PRESCOTT & SANDERSON

[2014] FamCA 649

FAMILY COURT OF AUSTRALIA

PRESCOTT & SANDERSON [2014] FamCA 649

FAMILY LAW – First day of hearing of parenting proceedings – further s11F assessment to be undertaken for the purpose of drawing together specialist treatment of children where parents have not communicated with one another – vulnerable children – obligations of equal shared parental responsibility

APPLICANT: Mr Prescott

RESPONDENT: Ms Sanderson

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms Lonergan

FILE NUMBER: MLC 1306 of 2012

DATE DELIVERED: 21 July 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 21 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A.J. Prescott

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr McLeod

SOLICITOR FOR THE RESPONDENT:	Marcou & Associates Pty Ltd
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

Orders

IT IS DIRECTED THAT:

1.If it is not already the case, henceforth Registrar Sikiotis be the Docket Registrar for this matter and her assigned Case Coordinator be noted in the records of the Court as the Case Coordinator for this matter.

IT IS ORDERED THAT:

2.This matter be listed for mention in court before me on a date to be fixed within 10 days of the release of a further section 11F report.

3.The letter from Ms B, psychologist, dated 6 May 2014 be placed on the Court file as if it was a document filed in this proceeding (see notation in relation to Intervention Order).

4.Until further order, each party is at liberty to cause subpoena(s) to issue returnable in any subpoena list until the final hearing or on any date appointed by Registrars Riddiford or Sikiotis for the return of subpoena or on any date notified to the parties by my Chambers for the return of subpeoana(s).

5.Pursuant to section 11F of the Family Law Act 1975 the parents attend an appointment/series of appointments with a family consultant of this Registry of the Court and for that purpose:-

a)      The father is to attend at Level 5 of this Registry of the Court at 9.15 am on 29 July 2014;

b)     The mother attend at 11.00 am on 29 July 2014;

c)      The family consultant may appoint further interviews for the parties and/or the children; and

d) It is requested that the Family Consultant prepare a Children and Parents Issues Assessment in writing to update the circumstances and treatment of family members since the last s. 11F assessment in 2013.

6.The family consultant may, at the direction of the Honourable Justice Bennett, be required for cross-examination on the adjourned date.

7.For the purpose of the Children and Parents Issues Assessment in this matter the family consultant be and is hereby authorised to have reference to all documents filed in these proceedings as well as to any documents produced on subpoenae and released for inspection by all parties.

8.Each party hereby consents to the family consultant contacting any proper officer of a school at which a child is enrolled to attend and any clinician, doctor, psychiatrist or like professional who is engaged or has previously been engaged to treat any family member and to discuss the condition of any family member and their prognosis.

9.The reasons for decision this day be transcribed and when settled copies be made available to the parties.

AND IT IS NOTED BY THE COURT that, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

AND IT IS FURTHER NOTED that on 16 December 2013 the mother obtained an ex-parte interim intervention order against the father.  In January 2014 the father cross-applied and obtained an intervention order against the mother.  On 9 May 2014 the parents agreed to withdraw their respective applications for intervention orders (and did so with the effect that there are no current crimes family violence or intervention orders affecting the parents or any of the children C born … 2000, D born … 2001 and E born … 2004).

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. This matter comes before me as a first day hearing, it having been adjourned into the list of cases awaiting final hearing by Senior Registrar FitzGibbon on 3 December 2013.  Today the applicant father appears in person and he represents himself in these proceedings. 

2. The father represents himself.  He appeared to have prepared for the proceedings, be forbearing to an appropriate degree but understandably concerned about the children.  Mr McLeod of counsel appears on behalf of the wife who attends court. 

3. The wife is not employed outside the home.  She has a history of employment in agriculture and on a family farm and in tourism.  She currently supports herself by a combination of Centrelink benefits and child support of approximately $250 per week.  She sees Ms F who is a psychologist.

4. The father is in full-time employment as a technician at G Pty Ltd.  He is in receipt of an income of approximately $95,000 per annum. The father’s partner has accompanied him, that is, Ms H.  She’s 29 years old, employed as a manager for I Pty Ltd. 

5. Ms Mary Lonergan has been the independent children's lawyer since approximately August last year.  She has not met with the children and expresses some concern about meeting D. 

6. The children are C, who is 14 years old.  He is in year 8 at J School.  He is currently spending each alternate weekend with his father and Ms H and has dinner with his father one night each week, which is a Wednesday.  C has missed some school this year, although I understand from Mr McLeod that he is instructed by the mother that C has had an attendance rate of approximately 83 per cent.

7. D is enrolled as a student in Year 7 at J School.  She is 12, going on 13.  She hasn’t gone to school since 21 March 2014 and I don’t know what her attendance rate was like before that but, I suspect, it was not 100 per cent.  The father was not informed by the wife that D had ceased attending school and this first came to his knowledge in apparently May 2014 when he contacted the school and her non-attendance was confirmed.

8. A Dr K, general practitioner, has provided certificates for the school and for the father citing the reason for D’s inability to go to school as “a medical condition”.  I will return to D’s state of health later in these reasons.  I am concerned that there is an extant order for joint parental responsibility and yet the mother did not notify the father of D’s non-attendance at school.  Furthermore, I infer (perhaps incorrectly) that during all of C’s regular time with the father, C did not tell the father that his sister was not attending school, which happens to be his school too.

9. E is 10 years old and she sees her father in C’s company.  She currently spends two days on the weekend but doesn’t stay overnight and joins C on Wednesday evenings.  She attends J Primary School.  She also has not attended school adequately this year.  There have been a number of half days which are apparently attributable to attendance at psychology appointments or similar events and there have been 19 days missed up to the end of last term.

10. Mr McLeod, of counsel, is instructed by the mother that E’s lack of attendance occurs around days after she has spent time with the father.  It was said that the mother and then it was said that E found the time with the father to be disruptive.  E suffers from bowel and bladder difficulties.  On 19 September 2014 she is to see a paediatrician, a Dr L, at M Town Community Health Centre.  The father commented on the possibility that the children’s diet in the mother’s home is inadequate and that he ensures that the children (whom he sees) eat healthily at his home.  A good diet is a good thing but it sounds to me like the parties should consider asking the children’s medical practitioner if a referral to a paediatrician who specialises in bladder and bowel disorders would be appropriate for E at this stage.  In another case one Dr N of Suburb O was such a specialist.  This is not an order but I do think that it would be beneficial for the parents to consider if E’s bowel and bladder difficulties are caused by something other than diet and if those symptoms could be treated independently of stress or anxiety.  Obviously, the goal is to return E to a state of equilibrium where she can attend school regularly and reasonably, more so because she is obviously aware that her sister does not do so.

11. D had previously seen the mother’s psychologist, Ms F.  When the matter was last dealt with by Senior Registrar FitzGibbon the intention was that the children would be seeing a Ms B, psychologist.  I don’t know to what extent D saw that psychologist, but she was ultimately referred by that practitioner to the P Hospital mental health service for children where Dr Q (psychiatrist) and Dr R (GP) saw D.  I understand that she has been assessed as not suffering from gender dysphoria but from suffering some other form of mental illness or disturbance.  There’s a report by Ms B, psychologist, on the file dated 6 May 2014. 

12. D is now booked in to see Prof S at T Town.

RECORDED:  NOT TRANSCRIBED

1. That appointment is on 6 August 2014.  Dr S is a well-known practitioner in Melbourne.  He has previously worked in children’s health teams.  I mention this because my understanding of Dr S is that he has not previously been prepared to treat children where there are pending court proceedings such as those.  Therefore, if D is fortunate enough to become his patient, it is absolutely imperative that court proceedings do not sabotage or risk the continuation of that treatment.  That said, it is necessary that the court knows what is happening.  I’m concerned that this matter has perhaps waited too long to come before me, particularly as D ceased to attend school or apparently to attend upon Ms B.  There appears to be many practitioners and no communication between the parents.  There needs to be some coordination.

2. The manager of Child Support Services is prepared to deploy a family consultant who will see the parties (but not children) on Tuesday, 29 July in Melbourne for the purpose of drawing together what treatment the family and any particular family members have received since the mother was assessed by Dr U in November 2013 and a parent and issues assessment was prepared by Ms V, registry family consultant, on 4 June 2013.

3. The parents have readily given their consent to any communication between the registry family consultant and the practitioners concerned, be they previous practitioners of the children or either of the parents or current practitioners or practitioners yet to be consulted.  That consent is recorded in the minutes, but I do make mention of the fact that it was given readily and without any apparent reservation whatsoever.

4. It seems to me, with respect, that it was a pity that the father was not assessed by Dr U at about the same time that the mother was assessed.  The parent and issues assessment by Ms V refers to there being benefit in both parents being assessed:

   For the sake of completeness, it would likely be of assistance for [Mr Prescott] to be psychiatrically assessed.

   But it wasn’t apparently the view of the learned Senior Registrar.  The Senior Registrar considered that as Mr Prescott’s mental health had not been the subject of any particular comment, it wasn’t necessary.  Seeing both parties generally gives an insight for a practitioner like Dr U whose insights into each individual parent are more extensive than if he has just seen that party.  It is correct that the father’s mental health is not an issue.  However, I don’t exclude the possibility that I will require the father to attend and perhaps even for the mother to attend again upon Dr U, but first we will see what flows from the parent and issues assessment to be conducted by the family consultant.  I am conscious of the expense to the parties of further psychiatric assessment.  The mother says she cannot afford to contribute.

5. I purposefully have not placed a completion date on the parent and children’s issues assessment.  As soon as it is released, my associate will appoint a mention date before me. 

6. In essence, I don’t want the children to fall through the cracks.  I want to know what’s going on.  The Court will allocate time, when it is appropriate, to deal on a final basis with the pending applications which are-

   ·the amended application of the father in which he seeks that all three children live with him and that he have sole parental responsibility for the children filed on 25 November 2013;

   ·The mother’s response to the father’s original application filed on 25 March 2013 in which she seeks that the children live with her and that the girls have a different spend‑time regime with the father than C has, and that C is to be the only child that has overnight time with the father.

7. It is as well for the parties to note what is required when parties share parental responsibility.  Pursuant to orders made in August last year and in December last year there is equal shared parental responsibility for the children and, in fact, it seems that that was as early as April 2013 orders were sought and made by consent by Registrar Marrone which provided for the parents to have equal shard parental responsibility.

8. Equal shared parental responsibility requires parents to work cooperatively.  In particular, section 65DAC(3) requires each of the parents to consult with the other person in relation to a decision about issues concerning the children and to make a genuine effort to come to a joint decision about the issue. 

9. The issues to be consulted about are major long-term issues in relation to a child or children.  “Major long-term issues” are defined in the legislation in section 4 as being issues about the care, welfare and development of the child of a long-term nature and includes, but is not limited to, issues of that nature about the child’s education, both current and future, the child’s religious and cultural upbringing, the child’s health, the child’s name and changes to the child’s living arrangements that make it significantly more difficult for a child to spend time with a parent.

10. In the circumstances that I’ve outlined above, I make the orders set out at the beginning of these reasons and will await the matter being relisted after completion of the next parent and children’s issues assessment.

11. I also make it clear, Ms Lonergan, that you need to talk to the school, so each party consents to the family consultant contacting any clinician, school principal or teacher or like professional.  So that includes the school.  A copy of these reasons, Dr U’s report, the previous Parent and Children’s Issues Assessment (Ms V, 4 June 2014), or any of those documents, may be provided to any medical or like practitioner for the children and the parents, or any of them, and to any counsellor or like professional and the proper officer of the school at which any of the children attend if it is considered that the children (or any of them) would benefit from that occurring.  I will leave to the ICL to consider whether these reasons and the earliest documents should be sent to Dr S.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 21 July 2014.

Associate: 

Date:  24 July 2014