PRESCOTT & SANDERSON

[2015] FamCA 162

FAMILY COURT OF AUSTRALIA

PRESCOTT & SANDERSON [2015] FamCA 162

FAMILY LAW – PARENTING –vulnerable children – siblings – introduction of overnight time – precondition that father meets with child’s specialist paediatrician

APPLICANT: Mr Prescott

RESPONDENT: Ms Sanderson

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms M Lonergan

FILE NUMBER: MLC 1306 of 2012

DATE DELIVERED: 30 January 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 30 January 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Jenkins

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Ms Dunlop

SOLICITOR FOR THE RESPONDENT: Marcou & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms AA

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

IT IS ORDERED THAT:

1.Paragraph 19 of the order of this Court made on 1 August 2013 be and is hereby discharged with respect to the child D;

2.Each of the Mother and the Father do all acts and things necessary to;-

a.     Make an appointment for the child, D born … 2001 (“D”) to attend upon Ms F psychologist;

b.     Take the child D to the appointment and thereafter use their best endeavours to encourage D to consult with Ms F;

c.     Follow Ms F’s reasonable requests for D to attend further appointments with her;

d.     Continue to consult with Professor S and follow his reasonable requests and recommendations for;-

i.D’s continued attendance upon Ms F and himself or any other professional reasonably recommended by him;

ii.Appropriate strategies to support the child D.

3.The Court requests that Ms F:

a.     Undertake therapeutic consultations with the child D and collaborate with Professor S and Dr K in developing and implementing a clinical treatment plan for D;

b.     Provide to Professor S and Dr K all and any information reasonably requested regarding D’s therapeutic treatment subject to any necessary ethical obligations;

c.     Not to raise with the child D issues relating to sexual assault and discuss the same with Professor S to obtain advice and strategies to deal with the same;

d.     Not provide therapeutic treatment or intervention for the Mother, Ms Sanderson during the period in which the treatment and therapy is being conducted with the child D;

e.     Not write or produce any report concerning D and/or her treatment save for reports to inform Professor S.

4.The Independent Children’s Lawyer forthwith provide to Ms F;-

a.     A copy of the Family Report prepared by Ms V and dated 19 December 2014;

b.     A copy of Child and Parents Issues Assessment report conducted by Dr X on 5 August 2014;

c.     A copy of the report of Dr K dated 22 July 2014;

d.     A copy of the report of Dr U dated 1 November 2014;

e.     A copy of the report of Dr Y dated 24 July 2014 in relation to the Mother, Ms Sanderson.

5.Each of the Mother and the Father are restrained from;-

a.     Contacting or communicating directly with Ms F or any other mental health professional providing therapy to D other than Professor S, to discuss the therapy and treatment of the child D, or anything that is communicated by the child during therapy or otherwise provide information to Ms F apart from making an appointment for D to attend Ms F;

b.     Requesting either directly or by their solicitor or agent, any report or statement from Ms F regarding any treatment, therapy or discussions with D;

c.     From being in the room (or within hearing) during any therapeutic sessions or conversations between D and Ms F or other mental health professional other than Professor S, about therapeutic matters.

6.That, until further order, the Mother meet out of pocket costs for the child attending upon Ms F and Ms F for the duration of any mental health care plan and the Mother do all things necessary to secure the mental health care plan.

7.That during the preparation of any mental health care plan by Dr K, each parent be and is hereby restrained from being in the same room as D;

8.Liberty to the Independent Children’s Lawyer to re-list matter by contacting my Associate for orders about out of pocket expenses of Ms F, psychologist;

9.The Independent Children’s Lawyer provide a sealed copy of these orders to;-

a.     Professor S;

b.     Ms F;

c.     Dr K.

IT IS DIRECTED THAT:

10.The bundle of correspondence passing between clinicians and the parties be tendered and marked Exhibit “ICL1” NOTING THAT it comprises:-

a)A letter from Bendigo Health dated 6 November 2014 addressed to the Court;

b)A letter from Professor S dated 13 December 2014 addressed to Dr K, general practitioner;

c)A letter dated 23 December 2014 from Professor S to the husband;

d)Two emails from the husband to Professor S dated respectively 22 December 2014 and 2 January 2015;

e)A letter from Ms F, psychologist dated 7 January 2015 to Professor S;

f)Letter dated 13 January 2015 from Ms F, psychologist, to the husband.

11.The reports of Dr L dated respectively 19 September 2014 and 25 November 2014 be marked as Exhibit “W1” and remain on the Court file as if filed in these proceedings NOTING THAT in the event that any party requires that it be put on affidavit it be proved by affidavit prior to the final hearing.

IT IS FURTHER ORDERED THAT:

12.Paragraph 1(c) of the Order made on 3 December 2013 as it pertains to the child E born … 2004 (“E”) be varied so that on the first weekend in March 2015 during which the child C born .. 2000 (“C”) will spend with the father pursuant to Order of this Court (being 13 March 2015), E spend time with the father from 11.00 am on the Saturday to 11.00 am on the Sunday of that weekend and then return to the mother’s home.

13.When E actually spends time with the father pursuant to paragraph 12 of this Order, C’s time with the father as provided for in paragraph 1(b) of the Order made on 3 December 2013 conclude at 11.00 am on Sunday.

14.The father do all things necessary to attend upon Dr L with E and with his partner, Ms H, at 1.00 pm on 27 February 2015 or such earlier date and time as can be arranged by the father and notified to the mother.  The purpose of the appointment with Dr L is to discuss all of the possible strategies that can be employed to make E’s time with her father as trouble free and without anxiety for E as possible having regard to her medical conditions.

15.IT IS REQUESTED that the independent children’s lawyer discuss the purpose of the meeting with Dr L prior to the meeting if that is practicable.

16.The operation of paragraph 12 is conditional upon the father having attended upon Dr L as provided for in this Order.

17.There be liberty to the independent children’s lawyer to arrange for the matter to be mentioned in relation to out of pocket expenses for the child D born … 2001 treatment with Ms F be extended to cover the commencement of E’s overnight time with the father.

18.The application filed on 23 January 2015 is otherwise dismissed.

19.That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS FURTHER DIRECTED:

20.That the signed minute of consent orders be marked Exhibit “A” and remain on the Court file.

21.That the reasons for decision this day be transcribed and when settled a copy be placed on the Court file and made available to the parties.

AND IT IS NOTED

A.That this matter is otherwise fixed for final hearing before me on 20 April 2015 at 10.00 am estimated to take 5 days.

B.The parties note that Dr K and Dr Z are not mental health care professionals.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1306 of 2012

Mr Prescott

Applicant

And

Ms Sanderson

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

ex tempore

1. The fact that it is now 4.40 pm belies the fact that the matter was listed this morning for a mention.  I would like to commend the practitioners and, through them, the parties for having put in what I am certain has been a very tiring and gruelling day in terms of having to confront important aspects of the litigation in respect of which they have a final hearing in April. 

2. The matter was mentioned to coincide with the release of the family report published on 19 December 2014 by Ms V, family consultant and psychologist in the employ of the registry. 

3. I have not heard from Ms V today.  She has not been cross-examined; accordingly her evidence, like all the other evidence of experts in this case, is currently untested.  I have, this morning, made orders in relation to D and I have taken into account a number of things including the summary by Ms AA for the independent children’s lawyer of the conversation which she and the other counsel in the case had with Professor S.  Ms AA reported Professor S’s profound concern about D’s mental health situation.  Whilst he was unable to provide a diagnosis, Professor S said that a failure to intervene therapeutically at the present time could be catastrophic.  He expressed a willingness to communicate with each of the parents in order to assist them with strategies for dealing with D and the family structure generally, given D’s difficulties.  He also generously offered to work with D’s therapeutic providers and coordinate the therapeutic intervention.

4. The matter which I am asked to decide concerns E, who is 11 years old, having been born in 2004.  She is a child with particular needs; although, they are, for all intents and purposes, quite dwarfed by the needs of her older sister, D. 

5. The father has put on an application in which he seeks, in relation to E, that her time increase gradually so that by March 2015 it is the same as the time that C has with the father.  Broadly speaking, that is on alternate Wednesdays, from 4.30 pm until 8 pm, and on each alternate weekend, from 4.30 pm on Friday until 8 pm on Sunday, the next such occasion being tomorrow. 

6. The independent children’s lawyer has tendered certain documents to the Court which are recited in the order and which I’ve read.  I’ve also had the benefit of reading the family report.  Her approach is more conservative than the father and she says that on the first weekend of each month, E could go for one overnight period so that she would go to see the father as she does now at 11 am on a Saturday and return to the mother at 7.30 pm on the Sunday.  That’s less time than C but C would be there for all of that time.  The independent children’s lawyer was not averse to making the first such occasion from 11 am on Saturday to 11 am on Sunday.  The mother is opposed to any overnight time for E with the father at this time.

7. The position of the mother is that there ought be no change at all so that E would continue to go to see her father when C is in the father’s care and that is from 7.30 pm on Saturday and then for the same times on Sunday.

RECORDED:  NOT TRANSCRIBED

1. It’s a difficult case.  Many of the submissions have been framed around an opportunity to introduce overnight time for E now as a purpose of observing or seeing how she reacts to it or from relieving her from the pressures and anxieties which beset her home with D and the mother.  I want to make clear to the parties that there is no part of my thinking in this case which involves experimenting with E’s welfare by introducing overnight time.  Changing the parenting arrangements at this point is governed by the same principles as all parenting matters, and that is that it must actually be in the best interests of the child, not a useful experiment or opportunity to observe. 

2. The legislation provides that in determining the best interests of children I have to take into account the need to protect them from abuse, neglect and harm, and to take into account the benefit of having a meaningful relationship with each of their parents.  This is a very complicated case.  Both additional considerations are relevant.  These children are vulnerable children.  The additional considerations which are set out in the legislation don’t greatly assist, but where they do, I mention them now.

3. I take into account E’s views.  They are articulated in the family report (untested) as not favouring an increase now or, indeed, in the foreseeable future, to include overnight time.  That said, it is my impression from reading the report that the report writer doubts whether E is expressing those views entirely of her own volition and is not either unduly influenced by concerns for her mother and/or her sister either as to how they would feel and how they might react.  The family consultant certainly expresses concern about the mother’s apparently inability to take responsibility for her contribution to E’s anxieties and this is a matter about which I am worried as well. 

4. The introduction of overnight time is an incident of that concern.  For instance, the family consultant opines as follows: 

   [72] E continues to experience some level of (stated) reluctance in spending time with her father. Her narrative, however, does not accord with Mr Prescott’s experience of a relaxed and happy E whilst she is in his care. If Mr Prescott’s description of E’s behaviour is to be accepted, this would suggest that E may well perceive a lack of active support within her mother’s home around this relationship. This is most likely the result of Ms Sanderson’s difficulties in shielding the children from her views and anxieties.

   [73] Ms Sanderson’s prediction that E will follow D, in terms of the development of resistance toward spending time with her father, is highly concerning. It speaks to Ms Sanderson’s inability and unwillingness to appropriately support E in developing her relationship with her father further. Whilst it is acknowledged that E experiences some degree of anxiety when considering more substantial periods of separation from her mother, there are no indicators that she presents with issues as experienced by D.

   [74] It is anticipated that should E be supported, by both of her parents, in spending overnights with her father, this will occur successfully. Ms Sanderson will need to ensure however that E feels she has “permission” from her and D in doing so.

   [75] Ms Sanderson continues to lack insight into her own contribution toward the children’s current difficulties in their relationships with their father. In fact, her overt denial of any responsibility is concerning and does not bode well for her future capacity to adopt a greater level of support in this regard. Whilst Ms Sanderson is encouraged to continue her own therapeutic process, the efficacy of such is questionable in the absence of this occurring with a practitioner who is fully informed of the history of the family dispute. It is recommended that Ms Sanderson and Mr Prescott, Ms H and the children (exclusive of D perhaps at this stage and until advised as appropriate by her treating practitioners) engage in family therapy. This would seem to be the most likely avenue to implementing change at a family level.

5. The matter was stood down on a number of occasions and the practitioners have diligently contacted very many professionals in relation to the family.  I’m told from the bar table that there is an opportunity for the father to see Dr L, paediatrician, at Woodend on 27 February 2015 at 2.15 pm.  Dr L is treating E for incontinence and other conditions which are said to have at least some basis in anxiety as well as physiologically. 

6. The purpose of meeting Dr L would be to get from her some focused strategies to lessen E’s concerns about spending a night away from her home and her regular routine.  There’s also an opportunity to see Dr K, who’s a general practitioner, who has had an extensive involvement with the family; although, at the moment, E appears to be under the care of another doctor from Sunbury Medical Centre, and that is Dr Z.  That appointment is available on Monday at 4.30 pm.  It’s a double appointment at Sunbury. 

7. The mother opposes the introduction of any overnight time.  If, contrary to her position, overnight time for E is to be introduced, the mother seeks that it be subject to the father first meeting with Dr K or Dr L, E and the mother. 

8. The father opposes any precondition to the commencement of time and says, through his counsel, that he has already seen Dr L and that he has read all of the material which has been tendered by the independent children’s lawyer. 

9. The needs of the children in this case are particularly complex.  C appears to be the least affected by the anxieties that appear to swirl around the mother’s household, enveloping her and the two daughters of the marriage, but he’s certainly not unscathed.  The submissions today in relation to E included submissions by counsel for the mother that if E’s routine vis-à-vis the father is changed, that might adversely affect D’s treatment and wellbeing.  That’s a disturbing prospect in reality as well as from the perspective of the mother curtailing the relationship which E can have with her father (and brother) according to her perceptions of D’s needs. 

10. Both counsel for the mother and father have been particularly persuasive with their respective cases and, quite frankly, it has led me to decide the case in a way that’s different from preliminary views which I earlier expressed. 

11. I am satisfied that it is in E’s best interests for there to be an introduction of some overnight time pending a further hearing, but not to anything like the degree sought by the father.  I propose that there be a modest increase in time for E to include overnight time but that she be accompanied by C before, during and after the time.  Unfortunately for C, that is going to mean that his time will be curtailed somewhat for what I estimate to be two weekends between now and the final hearing.  I am satisfied that E should not spend two days and a night in the father’s household at this stage, and the conservative and preferable approach is for her to go from 11 am on Saturday to 11 am on Sunday. 

12. I conclude that it is in both C and E’s best interests that when E returns home to the mother’s household that C return with her.

13. I will require the father to attend upon Dr L for the appointment at 2.15 pm on 27 February 2015.  The first overnight period of time should commence in the first spend-time weekend in March 2015.  E will go from 11 am on Saturday to 11 am on Sunday and, at that time, both C and E will return to the mother’s home.  The father’s attendance on Dr L with E and with the father’s partner (and without the mother) is a pre-condition to the commencement of the time.

14. This is a matter which will probably come back to court by telephone mention between now and the final hearing.  That will because of out-of-pocket expenses in relation to D’s treatment by a psychologist, Ms F.  At that time, some further mention can be made of the matter in relation to E and what I’m referring to is if for some reason the father doesn’t meet with Dr L at the appointed time.  But as it stands, I am satisfied that it is in the child’s best interests now to have some overnight time with her brother in her father’s household to commence in March 2015.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 30 January 2015.

Associate:  Janet Durham

Date:  2 February 2015