Ogilvy and Leak

[2016] FamCA 111

FAMILY COURT OF AUSTRALIA

OGILVY & LEAK [2016] FamCA 111

FAMILY LAW – PARENTING – procedural - After a parenting plan has failed to reintroduce a child to the father, the father seeks to litigate - Health professionals dealing with 12 years old child should be asked to provide details to a single expert witness child psychiatrist to give advice to the Court as to what steps should next be taken about the question of the reintroduction.

Family Law Act 1975 (Cth)

APPLICANT: Mr Ogilvy

RESPONDENT: Ms Leak

FILE NUMBER: MLC 4911 of 2012

DATE DELIVERED: 29 February 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 23 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson

SOLICITOR FOR THE APPLICANT: Randles Cooper & Co Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Glezakos

SOLICITOR FOR THE RESPONDENT: Le Brun Glezakos Lawyers

Orders

1. That the father and the mother provide to each other and to Dr B all such documents as may be in their possession with a joint request that he read the documents including the reasons for judgment this day, and thereafter (if he considers it appropriate) to speak to the treating health professionals responsible for C (the child).  Thereafter, that Dr B provide a report to the Court as to what steps (if any) might be taken in respect of proposed litigation concerning the child or what programs (if any) might assist in relation to the reintroduction of the child into the life of the father (and vice versa).

2. That each of the parties sign all necessary authorisations to enable Dr B to speak to the relevant health professionals.

3. That all extant applications are otherwise adjourned for mention at 9.00am on 22 April 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ogilvy & Leak has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4911 of 2012

Mr Ogilvy

Applicant

And

Ms Leak

Respondent

REASONS FOR JUDGMENT

1. Mr Ogilvy (the father) filed an initiating application on 8 December 2015 seeking both final and interim orders to have time with the child C now aged 12 years. He has not seen the child for over 4 years. The application sought a regime of contact but also other orders that are not immediately relevant. The application was listed on 21 January 2016 on which day it was adjourned until 23 February 2016.

2. On 17 February 2016, Ms Leak (the mother) filed a response which, in respect of both interim and final orders, seeks a dismissal of the father’s application. She seeks costs on a “full indemnity” basis.

3. Each of the parents relied upon an affidavit.

4. The father’s counsel changed the focus from what I have described above and sought that the case be adjourned and that in the interim, a report be prepared by psychiatrist Dr B to give advice to the Court as to what should happen here. That course was opposed by the mother who, when pressed, agreed that if any report was to be prepared, it should be by Ms D, the psychologist who has had involvement to date as a family therapist.

5. For the reasons that follow, I consider the appropriate way to manage this case is to have Dr B at least contemplate whether there any particular course that should be followed.

6. The earlier and substantive parenting dispute had begun in 2012. The breakdown of the parties’ then marriage, ended with police intervention, the removal of the father and an intervention order being made against the father. Whatever occurred, the child adopted a position of not wanting to have contact with his father.

7. In January 2014, at the point at which a parenting trial was to commence, the parties reached agreement. Two significant things happened at that time. First, the extant parenting proceedings were struck out with a right of reinstatement to be exercised within 18 months. That time has now expired and no application had been brought within time. Thus, the application before the Court is a new application.

8. Secondly, the parties reached consensus through what was described as a “parenting plan” under which the father’s time with the child was to commence if the therapeutic counsellor (Ms D) so recommended and had written a report. The father had to otherwise also complete other “preconditions”.

9. As I observed in discussion with the practitioner explaining this “plan”, it had a Kafkaesque ring about it. Two years on, there has not been any reintroduction between the father and the child. That makes the question of the mother’s proposal of a dismissal of the father’s application perplexing. The only conclusion one can draw is that the mother sees no possible benefit to the child, in at least the foreseeable future, in having a relationship with the father.

10. The father’s proposal (at least as set out in his formal application) is also problematic. He seeks final orders for what might otherwise appear to be normal parent/child contact relationships. On the current evidence, that could not occur.

11. Within this complexity, there is also irony. The father’s application (of which the mother seeks dismissal) pursues an order for equal shared parental responsibility for the child. In January 2014, each of the parents agreed, by their parenting plan, for them to have equal shared parental responsibility. Nothing in the evidence indicated that there has been any consideration of s 65DAC of the Family Law Act 1975 (Cth) (“the Act”).

12. By his evidence, the father simply said that he had complied with all of the terms of the parenting plan but (to paraphrase) nothing had advanced. He relied upon a report by Ms D written in August 2015 to which I shall turn in a moment.

13. By her evidence, the mother opined that there was no “proper basis” for the application of the father particularly when “therapeutic counselling processes” were continuing as agreed (in the parenting plan). I am not sure what that means when one considers what Ms D wrote last August.

14. The mother went on to describe the child’s problems and indicated that he was being treated by psychiatrist Professor E and clinical psychologist Ms F.  The child also has an educational psychologist.

15. The mother’s evidence set out a combination of her observations of the problems of the child but also how the treating professionals saw things.  In respect of these proceedings, the mother reported that as the child had been made aware of the father’s application, he had become aggressive, dangerous (to himself) and had talked of taking his own life.

16. Counsel for the father cautioned about placing weight on the mother’s evidence because it was “unreliable”. That submission was based on some of the facts reported in the affidavit which were alleged to be misleading or inaccurate. It is not necessary for me to make any findings in this case because of the discussions that arose as to how the parenting dispute should progress. As I observed, the mother’s position of simply dismissing the father’s application means that from her perspective, there is to be no relationship between the father and the child. Whilst that may ultimately be the outcome of any litigation, the father’s position is that he has done all that was required of him, and nothing has advanced. The mother was reported by Ms D as having a desire for the child to have a relationship with his father but the psychologist opined:

    She (the mother) could not condone it at the present time as her own experience of (the father’s) behaviour continued to be the frame from which she sees future relationships.

    I confess that I do not know what that means.

17. The mother relied upon the views of Professor E and Ms F but there was not a report filed by either. The solicitor for the mother submitted (and I agree) the approach taken by the father at this hearing (as distinct from his formal written application) was now different. It would seem that the mother had responded to the written application. On any view, the father’s interim application on the present evidence was a long bow to draw.

18. Having said that, I consider the input of the child’s treating experts critical before any relationship is contemplated. In my view, some person needs to co-ordinate that input with objectivity and in a forensic. In my view, the suggestion of Dr B makes sense. Before dealing with why that is so, it is important to contemplate what Ms D had to say.

19. Ms D was the therapeutic intervener who wrote her report dated 21 August 2015. It is not clear why the report was commissioned last August as the father did not bring his application until December. The last involvement of Ms D appears (if the report is accurate) to have been months ago. The last discussion with the parents was in the middle of 2015.

20. Ms D noted that the parents saw the reasons for the child’s rejection of his father differently but it would seem there is no doubt about the rejection.

21. Despite that statement that the mother wanted the father and the child to have a relationship, Ms D detected an underlying ambivalence about the child’s readiness.

22. Ms D described the child as a highly intelligent but emotionally stunted child who spoke in an adultified manner. The observation of the psychologist was that the child was angry and rejecting of his father. The child threatened that he would take his own life if forced to see his father. The child was said to have understood that Ms D’s role was to prepare all members of the family “to reconnect” but when attempts were made to do so, threats including of self-harm. The child’s treating psychologist and the therapist had discussions endeavouring to progress the therapist’s role but that still saw a continuation of the child’s rejection of the father. Ms D observed that she and the treating psychologist have different views about the child’s emotional maturity.

23. The therapist reported that there was “no current resolution” to move to a reintroduction.  She said:

    The concern for this writer is that the more focus that there is on [the child] the more he embeds in his memory any episode, however minor, that may have characteristics of tension or alleged abuse. This is the lens through which he sees his father and ongoing revisiting of his concerns about his father, which is the source of his anger, is now counter-productive.

24. The mother’s position is that Ms D should prepare a report as to what to do next. I think that has already occurred as indicated by the statement set out above. It may be that a view should be obtained from Ms D about what she considers should happen next specifically in the context of what is now becoming a question of litigation.  I consider, on what I have read, that Ms D could probably only explain what she has observed and that, absent fresh interviews, she does not see a reintroduction for the child and his father. Whilst the mother’s evidence was that the father’s application should not proceed whilst there is ongoing therapy, Ms D seems to say that there is little more she can do in that therapy. It may be that there is now a far greater role for the treating experts than the therapist. Thus, the role of the Court becomes apparent.

25. The father’s position was that Dr B had undertaken a family report in 2012 and that if he was provided all of the current material and given authority from the parties to speak to the therapist and treating experts, he may be able to say to the Court what steps should be taken. That approach would not require further interviews having regard to the comprehensive report in 2012.

26. Division 12A of the Act requires the Court to contemplate how a parenting matter should proceed and how issues should be limited. Of the two proposals, the more forensic seems to me to be that of the father. The mother’s proposal of a dismissal of the father’s application leaves the parenting plan in place and going nowhere. The proposal of a further report from Ms D seems likely to require further interviews where the father’s position is known and has not altered and the child is resistant to having anything to do with the process, let alone, his father.

27. I find therefore that a co-ordinating role which is contemplated by s 69ZQ (1) (a) and (d) along with ss 69ZR(1)(c) and 69ZX (1)(d) all point to the conclusion that Dr B should be asked for a view as to how the next step (if there is one) should be taken.

28. I propose that, subject to Dr B’s views, the matter should come back in about 6 weeks whereupon consideration can be given whether the litigation proceeds and if so, on what basis.

29. There will be orders accordingly.

I certify that the preceding Twenty Nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 29 February 2016.

Associate: 

Date: