Ogden & Ebbing
[2024] FedCFamC2F 412
•5 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ogden & Ebbing [2024] FedCFamC2F 412
File number: SYC 8650 of 2023 Judgment of: JUDGE COPE Date of judgment: 5 April 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE - Application for review – Interim parenting – Substantive review of a Senior Judicial Registrar’s decision – Hearing de novo – Application dismissed Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 65AA, 65DAA
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 256(1), 190, 191
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) r 2.01
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 14.05, 14.07(1)
Cases cited: CDJ v VAJ (1998) 197 CLR 172
Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
Isles & Nelissen (2022) FLC 94-092
Mazorski & Albright [2007] 37 Fam LR 518
MRR v GR (2010) 240 CLR 461
Division: Division 2 Family Law Number of paragraphs: 125 Date of last submissions: 25 March 2024 Date of hearing: 25 March 2024 Counsel for the Applicant: Ms Kennedy Solicitor for the Applicant: Solari & Stock Counsel for the Respondent: Ms Van Oosterom Solicitor for the Respondent: Wallumatta Lawyers ORDERS
SYC 8650 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS OGDEN
Applicant
AND: MR EBBING
Respondent
ORDER MADE BY:
JUDGE COPE
DATE OF ORDER:
5 APRIL 2024
THE COURT ORDERS THAT:
1.Paragraph 28 of the Order made on 2 February 2024 be dismissed.
2.The Application for Review filed on 23 February 2024 be otherwise dismissed.
THE COURT NOTES THAT:
A.It is noted that the Order of 2 February 2024 was amended by consent on 25 March 2024 but otherwise remains in full force and effect.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COPE
INTRODUCTION
The matter before the Court today is in relation to an Application for Review filed on 23 February 2024 by Ms Ogden (“the mother”) for a review of a decision by a Senior Judicial Registrar. The mother is the respondent in the substantive proceedings, however, for the purposes of the Application for Review, she is the applicant.
The application is opposed by the respondent, Mr Ebbing (“the father”). He does not however challenge that the decision is one capable of review by this court.
The decision to be reviewed arose from interlocutory applications in relation to both parenting and property matters. Only certain aspects of the orders made on 2 February 2024 are to be reviewed.
It was pleasing that prior to the commencement of the hearing, the parties had reached agreement on certain matters and the court was persuaded to make those orders as being in the best interests of the children.
The aspects of the order made on 2 February 2024 remaining for review are:
(a)Order 3.a. regarding the father’s time with the children;
(b)Order 13.b. i. regarding a single expert psychiatric assessment of the father as opposed to him obtaining therapy and a private assessment; and
(c)Order 28 being the first option to care order.
BACKGROUND
The mother was born in 1978 and is currently aged 45.
The father was born in 1976 and is currently aged 47. The father is originally from the USA, he remains an American citizen and is a permanent resident in Australia.
There are two children of this relationship, X born in 2011 and currently aged 12, and Y born in 2014 and currently aged 9.
The child X has some developmental delays that require support, she is diagnosed with a medical condition and autism. The father discussed with the family report writer whether the parties should obtain a second opinion as to the latter diagnosis.[1] The family report writer described X as having evident developmental delay and social difficulties.[2] X is in receipt of NDIS funding.
[1] Family report dated 29 January 2024 at paragraph 56.
[2] Family report dated 29 January 2024 at paragraph 61.
The parties met in America when they were 17 and 19 years of age and were friends for about 12 months. They reconnected many years later, commenced living together in 2010 and married in 2011. They separated on a final basis on 20 February 2023. They remained living under the one roof until the father moved out in late 2023.
The father currently lives in an apartment close to the former matrimonial home where the girls share a bedroom. In late 2023, the mother relocated from the former matrimonial home and now resides in Suburb B, approximately 20 km away.
CURRENT LIVING ARRANGEMENTS
The parties were separated under the one roof until late 2023.
After the father moved out, there was a relatively equal care arrangement in place.
In accordance with the Order made on 2 February 2024, the children live with the mother and spend three nights each week with the father during school terms and share school holidays equally.
ORDERS SOUGHT
The Application for Review sets out in detail what orders are sought by the mother.
The orders, which are now the subject of review are as follows:
3. That the children spend time with the Father as follows:
a.During school term from 3:00 pm or after school on Wednesday until 4:00 pm Saturday 4:00 pm.
…
13. That:
…
b. That the Father:
i.attend for an assessment with a consultant psychiatrist to manage his medication and confirm his diagnosis; and
…
f.That both parents to attend therapists at a separate therapy clinic from the children’s therapists at [the C Centre], with clinically endorsed psychologists who preferably have experience working therapeutically in Family Law, separation and mental health.
…
28.That in the event that the Husband or the Wife are not able to spend time with the children as provided for in these Orders for three (3) hours or more, then the other parent shall be given the first opportunity to care for the children and the parties are to provide the other with at lease 48 hours’ notice of their inability to care for the children.
The orders proposed by the mother are annexed to the Review Application and are as follows, noting that aspects of the Application for Review relating to order 13f) and 25a) were resolved by consent:
1That Order 3a) of Orders made 2 February 2024 shall be discharged.
2That in substitution of Order 3a) of Orders made 2 February 2024, pending further Order, the children shall spend time with the Husband as follows:
(a) During school terms,
(i)For the child [Y] from after school Wednesday to before school Thursday;
(ii)For the child [X] from after school Thursday to before school Friday; and
(iii)For both children from after school Friday to 4:00pm Saturday each week;
3That in the alternative to Order 2(a) herein, the children shall spend time with the Husband from after school Thursday to 4.00pm Saturday each week.
4That Order 13b) i) of Orders made 2 February 2024 shall be discharged.
5That in substitution of Order 13b )i) of the Orders made 2 February 2024 that pursuant to Rule 7.05 of the Federal Circuit and Family Court of Australia Rules, the parties shall jointly engage a Single expert Psychiatrist to assess the Husband's mental health and its impact on his parenting capacity, including any diagnosis and treatment plan, if necessary. For that purpose,
(a)the Respondent Wife shall provide the Husband with a list of three proposed Psychiatrists within 7 days and the Husband shall elect a Psychiatrist within a further 7 days. If the Husband does not elect a Psychiatrist within 7 days, then the Wife shall elect the Psychiatrist.
(b)The Husband shall be responsible for the costs of the Single Expert Report at first instance;
(c) The Husband shall attend all appointments made by the Psychiatrist for the purpose of the Report.
(d)The parties shall have leave to provide copies of the following documents;
(i)A copy of the Report of [Dr D] dated 29 January 2024;
(ii) A copy of all Court Orders in these proceedings;
(iii) A copy of all pleadings filed in these proceedings; and
(iv)A copy of the subpoenaed material filed in these proceedings and the parties’ lawyers shall have leave to photocopy material produced under subpoena for the purpose of providing the information to the Expert.
6.That after receipt of the Single expert report provided in Order 5 herein, the Husband shall engage with a treating expert/ medical practitioner in in accordance with recommendations from that single expert, with the Husband to provide quarterly reports on his progress to the Wife's lawyers.
7.That for the purpose of Orders 13b)-13d) of the Orders made on 2 February 2024, the Husband shall within 7 days
(a)make arrangements to organise and attend upon a psychotherapist/ psychologist and shall advise the wife of the name and contact details of his treating therapist;
8.That Order 13f) of the Orders made 2 February 2024 shall be discharged and in substitution of that order:
That the parties shall make arrangements to organise alternative counsellors/ psychologists for the children, with the mother to provide the father with a list of three counsellors in the [Suburb B] area within 7 days and the father shall nominate a counsellor from that list within a further 7 days. If the father fails to make the election, then the mother shall be at liberty to elect the proposed counsellor.
9.That Order 25 of the Orders made 2 February 2024 be varied to provide that the parties have leave to provide copies of the Single Expert Report of [Dr D] to the following people;
(a) [Ms E], the Wife’s treating psychologist; and
(b) Each of the children’s treating psychologists;
(c) The father’s treating psychologist/ psychotherapist and treating expert as per Order 6.
10.That Order 28 of the Orders made 2 February 2024 shall be amended as follows:
"That in the event that the Husband or the Wife are not able to spend time with the children as provided for in these Orders for three (3) hours or more then, in the case of the Husband, first the Wife and then the maternal family or, in the case of the Wife, first the maternal family and then the Husband, shall be given the opportunity to care for the children. The parties are to provide the other with at least 48 hours' notice of their inability to care for the children"
11.That pursuant to Section 68L of the Family Law Act 1975 (Cth) an Independent Children's Lawyer be appointed for the children [X] and [Y] and the Legal Aid Commission be requested to organise such appointment.
12.That the matter be listed for a possible further interim hearing in approximately 6 months' time.
13.That the Husband pay the wife’s costs of the Review.
PROCEDURAL HISTORY
The father filed an Initiating Application on 15 November 2023, which sought both final and interim parenting and financial orders. The mother filed a Response on 19 December 2023. Both parties have since filed amended applications.
The matter first came before the court on 20 December 2023 at which time a variety of mostly procedural orders were made, including the order for the preparation of a family report. A consent order was made requiring two months written notice before selling or transferring any property.
The orders made on 20 December 2023 provided that the family report was to deal with the following matters:
·The father’s application to have the children live in the Sydney area in circumstances where the mother has relocated to Suburb B, New South Wales.
·The change of school for the children, and in particular if X should attend a mainstream school or a special needs school.
·Any agreement reached between the parties.
·Identification of key issues requiring resolution.
·Views of the children and any matters that would affect weight to be placed upon those views.
·The impact of the issues in dispute before the court on the children.
·Any other matters, the expert considers important to the best interests of the children.
Procedural orders were made in chambers on 10 January 2024 and 22 January 2024.
On 29 January 2024, orders were made in Chambers for the release of the single expert report.
On 30 January 2024, an interim hearing occurred. Judgment was reserved aside from orders that were made for the parties to have equal shared parental responsibility, the children to live with the mother, and in relation to schooling, X was to continue in her current enrolment at F School, Suburb G, and Y to continue her enrolment in H School.
On 2 February 2024, judgment was delivered, and orders were made for equal share parental responsibility and the children to live with the mother. The orders provided for the children to spend time with the father during school term from 3:00 pm or after school on Wednesday until 4:00 pm on Saturday, half of the school holidays, with the Christmas school holidays to be as agreed or failing agreement on a week about basis and provision for time at Easter. The order provided for the child X to continue to be enrolled and attend F School, Suburb G and for Y to be permitted to be enrolled in and attend H School. A variety of other child related orders were also made.
The Application for Review was then filed on 23 February 2024.
On 7 March 2024, an order was made restraining the parties from filing further material without leave of court other than accordance with the Rules. Despite this order, the mother filed an affidavit on 18 March 2024, and the father filed an affidavit on 22 March 2024, as well as a tender bundle.
The substantive proceedings are listed for mention on 3 April 2024.
ISSUES FOR DETERMINATION
The Application
The mother filed an application for review on 23 February 2024 in relation to the orders made by a Senior Judicial Registrar on 2 February 2024. As noted earlier, due to the consent orders made, the mother seeks that only orders 3.a., 13.b.i. and 28 be reviewed.
In summary, the mother proposes changes to the time the children are to spend time with the father, that a single expert psychiatrist be engaged to assess the father’s mental health and the impact on his parenting, and upon receipt of a report from the single expert that the father engage a treating expert in accordance with any recommendations made. Further to this, she proposes that the father is to make arrangements to attend upon a psychotherapist/psychologist and inform the mother of same.
The mother sought a further variation in that the parties’ families also be afforded the opportunity to care for the children if both parties were not available.
EVIDENCE
It is noted that orders were made by the court on 7 March 2024 that the parties were not to file further material without leave. Despite that both parties filed further affidavit, tender bundles and outline of case documents, including on the day of the hearing.
The mother
The mother filed an outline of case on 25 March 2024 and relies on the material as set out therein save and except for:
(a)The affidavit of her treating therapist Ms E filed 18 March 2024;
(b)She was limited to paragraphs 17 – 32 of the affidavit filed on 25 March 2024; and
(c)Portions of the tender bundle as reflected in the exhibit list.
The father
The father filed an outline of case on 25 March 2024 and relies on the material as set out therein save and except for:
(a)He was limited to paragraphs 13 – 20, 24 – 26, 28 and 29 of the affidavit filed on 22 March 2024; and
(b)Portions of the tender bundles as reflected in the exhibit list.
Tendered Material
The material tendered as per the exhibit list was reviewed.
Reasons
The reasons of the SJR were not obtained or provided.
Family Report
The court has had the benefit of a family report released on 29 January 2024. Although a short form report was ordered, the family report writer prepared a comprehensive s 62G assessment. The basis for that decision was the nature of the issues which includes the children’s schooling, X being assessed as having special needs, the residence of and distance between the parties, with whom the children live, and the allocation of time spent.[3]
[3] Family Report dated 29 January 2024 at paragraph 1.
The recommendations of the report writer are summarised as follows:
·Equal shared parental responsibility, and the parties to comply with recommendations of any specialist if agreement is not possible, with both parents involved in specialist appointments and consults.
·The children to live with the mother.
·The children to maintain the regular routine and contact with the maternal family.
·If the father is unable to spend time with the children during his time, then the mother or maternal family be next in line for the care of the children.
·For X to attend F School and Y to attend H School.
·For the children to spend time with the father during school terms each week from Wednesday after school until Saturday 4:00 pm.
·On school days (Wednesday and Thursday) for X to use her funding to be transported to H School to be collected by her father with Y.
·On Saturday, the handover to occur at an agreed-upon regular location.
·The maternal grandfather to assist where possible with transportation of the children.
·For the parents to share the school holidays with clear dates and times.
·The child X to engage in occupational therapy and speech therapy as needed at F School.
·For both children to continue with extracurricular activities on Fridays.
·Both parents prohibited from discussing with the children any legal issues, their feelings and emotions about the other parent and financial issues.
·Both parents refrain from disciplining the children, which involves rough handling, hitting, or withdrawing attention or affection.
·X's private occupational therapist to attend both parents’ residences to assist X with daily living skills, routines, toileting/voiding, and to develop consistent routines between houses and with managing and containing X’s aggression towards Y and responding to her challenging behaviours.
·Both parents to attend parenting after separation course.
·Both parents to enrol in J Program emotional coaching of parents’ online course.
·Both parents to obtain and read a copy of “How to separate respectfully without emotionally harming your children”.
·Both parents to attend therapists at a separate therapy clinic from the children’s therapist, with a clinically endorsed psychologist who is experienced working therapeutically in family law and mental health.
·For the father to attend an assessment with a consultant psychiatrist to manage his medication and confirm his diagnosis.
·For the father to attend regular psychotherapy for a period of 12 to 18 months to develop adaptive ways of regulating emotions in relationships.
·For the mother to attend to regular therapy for the next 12 to 18 months to address her anxiety, and overwhelm, managing stressors, and being present in relationship.
·A consideration of the father leaving Australia with the children to visit America once he completes 6 to 9 months of psychotherapy, and he provides full disclosure regarding any mental health diagnosis and medication, and provides a supporting letter from his psychiatrist and psychologist that he engaged in treatment, complied with treatment recommendations, and his mental health is not a risk to the children’s well-being.
RISK FACTORS
There are a number of risk factors alleged in each party’s household and these may be summarised as follows:-
Family Violence
The mother alleges that the father is controlling and provided a letter to the family report writer from her therapeutic counsellor which described the relationship as coercive controlling. It is noted that this is the service where the father attended and where the children also attend.
The father denied any family violence and raised no issues with the family report writer. In his affidavit however, he alleges that the mother was controlling during the relationship.
The police attended on the day that the father moved out.
No family violence orders were sought or made.
The family report writer was of the view that the parties’ psychological vulnerabilities and personality types might trigger each other.[4]
[4] Family report dated 29 January 2024 at paragraph 83 and 84.
Child Safety & Wellbeing
The father alleges that the mother occasionally hit X and is unable to control her levels of anger, frustration and emotional reactivity. He described her parenting style to the family report, writer as “controlling” and “uncompromising”.
The mother made similar allegations about the father, alleging he disciplines the children “harshly”, impacting on Y’s self-worth and fear of her father’s reactions.
Both parents conceded that the children had been exposed to the parental conflict in the form of yelling and arguing.
The mother alleged the father can be intolerant, lack regard for the children’s feelings, be hurtful with his words, and on one occasion pushed Y. Her affidavit provides detailed examples.
The father alleges that the mother was emotionally unavailable and lacking in empathy.
The family report writer was of the view that both parents have impacted the children emotionally and psychologically through their behaviour in the conflict. She emphasised the importance of protecting the children from the conflict and from any denigration or criticism of the other parent.[5]
[5] Family report dated 29 January 2024 at paragraph 43.
The child interviews were particularly enlightening. X commented that her mother was “angry, sad and worried” due to the current circumstances, and the report writer expressed the view that the father’s emotions were “distressing and, at times, overwhelming” for X.
Y was reported as “vigilant to the worries of her parents”. The report writer perceived a risk that she feels responsible in some way as she told the report writer that sometimes “I get up to stop the fights” and she spoke about “squashing her feelings, ignoring her mother and listening to music while her mother yelled”.
Y described her mother becoming easily “frustrated, stressed, and overwhelmed at times she smacks her sister”.
Y also reported that if neither of her parents are emotionally available to her, she listens to music. Importantly, the family report writer stated “[Y] feels responsible for her father’s feelings and said “I feel I have to spend time with him to keep him company” talked about him being “really sad””.
Indeed, neither parent has covered themselves with glory, but Y appears more worried about her father as he has expressed to her that he does not have family support.
Substance and Alcohol Abuse
No party raised any concerns about drug or alcohol misuse.
Mental Health
The father confirmed to the family report writer that he had experienced long-standing mental health issues, in particular a long history of anxiety and depression. He has used medication on and off and done some counselling, but not found the latter useful. He is currently seeking assistance through medication.
The father advised the family report writer that he had been diagnosed with a mental health condition at 29 years old but that he did not know why. The mother’s evidence is that two different psychiatrists have made this assessment – one in the USA and one in Australia.
The mother also reported experiencing anxiety and depression over a long period of time; she takes prescription medication and attends counselling. She also seeks support from her family to manage her feelings.
The mother and children continue with counselling at the C Centre. The father does not. I was not particularly troubled that in forwarding the family report to his treating psychologist the father said that he did not agree with quite a few of the findings. I expect that the mother does not agree with some of the findings – noting that two of the orders that she is seeking to review are in line with the recommendations of the report writer.
It is pleasing to note that the father has acted in a timely way to comply with the recommendations of the family report writer. In particular, he has already attended on a psychologist (on three occasions) and on a psychiatrist. Evidence from each of those was tendered.
The psychiatrist, Dr K provided a detailed report of his attendance upon the father, and gave his impression as follows:
·a mental health condition.
·Nil evidence of psychosis, mania, or major depression on the assessment based on the available information.
·Low risk of harm in the community at the moment.
·Needs ongoing support from his GP and psychologist.
·Follow-up review in 10–12 weeks if stable, earlier if needed.
·Nil regular medications were prescribed.
·Cognitive behavioural therapy and supportive psychotherapy will benefit Mr Ebbing (the father).
·Encourage to continue with the psychologist input/supports.
·GP FU for physical complaints and regular blood test.
·Safety planning regarding the deterioration of mental state and worsening of the risks so that the patient should go to the nearest ED for mental health review.
·Ongoing psycho education of the family or carer/s with the consent of the patient.
The notes from the psychologist reflect that the father first attendances pre-date the court order of 7 March 2024, such that he attended willingly. Submissions were made that were critical of the father on the basis that the sessions appeared not to be child focussed. I note that the recommendation and the order were both to the effect that the purpose was to “develop adaptive ways of regulating his emotions in relationships”. And indeed, on 4 March 2024 he told the therapist that the reasons he wanted to do therapy were:
·Being court ordered; and
·To recover from separation, be there at best for kids, manage stress of ongoing legal issues and difficulties with Ms Ogden (the mother).
(my emphasis)
LEGISLATIVE CONTEXT
Review of a Registrar’s Decision
This is a matter where the court is asked to review a decision of a Senior Judicial Registrar (SJR).
Section 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (“the FCFCOA Act”) provides for judicial supervision of orders made by Registrars under delegated authority by enabling a party to seek a review of an exercise of that power.
Pursuant to r 2.01 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (“the Division 2 Family Law Rules”), the rules which form the Family Law Rules 2021 apply to Division 2 matters including that presently before the court.
Rule 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Family Law Rules 2021”) sets out when a party may apply for a review.
Further, r 14.07 of the same rules sets out the procedure:
14.07 Procedure for review
(1) A court must hear an application for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar as an original hearing.
Note: In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.
(2) The court may receive as evidence:
(a) any affidavit or exhibit tendered in the first hearing; or
(b) any further affidavit or exhibit; or
(c) the transcript (if any) of the first hearing; or
(d) if a transcript is not available – an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
…
Sections 190 and 191 of the FCFCOA Act relevantly provide the Overarching purpose of civil practice and procedure provisions.
I also note the core principles set out in the Central Practice Direction – Family Law Case Management (“Central Practice Direction”).
When participating in proceedings in this Court the parties must act in accordance with r 1.04 of the Family Law Rules 2021 which provide:
Overarching purpose
(1)The overarching purpose of these Rules, as provided by section 67 of the Federal Circuit and Family Court Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
Note 1:These Rules must be interpreted and applied, and any power conferred or duty imposed by them must be exercised or carried out, in the way that best promotes the overarching purpose (see subsection 67(3) of the Federal Circuit and Family Court Act).
Note 2:See sections 190 and 191 of the Federal Circuit and Family Court Act in relation to the overarching purpose of the Rules of the Federal Circuit and Family Court (Division 2). See also the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 which applies these Rules with modifications.
(2) Parties to family law proceedings must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
Interim Parenting
This application is governed by the principles set out in Part VII of the Act. I will be generally guided by s 60B of the Act which sets out the objects of Part VII of the Act and the principles underlying it. In making parenting orders, s 60CA and s 65AA of the Act provide that the best interests of the child are the paramount consideration.
Section 60CC of the Act prescribes the various “best interests” considerations that the court is obliged to consider in arriving at its determination.
Section 60CC(2) sets out the two primary considerations, described by Justice Brown in Mazorski & Albright [2007] 37 Fam LR 518 as “twin pillars”. I am required to give greater weight to the second of the primary considerations which is the need to keep the children safe from harm.
The “additional considerations” are set out in s 60CC(3) of the Act and I am required to consider all of those issues including parental capacity, the extent to which each parent has fulfilled their parental responsibilities cultural matters and family violence. No greater weight is placed on any particular additional consideration.
That legislative pathway is set out in the case of Goode & Goode (2006) FLC 93-286 and is well known to the counsel and legal practitioners in this matter.
The court must ensure that any order made is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence. To the extent that doing so is consistent with the child’s best interest being treated as paramount (s 60CG of the Act).
In MRR v GR [2010] 240 CLR 461 the High Court stated that ss 65DAA(1)(a) and (b) and s 65DAA(2)(c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable to order equal time or significant and substantial time.
In Isles & Nelissen (2022) FLC 94-092, the Full Court reviewed and clarified the law as regards the assessment of risk, and in particular the relevant standard of proof. As the law now stands, the civil standard of proof does not apply and we are directed that “[r]isks of harm are not susceptible of scientific demonstration or proof (CDJ v VAJ (1998) 197 CLR 172 at [151]) but are instead postulated from known historical facts and present circumstances”.[6] The Full Court further stated:[7]
The real question was not one about the father’s tendency, but rather whether or not there was an unacceptable risk of harm to the children, which entails a forecast. It is not a fact capable of empirical proof. Any evidence which is relevant to and influential in that predictive inquiry is admissible and should be taken into account (presuming it survives any other applicable rules of evidence), regardless of whether it meets the definition of and the threshold requirements for admissibility under the tendency rule.
CONSIDERATION
[6] Isles & Nelissen (2022) FLC 94-092 at [7].
[7] Isles & Nelissen (2022) FLC 94-092 at [104] and [105].
Submissions and Discussion
The court has had the benefit of written submissions and outlines and oral submissions. I have addressed those throughout these reasons.
Section 60CC(2) The primary considerations are:
It is ideal that children have meaningful and loving relationships with both parents. This issue is however secondary to the need to keep children safe from harm.
In assessing risks, the court must balance the harms alleged or existing in each household and the risks that may arise from making any changes. The court does not wait until the last piece of evidence is in place as the Full Court said in the case of Deiter & Deiter [2011] FamCAFC 82:
61. The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
In assessing risk, the court looks at the possibility rather than probability of the risk, and the severity of consequences of the potential risk.
Certainly, I am unable to make findings about matters in dispute such as the allegations of family violence. But I must act protectively of the children and ensure their safety and well-being.
I am easily able to find that these parents have failed to protect the children from the conflict and the children have suffered emotional and psychological harm as a consequence. They have each conceded their failures and the consequences are reflect in what both children have said to the family report writer about their worries and feelings about that. It is littered throughout their interviews.[8]
[8] Family report dated 29 January 2024 at paragraphs 61 – 75.
I am satisfied that the father is using his best endeavours to address his mental health challenges. I do not agree that his counselling records do not reflect a child focus.
The psychiatric report was reassuring, not only in the assessment of low risk but that safety planning had been undertaken in the event of any deterioration and that the father had willingly shared the records; providing an authority to provide the records to the mother immediately upon request.
Similarly for the psychiatric records, I found these reassuring and reflected the father is child focussed; in addressing his own issues the father is addressing his emotions and protecting the children in future.
Section 60CC(3) The additional considerations
The focus here in this matter is rightly on the risk factors. I shall however briefly review the additional considerations.
This is a matter where I could place little weight upon any wishes or views expressed by the children about time spending arrangements. This is because they have been exposed to the parental conflict and already clearly feel a burden of responsibility for their parents – particularly for the father. Also, because X has special needs and Y is only nine years old. It is too much burden upon them to even consider their views as holding any significant weight at this stage.
The parents dispute each other’s involvement in the care of the children and they each make allegations about poor parenting and indeed at times abusive parenting on the part of the other. This is witnessed by the lengthy affidavits filed which focus significantly on the allegations each makes about the other.
The issue of travel is raised, as the parents no longer live in close proximity to each other. Both parents give evidence that the children are accustomed to travelling those sorts of distances regularly to see the maternal family and for extracurricular activities. Further, the father’s affidavit evidence as to his travel and care arrangements appear sensible and child focussed.
X has special needs. The family report writer was able to provide some real insights, including X’s reluctance to make eye contact, her spelling difficulties, and challenges with basic mathematics.[9] She reported that although X could read feelings she was “muddled” by them, and angry feelings left her unsure.[10] Both parents acknowledged that they have exposed her to the parental conflict, and she is ill equipped to cope with that.
[9] Family report dated 29 January 2024 at paragraph 61.
[10] Family report dated 29 January 2024 at paragraph 63.
The family report writer reviewed the transition to high school report dated late 2023 completed by X’s current occupational therapists. She spoke of X’s complex, multifactorial special needs, that she has weekly occupational therapy, weekly social skills group, and psychological intervention. She referenced a cognitive assessment of X completed in late 2021.[11] That cognitive assessment report states:
…whilst not explicitly meeting a DSM – V criteria for an intellectual disability, there’s enough information to suggest [X] has a mild intellectual disability with a full–scale intelligent quotient (IQ) of approximately 70.
[11] Family report dated 29 January 2024 at paragraph 68.
The family report writer was very clear that the assessment means that X could not manage the national curriculum. She formed the view that mother had a realistic and considered understanding of X’s needs. She recommended both parents attend on a child and adolescent clinical psychologist experienced in the area for further assistance.[12]
[12] Family report dated 29 January 2024 at paragraph 81.
The family report writer formed the view that parties had not really discussed and certainly had not agreed how to best support X.
Considering the father’s suggestion to the family report writer that X should have a second assessment undertaken and his other comments to the family report writer, she formed the view that “he has not been able to integrate the permanency of neurodevelopmental disorders”.[13] In her view this raises questions as to the father’s capacity to manage, process and support X.
[13] Family report dated 29 January 2024 at paragraph 68.
Y also needs support. The family report reflects the impact on her of having a sister with special needs and her feelings of hurt, shock (when her sister hits her), loneliness and the feeling that she never gets attention.[14]
[14] Family report dated 29 January 2024 at paragraph 72.
It was also troubling that Y described her father as sad and felt a need to look after him. The details on the report reflect her feeling the need to assume a caring and responsibility role in the family.[15]
[15] Family report dated 29 January 2024 at paragraphs 73 and 75.
X also reported physical discipline from both parents, which must stop.[16]
[16] Family report dated 29 January 2024 at paragraphs 64 and 65.
Both children report exposure to the parental conflict, and the parents’ angers, sorrows and the struggles they feel as consequence of that. This too must stop.
I am of the view that it is not appropriate to take the children to the father’s workplace, but note his evidence that he will not do so again.
DETERMINATION
This is a very narrow field of review. I am not asked to review the entire order – only portions thereof which I address below.
Order 3.a.
Instead of the block time ordered by the SJR, the mother proposes either that each child have a one on one overnight with the father and then one overnight where they both attend, or in the alternative that their time with the father be reduced by one overnight each week.
The mother’s affidavit evidence is that she considers this will be better for the children, to have time away from each other, so they don’t have to compete with each other for attention.[17]
[17] Affidavit of the mother filed 19 December 2023 at paragraphs 143 & 144.
There is some weight to that with X’s special needs, the challenges Y faces dealing with her sister and Y’s feelings of loneliness, as expressed to the report writer. I have also considered that the report writer was aware of this proposal and did not support it. This may be because the girls are at two different schools and have different extra-curricular activities such that it may be important for them to spend other time together. There can be real challenges faced where children may feel left out – as already noted in the family report – if one goes to dad’s and the other does not, even where it is turn around.
I do not accept the submission that the family report writer’s choice to prepare a comprehensive report rather than a short form report should be the basis for decreasing the children’s time with the father. As noted earlier, there were a number of reasons given for this choice and one of them was not the father’s mental health or other risk factors in his care alone.
I note that the mother does not object to the school holiday time. While I accept the submission that holiday time is very different and much less stressful than time on a school day, the father’s routine as set out in his affidavit reflects that he has gone to great lengths to put in place a weekday routine that is child focussed.
I do not agree that there is a disconnect between the report writer’s concerns and her recommendations. She was concerned about both parents. I am however of the view that she had greater concerns about the father but that is reflected in her recommendations.
I would be reluctant to do anything that increased changeovers in a case where there are allegations of coercive control.
The mother expresses the view that the father will find it easier to manage if he only has the girls together for one night.[18] No doubt this would be true for either parent, as on the evidence that are allegations of challenges and needs for support in both homes. I do not find that argument persuasive.
[18] Affidavit of the mother filed 19 December 2023 at paragraphs 145 – 149.
The children have already experienced huge changes, including the separation of the parents, change of homes, and change of schools. To reduce or change their time with the father further at this stage is not supported by the evidence.
Whilst the family report is not decisive, at an interim stage I would need to be pointed to significant evidence to persuade me to disregard it, and that is not the case here. Quite the reverse where it appears that the father is actively working to better manage his behaviour.
The father is actively working to address the issues raised by the family report writer and comply with the recommendations she made as regards treatment and educating himself about the children’s needs. He has taken steps to ameliorate the risks in his care.
Having considered those matters I do not propose to vary the orders made by the Senior Judicial Registrar as to the children’s time with the father.
Order 13.b.i.
Rather than the father attending on a consultant psychiatrist to manage his medication and confirm his diagnosis, the mother seeks that a single expert be appointed.
I am of the view that it is premature to order a single expert assessment of the father. Not only has he acted speedily to follow the family report recommendations to see both a psychiatrist and a psychologist and to enrol in courses, he has also been open and provided authorities so that his counselling and psychiatric records were made available to the mother.
Once he has attended for treatment for a while, it may be appropriate to undertake a single expert assessment, but I am not of the view that such an order should yet be made.
Order 28
This is the first option to care or babysitting order, which provides that if a parent is unable to care for the child for more than three hours, they are to give the other parent first option to care.
The mother proposes that she be the first option to care for the father and then if she is not available he offer the opportunity to her family. In her case she proposes the first option to care goes to her family and only then to the father.
The mother’s evidence is that the father’s family live in America and her family have always been significantly involved in the children’s care.[19] That is undisputed. This is also supported by the affidavit of the maternal grandfather. The father does not have in Australia the loving family supports that the mother has.
[19] Affidavit of the mother filed 19 December 2023 at paragraphs 131, 134, 157 – 161.
Documents were tendered that reflected the difficulties and correspondence that have already arisen between the parties because of this order. It is clearly only leading to more angst and conflict. In a case where there are allegations of coercive control, that is the last thing the court wishes to have.
I therefore propose to discharge this order. The parties are loving and capable parents and I trust that they will each make appropriate arrangements on the occasions they cannot themselves care for the children. I do not propose to dictate the first option to care where so much dispute has arisen from it already.
As the father’s evidence is that he will no longer work on the Friday night, that issue will not again arise. I did consider leaving the order in place but just referencing the father as in terms of the family report recommendation, particularly given X’s special needs. I have however prioritised a lessening of the conflict as best promoting the welfare of the children.
Further Interim Hearing
The mother sought that an order be made for a further interim hearing in six months. This was not however pressed at the hearing. In any event, proceedings do not lurch from one interim hearing to another. The Central Practice Direction makes that clear. If either party thinks another interim hearing is needed in six months’ time, then they can try to persuade a court of that.
CONCLUSION
I am satisfied that the orders that I now make are in the best interests of the children, X and Y.
I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cope. Associate:
Dated: 5 April 2024
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