expected to work beyond its present onerous work load. It does not serve the interests of justice or inspire confidence.
I certify that the preceding eighty eight (88) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 9 March 2015
Key Legal Topics
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Family Law
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Civil Procedure
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Jurisdiction
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Procedural Fairness
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Injunction
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