Self & Bachman
[2021] FedCFamC1F 76
•23 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Self & Bachman [2021] FedCFamC1F 76
File number(s): SYC 2566 of 2016 Judgment of: HARPER J Date of judgment: 23 September 2021 Catchwords: FAMILY LAW – PARENTING – Urgent listing on the application of the Independent Children’s Lawyer – Urgent listing of applications made by the mother and father – Where consent orders had been made for child to attend upon a psychologist – Where this has not been possible due to father’s alleged refusal to cooperate – In circumstances where the child has expressed suicidal ideation – Entrenched conflict between the parties – Where final judgment is reserved – Where circumstances require Court to make urgent decision on limited material – Mother granted interim sole parental responsibility in relation to child’s psychological treatment. Cases cited: Salah & Salah (2016) FLC 93-713; (2016) 56 Fam LR 299; [2016] FamCAFC 100 Division: Division 1 First Instance Number of paragraphs: 8 Date of hearing: 23 September 2021 Place: Sydney Solicitor for the Applicant: Adam Jones Solicitor Solicitor for the Respondent: Mr Bachman in person Solicitor for the Independent Children's Lawyer: Tiyce & Lawyers ORDERS
SYC 2566 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SELF
Applicant
AND: Mr BACHMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
Other
ORDER MADE BY:
HARPER J
DATE OF ORDER:
23 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Leave be granted to the Independent Children’s Lawyer (“ICL”) to issue a subpoena to Dr B of C Physicians, to be returnable at 12.00pm on 23 September 2021.
2.Upon the return of the subpoena, compliance by Dr B in relation to Order 1 be deemed to have taken place, noting that Dr B has already produced documents.
3.Access be granted to the parties and the ICL to any documents produced by Dr B.
4.The Applicant Mother (“the mother”) shall have sole parental responsibility for X, born in 2011 (“the child”) on an interim basis, limited to medical issues concerning the child’s psychological presentation and treatment.
5.The mother shall keep the Respondent Father (“the father”) informed of any decisions she makes pursuant to Order 4, with such information to be provided orally, by email, or by text message.
6.Leave be granted to the ICL to relist the matter on two (2) days’ notice.
7.All outstanding applications be stood over on a date to be advised.
THE COURT NOTES THAT:
A.The parties are advised that the judicial calendar will not allow for an interim hearing for at least two (2) months.
B.The parties should be prepared for the Court to list and hear their outstanding applications on short notice.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Self & Bachman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J
On 23 September 2021, the matter was listed on the application, pursuant to leave already granted, of the Independent Children’s Lawyer (“ICL”). The ICL sought leave to issue a specific subpoena to the General Practitioner of the child who is the subject of the proceedings, X, born in 2011 (“the child”). At the mention, orders were made to regularise that outcome.
The day before the mention, on 22 September 2021, the Applicant Mother (“the mother”) and Respondent Father (“the father”) both filed different Applications in a Proceeding. The mother’s application sought an interim order for her to have sole parental responsibility in relation to the child. The ICL supported the making of that order, but limited to issues of the child’s psychological presentation.
Orders had been made on 25 August 2021 for the child to consult with a specific clinical psychologist. According to what I have been told by the mother and the ICL, noting that this is in dispute, this consultation process has not taken place because of an unwillingness indicated by the father to engage with the process. However, the father, for his part, says that he is prepared to engage, but that the clinical psychologist formed the view that she did not want to be involved.
On an urgent listing, it is, of course, impossible to make any factual determinations of issues that are hotly contested. However, as the Full Court has said numerous times in decisions such as Salah & Salah (2016) FLC 93-713 at [39]-[42], the Court, or a first instance judge, is often left with no choice but to weigh the probabilities of competing claims and the likely impact on children, in the event that a controversial assertion is acted upon or rejected, and to make the best decision they can on the basis of what has been put before him or her, on the basis of their intuition.
I am told that the child has indicated that he often falls into a highly anxious state, and that much does not seem to be in dispute. The solicitor for the mother has also told me that the child has been presenting with suicidal ideation on occasions. What is as plain as a pikestaff in these proceedings is the damage that this poor child is suffering by reason of the entrenched inability of the parents to reach agreement about how to deal with his medical issues.
The father filed an Application – Contravention on the basis that the mother has been unilaterally withholding the child on numerous occasions in the past several months. The mother denies this and asserts that the child has not spent time with the father on occasion because the child himself has refused to cooperate at changeover between the households.
Doing the best I can in the circumstances, I have decided that an order should be made for the mother to have sole parental responsibility for the child on an interim basis. This is to be limited to issues of his psychological presentation and for the purposes of making decisions for the child to receive the psychological therapeutic intervention he needs.
This decision does not, in any way, reflect upon what final orders might be made, bearing in mind these proceedings are, at least notionally, awaiting delivery of final judgment. I also note that there are other outstanding applications, including the father’s application to reopen the evidence, which have made delivery of final judgment impossible to achieve thus far.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Harper delivered on 23 September 2021. Associate:
Dated: 14 October 2021
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