Olssen and Wise
[2014] FCCA 1594
•24 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OLSSEN & WISE | [2014] FCCA 1594 |
| Catchwords: FAMILY LAW – Interim parenting contest – long-time existing consent parenting orders – Father’s unilateral action to take child to psychologist – involvement of other children in psychological testing without notice to or consent of Mother – significant questions of lack of proper process – consideration of embroilment of children in parenting dispute – consideration of “practical injustice” (including procedural fairness) in family law processes. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC(1) & (2), 60CC(3)(a) – (k) Federal Circuit Court Act 1999, ss.3, 14, 42 |
| Cassidy & Cassidy [2009] FamCAFC 125 Collu & Rinaldo [2010] FamCAFC 53 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Dobbs v Brayson (No.2) (2008) 38 Fam LR 95 Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 KPR & MRS [2007] FamCA 1334 McCall v Clark (2009) 41 Fam LR 483 Maluka v Maluka (2012) 45 Fam LR 129 Mazorski v Albright (2008) 37 Fam LR 518 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 Moose & Moose (2008) FLC ¶93-375 RCB as litigation guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest (2012) 247 CLR 304; [2012] HCA 47 SCVG & KLD [2014] FamCAFC 42 Sigley v Evor (2011) 44 Fam LR 439 Shaeffer v Jacobs (2011) FLC ¶93-468 Slater v Light (2012) 45 Fam LR 41 |
| Applicant: | MR OLSSEN |
| Respondent: | MS WISE |
| File Number: | CAC 27 of 2012 |
| Judgment of: | Judge Neville |
| Hearing date: | 10 July 2014 |
| Date of Last Submission: | 15 July 2014 |
| Delivered at: | Canberra |
| Delivered on: | 24 July 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Armstrong Legal |
| Solicitors for the Respondent: | Watts McCray |
| Solicitors for the Independent Children's Lawyer: | Legal Aid, ACT (appointed subsequent to interim hearing) |
ORDERS
The existing orders of 2008 shall continue;
The children X (born (omitted) 2000), X. (born (omitted) 2002) and Z (born (omitted) 2003) (“the children”) are to be returned to their Mother at the earliest possible time in accordance with the 2008 orders, but only after the Independent Children’s Lawyer has been able to speak with them as noted in these orders;
Absent a medical emergency, and excepting regular health issues (e.g. colds, flu and similar common ailments) both parents are restrained from taking the children to see any health care professional (including any psychologist) without the prior written notice to (a message via email or SMS will be taken as written notice), and agreement of, the other parent, or order of the Court;
Pursuant to the 2008 and 2012 orders, the children are to attend their current schools;
Within 7 days of the date of these orders, the parties (and the Independent Children’s Lawyer) are to advise the Court whether a Part 15 expert should be retained to provide a report that would involve both parents and the children, or whether a report be prepared by a Regulation 7 consultant, which report is to include psychological testing used in family law proceedings;
The Independent Children’s Lawyer is requested to explain these orders to the children, and is further requested to inform them that their Mother has advised the Court by way of sworn affidavit that she will not take any adverse action against the boys as a result of any view expressed by them recorded in the material currently filed with the Court.
The Court requests that Independent Children’s Lawyer provide a copy of these reasons to Ms S, and to the expert to be appointed.
IT IS NOTED that publication of this judgment under the pseudonym Olssen & Wise is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 27 of 2012
| MR OLSSEN |
Applicant
And
| MS WISE |
Respondent
REASONS FOR JUDGMENT
Introduction
This somewhat urgent, interim matter began because of a cough, a visit to the doctor and (hobby omitted) that involved 12 year old Y. It has now escalated, indeed, snowballed into a contest that has engulfed his brothers X (aged 14) and Z (aged almost 11), and now concerns (from the Father’s perspective at least) issues of the mental health of all the boys and a change in residence. This is against the further context of final parenting orders having been made by consent in 2008, which provide for a shared care/equal time/week-about arrangement between the households of the parents.
Most unfortunately, because of recent events detailed in these ridiculously long reasons, the boys have been, and remain, caught up in an appalling, almost ceaseless war between their parents.
I say “almost ceaseless” and “appalling” not only because of the number of times the matter has been before the Court, accepting that there have been consent orders a number of times, but also because of the comments from the limited issues report, dated 8th May 2012. In that Report, the following is recorded (para.3.8): “At the conclusion of the interview X was asked if there was anything that he wished [the family consultant] to convey to his parents. “[He said] Only ask them if they could get along. They fight over everything. He said that he did not expect their relationship to change no matter what was said to them at this point.”
This is a truly disturbing assessment by the oldest child of the relationship. Regrettably, the parents have not heeded his advice; his comments have proved to be completely accurate. Indeed, the current matter might be described as a textbook example of how not to do things – for reasons set out below.
That said, it is certainly surprising that, notwithstanding the extremely difficult and regularly bitter relationship between the parents (who both agree on this point), consent orders in relation to parenting generally were made by this Court in 2008, and again in 2012 in relation to schooling.
Parenting of the boys seems to have proceeded without too much grief – at least in a formal, litigious sense – since the making of those orders. This only makes the current contest even more disturbing, because, as noted shortly, what started out as a discrete issue involving Y and his desire to do more (hobby omitted) (or his persistent cough), has now escalated into an almost astonishing full-scale contest over the residence and the mental health of the boys.
With all the usual qualifications from Full Court authority, not least about the extreme difficulty (not to mention danger) in making any findings in interim proceedings, especially where, as here, the Court has a very significant amount of ‘he said – she said’ claims, the following remarks deal with matters of procedure first, then with the competing proposals and contentions.[1]
[1] See the comments by the Full Court in Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 at [81] & [82]. See also the further, more recent comments, also by the Full Court, in SCVG & KLD [2014] FamCAFC 42 at [71] ff.
Orders Sought & Principles of Procedure in Interim Hearings
The orders sought by each of the parties is set out below, thus:
Father’s Orders Sought
1) That the Orders 1, 4, 5, 6, 7 and 8 of Orders made 9 December 2008 be suspended.
2) That until further order the children, X born (omitted) 2000, Y born (omitted) 2002 and Z born (omitted) 2003 (“the children”) live with the father.
3) That pursuant to s.68L of the Family Law Act (1975) an Independent Children’s Lawyer be appointed for the children and the Legal Aid Office ACT is requested to facilitate such appointment as soon as possible.
4) That upon notification of the identity of the Independent Children’s Lawyer, each party shall within 7 days provide to the Independent Children’s Lawyer a copy of all documents filed by them in these current proceedings.
5) It is noted, that the parties agree that both parties and the children separately attend upon Ms S for the purposes of family dispute resolution pursuant to S10F Family Law Act (1975) and that Ms S a Family Dispute Resolution Practitioner shall determine the appropriate course to take including conferences with the children and each of the parents and a conference with both parents together in order to assist the parties resolve matter.
6) It is noted that, the costs of the children’s attendance and any joint attendances by the parties upon Ms S shall be shared equally between the parties and otherwise each party bear the costs of their own attendances upon Ms S themselves.
7) That within 7 days the father shall provide to Ms S a copy of Dr M’s affidavits filed in these proceedings and in the event the mother has provided her affidavit to Ms S then the father is permitted to provide his affidavits to Ms S.
8) That the mother may communicate with the children by telephone or Skype each Sunday between 5:00pm to 6:00pm.
9) That the children may contact the mother at any reasonable time they wish to do so by telephone, email or text.
10) The mother be and is hereby restrained from using any form of recording device in any counselling or family dispute resolution session or any phone call with any of the children.
11) That the matter be adjourned for a period of two months to permit family dispute resolution to occur and the Independent Children’s Lawyer to be appointed.
12) That the court date of 14 July 2014 be vacated.
Mother’s Orders Sought
1) That pursuant to section 67U of the Family Law Act 1975 a recovery order issue authorising and directing the Marshall or Deputy Marshall of all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia to find and recover the children X born (omitted) 2000, Y born (omitted) and Z born (omitted) 2003 ("the children") and deliver them to the mother forthwith.
2) That the father forthwith return the children to the mother.
3) That the children live with the mother for a period of three weeks and the Orders of 9 December 2008 be suspended during that time and thereafter the children spend time with the parties pursuant to the Orders made 9 December 2008.
4) That the mother and children attend upon family and child psychologist Ms S for the purposes of counselling as directed by Ms S and the father is to facilitate the children attending when they are in his care.
5) That pursuant to Section to Section 68L of the Family Law Act 1975 an Independent Children's Lawyer be appointed for the children and the Legal Aid Office (ACT) is requested to facilitate such appointment as soon as possible.
6) That upon notification of the identity of the independent children's lawyer, each party shall forthwith provide to the Independent Children's Lawyer a copy of all documents filed by them in the proceedings.
7) That the parties forthwith take all steps necessary to arrange for a family report to be prepared in relation to the parties and children by child and family psychologist Ms W with the cost of the report to be equally shared between the parties and to be released to the parties by the end of September 2014.
8) That the father be restrained by way of injunction from taking the children to Dr M.
Subject to what is said later in these reasons, including more recent comment by the Full Court in cases such as Slater v Light about the order in which a Court treats the various parts of the legislative scaffold in Part VII of the Family Law Act 1975 (“the Act”),[2] and by what has even more recently been said by the Full Court in SCVG & KLD,[3] a convenient jurisprudential touchstone for the following discussion is the summary of principle by Brown J in Mazorskiv Albright in relation to Part VII of the Act, noting, of course, that there have been significant changes to the primary and additional considerations in relation to “family violence”. Respectfully, and cognisant of the ‘family violence’ changes to the ‘pathway’, I adopt Brown J’s overview of relevant sections (and principles) of Part VII of the Act. Her Honour’s comments should, of course (as I have said), be considered in the light of relevant statutory changes, for example, to s.60CC(3)(c).[4] At [3] – [6] her Honour said:
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[2] Slater v Light (2012) 45 Fam LR 41. Given that there is a later decision by the Full Court in the same matter, reported under the same name in (2013) 48 Fam LR 573, I assume that the 2012 judgment should be referred to as “Slater v Light (No.1)”.
[3] SCVG & KLD [2014] FamCAFC 42 at [73] ff.
[4] Mazorski v Albright (2008) 37 Fam LR 518. Her Honour’s remarks in relation to the “twin pillars” have been consistently cited with approval by the Full Court, for example in Moose & Moose (2008) FLC ¶93-375; McCall v Clark (2009) 41 Fam LR 483; Sigley v Evor (2011) 44 Fam LR 439; Shaeffer v Jacobs (2011) FLC ¶93-468; Maluka v Maluka (2012) 45 Fam LR 129.
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[5]
[5] Brown J’s remarks in this regard have been endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335] similarly approved Brown J’s remarks.
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) – (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Procedural & Related Issues
A quite remarkable level of detail and information has been provided in the small blizzard of affidavits filed thus far, including two from a psychologist filed on the Father’s behalf. Curiously perhaps, and as noted earlier in these reasons, the issue that seems to have triggered the storm of paper and the contest it records is Y’s desire to do more ‘(hobby omitted)’ and/or a cough that led to a visit to a GP To speak somewhat colloquially, it has been all ‘down-hill’ since then.
By ‘procedural & related issues’, I note the following in ascending order of concern.
First, there is a complaint by the Father (detailed in his affidavit in reply filed 10th July) that, somehow the Court gave some sort of precedence to the Mother’s Response, whereas he protests that his Application should have been listed urgently, as had been requested. Respectfully, this is a somewhat childish foot-stamping remonstration – for the following reasons.
The Father’s Application was filed on 26th June. His solicitor wrote to the Registrar of the Court seeking an urgent listing. It was listed for 14th July, thus some three weeks after it was filed. It was the Registrar’s decision that the matter was allocated a first return date in the next available duty list. The Father’s Application was dealt with solely by the Registrar; it was not referred to my Chambers to assess whether it warranted an earlier listing. I suggest that a listing within 21 days was not untoward in the circumstances outlined in the Father’s material, and having proper regard to the long-standing consent orders for shared care since 2008.
The Mother’s Response was filed on 4th July. The Mother’s material, which was referred to my Chambers, made it plain that there were a large number of issues clearly in contest between the parties. Together with the significant number of matters already listed in the duty week commencing on 14th July, the matter was allocated an earlier date simply to ensure that both parties, and the Court, had sufficient time to deal with the issues that were then patently in dispute, but which were only crystallised, so to speak, upon the Mother’s material being filed.
The Court should not have to waste its time and resources by dealing with procedural protests in an affidavit by a party, especially in circumstances where there is a difference of 4 days between the two listing dates. People surely have better things to do with their time and money than protest about such minutiae.
A second area of procedural concern relates to what might be called the throwing of stones by people in glass houses. One example will suffice.
In paragraph 6 of the Father’s affidavit in reply (the terminology is his), he protests that the Mother’s affidavit, filed on 4th July, wrongly stated, at para.11, the date of the [more recent] consent orders, which were, he rightly points out, made by consent in 2012, not 2014.
The date of orders, of course, speaks for itself. However, in para.8 of the Father’s original affidavit, he stated (emphasis added): “On 4 June 2014 final orders were made in relation to X’s schooling. Annexed hereto and marked with the letter ‘B’ is a copy of those orders.” Thus, it is immediately apparent that the dart directed at the Mother for her reference to the incorrect date (of 2014) of the orders had, in fact, also and firstly been recorded incorrectly by the Father. Further, the 2012 orders actually deal with the schooling of all of the boys, not just X, as indicated in the Father’s material. To state the obvious: one should be very careful in accusing the other party, at least without having double-checked dates and such things.
Respectfully, I suggest that so-called reply affidavits should be used very cautiously, as well as sparingly. More often than not they simply confirm matters in issue that have been traversed in the original documents. And absent genuinely independent third party evidence, as already observed, it still leaves the Court in a basic ‘he said – she said’ situation in interim hearings. I leave questions of the cost of such documents for the parties to consider.
Here, all the reply affidavit has done is highlighted that the Father made the same error in wrongly recording the date of the 2012 orders as did the Mother, and focussed more time than was necessary by the Court on errors that do not assist in the resolution of more substantive issues. And the reply affidavit [again] essentially puts in issue matters about which the Court cannot make any useful or proper determination at an interim hearing.
Of course, I should not be heard to say that details are unimportant. To the contrary, they are important always. But in order to assist, it has to be relevant detail; the complete detail here was the correct date of the orders (which is readily ascertainable from the Court file, as well as the copy of them annexed to the Father’s affidavit), and the detail of those orders, which relates to all the children of the Application, not just X, as the Father’s affidavit states.
Again, because it is raised specifically, the Court has had to expend yet more time in looking at matters that detract and distract, rather than assist in the determination of the principal issues.
There is a third, and much more substantive issue of process here, which is also relevant to the parenting matter proper. The issue relates to the Father taking Y, and then the other boys, to see Dr M, a psychologist. There are a number of issues here.
The concerns relate, inter alia, to certain inconsistencies between what is in the Father’s material and what Dr M states in her affidavit material regarding (a) the scheduling of appointments, (b) the purposes of them, and (c) who would attend them. Dr M filed two affidavits on behalf of the Father: on 24th June and 8th July.
The Appointments with Dr M
In the Father’s primary affidavit, he deposed, at para.14 ff that in mid- and late January of this year, he noticed Y to be upset. Then at para.19 he deposed that on 16th April he took Y to the GP for the purpose of checking out a cough. There is no information about what happened about Y’s upset/anxiety between January and April, to which the Father had originally referred.
He continued saying that whilst there he asked the GP about Y’s anxiety and to do a mental health assessment. Why the Father would ask the GP to do such an assessment in the circumstances of checking out a child’s cough is not explained.
The Father said that the GP recommended that Y see a child psychologist, and suggested Dr M, who worked sometimes in the same practice. Among Dr M’s extensive qualifications, it is not immediately apparent if she is a ‘child psychologist.’ The Father deposed: ‘We arranged for Y to have his appointment on 18th April.’ He confirmed that he notified the Mother of the appointment with the psychologist [only] on the day of the appointment. He provided, at annexure D, a copy of the Mother’s response text message.
However, it is not until one goes to the Mother’s affidavit, at annexure B, that one gets the full chain of correspondence between the parties. Summarily, the Father sent a text message to the Mother on 16th April (which is not disclosed in the Father’s material) informing her of taking Y to the GP for his cough. Nothing else was said in that message other than the course of ‘off the shelf’ medication to deal with the viral infection.
Then on 18th April, the day of Y’s assessment, as I have said, the Father advised the Mother of that appointment. He advised her that he had asked the GP to do a mental health assessment because the Father said he ‘still has concerns.’ He did not elaborate in the message what those concerns are or were. He further advised the Mother that he was able to get Y in to see the psychologist “today” “because of a cancellation”, and inquired if the Mother had any objection to providing the psychologist with her contact details. He concluded the message in the following terms: “If you could let me know ASAP, it would be most helpful.”
In my view, the Father should have advised the Mother on 16th April that (a) at the consultation with the GP regarding Y’s cough he had asked the GP to do a mental health assessment of Y, and (b) arrangements had been, or would be, made for Y to see a psychologist. The text message suggests that the appointment had been made at or around the time of the consultation with the GP. Clearly, it was made some time prior to meeting with Dr M. The Father should also have advised the Mother of any particular concerns he had about Y. He did none of these things. Why the Father chose not to apprise the Mother fully of what transpired with the GP on the 16th is not explained.
I suggest that the Father would be very concerned if not aggrieved, and rightly so, if the Mother had treated him in the same way that he treated her in relation to Y seeing a psychologist. Indeed, if the Mother had not consulted him, and only later advised the Father of taking any of the boys to a health care professional, the Father would have rightful grounds to object, and do so forcefully.
In Dr M’s first affidavit, filed 26th June, she deposed that on 18th April, Y presented with anxious mood, and that he reported having ‘sweaty palms and shaky hands.’ She further advised that at the first consultation Y was accompanied by his Father, but was interviewed by himself. Then, according to Dr M, she saw Y again on 26th April, again alone but accompanied to the session by his Father.
She further deposed that she saw Y’s brothers on 24th May for the purpose of seeking “collateral information.” There is no indication that the Mother was notified about any subsequent session with Y, or with the ‘collateral information gathering exercise’ with X and Z on 24th May and again on 21st June. If no such information was provided to the Mother, as appears to have been the case, as a matter of courtesy not to mention pursuant to the 2008 consent orders, it should have been given to her in relation to all sessions with each of the boys.
In her later affidavit, filed on 9th July, Dr M deposed, at para.3, that she “consulted with both Z and X separately, without the presence of the [Father] on 25th June” and again on 5th July. Thus, it would appear that Dr M has seen Y and or his brothers on 18th and 26th April, and again on 24th May, 21st June and 5th July. Subject to what is said later in these reasons, it would appear that the Mother was notified only of the appointments on 18th April and 21st June.
Unfortunately, given that (a) Dr M earlier deposed that neither of these boys (i.e. X and Z) are her ‘clients’, (b) she saw them [only or initially] for the purpose of seeking ‘collateral information’ about Y, and (c) pursuant to the 2008 orders which provided for the parents to have ‘equal shared parental responsibility’ for the children, (i) there is no indication that the Mother was notified of any of the consultations with X and Z, or (ii) how or why X and Z were the subject of a number of further ‘sessions’ with Dr M. The degree, nature and detail of the ‘collateral information gathering’ is not explained, other than references in her second affidavit (e.g. at paras.11 & 12) to the Mother drinking and smoking and treating Y “really bad.”
And all of this is in circumstances where Dr M says, in relation to X (at para.7 of her second affidavit) that he “does not appear to be suffering from any clinical disorder”, and in relation to Z (at para.21 of the same affidavit) that Z’s “scores on all rated scales were in the normal range.” Yet in her first affidavit, Dr M said, at para.14, that “… it became evident that Y is not the only child suffering from anxiety associated with the respondent [Mother’s] behaviour.”
At para.25 of the Father’s affidavit, he deposed that on 24th May, all of the boys “went to see Dr M to discuss Y and what it was like to live between two houses. Dr M told me later that all of them individually said they would like to spend more time at my home.” Respectfully, this sounds awfully like an assessment about residence and ‘time with’ between parents, in circumstances where there are existing, indeed long-standing, consent parenting orders for a shared care arrangement, and with little or no notice to or involvement of the Mother.
Again I note that it is unclear whether Dr M was ever provided with a copy of the 2008 orders, or whether she is aware of the usual processes that are involved in changing final parenting orders. Her curriculum vitae does not indicate whether she has been involved in, or has relevant experience in family law proceedings, although in the Mother’s material (noted below) she refers to the psychologist giving advice to the Father about interim proceedings and an ICL.
In her affidavit filed on 26th June, Dr M said (at para.4), as I have already noted, that the interviews with the X and Z were “for the purpose of obtaining collateral information.”
Respectfully, to obtain ‘collateral information’ sounds rather euphemistic in the light of the Father’s evidence of the boys seeing the psychologist “to discuss Y” and the other matters I have mentioned. I suggest that speaking to X and Z to obtain ‘collateral information’ about their brother Y was not appropriate. In my view, it put Y’s brothers in a potentially very difficult position.
More particularly, in my view, the way these interviews were conducted (even on the Father’s and Dr M’s affidavit evidence alone) risked (a) placing more pressure on Y, (b) unfairly placing all the boys at the centre of the dispute between the parents, and (c) risked prejudicing the Mother and her relationship with the boys in circumstances where there is no evidence that Dr M was provided with either (i) the existing orders of the Court, or (b) the short-form report in relation to X’s schooling from 2012.
A final matter of dissonance in the affidavit evidence between the Father and Dr M relates to the disposition of Y.
In para.31 of the Father’s affidavit (filed 26th June) he stated (emphasis added):
On 21 June 2014 Y and I in accordance with Dr M’s request attended her office. Ms Wise [the Mother] also attended. Y’s demeanour when visiting Dr M on previous occasions was relaxed, laid back and very comfortable. On this occasion, when his Mother was in the room, he looked petrified, pale and like he was going to be sick. Y was holding a tissue so tight that his knuckles were white. Y sat in the chair opposite his Mother just about in the foetal position.
As already emphasised, I note in particular the Father’s sworn account that on previous occasions when visiting Dr M, Y was “relaxed, laid back and comfortable.”
Curiously, in Dr M’s first affidavit, at para.3, she has an account of Y that is rather different to that provided by the Father of those earlier visits. At para.3, after noting that Y attended with his Father, she deposed that “Y presented with anxious mood. He reported sweaty palms and shaky hands.” Absent some explanation by either the Father or Dr M, ‘anxious mood’, ‘sweaty palms’ and ‘shaky hands’ do not accord with the Father’s description of Y being “relaxed, laid back and comfortable.”
So, the Court is faced with conflicting evidence: but unlike the usual situation where parents or opposing parties generally give different accounts, here the conflicting evidence is from the same side, with nothing to do with the Mother, per se. Conflict in evidence is not unusual, but from the same side makes the Court’s labour rather more difficult than usual. So, leaving to one side the issues regarding process to which I have already referred, to whose evidence should I pay attention here, where there is a clear difference between two accounts put before the Court on behalf of the same party: the Father or the psychologist he has engaged?
As to process still, I record my concern at the further process engaged in by Dr M, not only in relation to placing Y (and for that matter his parents also) in an almost untenable position, but also in relation to X and Z. At paras.15 & 16 of her first affidavit, Dr M stated:
[15] While I have not assessed Z and X as clients, it is my expert opinion that Y reside continuously with his Father. [16] It is strongly recommended that Z and X receive a mental health assessment, in particular following Z’s display of emotional distress on 24 May 2014.
Summarily, my concerns about these recommendations, from a procedural perspective only at this stage, are as follows.
First, how Dr M made the leap (or the causal connection), in para.15, from not having assessed X and Z to recommending that Y reside “continuously” with his Father, is not explained or demonstrated. Certainly, it is not clear how the conclusions reached in the paragraphs mentioned would satisfy the requirements of the High Court in Dasreef Pty Ltd v Hawchar regarding expert evidence and establishing the bases for the conclusion reached.[6]
[6] Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588.
Secondly, it is not at all clear, apart from the Mother’s attendance at Dr M’s rooms on 21st June, what notice or detail was given to her about that “session.” For reasons already given, I have serious doubts about the conduct and circumstances of it, from any of the accounts given.
Thirdly, Dr M’s recommendation about Y living with his Father “continuously” is opaque, at best. What is intended to be understood by the term “continuously” is not explained. And, in the light of her recommendations, what Dr M’s knowledge of Court processes and orders is, also is not clear. Similarly, how her recommendation fits or should be accommodated with the existing parenting orders is not explained.
Fourthly, Dr M also seems to accept without question the accounts of events from the children involving the Mother virtually without question. It would appear from later material that most of the events to which she refers relate to matters of three or perhaps four years ago. Their relevance to matters today was not explored, explained or questioned.
By way of general observation here, it might reasonably be noted [again] that an initial consultation with a GP about a cough very quickly developed into (a) a mental health assessment of Y, (b) collateral information gathering sessions with the other boys which spread much wider than might have been expected, and (c) in large part, so it would seem, with little or no notice or information about the involvement of all the children being given to the Mother. Subject to what is said later, the course pursued also seems to have placed the boys in a completely invidious position and perhaps to have embroiled them even further in the parental contest. It might also be reasonable to surmise, subject to formal assessment, that the boys’ anxiety is likely to have been exacerbated by the course pursued here by both the Father and Dr M.
Further, in addition to Y’s cough, and subject to later comment regarding issues of bullying at school, the initial cause of any relevant anxiety, at least on the Father’s case, seems to have related to Y’s desire to do more “(hobby omitted)” and the Mother’s alleged opposition to this. It is said that the Mother opposed the additional (hobby omitted), at least extra that was/is proposed to be done outside the (hobby omitted) he currently does at school. And apart from his cough, and his (hobby omitted) wishes, one of many curiosities – to put it as neutrally as possible – in Dr M’s first affidavit, is that, at para.8, she simply stated (emphasis added): “Y is currently suffering from an unspecified anxiety disorder.”
It might more reasonably (or even simply) be that Y (and his brothers) is anxious about the on-going contest between his parents, and that he recognises more and more that the parents approach their parenting responsibilities from different perspectives. The children then have to negotiate their way through the dangerous and sometimes treacherous shoals created by the parental contests. This could, of itself, be sufficient cause for any relevant anxiety.
Procedurally, the remainder of Dr M’s first affidavit recounts the ‘consultation’, if that be the correct term, that involved both parents and Y on 21st June.
Respectfully, I am very concerned about Y having been placed in the fraught circumstances of facing both his parents with the psychologist. I am also concerned about how much notice was given to the Mother about the “session” with Dr M, and relevant details about it, such as who would be there, and the matters that would be canvassed. Certainly, on the Mother’s evidence, she had little notice (although she was aware as from 18th April that Y was seeing the psychologist) and would have felt, in my view justifiably, quite ambushed and certainly distressed by the whole process. I will come back to other details presently.
Procedure (or proper process) is designed to ensure that, as far as possible, all parties are accorded fairness and the opportunity properly to put his or her case. Properly considered, procedures are intended to protect parties, and in family law matters, children in particular. The way the matter has proceeded, without reference to the Court until, in large measure, after the event, in my view, has placed everyone – including the children – at significant risk.
Moreover, given that (a) Y first spoke about some discontent or anxiety with his Father (or Father’s family) in January, and (b) the Mother sought to engage the Father in early March to speak with Y’s teacher (which the Father ultimately rejected), it is extremely unfortunate that no relevant application was filed in either January, February, March, or even April. Instead, the Father chose to take action, which he has pursued without proper notification or information to the Mother, and without involving her properly in the processes he set in train. To have initiated Court involvement very much earlier, it seems to me, would have ameliorated much or many of the current difficulties.
It may well be that, ultimately, Dr M’s assessments and recommendations are completely or largely correct. However, I have very serious doubts about the processes thus far undertaken which have involved all the boys, and very occasionally the Mother with little or no notice. I do not attribute mala fides to anyone, least of all to the Father or Dr M. However, the large number of appointments with the boys, and the lack of involvement of the Mother, all suggest that the processes have been, at least, highly questionable. At worst, they may have contributed to the anxiety of one or more of the boys, who have been engaged most directly in a contest between the parents, and now for some weeks, have been denied spending time with their Mother. The fact that there has been, apparently, little or no reference to existing Court orders is very concerning.
I apprehend that the Father has sought to act protectively. However, in my view, there are significant gaps in the explanations of quite a number of the steps taken, and [again] the lack of notice to, and involvement of, the Mother, indicate to me that proper process, and its protective goals, have not been met so far in this matter. Everyone, and the children in particular, have suffered as a result.
In a different jurisprudential context, Gleeson CJ said:[7]
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
[7] Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at 14 [37].
In the current matter before the Court, Gleeson CJ’s comments have particular force.[8] The basic practicalities [of justice] to which I have referred have either been (a) not applied, or (b) applied so as to exclude or to restrict the Mother’s involvement, contrary to the Court’s long-standing orders. In my view, there has been ‘practical injustice’ of the kind described by Gleeson CJ in the procedural course pursued by the Father and Dr M. The failures to which I have referred, and in particular the failures in the various processes that have been undertaken (accepting the good intentions motivating them) have, in my view, risked compromising the best interests of the children. The processes have clearly embroiled the children centrally in the parental contest. The processes have deliberately cut across, if not completely abrogated, consent orders of long-standing.
[8] Also in Lam, McHugh and Gummow JJ confirmed, at [105], that the procedural fairness rule of natural justice was confined to matters of “process” and not the outcome of that process.
According to the usual processes envisaged in, and regularly practised by this Court in family law matters, process and outcome go hand in glove. The outcome must comply with or satisfy s.60CA; the process, at least of the Court, must conform (as best it can, especially in interim proceedings) with the legislative scaffold prescribed in ss.60B and 60CC(2) and (3). The processes of practitioners ought reasonably be directed to aiding the Court to make relevant determinations in conformity with the provisions to which I have referred. This is to say that parties should have a proper opportunity to found and to present their respective cases.
It seems to me that the failure to advise the Mother of the involvement of all the boys in the ‘sessions’ with Dr M, the failure to advise the Mother of the matters discussed with the psychologist – and in particular – a possible change of residence – as well as (in my view, of significant gravity) the children not attending school, have each contributed to general failures of process that warrant [now] Court intervention.
With these comments on procedural matters I turn to other specific issues.
Parenting Matters: The Father’s Case
In summary form, the Father’s case, taken from his affidavit filed on 26th June 2014, may be described in the following terms.
After a marital relationship with the Mother for some seven years, and separation in 2005, the Father re-married in 2007 and has a five year old daughter from that relationship. He confirmed that since 2007, the children who are the subject of this Application have lived in a week about basis with the Mother. Those parenting arrangements were formalised with the 2008 consent orders between the parties.
The Father and his Wife both work in (employer omitted). He says that the Mother of the boys, and her [non live-in] partner, both work for (employer omitted).
The Father says that in mid-January this year, when Y and his brothers returned home from time with his Mother, he was upset and said to the paternal Father-in-law, words to the effect: “Why doesn’t she look after me, why doesn’t she protect me[?]”
Then in late January, the Father says that Y said to him that he wanted to live with his Father “full time”, and that he wished to spend time with his Mother “every second Saturday for two hours” and that he did not wish to spend overnight time with his Mother. I suggest that the language attributed to Y is rather unusual for an eleven year old boy, unless he has been ‘schooled’ (so to speak) in the language of family law litigation.
The Father said that he did not immediately get a chance to discuss this further with Y, but did so over the next few weeks. Indeed, in late February, the Father said that he contacted the school counsellor for Y to speak about “bullying and anxiety” that he had been experiencing and, the Father said (at para.16), also to speak about “his life at his Mother’s house.”
The Father deposed that the school counsellor contacted him to advise that the Mother did not agree. A copy of the Father’s email to the Mother, dated 25th February, is annexure C to the Father’s affidavit. In no way critically, the way it is laid out suggests that there may have been some editing of it. I will await further information in this regard.
Then the Father deposed that in late March, Y advised his Father (via ‘txt’ message) that the Mother had indicated to Y that she did not think he needed to see a counsellor and that it would ‘look funny’ going to see a counsellor. The relevant ‘txt’ message is not currently before the Court. It is not explained what, if anything, happened between the end of February and the end of March in relation to Y’s ‘anxious state’, including whether it continued.
At paras.19-22, the Father recounted him seeing the GP about Y being unwell (his sore throat, as described in the ‘txt’ message to the Mother), and the arrangements to see Dr M. Having already noted dates and times in this regard earlier in these reasons, I will not repeat them.
The Father next said that Y informed him that when the Mother and her partner read the communication book, which contained Dr M’s recommendations to aid Y to deal with anxiety and the like (e.g. the use of exercise), it is said that they laughed. Y told his Father that the laughing upset him. This led him, his Father said, to say that he now wanted to go to his Mother’s house only on special occasions, and that he never wanted to go there by himself or to stay overnight.
At para.24, the Father deposed that, following Y’s session with Dr M on 26th April, she told the Father of Y’s wish to live full-time with the Father, and only to attend his Mother’s house on special occasions, and never overnight.
At para.25, the Father said that, following the further session with the psychologist on 24th May, she advised him that all the boys indicated that, individually (as opposed to collectively), each of them said they wanted to spend more time at the Father’s residence.
On 13th June, the Father wrote to the Mother in the communication book that Dr M would like to invite her to attend Y’s appointment on 21st June. The Father advised that Dr M confirmed to him on 16th June that she had spoken with the Mother “to discuss the appointment” on the 21st. No other details of that discussion were provided.
At para.28, the Father said that on 20th June, the boys came home from their Mother “looking very distressed”. He asked X what was wrong, to which X replied that his Mother asked him what they had talked about with the psychologist. He said that he told his Mother that it was about ‘where we wanted to live.’ X is then said to have confirmed to his Father that he “wants to stay with me full time.”
On the same date, the Father said that Y spoke with him about what had happened at his Mother’s house the previous day/evening, to which Y said that he was pressed by his Mother about what had been discussed with the psychologist. The Father deposed that Y told his Mother of his wish to live with his Dad “full time.” Y is said to have reported at the Mother’s difficult response to him in terms that made him feel upset, including comments about how much she had sacrificed for him, that the Father was ‘doing this to hurt her’, and that ‘they [the Father and his Wife] are mean and nasty people you don’t know what they do.’
Also on the same date (20th June – it is unclear if there was a serial time of the boys speaking with their Father), the Father said that Z had told him that his Mother had asked him where he wanted to live. The Father deposed (at para.30) that Z said he was too “frightened” to say how he really felt because he was concerned how he would be treated the following week at his Mother’s house. Z said he was scared of Mum getting cranky “as she is with Y and X.” He (Z) said that he did not want to be by himself at his Mother’s place “at any stage.”
Para.31 of the Father’s affidavit recounts Y’s demeanour at the appointment with Dr M on 21st June. In the light of the discussion with the boys the previous day, it might be unremarkable that Y was a tad anxious. In any event, I need only note here that the Father said that during the time when the parents, the psychologist and Y were all together, the Mother “stared at him [Y] with a glassy look.”
Quite troubling is the Father’s further account that several times during this ‘session’ Dr M had to take Y out of the room “as he was so distraught.” How and why the time with Dr M continued the session with a child who was so distraught is, unfortunately, not explained.
The Father said that when-ever Y was not in the room with his parents the Mother “verbally attacked and blamed me for Y wanting to live with me.” The Father attached his “record of conversations that took place.” Precisely when this “record” was prepared by the Father is not specified.
The Father continued, at para.32, describing Y’s timid identification of the issues he has with his Mother, and his reiteration of the ‘time with’ arrangements which Y wished. The Father further deposed that Dr M suggested to the Mother that she “negotiate Y’s living arrangements.” The Mother is said to have refused to negotiate, to which the psychologist further suggested that she go away and think about negotiation and to let her (the psychologist) know what she proposed to do. It is not completely clear with whom the proposed “negotiation” should or would occur or the parameters of it: presumably between the Mother and Father, but perhaps also with the involvement of the psychologist.
At para.33 of his affidavit, the Father deposed:
On 23 June 2014 X and Z attended a doctor for a mental health assessment. I arranged the appointments because of how distraught they were, in particular Z, when they returned to my care and how upset and frightened Z was. They needed to have an independent third party to talk to about how they are feeling without the fear of repercussions.
I observe here that it is not clear, on the face of this statement, who the “doctor” referred to is; I assume that it was Dr M. It is not apparent that, notwithstanding the consent orders of 2008 which include an order in relation to parental responsibility, the Mother was ever notified about these mental health assessments of X and Z, or her approval sought. If this be the case, in either respect, it was a very significant omission on the Father’s part, and perhaps also on the part of Dr M.
What is also quite unclear is how orders that have been working relatively well in a shared care arrangement for many years can have so very quickly, to speak colloquially, turned “pear-shaped.” It may well be that the boys seek to spend more time with their Father; it may well be that there are issues in the Mother’s residence. However, so quickly for the matter to move from Y’s sore throat consultation to mental health assessments for all the boys warrants, in my view, an extremely cautious approach by the Court.
The Father continued to recount the anxiety of the boys, and confirmed that the Mother advised him by email, dated 22nd June, that she thought Y’s answers were “very unsure” and that living full-time with the Father was not warranted. She thought that Dr M prompted answers from Y, and that his decisions were the subject of ‘undue influence’ from the psychologist. The Father said that the Mother advised that she would not negotiate. He annexed (annexure F) the email from the Mother.
In fact, the email says (inter alia): “Before resorting so quickly to such drastic action, there are other options that can be explored and I would like the opportunity to pursue them.” The Mother professed her love for the boys, and said she could not agree to any change of Y’s living arrangements “while I have doubts about what he truly wants, or fully understands what that would mean for him.”
Respectfully, the email should not have been characterised so simply, and damningly of the Mother. Clearly, she confirmed that she was open to exploring “other options.” This patently indicates an openness to negotiate, contrary to what the Father deposed.
In order to keep these reasons, which are already profligate, within some remote bounds of reasonableness, I will confine the matters from the Father’s “Affidavit in Reply” (his description) filed on 10th July 2014, to the following. This is also because it only highlights further the ‘he said – she said’ situation at the current interim stage of proceedings. Subject to what is said below, it helps me little, and only risks adding fuel to a fire that already appears to have gained too much momentum. In large part, the Father provided a rebuttal/commentary on the Mother’s affidavit. However, what might be called ‘source documents’ in emails and the like between the parties are of some relevance or significance.
First, at para.24 of the reply affidavit, the Father confirmed his agreement with the Mother’s comment that “there has been hostility and the relationship has been difficult post separation and I believe this has affected the children.” This may be an understatement.
Secondly, annexure C to this affidavit is an email chain between the parties, dated 4th March. Clearly, it pre-dates the litany of appointments between the boys and the psychologist. While the whole of the email chain is relevant, I note only the following from it.
The correspondence begins with the Mother notifying the Father of an appointment with Y’s teacher, which the Mother sought without Y being present. The Father was invited to it. The Father responded, saying that he had already spoken to Y about it, and that Y wished to attend. Thus Y was immediately involved by the Father in matters that, in my view, should have remained between his parents.
The Mother said to the Father that she sought the meeting with the teacher to check up on how Y was going, and that Y was not (this was emphasised) to attend. The Mother said that she had no problem if the Father wanted to meet with the teacher separately. Pointedly, and in my view, fairly and appropriately, the Mother urged the Father to consider “the potential damage” this meeting may cause to Y “by getting him involved.”
The Father replied saying that ‘this is about Y” and challenged the Mother about blocking Y from speaking. The Father urged the Mother to consider the possibility of damage to Y by not allowing him to be present at the meeting with the teacher. The Father said that he had ‘now made other arrangements.’ He did not specify what those arrangements were.
At greater length on the same day, the Mother outlined to the Father her concern to ensure that Y was heard, but that, in the first instance, she wanted to hear from the teacher how Y was doing, and that it was important, in her view, to obtain information before moving to have Y see the school counsellor. She confirmed that her approach was one of ‘information gathering’; she did not want Y to feel or be perceived as “different’ at school because of his (hobby omitted). She also informed that the school counsellor agreed with her that it can be “dangerous for Y to make something out of nothing.”
The Father replied at some length to the Mother, saying, among other things:
I am not sure what you hope to achieve by speaking with Y’s teacher, if it is to establish whether or not he is having any problems with other children the answer is probably no, but if it is, “is he suffering from anxiety from the past,” then the answer is yes. Ms K has 20+ students to look after, whilst she may identify any learning difficulties or physical altercations, I don’t believe she is equipped to interact with Y on a more psychological level.
For my part, again without making any formal finding, in my view, the Father’s disparagement of (a) the teacher, and (b) the Mother’s approach simply to check with the teacher, was unwarranted. As a first step in the gathering of information, to speak with Y’s teacher, and to do so in a low-key way without the child present, was both discreet and, in my view, appropriate. Further, the Father should have informed the Mother what his “other arrangements” for Y were.
In my view, not unreasonably, the Mother finally asked the Father, with obvious frustration at what was taking place: what prompted “all of this [with Y]” and why was the Father taking action now? In my view, these were, and remain, perfectly appropriate questions. The Mother also noted in this last email to the Father on 4th March that Y had informed his Mother that he was ‘fine’, and that when he was with her Y was “happy, enthusiastic, no signs or flags there are any issues.”
It should also be asked here: what happened between 4th March (the date of the email chain just referred to) and the appointment between the Father and Y with the GP about Y’s sore throat on 16th April? The silence or evidentiary vacuum is strange, especially given the Father’s urgent action from 16th April, all of which only highlights the significance of the Mother’s questions in early March to the Father (which appear to have gone unanswered) – ‘what prompted all this’ and ‘why this action now?’
I will deal further with the two affidavits from Dr M later in these reasons.
Parenting Matters: The Mother’s Case
From the Mother’s single affidavit, the Mother’s case is a follows.
The Mother says that since the consent orders, the shared care arrangement has worked well for the past 6½ years. This was so, she says, until 27th June when the Father refused to return the children to her care. The Mother says that she has not seen the boys since she delivered them to the Father on 20th June.
The Mother said that in January this year the Father advised, via the communication book, that Y wanted to do (hobby omitted) at “(omitted)”, which is a privately run organisation. The Mother said that the following week she advised the Father that she wished Y to continue with (hobby omitted) at school. The Father advised the Mother that he planned on sending Y to (omitted) when he was in his care; the Mother said that she could not afford to do so, and did not send him to this group in the weeks Y was in her care.
The Mother informed (at para.16) that over the past three years Y has been bullied by a small number of students about his involvement in (hobby omitted). She also deposed, however, that in the second half of 2013 Y said to her that the teasing has almost stopped and that he did not want his Mother to do anything about it. Further, the Mother said that she was more than happy to speak to the Principal about it, and asked Y to let her know of any problems. Y told his Mother that he would do so.
On 25th February this year the school counsellor (Ms P) telephoned the Mother to say that the Father had asked to see her about bullying issues; she asked the Mother if she agreed. She said this came as a complete surprise to her because Y had not indicated anything, nor had the Father said anything, to her. She told the counsellor that she wanted to check with the Father, which she did by email; she said that the Father did not reply. A copy of her email, dated 4th March 2014, is annexure A. It is part of the email chain referred to earlier in these reasons.
At the meeting with Y’s teacher on 5th March, the Mother deposed (at para.19) that the teacher said:
I have not observed anything that suggests Y is struggling in any way whatsoever. He is a happy, bright and enthusiastic member of my classroom. He is excelling academically and above average for the early stages of a Year 6 student. If I see any change to Y’s behaviour I will contact you and Mr Olssen [the Father] to discuss it.
The teacher has not contacted the Mother since that meeting in early March.
The Mother next referred to the ‘txt’ message chain with the Father on 16th and 18th April (annexure B to her affidavit). The Mother further deposed that between 18th April and 13th June, she spoke with Y about his visits to the psychologist. She said that from these conversations she was confident that Y was dealing with his bullying issues.
On 13th June, the Father advised the Mother, via the communication book that she would be hearing from the psychologist about a meeting on Saturday, 21st June at 2pm.
On 14th June, the Mother was at a football game with Y and Z. She spoke with Y about his time with the psychologist, to which he replied that ‘they’ went over strategies and try to think of new ones – doubtless to deal with bullying. She asked him if he wanted to keep seeing the psychologist, to which Y shrugged and said that she could keep teaching him new strategies.
Just before 7pm on 16th June, the Mother received a telephone call from Dr M inquiring if she would attend a session on 21st June at 2pm. Para.24 then proceeds as follows:
… “I’m unsure what the session is all about. I feel like I have been left out of the process until now. Y is happy, thriving at school and eating and sleeping well. Can you give me a bit more information?” Dr M told me “X and Z have also attended a session with Y but only in the capacity of a support role for him. I have not directly spoken to or engaged with them. They were there just to support Y.” This was a surprise. Mr Olssen did not tell me that X and Z had become involved in the process.
Having regard to what is recorded in the material from the Father already noted, and what is later noted from Dr M’s affidavits, there is (a) clearly a very large disjuncture in the accounts of the involvement of X and Z, and (b) apparent accord that the Mother was not apprised by the Father of X’s and Z’s involvement in the process with the psychologist.
Further, the Mother said that Dr M confirmed that the Father and Y would be attending the session on 21st June. The Mother expressed concern at this because she had not had the opportunity to speak with the psychologist alone to provide her perspective. She asked that this occur. This was denied by the psychologist in the light of the following discussion deposed to by the Mother (at para.25) (emphasis added):
“I cannot see you alone because I cannot claim Medicare benefits if Y is not there. The session has been booked in as a joint one with Mr Olssen as well. Your son is psychologically and emotionally sick. I cannot breach confidentiality between Y and me but the happy, funny, no issues with eating, sleeping or school is not the real Y. He has problems talking to you about things and you don’t know him at all.”
Unsurprisingly, the Mother said that she was deeply upset and offended by these comments. Later that same day/evening, the Mother asked Dr M, via text message, whether the Father and Y had had a session together. No reply was received by the Mother. The Mother also said that she was unaware of what information the Father had provided to the psychologist, and vice versa.
On 19th June, the Mother said (at para.27) she spoke with X about the session he and Z had with Dr M in support of Y. He told his Mother that he was asked “about our living arrangements, how we liked them, how it was going, and where we wanted to live.” X further advised his Mother that he probably wanted to spend more time at his Dad’s house, that Y did too, but that Z was content with the current arrangements. The Mother commented that this came as a complete shock to her because she understood the “sessions” with the psychologist were for Y to talk about bullying.
When the Mother asked Y about X’s comments, he said that he wanted to spend more time at his Father’s place only because “it means I can do more (hobby omitted).” The Mother asked him whether, if she arranged for him to do more (hobby omitted), he would be content to keep the current living arrangements. He said ‘yes.’ She also later asked Z, and he said that he was happy with the current living arrangements.
The Mother confirmed later that day that she would be attending the session with Dr M the next day.
At that session, as reported by the Mother (at para.29 ff.), Y was “distressed.” It was, she said, the first time that he and his parents had been together for a long time. He was, she said, ‘quietly spoken’ and “very uncomfortable.” In the course of this “session” the Mother asked Y: “Is the Y that I see and know in my home not the real Y?” The Mother deposed that before Y could reply, Dr M answered, saying that “Y is not comfortable talking to you about certain things out of fear of your reaction.”
There followed a discussion about Y attending more (hobby omitted) sessions with the private organisation, (omitted).
At paras.33-35, the Mother recounted further parts of the session with Dr M, which did not deal with (hobby omitted). She deposed as follows.
The psychologist said to the Mother: “Y is not comfortable talking to you about certain things, because he worries about your reaction. Because of this Y does not wish to live with you. Will you agree to that?” The Mother said, “This has come as a huge shock to me. I was not prepared to talk about that question without being give time to think about it.” The psychologist then enquired: “How do you see things moving forward?” The Mother said: “I would like the opportunity to address the issues raised today and to consider how I could improve communication between Y and myself.”
The Mother said that the psychologist then took Y into her office and sent the parents downstairs. Upon resuming the session, the psychologist asked Y: “How do you feel about your Mum having the opportunity to address your concerns and the way the two of you communicate?” Y said that he was not sure. The Mother deposed that the psychologist then raised her voice and said to Y: “Is that different to the answer you just gave me when we were speaking alone? How do you feel about your Mum?” Y said: “I think if she was going to change her behaviour, she would have done it over the past nine years.” The Mother said that she was surprised by Y’s response and thought that it was an “unusual answer”. She said she formed the view that Y was pressured by the psychologist and/or the Father into the response given.
The psychologist then asked the Mother: “What is a reasonable time frame for you to let Mr Olssen know of your decision regarding Y’s living arrangements?” The Mother responded: “I’m not in a position to put a time limit on my decision as I have only just been told about the prospect of changing Y’s care arrangements and it is a lot to absorb.” Dr M said: “You should tell Mr Olssen by the end of Monday 23 June 2014, otherwise Mr Olssen will have to commence proceedings with the Court. If Mr Olssen does not hear from you, he will have to assume that you do not consent to changing the arrangements for Y.” [Addressing the Father] the psychologist said: “… if you don’t hear from [the Mother] by the end of Monday, you will need to take action to engage a child rep for Y and apply for interim orders.”
The Mother said that these conversations took place in front of Y and that she was “in complete shock”. The Mother said that as she left the session she went over to Y, gave him a cuddle and told him that she loved him.
On 23rd June in the early evening, the Mother emailed the Father. In substance that email confirmed that (a) the Mother had reflected considerably upon what was said by Y the previous day, (b) the way the meeting was conducted and (c) the Mother expressed her concerns at the way Y answered at the session the previous day, which convinced her that his decision had been made by being unduly influenced. She confirmed that she did not consent to a change in the current living arrangements for Y and that she looked forward to seeing the boys on Friday. Earlier in these reasons I referred to this email, which is annexed to the Father’s primary affidavit. The Mother confirmed that she did not receive any response from the Father to this email.
On 24th June, in accordance with some informal arrangements between the parents, the Mother telephoned the Father and spoke with each of the boys. The Mother said that the conversations were relaxed and no different to any other Tuesday when she has telephoned them. In paragraph 37, the Mother set out some of the matters discussed with each of the boys regarding everyday matters.
At paragraph 38 the Mother recorded that just after 6.00pm on 25th June, she received a text message from the Father advising that “in line with Dr M’s [sic] recommendations”, at short notice he was able to have X and Z speak with a psychologist. The Mother said she was shocked by this as there had been no such recommendation during the meeting held on 21st June. The Mother asked the Father what time the appointment was because she would like to attend it. He advised her that “Z is already with her”. A copy of the ‘txt’ conversation is annexure C to the Mother’s affidavit.
The comments just noted unfortunately again bespeak failure to notify in a timely way, and properly to involve, the Mother, contrary to the 2008 consent orders.
Upon the Mother being served with “Court papers” at her workplace on the afternoon of 26th June (one might question – as I do - the appropriateness of arranging service at somebody’s workplace when that person’s address is well-known), the Mother sought legal advice in relation to collecting the children. She sent the Father an email that afternoon advising him that she had received the paperwork he had filed with the Court and that her advice was that the children should be returned to her in accordance with the existing consent orders. The Father did not respond to this email.
The following day (27th June) the Mother received a telephone call from the police at (omitted). She was advised that the Father was present at the police station and that he had some concerns about returning the children to her. The police officer asked what her position was in this regard. She advised him that she had informed the Father of her position via email the previous day and that her position had not changed. She confirmed that she expected all three boys to be dropped off to her in accordance with the current consent orders. The children were not delivered to her in accordance with the orders.
In the late afternoon of 27th June, the Mother received a ‘txt’ message from the Father in which he expressed his ‘disappointment’ that the matter had got to the stage that it had, and that the boys had asked him to let her know that they had decided to stay with him and would not be returned at this stage. The Father said that he believed he was acting in the best interests of the boys, and concluded saying: “I have done this with your knowledge that interim and final orders have been filed with the Courts.” The Mother responded saying that the existing orders remained in place; she asked the boys be returned in accordance with the orders. The Father responded asking the Mother to respect the boys’ wishes and not to make the situation any more difficult on them than it already was. The Mother confirmed to the Father that the boys had nothing to fear coming home to her residence. She received no further response from the Father.
The Mother attended the (omitted) police station, and after she had given a statement, the police said they would contact the Father; they confirmed that the Father continued to refuse to bring the boys back to him “on the basis of legal advice”. The Mother says that Senior Constable (omitted) said to her: “I expect you can obtain a recovery order”.
On Saturday 29th June, the Mother attended X’s and Z’s football games. She says that she spoke with them, and that they seemed to be at ease with her, and were smiling and happy to see her. When she asked Z whether or not he wanted to come home with her, he said “I can’t” and, the Mother says, glanced over towards the Father with a worried look on his face. He then ran off saying “love you”.
When the Mother spoke with X and she said that she would really like him to come home, she said that he nodded and then leaned in under her umbrella, gave her a kiss and said “I love you too, Mum”. Y was not at the football that day. It is not explained in any of the material why this was so.
On Sunday morning 22nd June, the Mother emailed the Father in which she advised him how “absolutely devastated” she was about what was happening with the boys, and how in the space of a week and the various appointments, that she felt “completely ambushed”, and how she had been denied a chance even to speak to the boys. She advised the Father of her relaxed engagement with X and Z at football; she also said that she was not angry with the boys and that all she wanted was for them to be returned home to her.
That afternoon the Father replied via email and said that he had spoken again with the boys, and that they had confirmed their desire to remain with him. He asked her to respect their wishes. The Mother said she then tried to telephone the Father hoping to speak to the children. The Mother’s call went to the Father’s voicemail and she left a message asking to be allowed to speak to the boys.
On Monday 30th June, the Mother telephoned Y and Z’s school. The school confirmed that neither of the boys attended school that day. When speaking later with the school principal, he advised that the Father had emailed the Principal directly to tell him that the boys would be away for the rest of the week. During the evening of the next day, the Mother telephoned the Father and spoke with the children. The Mother spoke with X and Y, who confirmed that they had not been at school; Y said that Z did not wish to talk that night.
How and why the children were not attending school has not, thus far, been explained.
Evidence of Dr M
Earlier in these reasons I noted the psychologist’s account of Y’s presentation on 18th April 2014 and how it was markedly different from the account of his presentation given by the Applicant Father.
In her first affidavit, filed 26th June, she reported (paragraph 5) that in the Youth Self-Report completed by Y, he rated his school performance in a range of subjects as average and others above average, and that his score on the “positive qualities” scale was in the normal range. In terms of the Youth Self-Report “problem scales”, it was reported that Y’s total problem score was in the borderline clinical range for boys aged 11 to 18. His score on the social problems syndrome was in the clinical range, and his score on the anxious/depressed syndrome was in the borderline clinical range also.
However in relation to the DSM-oriented scales, Y’s scores in relation to a number of “problems”, were “in the normal range”.
The psychologist reported that Y reported that he feels anxious about living with his Mother and that she yells at him. Y is said to be emotionally blackmailed by his Mother. He reported that his Mother “disapproves of his (hobby omitted) activity” and that he was required to undertake more chores at her residence than his brothers. Y is said to have been responsible for cooking at the Mother’s residence “on multiple occasions during the week”. Y’s brothers are said to have confirmed this information and that Y is treated less favourably at his Mother’s residence compared to them.
Y is said to not to have wanted to tell his Mother about his desire to live with his Father because he was afraid of her [likely] adverse reaction.
The psychologist stated (at paragraph 12 of her June affidavit) that “during the session with both parents on 21st June, it became evident that the Respondent [Mother] had little self-awareness of the emotional impact that her behaviour had on Y.” Respectfully, in all the circumstances, to make such a bald assertion/conclusion is, in my view, very problematic.
The psychologist reported that after Y informed his Mother of wanting to live with his Father, the Mother pressed him for answers and explanations. This, she said, led to Y becoming extremely anxious and which ultimately led to Y being removed from the group situation. The psychologist commented further on Y’s distress and vague thought expression when facing his Mother again because of his concern about an adverse reaction should he return to her residence.
I have earlier recorded Dr M’s other comments in this affidavit relating to the need for both Z and X to receive some appropriate care because of their anxiety “associated with the Respondent’s behaviour”. I have also previously noted a recommendation of the other boys receiving a mental health assessment and that Dr M recorded Y’s recollection of the Mother’s drinking habits.
In Dr M’s second affidavit, filed 9th July, she refers to having consulted with both Z and X on 25th June and 5th July. I have already noted X’s assessments, which are all relevantly within the normal range. She reported on X saying that his Mother “consumes alcohol nearly every day” and of his concern that his Mother may not be in a fit state to take care of Z, because he has an allergic reaction to nuts, due to her intoxication.
Throughout this further affidavit, there are reports of the Mother’s drinking, or there being drinking incidents some four years or so ago, and also some comments about her smoking.
In relation to Z’s assessment, the psychologist recorded that his scores were all in normal range, but then curiously, at paragraph 20, stated “these results indicate that the Father reported more problems than are typically reported for parents of boys aged 6 to 11, particularly withdrawn or depressed behaviour.” This might suggest that the issue or issues are either related to or fostered by the Father, rather than necessarily by the boys themselves.
At paragraph 23, the psychologist stated “he [Z] reported that his Mother wants him to clean his room daily, and that she ‘gets serious’ about cleaning the bathroom. He reported that she is very strict about it and he feels that 50-50 she picks on things that are not done well.”
This comment by Z to Dr M would seem to suggest that the Mother wishes the boys to have tidy rooms and that she would have a clean bathroom in her residence. Presumably the Father does not seriously object to these things. How and why these matters seem to be considered by the psychologist as note-worthy is not explained. No less curiously, in the light of these revelations, is yet another difference between the Father’s evidence and that provided by Dr M.
In his affidavit in reply (para.8), he said: “… the Mother’s representation of an orderly household in her home, is in stark contrast to what the boys have told me about the state of the home, including that the house is ‘messy and unclean’”. The rest of this paragraph is replete with further accusations against the state of cleanliness and disarray in the Mother’s house.
Not for the first time, however, the Father’s evidence is contrary to that provided by others, in this instance by the youngest child, Z, as reported by Dr M. Given the large amount of material filed by the Father, doubtless it has been a little difficult to keep track of the consistency of the competing allegations made against the Mother.
Dr M further reports (at para.25) that Z “feels constrained” because his Mother does not permit him to tell his Father anything that happens at her house
Respectfully, such a complaint only highlights one of a number of immediate (and on-going) problems. It is very common for parents to keep information about their respective households to themselves, rather than risk it providing the other parent with fuel with which to promote further division and discord in the parenting relationship. Given the acrimony between the parents, one would have thought that the less information provided to the other parent – other than directly relating to the welfare of the children – would be highly advisable.
And how and why, after seven years or thereabouts of a shared care arrangement, Z would say to a psychologist (at para.28) that he worried about going back to his Mother and that he did not like her ‘most of the time’ is both astonishing and quite incredible. Such a statement from a young boy might lead the Court to ask whether Z has been lying to his Mother all his life, or whether his very recent thinking about his residence has been influenced (unduly or otherwise) by others? It is all quite concerning – on multiple fronts.
Consideration & Resolution
In this section of my reasons I deal firstly with the legislative scaffold as set out in Part VII of the Act. Arguably, because there are existing final orders in place, it may not be necessary to consider the precise terms of Part VII. However, for more abundant caution, I will do so. I am required to have regard to the wide range of considerations in the Act in no perfunctory or rote manner, notwithstanding that the oral submissions of the parties did not address this required ‘pathway’. Later I return to matters of procedural fairness in the light of relevant authority.
However, as would (or should) be evident from the lengthy discussion thus far, there is a significant difficulty in dealing with the so-called pathway in circumstances where, in my view, much of what is in issue (e.g. the views of the children) could be quite tainted because of the irregularities in the processes that have been undertaken by the Father and the psychologist, Dr M, and because of the differences in evidence between the same persons, as well as between the Father and the children, to which I have referred and need not repeat. Bearing this in mind, I begin with s.60CC(3) and follow sequentially the order of that section, without necessarily naming each sub-paragraph.
According to the comments of Dr M in her two affidavits, and in the Father’s two affidavits, the views of the boys are reasonably clear in that they wish to spend more time with their Father. It is further contended that one or more of them fear their Mother’s possible or likely retribution for wishing to do so. It is also recorded that Z did not really like his Mother ‘most of the time’; in my view, this bespeaks either a child in some difficulty, a child under some significant pressure of one kind or another, and or a child otherwise anxious because of the position in which he (or they) have been placed. Such comments are at least troubling. In my view, given the circumstances that give rise to the current Application, the Court should be very cautious about the ‘weight’ to be attributed to the views of the children at this stage.
Clearly, as the Court has already done, and having regard to the ages of the boys, an order for an independent children’s lawyer (“ICL”) has already been made. The Court looks forward to the assistance from the ICL.
As to the boys’ relationship with both parents the Court needs to consider the following. On the one hand, there is the uncontested evidence that the boys have lived, apparently without incident (or certainly without Court intervention), in a shared care/equal time arrangement with both parents since consent orders in 2008 (and earlier, according to the Father’s evidence). The Court may reasonably infer that, if there had been issues of any relevant kind since that date, an application would have been made to vary them. That has not occurred, save in relation to schooling in 2012. From this the Court may also reasonably infer that the relationship between the boys and their parents has been unobjectionable – to put it quite neutrally.
On the other hand, on the bases of the Father’s two recent affidavits, and those by Dr M, now – apparently of perhaps very recent origin in the course of the last three months, or perhaps six - some strains have developed in the relationship between one or more of the boys and their Mother. In Z’s case, on the evidence of Dr M, the Mother has the temerity to seek to have him (and presumably the other boys) keep his room tidy on a daily basis, and that she is ‘quite serious’ about the cleanliness of her bathroom. These matters are said by Dr M to cause him to feel some difficulty. And this in circumstances where Dr M assessed both X and Z as having no clinical symptoms, or rather that their various test scores were all within normal range. The mental health assessments were either arranged by the Father and or recommended by Dr M, but in either case, without notice to or input from the Mother.
In relation to sub-paragraph (c), for the reasons already given in relation to the long-standing shared care arrangement, up until very recently it would appear that the parenting of the boys has been relatively incident free, notwithstanding the difficulty in the parenting relationship.
Also for reasons already given, the Father has deliberately undertaken a course of psychological intervention firstly in relation to Y, and then involving both of his brothers, which has deliberately and very significantly excluded the Mother. Upon finding out very late in the piece about the psychological intervention, the Mother was, in my view, rather ambushed in the session with Dr M. She has sought to remain involved with the boys since the Father’s unilateral move to keep them at his residence in recent times, contrary to existing orders.
And in addition to keeping the boys, how and why they should be kept from school (again without notice to, or agreement of, the Mother) has not been explained. Such a serious step, in breach of existing orders, should have been addressed.
Further, in early March, the Mother sought to involve the Father in a meeting with Y’s teacher. Ultimately, this came to nought with the Father making his own arrangements, although the Court has not been advised what those arrangements were. In passing, the Father’s disparagement of Y’s teacher and her capacity to discern any relevant issues with him (a) does a disservice to the fact that the teacher spends large amounts of time with Y and, on the Mother’s evidence, has discerned no problems with him (and noted that Y is doing well at school), and (b) does a disservice also to the general training of teachers to be attentive to relevant changes in children.
In passing, I note that teachers are mandatory reporters in relation to children under s.356 Children & Young People Act 2008 (ACT). Presumably, teachers are trained in relevant respects to be able to discern matters that warrant reporting to authorities. True it is, as the Father suggests, that Y’s teacher is probably not appropriate to provide relevant ‘treatment’. However, absent any evidence to the contrary, the Court should be able to take general notice of a careful teacher being able to report to parents on the general well-being and performance of their children.
Again, for the reasons already given, up until a month or so ago, there have been no issues brought before the Court concerning the matters contemplated by sub-paragraph (ca).
In relation to sub-paragraph (d), until there is a report from an experienced family consultant, or perhaps a Part 15 expert, also long experienced in family law matters, I should be very reluctant to make too many comments here, particularly in the light of the now long history of the consent orders. I observe – again – that the views of the boys wanting to spend more time with their Father may be very well founded. However, until that is explored in very much less stressed circumstances, and ensuring the Mother’s proper involvement, rather than, as here, her exclusion, I would be quite concerned about the impact on the children in not to be spending regular time with their Mother as they have done in accordance with the consent orders of 2008.
I do not understand there to be any issues in relation to practicality and expense, as contemplated by sub-paragraph (e).
In relation to the respective capacities of each of the parents to properly provide and care for the children, as per sub-paragraph (f), up until the very recent past, the history of care would suggest that there are no relevant issues in this regard.
Sub-paragraph (g) is, like other matters, really more the subject of comment by the Part 15 expert (or family consultant), which will certainly provide an important guide to the satisfactory direction to, and resolution of, the matter. Until a few months ago, the boys were, apparently, coping and otherwise doing well on basically all fronts. This is certainly borne out by the comments by Y’s teacher. Doubtless a subpoena to the respective schools will inform further if there have been any issues in relation to any of the boys. Again, one of the more perplexing parts of this matter, as the Mother posed to the Father, is ‘how all this has come to pass so quickly’, ‘why’ and ‘why now?’
The comments already made are sufficient for current purposes in relation to sub-paragraph (i). I will not repeat them.
There are no relevant issues in relation to family violence.
Principles of Natural Justice
Relying upon an earlier Full Court decision of Coleman J in KPR & MRS, in Cassidy & Cassidy, Boland J (also sitting as the Full Court) said, beginning at [49]:[9]
[9] Cassidy & Cassidy [2009] FamCAFC 125. KPR & MRS [2007] FamCA 1334.
[49] The principles dealing with natural justice and procedural fairness have been discussed in a number of leading High Court decisions. Coleman J exercising the appellate jurisdiction of the Court in KPR & MRS [2007] FamCA 1334 at paragraphs 60 to 63 of his reasons set out extracts from a number of those authorities as follows:
60. In National Companies and Securities Commission Ltd v News Corporation Ltd (1984) 156 CLR 296 at 312 Gibbs CJ said:-
The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.
61. In Kioa v West (1985) 159 CLR 550 at 612 Brennan J said that:-
The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.
62. In Allesch v Maunz (2000) 203 CLR 172 at 184 – 185 Kirby J said:-
[35] It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
[36] The rule is also implicit in international principles of human rights. It is inherent in the proper conduct of judicial proceedings in a court of law. It may even be an implied attribute of the judicature established under, and envisaged by, the Constitution. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions, to administrative tribunals and other decision-makers. The principle governed the Family Court of Australia in determining the rights of the present parties. (footnotes omitted)
63. In Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 the High Court (Mason, Wilson, Brennan, Deane & Dawson JJ) said:-
That general principle [entitlement to a fair trial] is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.
[50] The principles are also succinctly summarised in Kioa v West by Mason J at 582 where his Honour said:
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: …
In Dobbs v Brayson (No.2), the Full Court (Warnick, Boland & Carmody JJ), referred to natural justice principles in relation to the conduct of proceedings.[10] In the course of that brief discussion, at [41], there was specific reference to Gleeson CJ’s comments about “practical injustice” in Lam to which I referred much earlier in these reasons.
[10] Dobbs v Brayson (No.2) (2008) 38 Fam LR 95.
And at [43], the Full Court said, obviously in the context of the conduct of a trial, that failure to provide a party with an opportunity to comment on or to tender documents, or to cross-examine a party, “constituted a practical injustice or a denial of procedural fairness to the Mother.”
Indeed, in RCB as litigation guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest (2012) 247 CLR 304, at [42], the High Court said (internal citations omitted):
Procedural fairness is an essential characteristic of judicial proceedings. However, its content is dependent upon the nature of the proceedings and the persons claiming its benefit. The present proceedings are not a contest between the father and the mother about the custody of the children. Even litigation between parents about parenting orders, while judicial in nature, is not entirely inter partes because in such cases, as s 60CA of the Family Law Act provides, the paramount consideration is the best interests of the child. The procedure available in such cases, pursuant to s 62A, for reports to be provided by family consultants at the direction of the court "demonstrates the special nature of the jurisdiction arising from the purpose of the inquiry undertaken by the court.
Just so here. Procedures, and their content, must be tailored to the particular circumstances of the case before the Court.
I readily accept that the principles I have just outlined apply or relate to curial process (or the like). However, in my view, a no less basal principle is that in pre-litigation procedures, particularly where (a) the best interests of children are concerned, and (b) there are existing orders (particularly final orders, not to mention long-standing orders by consent) which include an order for equal shared parental responsibility for the parents, at least by analogy it is essential that a parent not be placed in a position of procedural unfairness, or be the subject (as here) of “practical injustice.”
In my view, the steps taken by the Father, and by Dr M, which I have outlined in detail here, have constituted “a practical injustice or a denial of procedural fairness to the Mother.” They may also have compromised the position of the children, and their relationship with their Mother.
Conclusion
At the current stage of the proceedings, there has been only an interim hearing. However, as spelt out in detail in these painfully long reasons, in my view, the Mother has been regularly denied the opportunity to engage properly with (a) her children in circumstances where there have been functioning consent orders since 2008, (b) the psychologist who has been assessing all the children, without the Mother’s prior knowledge or consent, and where (c) she has sought from the Father agreement or engagement with “other means” that were/are less confrontational (which the Father has refused), and (d) the Mother has also sought to engage the Father with Y’s teacher, without Y’s presence, with a view to finding out more information before considering the most appropriate course, which the Father has also refused and has made “other [unspecified] arrangements.”
This denial has led to a very significant change in the children’s circumstances, both in relation to being deprived from spending any time with their Mother, and in not attending school. Both courses are very serious derogations from the usual practices of these parents over the last seven or so years, as well as very serious derogations from existing orders.
Further, without reference to the Mother or to the existing orders, the Father has engaged a psychologist, who has, again without reference to the Mother or to the orders of the Court, undertaken mental health assessments of the boys. The courses taken by the Father and by Dr M, doubtless well-intentioned, have denied the Mother any relevant input. The conclusions of the Court may, ultimately, lead to a change in the current parenting orders. However, the pre-emptive action thus far undertaken, has, in my view, improperly placed the boys, and their Mother, at potentially significant disadvantage. The conduct may have made it more difficult for the Court to arrive at a considered decision as to what orders are in the children’s best interests.
I accept readily that the Court has a protective responsibility to the children, as per s.60B(1)(b) and (c), as well as s.60CC(2). However, the matter could very properly be characterised as a relatively straight-forward parenting contest, but which has escalated into a much more complex exercise for all because of the precipitate action of the Father, and in my view, perhaps also by Dr M.
In my view, as previously stated, the course adopted by the Father has led the Mother, in the light of the existing consent orders, to suffer “practical injustice”. This should not have occurred.
This Court, by statute (Federal Circuit Court Act 1999, ss.3, 14, 42)[11] and by practice, deals with a large volume of matters (in family law and otherwise) and seeks to do so in the most timely way possible. Very regularly, the Court deals with matters of particular urgency. The current contest would customarily and regularly come within the usual definition of an urgent matter.
[11] See also the Federal Circuit Court Rules2001, r.1.03.
However, what took place, over the space of many months, and notably when an “issue” involving Y arose in January, was that the Father took it upon himself to proceed to engage a psychologist, without reference to either the Mother or the Court. He should not have done so. Had an Application been made in either January, February or March, or even in April, I suggest that much of the difficulty that attends the current contest could have, and would have, been avoided. It is surely to be regretted that this did not occur. Instead, the boys have been embroiled, in my view, much more directly in a parenting contest, and perhaps other things, than should have been the case. As I have already mentioned numerous times, the matter has escalated alarmingly.
Further, it is not only concerning that all boys have been embroiled in issues which, on their face, relate primarily to Y, but also that all boys were taken out of school – also without notice to or the consent of the Mother. Why this occurred remains unexplained. This action was in breach of the 2008 orders, as well as the 2012 orders which relate specifically to schooling. There appears to have been no reference to either of these sets of orders in the determination by the Father that the children should not attend school. This determination by the Father also should not have taken place without reference to either the Mother or the Court.
We can all be grateful that therapeutic intervention with a very experienced family consultant, Ms S, is now taking (or will soon take) place. Similarly, it is also fortunate that another experienced family consultant (or a similarly experienced Part 15 expert) will prepare a report.
Until we have the benefit of a detailed report from someone experienced in family law matters, I suggest that we are all significantly hampered as to the path forward. In such circumstances, in my view, the best interests of the boys are served by the following orders:
a)The existing orders of 2008 shall continue;
b)The children are to be returned to their Mother at the earliest possible time in accordance with the 2008 orders, but only after the ICL has been able to speak with them as noted in these orders;
c)Absent a medical emergency, and excepting regular health issues (e.g. colds, flu and similar common ailments) both parents are restrained from taking the children to see any health care professional (including any psychologist) without the prior written notice to (a message via email or SMS will be taken as written notice), and agreement of, the other parent, or order of the Court;
d)Pursuant to the 2008 and 2012 orders, the children are to attend their current schools;
e)Within 7 days of the date of these orders, the parties (and the ICL) are to advise the Court whether a Part 15 expert should be retained to provide a report that would involve both parents and the children, or whether a report be prepared by a Regulation 7 consultant, which report is to include psychological testing used in family law proceedings;
f)The ICL is requested to explain these orders to the children, and is further requested to inform them that their Mother has advised the Court by way of sworn affidavit that she will not take any adverse action against the boys as a result of any view expressed by them recorded in the material currently filed with the Court.
g)The Court requests that the ICL provide a copy of these reasons to Ms S, and to the expert to be appointed.
I certify that the preceding one hundred and ninety-six (196) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 24th July 2014
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