Selleck and Albin (No 2)

[2020] FamCA 733

FAMILY COURT OF AUSTRALIA

SELLECK & ALBIN (NO. 2) [2020] FamCA 733

FAMILY LAW – CHILDREN – where the parties reached final agreement on the first day of trial – orders made in the best interests of the child – where such orders are the third set of final orders for this family

Family Law Act 1975 (Cth)

APPLICANT: Mr Selleck

RESPONDENT: Ms Albin

FILE NUMBER: BRC 2083 of 2009

DATE DELIVERED: 17 August 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 17 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr N McGregor

SOLICITOR FOR THE APPLICANT: Cornerstone Law Offices

COUNSEL FOR THE RESPONDENT: Mr C Minnery

SOLICITOR FOR THE RESPONDENT: Best Wilson Buckley Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms K Oakley

INDEPENDENT CHILDREN’S LAWYER: Ms K Hawdon, Forest Glen Lawyers

Orders

1. That all previous parenting Orders be discharged.

Parental responsibility

1. That the father have sole parental responsibility for X born … 2008.

2. That when making a decision about major long term issues in respect of the child the father must:

   (a)prior to making of any decision with respect to the long-term care and welfare of X, make a request of the mother for her input or opinion;

   (b)provided that the mother gives a response within a reasonable time frame, take this view into account in making any decision;

   (c)afford the mother an opportunity to consult with any medical, educational or other professional involved in the relevant issue, prior to the decision being made; and

   (d)notify the mother of the medical or allied health decision made, and if that decision was contrary to the expressed view of the mother, provide a brief written reason as to why the contrary decision was reached.

3. That the mother have sole parental responsibility for Y born … 2006.

4. That when making a decision about major long term issues in respect of the children the mother must:

   (a)prior to making of any decision with respect to the long-term care and welfare of Y, make a request of the father for his input or opinion;

   (b)provided that the father gives a response within a reasonable time frame, take this view into account in making any decision;

   (c)afford the father an opportunity to consult with any medical, educational or other professional involved in the relevant issue, prior to the decision being made; and

   (d)notify the father of the medical or allied health decision made, and if that decision was contrary to the expressed view of the father, provide a brief written reason as to why the contrary decision was reached.

Living arrangements

1. That Y live with the mother.

2. That X live with the father.

3. That during the school term, X shall spend time with the mother each alternate weekend from after school Friday (or from 3.00pm if Friday is a non-school day), with the mother picking up X from school (or if a non-school day, a changeover with the father), and with the mother taking X to school the following Monday (or Tuesday if Monday is a non-school day) for the commencement of school (or returning X to the Father’s care at 9.00am if a non-school day).  The alternate weekend that X spends with the mother shall commence on and with the second weekend of each school term following the first day of school.

4. That X spend time with the parents during school holiday periods as follows, unless otherwise agreed by the parents in writing:

   (a)With the mother:

   (i)for the first half of the March/April, June/July and September/October school holiday periods in even numbered years and the second half in odd numbered years, unless otherwise agreed between the parties in writing; and

   (b)For the December/January school holiday period:

   (i)time to commence in the first week of the holidays and occur each alternate week thereafter in the even numbered years; and

   (ii)time to commence in the second week of the holidays and each alternate week thereafter in the odd numbered years;

   (c)With the father:

   (i)for the second half of the March/April, June/July and September/October school holiday periods in even numbered years and the first half in odd numbered years, unless otherwise agreed between the parties in writing;

   (ii)for the December/January school holiday period:

   1.   time to commence in the second week of the holidays and occur each alternate week thereafter in the even numbered years; and

   2.   time to commence in the first week of the holidays and each alternate week thereafter in the odd numbered years;

   (d)The school holiday periods are deemed to commence at 3.00pm on the last day of the school term, and conclude at 12.00pm (noon) on day before school recommences.

5. That for special occasions, time for each parent is as follows:

   (a)In even numbered years X will spend time with the father from 2.00pm on 25 December until 2.00pm on 27 December, and from 9.00am on 24 December until 2.00pm on 25 December, X will spend time with the mother;

   (b)In odd numbered years X will spend time with the mother from 2.00pm on 25 December until 2.00pm on 27 December, and from 9.00am on 24 December until 2.00pm on 25 December, X will spend time with the father;

   (c)On Mother’s Day, X will spend time with the mother from 5.00pm on the day before Mother’s day until before school on the Monday after Mother’s Day;

   (d)On Father’s Day, X will spend time with the father from 5.00pm on the day before Father’s Day until before school on the Monday after Father’s Day; and

   (e)That for X’s birthday each year, the parent with whom X is not otherwise spending time, may elect for X to spend time from 3.00pm until 9.00am the next day (if a school day) or 2.00pm until 9.00am the next day if a non-school day.

6. That Y can spend time with the father at Y’s election.

7. That if the mother is able to secure accommodation for either Y or X such that they are not staying overnight (from 8.00pm until 8.00am) in the same home, then the time can be as noted above, if one of the children are unable to be away from the home overnight, the time for X and the mother will occur from 8am until 8pm each day.

Supervision

1. That for time when Y is present with X, and the children are with either parent, the father and/or his wife, or the mother and/or her partner or any other adult, will be physically present and supervise at all times, with any other supervising adult to be advised as to what they must supervise against, and the parent that has another adult supervising to ensure that they provide such information to that person, and be vigilant with such supervision, until the child X is fifteen (15) years of age, as follows:

   (a)Ensure that Y and X are not permitted to enter each other’s bedrooms, without an adult/supervisor present;

   (b)Ensure that Y and X do not spend unsupervised time together;

   (c)Ensure that the supervising parent or other adult is within ten (10) metres, and in line of sight of X and Y at all times; and

   (d)If Y behaves inappropriately towards X then he will be immediately removed from the vicinity of X for the remainder of the time that X has with that parent.

2. That while X is spending time with either parent, each parent will endeavour to have X wear her communication device at all times which allows X to signal a silent distress alarm.  The communication device will have stored in it the phone numbers of both parents and shall have the ability to alert either or both parents should an alarm be triggered by X.  In addition to the contact outlined in Order 17, X is permitted to contact each parent at any time using that device.

Changeovers

1. That changeovers in accordance with these Orders be at:

   (a)X’s school if a school day; or

   (b)C Centre, with the father to pay any and all costs associated with the centre and changeovers; or

   (c)McDonald’s Family Restaurant at Suburb D.

2. That for all changeovers, both parents are permitted to have their partners attend instead of them, to facilitate the changeover, with all parties to be appropriate in all interactions with each other, and no party is to approach the other party or limit X’s ability to move freely between the parents, or partners.

Communication

1. That the parent who does not have X in their care, or who wishes to speak to Y (if Y agrees to the communication), may telephone or skype or FaceTime the child at all times as is agreed between the parties, or sought by the children, and failing agreement or request from the child, in accordance with these orders as follows:

   (a)Each Tuesday and Saturday between 6.00pm and to conclude by 7.00pm with the parent who does not have the child in their care to make the call, and the other parent to give the child the ability to receive the call to a telephone;

   (b)The parent that has the care of the child at the time of the call is to ensure the phone is answered when the call is made; and

   (c)Such calls are to be private, uninterrupted and not undertaken on speaker phone unless both children are on the call together.

Exchange of information

1. That the parents shall keep each other informed of a contact telephone number and accommodation address and will advise each other within forty-eight (48) hours if there is a change to any details.

2. That the parents will inform each other as soon as practicable if there is any emergency, serious illness, accident or hospitalisation involving either of the children after the event, and include details as to the name and contact details of the treating medical practitioner or hospital.

3. That each parent shall keep the other informed as to the name and contact details for any medical practitioners, general and specific dentists, psychologists or counsellors or any other allied health provider that deals with either of the children, within forty-eight (48) hours of the person being involved with the child or an appointment being made.

4. That this Order shall be sufficient authority for the medical practitioners, dentists, other allied health professionals or psychologists dealing with either of the children to provide the parents with any and all information requested by the parent at the requesting parent’s expense, until the child reaches the age of sixteen (16) years.

5. That this Order shall be sufficient authority for the schools and other education providers, to provide each parent with all information as to the child’s educational progress and any needs that are apparent including school reports, school newsletters, invitations to events and parent teacher interviews or meetings and school photographs, at the requesting parents expense.

Non denigration

1. That during the time the children are with either parent, that parent shall:

   (a)speak about the other parent and their partner, children and family respectfully;

   (b)not question or interrogate the children about the time they have spent with the other parent;

   (c)not denigrate or insult the other parent, their family or partner in the presence or hearing of the children, and use their best endeavours to ensure that no other person is permitted to denigrate the other parent in the hearing or presence of the children; and

   (d)not expose the children to dispute over adult issues including but not limited to those that have arisen during any court proceedings involving the parents.

Psychological treatment/counselling

1. That the parents will ensure that both X and Y, will attend such therapy for as long and at the frequency recommended by the trained professional to commence with Dr J (clinical psychologist) or if Dr J is unable to perform the therapy such other clinical psychologist as is agreed between the parties, with both parties will equally share the costs of such treatment, if there are any.  If the therapy is unable to happen, the parties will accept recommendation of a similar practitioner if she is for any reason unable to accommodate the children’s therapy.

2. That the parents are to be guided by recommendations in respect of overnight time at the same home with X and Y, and in this regard Dr J (or whichever clinical psychologist the parties are using for the children’s therapy) may be asked from time to time to provide a written recommendation as to how the time should occur and any supervision requirements.

3. That the mother will continue to attend counselling and follow all directions of her counsellor until the counsellor deems that no further counselling is needed.

Restraints

1. That the parents be restrained completely from exposing the children to any sexual images, implements, books, magazines, videos or materials of any similar nature.

2. That the parents are restrained from allowing or permitting Z born … 2004 being present during the times that they have X in their care.

Other orders

1. That both parents are permitted to attend all school events, dance concerns, and other events that X is involve in, and Y is also permitted to attend on a supervised basis, with neither parents, nor their partners to approach each other without the other’s expressed prior consent, and no party is to limit X’s and Y’s ability to move between the families freely.

2. That the Independent Children’s Lawyer be discharged upon the provision of the following reports to Dr J (or other agreed clinical Psychologist), and explanation of these Orders to the child X:

   (a)Family Report prepared by Mr K dated 18 December 2019;

   (b)Report of Mr L, Psychologist dated 26 April 2019; and

   (c)G Services End of Counselling Report by Ms N dated 3 December 2019.

3. That if there is an Application to vary the Orders relating to time or times when Y and X are permitted to sleep in the same house, it is to be listed before the Honourable Justice Baumann.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2083 of 2009

Mr Selleck

Applicant

And

Ms Albin

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. The orders which appear at the commencement of these Reasons were made by consent where the trial did not proceed to evidence or cross-examination and therefore none of the evidence has been tested.  They are the third set of final orders that had been reached in respect of these children since the parties separated in September 2008.

2. At the time they separated Z was three years of age, Y was two, and X was five months.  Mr M, a child of the mother’s earlier relationship and a member of the household, was approximately 12 years of age.

3. What is apparent is that, as the evidence makes clear, the parties have been consumed by conflict since that time.  It is impossible to know what effect the parental conflict has had on the children individually.  However if that was not enough, there have been serious issues arising in this case which have caused very significant outcomes to occur.

4. At least by the time Forrest J made orders in July 2014 the parents had equal shared parental responsibility for the three children; his Honour reintroduced time to the father which included by term four 2014 alternate Thursday to Tuesday and half of holidays, some of the issues that had caused conflict between the parties, including a certain exposure to pornographic or sexually explicit material, was known to the parties and would have, it seems to me, shaped the Orders then made by his Honour.

5. At the time of those Orders the father had commenced a new relationship with Ms Selleck, who he married in 2013, and who is the mother of their daughter W who was born in late 2014.

6. Although conflict does appear to have continued in a number of forms and certainly Mr M has, as he says in his own Affidavit relied upon before me, spent no time with the person who had been a father figure to him from the time that Mr M was 14 years of age.  He is now 23 and a father himself.  Sadly both Z and Y are estranged from their biological father.

7. The focus on X has fuelled litigation that has culminated in the consent orders today.  Sadly for X, the focus on her was not only by the Court.  It is clear that there was inappropriate sexual interaction towards X as a young girl by her older male siblings.  I choose not to detail them in any significant way.  They are identified both in the criminal Court and in a number of reports before the Court.

8. Sadly Z is now under the care of the Department of Child Safety, Youth and Women (“the Department”).  Y lives with his mother, with whom he has, on all the evidence, a good and intact relationship.  X, as a result of intervention by the Department in or about 19 December 2018, has lived with the father and under the orders that I make today will continue to do so.

9. There is no doubt from the material I have read, although untested, that the intervention by the Department in December 2018 created enormous distress to the mother who, until that stage, had been the primary carer.  Just prior to those actions by the Department, the mother had engaged in a relationship with Mr B, a father himself.  His evidence before the Court, no doubt sympathetic to his partner’s distress, raises issues such as bias as to the Department and unfair treatment by the Department.

10. I made it clear at the commencement of trial listed today, that this Court was not empowered nor prepared to consider some sort of appeal against the decision of the Department back in December 2018.

11. What is apparent from the evidence is that at least since December 2018, although the child’s wishes as set out by Mr K in his report are that she would prefer to spend more time with her mother, perhaps live with her and certainly would like to investigate and further her relationship with Y – her closest sibling in age – the child has settled in the care of the father; is apparently, according to the Independent Children’s Lawyer’s submissions briefly, performing well at school and enjoying the role as an older sibling to W in the father’s care.

12. The remaining issue of conflict is how, if you like, the practical gymnastics which the mother as the primary caregiver of Y, needs to navigate while she is having the child X with her for weekends or holidays under the Orders.  The parties have set an age of 15 in Order 13 as a time when effectively the supervision that is required and the restriction on X and Y being in the same household at night together would end.

13. The parties, taking on board recommendations from other health professionals, intend to engage with a family therapist, initially Dr J, with a view to assisting Y and X and the parents supporting a reunification of some degree of that relationship.

14. I have indicated that I would regard it as helpful for the reports of at least Mr K, the family report writer, and Mr L, a Psychologist who undertook at the direction of the Independent Children’s Lawyer a risk assessment, to be available to Dr J.  At the very least Dr J would no doubt form her own views from her own assessment and observations and will see that there is some hope that in respect of Y, at least, the empathy that he showed for his younger sister and his insight into his inappropriate behaviour exists.  That is reflected in Mr L’s report at paragraphs 261 to 267.

15. An issue that arose was whether a report by a therapist engaged at the G Hospital, who provided extensive counselling to the child, a Ms N (a social worker), and who prepared a report that was relied upon by the father in these proceedings, should be also available to Dr J.

1. I am conscious of the fact that a health professional in the role of Dr J should not be thrown into the task of determining facts.  I note the objection of the mother supported by the Independent Children’s Lawyer to the report being provided, effectively because the two reports before the Court procured by the Independent Children’s Lawyer provide all the information that Dr J would be required to have.

2. However because of the extensive nature of the therapy undertaken by X I could not be so certain there might not be some information in that report that might be helpful to Dr J.  If in fact the parties show good will in that therapy, there seems to be no reason why they would be asking her to take a definitive fact-finding role at all.  For those reasons I will permit the report of social worker Ms N to be provided as well by the Independent Children’s Lawyer to Dr J.

3. I am sure it is the hope of the mother and the father that this final Order brings to an end any further litigation.  It has been draining and difficult.  There have been some events in the life of these children which children should not have to be exposed to, either from a parent or by siblings.

4. The fact that X, the only girl in the sibship group, was the target of at least totally unacceptable sexual behaviour is regrettable in the extreme.  But at least Y and X, and perhaps in time when she is an adult she can find her own way with her other brothers, are by birth siblings.  And I agree with the thrust of the Orders, that provide for at least the next three years some certainty and stability for X remaining with the father, her little sister W and the father’s wife, whilst at the same time maintaining a good relationship with the mother which she seems to enjoy.

5. With counselling there is every prospect that X and Y could have a functional and healthy relationship.  The evidence might suggest that that will likely be a challenge for Z which the parents accept, I am sure with a degree of regret, agreeing to an order restraining any coming into contact with X (see order 28).

6. Mr M, of course, is an adult, and there is no order being sought against him.

7. It may be that the matter does not need to come back to Court because, hearing what X says and being aware of how, hopefully, the therapy has been successful, the discomfort the father has about Y and X under the one roof at night might dissipate.  If not, then as I have indicated, I am happy for the matter to return to my list via a new application; not liberty under this order, but by a new application.

8. It is appropriate that Mr K, as I initiated the consent for, explains the Orders to the child.  This child has had to bear the brunt of so much in this family unit.  She should not have to carry the burden of feeling in some way, something that she said or did not say, has upset her mother or upset her father, or upset her brother Y or anybody else.

9. I am aware making these Orders that they are not consistent with the views expressed by the child to Mr K.  I give credit to the mother in particular, and the father in, I think, agreeing to orders which are in the child’s best interests, notwithstanding the views expressed by the child.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 17 August 2020.

Associate

Date:  4 September 2020