SHORT & SHORT (No.2)

[2018] FCCA 2832

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHORT & SHORT (No.2) [2018] FCCA 2832

Catchwords:
FAMILY LAW – Interim parenting – where 15 year old child attempts self-harm during a changeover journey – cause of self-harm attempt – supervised contact ordered.  

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Mental Health Act 2007 (NSW), s.22

Cases cited:

Goode & Goode [2006] FamCA 1346

MRR v GR [2010] HCA 4

Short & Short [2017] FCCA 1218

Applicant: MR SHORT

Respondent: MS SHORT

File Number: WOC 605 of 2015

Judgment of: Judge Altobelli

Hearing date: 19 September 2018

Date of Last Submission: 19 September 2018

Delivered at: Sydney

Delivered on: 5 October 2018

REPRESENTATION

Solicitors for the Applicant: Helen Volk Lawyers

Solicitors for the Respondent: Claire Heaton Solicitor

Solicitors for the Independent Children's Lawyer: Acorn Lawyers

ORDERS

1. Pending further order, Orders 4, 6, 8 and 9 of the Orders made on 28 June 2017 be suspended.

2. Pending further order, Order 4 of the interim Consent Orders made on 31 January 2018 be suspended.

3. Pending further order, the Children spend time with the Mother as follows:

   (a)Pending the availability of CatholicCare Suburb A, on each alternate Saturday from 2:00pm until 4:00pm, with such time supervised by Supervised Contact Services in Suburb A; and

   (b)Upon CatholicCare Suburb A’s ability to act as supervisor, in accordance with that availability.

4. The parties do all things and sign all documents necessary to effect the intake assessment for supervised visits at Catholic Care Suburb A within 7 days.

5. Each parent is to comply with the following:

   (a)Appointments made by CatholicCare Suburb A and Supervised Contact Services for supervised time;

   (b)Comply with all reasonable rules of CatholicCare Suburb A and Supervised Contact Services; and

   (c)Comply with all reasonable requests and directions by the staff of CatholicCare Suburb A and Supervised Contact Services;

6. If, after the assessment intake, CatholicCare Suburb A is unwilling or unable to provide supervision as set out in the Orders, then each party has leave to restore the matter to the list within 7 days’ written notice to the Court and to the other party.

7. If CatholicCare Suburb A during the currency of these Orders declines or is unable to continue to provide its services, or the Director of CatholicCare Suburb A recommends in writing to the parties a variation of these Orders then wither party may on 7 days’ written notice to the other and to the Court restore the matter to the list.

8. The period of time the Children spend with the Mother pursuant to these Orders may vary by reason of the closure of CatholicCare Suburb A or Supervised Contact services during school and public holiday periods and in such event, such contact shall occur when the service can be provided by CatholicCare Suburb A.

9. Any fees associated with supervised time be shared equally by the parents.

10. By consent, within 7 days from the date of these Orders, the Father is to do all things and sign all documents to arrange an intake appointment for the Child [X] (born 2002) with Headspace Suburb A in the suicide prevention program and or any other such programs recommended by Headspace Suburb A and the Father is to ensure that the [X] attends all such appointments recommended by Headspace. 

11. By consent, whichever party arranges for [X] to attend Headspace is to authorise Headspace [X] to release all information, recommendations and referrals to all to which parents would be entitled to receive to the other party.

12. By consent, whichever party arranges for [X] to attend Headspace is to inform the other party of all appointments for [X] with Headspace with 24 hours of such appointment being made.

13. The parties are to attend a post separation program and are to provide to the other party and the Independent Children’s Lawyer a copy of their Certificate of Completion within 7 days of receipt of that certificate.

14. Within 14 days from the date of these Orders, the parties are to attend upon a family counsellor recommended by the Independent Children’s Lawyer and thereafter both parties are to attend all appointments and follow any recommendations or referrals made by the family counsellor.

15. Prior to Friday, 12 October 2018, the Independent Children’s Lawyer is to meet with [X] to explain these Orders to him.

16. Until such time as the Independent Children’s Lawyer has met with [X] and explained these Orders to him, both parties are and be hereby restrained from having any communications whatsoever with the children and particularly [X] regarding these Orders, and as to the Father’s household, the Father is to ensure that no other party in the Father’s household or any friends or relatives of the Father discuss these Orders or the content or these orders or of any information, reasons or any other details for the making of these Orders with any of the children.

IT IS NOTED that publication of this judgment under the pseudonym Short & Short (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

WOC 605 of 2015

MR SHORT

Applicant

And

MS SHORT

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about three children:  [X], born 2002, nearly 16 years old, [Y], born 2011, 7 years old and [Z], born 2013, 5 years old.  The children currently live with their father and do not spend time with their mother.  [X] is the biological child of the Mother, but has lived with the Father since 2015.  [Y] and [Z] are biological children of both parents.  The Court must make decisions about the parenting arrangements relating to the children.

Background

1. On 28 June 2017, after a contested hearing, the Court made Orders for the children to live with their father and spend time with their mother.  The Reasons for Judgment were published as Short & Short [2017] FCCA 1218. The focus of the present case is on what happened after the Orders were made. The present Reasons for Judgment will not, therefore, unnecessarily traverse historical matters and findings that are contained in the earlier judgment.

2. The Orders provide for equal shared parental responsibility, and for all the children to live with the Father from 10 July 2017.  The Mother had the benefit of an order for the children to spend time with her each alternate weekend from 6:00pm on Friday until 5:00pm on Sunday, and half of the school holidays, as well as special days.  

3. The Mother struggled to accept these Orders.  Her mental health deteriorated rapidly.  In the Mother’s affidavit affirmed and filed 27 January 2018, she deposes to the three suicide attempts that occurred on Wednesday, 12 July 2017, and then on 24 July 2017.

4. There were subsequent issues with enforcing the Orders in relation to [X].  On 18 December 2017, His Honour Judge Monahan made an order on an interim basis requiring the Mother to cause [X] to be returned to the Father’s care, suspending the Orders for her to spend time with the children, and substituting an order that they spend time with her between 12 noon and 2:00pm each Sunday. 

5. There are two significant notations the Court made.  Firstly, that it was a joint fact before the Court that the children had only spent four occasions with their mother since the final Orders, and only the first of those occasions was in accordance with the final Orders.  The second notation was that the Father asserted that the Mother had mental health issues, and the Mother asserted that she had sought and received treatment and was mentally well enough to spend time with the children.

6. The matter came back before me on 31 January 2018.  The parties entered into interim Consent Orders that provided for the Mother to spend time with the children between 10:00am and 5:00pm on specified dates, and then re-introducing the Orders made on 28 June 2017, effective 6 April 2018.  A reasonable inference to draw from these orders is that the Father had satisfied himself about the Mother’s mental health concerns.  In effect, the Orders made at the hearing were back on track.

7. Regrettably, that situation did not last long.  The Father filed an Application in a Case that came before the Court on 9 August 2018.  It is that application that is before the Court, and the precise circumstances of the same will be discussed below.  Suffice to say that on that day I suspended the Orders for the Mother to spend time with the children, and then made a number of directions about the orderly conduct of the matter.  The interim hearing was heard on 19 September 2018.  Ms Chalk appeared for the Father, Ms Heaton for the Mother, and Ms Mowbray as Independent Children’s Lawyer.

8. The circumstances that led to the matter being relisted involved what appears to have been [X]’s self-harm attempt on 29 July 2018.  The facts will be discussed below.

9. The Father’s proposal, which is reproduced in the first schedule to these Reasons, in effect provided for the continued suspension of the Orders made 28 June 2017, and for the children to spend time with their mother at a supervised contact facility.  The Father also sought Orders for the Mother to seek psychological support and assistance.

10. The Mother’s proposal is contained in her Amended Response to an Application in a Case, filed 17 September 2018.  These Orders are also reproduced in the first schedule to these Reasons.  In effect, the Mother was seeking the reinstatement of the Orders made on 28 June 2017, for [X] to attend Headspace, and for [X] to live with the Mother as from the last day of the 2018 school year.  A number of ancillary Orders were also sought.

11. The Independent Children’s Lawyer did not oppose the Orders sought by the Father.

Non-contentious matters

1. During the course of submissions, the Father agreed that [X] should be attending Headspace Suburb A.  Accordingly, Orders 4 to 6 inclusive of the Orders proposed by the Mother in her Amended Response to an Application in a Case can be made by consent.  The Court declines to make Order 7 proposed by the Mother.  If there is an issue with compliance with these Orders, the matter should be relisted forthwith. 

2. The Mother also sought Orders that both parents participate in a post-separation program.  The appalling lack of communication and trust between the parents is palpable in this case.  It is their responsibility to improve this.  The order that the Mother proposes is appropriate.  Order 8 of the Mother’s Orders will be made.

3. The Mother also proposed that the parents attend on a family counsellor recommended by the Independent Children’s Lawyer, at Order 9.  It is hard to imagine a family more in need of such assistance.

4. The Mother proposes that the Independent Children’s Lawyer explains these Orders to [X], once they have been made.  The Court believes this would be beneficial to [X], and will make an order to the effect of Order 11 of the Mother’s proposal.

5. Finally, the Mother also proposed an order the effect of which would be to restrain both parents from discussing the Orders with the children, and in the Father’s household, ensuring that no other member of the Father’s household, or his friends or relatives, discuss the same with or in the presence of the children.  Once again, an order to the effect of Order 12 as proposed by the Mother is in the best interests of the children.

The evidence before the court

1. The Father relied on the following documents in support of his case:

   a)Application in a Case, filed 9 August 2018;

   b)Affidavit of Mr Short, sworn and filed 8 August 2018;

   c)Affidavit of Ms L, affirmed and filed 8 August 2018; and

   d)Affidavit of Ms L, sworn 31 August 2018 and filed 6 September 2018.

2. The Mother relied on the following documents in support of her case:

   a)Amended Response to an Application in a Case, filed 17 September 2018;

   b)Affidavit of Ms Short, sworn and filed 27 January 2018;

   c)Affidavit of Ms Short, sworn and filed 8 September 2018; and

   d)Affidavit of Ms Short, sworn and filed 17 September 2018.

3. The following documents were tendered at the interim hearing:

   a)Documents produced under subpoena to Ms C, psychologist;

   b)Documents produced under subpoena to NSW Police;

   c)Documents produced under subpoena to School 1 High School;

   d)Documents produced under subpoena to NSW Ambulance; and

   e)Documents produced under subpoena to Suburb B Hospital.

The applicable law

1. The applicable law is Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

   (a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)     parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:          Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)  any other fact or circumstance that the court thinks is relevant.

1. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. At [15] the High Court emphasised the need for a practical approach:

   15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

4. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

The events of Sunday, 29 July 2018

1. The Mother gives evidence about this day in her affidavit sworn and filed 8 September 2018.  The children had been in her care that weekend.  [X] was very reluctant, indeed refused to return to the Father’s care, when the mother was taking the children back to the agreed changeover location.  Eventually, she got him into the car with the girls and they commenced their journey.  During the trip, the Mother observed [X] to be very sad and crying.  His crying became uncontrollable, and [X] told his mother:  “I just don’t want to go back.”  They arrived at Suburb B Station, the agreed changeover venue.  By then, both [Y] and [Z] were also upset and crying.  At paragraph 7 of the said affidavit, the Mother then deposes:

   I then saw that [X] had in his both hands his laptop, and I saw him hit his head in the forehead area three times very hard.  I just screamed, “[X], stop.”

2. The Mother then explains that she went around to [X]’s car door, opened it, and asked him to come out.  The Mother’s evidence then continues:

   At the same time, [Y] and [Z], who were still crying, when I heard [Z] say, “Mum, I need to go to the toilet.”  So I reached for a  hand of each girl and took them to the toilet.

3. She then explains that by the time she and the girls came out of the toilet, [X] was already in the vicinity of his father’s car.  She explains that she “just stood still with the girls” and they then ran to the Father “as they usually do”, explaining that this is how changeover occurs.  In the next paragraph, the Mother explains that she went back to her car, feeling that she needed to do something more “out of worry about [X] having hit his head so hard, so I phoned the ambulance and I had a conversation with the ambulance service…”

4. There are a number of interesting features about the Mother’s evidence so far.  Twice, she refers to [X] hitting his head – either hard, or very hard.  There is no evidence before the Court, from any source, suggesting that there was a visible injury.  The Mother was clearly concerned about [X]’s behaviour, but she left him alone in the car, taking the children to the toilet.  Whatever the Mother’s concerns might have been at the time, those concerns were subsumed to the priority to take the girls to the toilet.  The changeover also provides a window into the nature of the relationship between the Mother and the Father.  She made no attempt whatsoever to tell the Father about what had occurred, notwithstanding the fact that she deposes to being so worried about [X] that she phoned an ambulance, even after he had left with his father.

5. What then occurred is relayed in the Father’s affidavit sworn and filed 8 August 2018.  The Father saw [X] walking towards his car, alone, at about 5:00pm.  He thought that [X] was upset.  A few minutes later, he saw the Mother and the girls walking towards the agreed meeting place.  On his evidence, they were 15 metres apart, and the girls then walked up to him alone.  It is important to pause here and reflect on the significance of this 15 metre journey for the girls, and presumably for [X].  This short journey in a geographical sense, was, in fact, a trek across the no-man’s land that separates their mother’s world from their father’s world.

6. The Father deposes that whilst [X] appeared upset, the children were their usual selves.  They stopped at McDonalds in Suburb B for dinner.  He then received a telephone call from the New South Wales Ambulance Service, explaining that they had received a call from the Mother saying that [X] had made disclosures to her about killing himself.  They asked if they could speak with him.  [X] became upset, but then did speak with someone from the New South Wales Ambulance Service, and an ambulance was called, as were the Police.  [X] was then taken to Suburb B Hospital. 

7. The Father deposes that after he had made arrangements for his sister and sister-in-law to come and collect [Y] and [Z] from the Hospital, he remained there for some time.  At paragraphs 11 and 12, he emphasised (it would seem) that he separated himself from [X], and specifically that [X] met with a psychologist separately to him.  After the meeting with the psychologist, the Father records that the psychologist said to him that [X] was showing signs of depression and had actually thought about killing himself.  [X] was discharged from Hospital, in the Father’s care, but on the basis that there would be subsequent care provided by a mental health team.

8. What actually happened after the intervention of the New South Wales Ambulance Service, the New South Wales Police, and his attendance at Suburb B Hospital is found in the documents produced on subpoena, which became exhibits.

9. The documents produced by New South Wales Ambulance record:

   The patient, [X], saying that he did not want to go home to his step-father’s tonight, instead stating he wants to go and live with his mother full time.

10. The record also refers to [X] admitting that he wanted to hurt himself, but had no plans in place.  The COPS record found in the New South Wales Police documents also record a similar observation to the effect that [X] did not want to go home, preferring to stay with his mother.  The Police records suggest [X] made “vague claims” that he wanted to harm himself.  Their observation of [X] was that he was depressed but eventually declared that he wanted to hurt himself by suffocating.  The police records indicate that he was scheduled.

11. The documents produced by Suburb B Hospital include the documentation under s.22 of the Mental Health Act 2007 (NSW). From this document, it is possible to discern that the author was a Police Constable. A part of the document appears to contain a record of what [X] told the author of this document. In the following extract, the abbreviation MHP appears to mean “mental health patient”. The record states:

    In the evening of Sunday, 29/7/18, the MHP needed to leave his mum and go with Dad.  He appeared sad/depressed and contact with triple-O was made by family.  Upon speaking to police, the MHP declared he blames himself for his Mother’s difficulties, wished to hurt himself (hinted at suicide) and thought about doing it by suffocation.

12. There are a range of hospital records, some of which are difficult to time.  One record described as “triage” appeared to have been entered at 6:40pm that evening, based on a triage conducted by a registered nurse at 6:32pm.  This record refers to [X] living with his stepfather “but wants to live with Mother”. The Court accepts that, from a chronological perspective, the triage document was probably the first document prepared after the s.22 Mental Health Act document.  The next document described as MH Current Assessment.  The Court infers that MH means “Mental Health”.  The author was a doctor described as a trainee specialist.  It appears to be a mental health assessment.  The following relevant extract appears under the heading of History of Presenting Problem:

    Today he expressed thoughts of suicide by suffocation when he was about to return from Mother’s home.  He said that this was triggered by her Mother telling him that he was responsible for her problems.  She had told him that “suicide thoughts had come to her because of him”.  This made him sad and started blaming himself.  He has chronic dysthymia due to separation.  There are times when his motivation was low, that he was able to do school activities and have fun when going out.  Never attempted suicide attempts.  Provided supportive counselling and he said that he is more settled.  He described his thoughts have changed and would not be blaming himself.  Rather, he would seek help for Mother.

13. Later in the document there is a heading Formulation and Diagnosis, under which appears the following:

    15 years old male, doing well in year 10, first presentation in mental health presenting suicidal thoughts triggered by Mother blaming her.  No plans or intent and ensures safety to go home and stepdad happy to keep an eye on him.

14. The next relevant evidence is the affidavit of the Father’s sister, Ms L, of 8 August 2018.  She deposes to collecting [Y] and [Z] from Suburb B Hospital, with her sister-in-law Ms K.  She was getting [Z] dressed for bed and she deposes to the conversation they had.  This is found at paragraph 2 of her affidavit:

    2.  While I was getting [Z] dressed for bed, we had the following conversation:

    [Z]“[X] was very sad tonight”

    Me“Yes honey, he was sad but he will be ok”.

    [Z]“It’s [X]’s fault we can’t live with Mummy anymore”.

    Me“Why do you say that? It’s not [X]’s fault”

    [Z]“Yes it is, Mummy said that it is because [X] doesn’t want to live with her, we aren’t allowed to live with her. She said it’s all [X]’s fault and she was yelling at him in the car on the way home making him cry”

    Me“No baby, it isn’t [X]’s fault at all, that is definitely not the reason.

    You like living with Daddy, don’t you?

    [Z]“Yes”

    Me“And you get to have visits with your Mummy still, like an adventure, and that’s fun isn’t it?”

    [Z]“Yes”

15. At paragraph 3, Ms Short deposes to the conversation she had with [Y]:

    3.  [Y] then entered the bedroom to get ready for bed.  The conversation continued:

    [Y]:“What are you talking about?”

    Me:“[Z] was just saying how [X] was sad tonight”

    [Y]:      “Yes, he was crying in the car with Mummy because she was yelling at him but I can’t remember what it was about so maybe if I go to sleep I will remember tomorrow”

    Me:“Ok [Y], that’s ok, you don’t need to tell me anything just as long as you know [Z] will be ok and he will be home soon”

    [Z]:“Yes, I know”

16. The next relevant evidence comes from the paternal grandmother, Ms L, whose affidavit made 31 August 2018 was filed 6 September 2018.  The paternal grandmother was not involved in the events referred to above.  However, she provides at least two examples of [X] saying things to her which suggests that [X] is, in fact, carrying an emotional burden relating to his parents’ separation.  At paragraph 11, for example, the paternal grandmother refers to a conversation that took place on 10 July 017 where [X] says:  “All this is my fault.”  At paragraph 26 she refers to a conversation on 4 March 2018 when again [X] said to her:  “This is all my fault.”  Disturbingly, at paragraph 32 of her affidavit, the paternal grandmother refers to [Z] saying to her on several occasions words to the effect:  “It’s [X]’s fault we don’t see our mum.”

Discussion

1. The Father’s case was that [X]’s mental health episode was caused by something that his Mother had said to him in the car during the journey between the Mother’s home and the changeover point.  On his behalf, it is asserted that this contention is consistent with the Police and Hospital records which refer to the burden of guilt that he was feeling, as well as the evidence of the Father’s sister and the Father’s mother.  Moreover, on the Father’s case, there was some corroborative evidence in a note made by a school counsellor at School 1 High School where he attends, where [X] was worried about his mother, who had asked him to come and live with her.  This record was made on 24 July 2017. 

2. The Mother’s case is completely different.  She contends that [X]’s statements to herself, the ambulance officers who attended, and to the triage nurse, all suggest that he wants to come and live with his mother.  The strong inference is that the mental health episode arose because his views were not being acknowledged.  Indeed, a less than subtle theme in the Mother’s case is that the Father had prevailed on [X] to change his views between the time that he was seen by the triage nurse, and the time that the mental health assessment later took place.

3. The Court observes that there is clearly no love lost between these parents.  Their lack of trust and inability to communicate, even at critical times, is palpable.  No doubt, however, they both believe that what they are doing is in [X]’s best interests.

4. The most likely scenario, the Court believes, is that [X]’s mental health crisis was associated with him blaming himself for his Mother’s difficulties, as is recorded by the police in the s.22 notice, and as is noted by the doctor who conducted the mental health assessment. It is more likely than not, the Court believes, that [X] is aware of his mother’s unhappiness about the Orders made. It is more likely than not that he is aware of his mother’s self-harm attempts in 2017. The emotional burden that he carries must be a very heavy one.

5. The doctor who conducted the mental health assessment specifically records [X] telling him that his thoughts of suicide were triggered by the “Mother telling him that he was responsible for her problems”. It is interesting that similar language is used by the Police Constable who completed the s.22 documentation: “He blames himself for his mother’s difficulties.”   There is no suggestion that the Father was present when [Z] was assessed by the Police Constable.  The Mother’s implied assertion that the Father was present during the mental health assessment is inconsistent with the Father’s own evidence, but is entirely consistent with her lack of trust in him.

6. The evidence of the Father’s sister about what both [Z] and [Y] said to her on the evening of the events in question is disconcerting.  An unknown factor is whether, if at all, the Mother’s own mental health has some agency in all these events.  Whilst the evidence that she produced from her psychologist was sufficient at the time to reassure the Father, Independent Children's Lawyer, and the Court that her time with the children should be resumed, it is not entirely satisfactory.  The report in question, dated 23 October 2017, says nothing, for example, about the risk of relapse, or what might trigger the same.  It says little about the risk to the Mother of emotional dysregulation.

7. The Court is satisfied that [X] and the children continue to be safe in their father’s care.  The Court is further satisfied that the Orders that it will make in relation to [X]’s participation with Headspace at Suburb A will assist him to manage any current or ongoing mental health problems.

1. That the Mother would propose in her Orders that [X] live with her from the last day of the 2018 school year is quite surprising, given the evidence before the Court.  She has convinced herself, it would seem, that [X] wants to live with her, but has obviously failed to consider a whole range of factors about [X]’s purported views, including her own influence on him.

2. This is a complex case.  The mental health of both [X], and his mother, are issues that need to be examined in much more detail.  A safe space needs to be created for [X] to express his views.  There is no doubt that as he gets older, his views will have a greater and greater influence as regards Orders that are in his best interests.  But both parents must realise the potential detrimental effect on [X]’s mental health if they do anything, directly or indirectly, that might be perceived by [X] as seeking to influence his views.

Orders in the best interests of [X]

1. For the time being, the Court believes that the Father and Independent Children's Lawyer’s proposal is in [X]’s best interests.  Whilst further investigations are undertaken about the mental health of both [X] and his mother, it is best that the children spend time with their mother in a supervised contact environment.  The Orders proposed recognise the delays in accessing the supervised contact facilities at CatholicCare Suburb A, by providing for supervision by a private professional provider.

2. The Mother agrees to contribute one half of the cost.  The Father does not.  There was no evidence before the Court about financial circumstances.  A reasonable inference to draw from the Court’s knowledge about this family is that his financial circumstances are stronger than hers.  He is a (occupation omitted).  She is an (occupation omitted).  The order will be that they share the costs associated with supervised contact.

3. It is interesting that the Mother resisted the Father’s Orders for her to engage with a psychologist.  The need for doing so is established to the Court’s satisfaction from the evidence before it.  Nonetheless, the Court will not compel her to do this.  It is her choice.  The Court suspects the efficacy of any such psychological assistance would be greatly enhanced by the Mother recognising that she needs to undertake it.

4. Apart from the Orders referred to earlier in these reasons that are largely uncontentious, Orders for supervised time will be in accordance with the Father and Independent Children's Lawyer’s proposal.  The Independent Children's Lawyer is encouraged to make enquiries about an appropriate single joint expert with psychiatric qualifications who might be reasonably affordable to the parties.  It is in [X]’s best interests, and also that of his sisters, that this be undertaken as soon as possible.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:     5 October 2018

Schedule One

AMENDED orders sought by the Applicant

Orders for spending time

1. That Orders 4, 6, 8 and 9 of the Orders made on 28 June 2017 be suspended.

2. That Order 4 of Orders made on 31 January 2018 be suspended.

1. That the mother be restrained by injunction from contacting the child [X] by telephone, SMS, Snapchat, Instagram, Facebook or through any other form of electronic communication or social media.

2. That the children spend time with the mother as follows:-

   a.Pending the availability of Catholic Care Suburb A, on each alternate Saturday from 2.00 p.m. until 4.00 p.m. with such time supervised by Supervised Contact Services in Suburb A; and

   b.Upon Catholic Care Suburb A’s ability to act as supervisor, in accordance with that availability.

1. That the parties sign all documents necessary to effect the intake assessment for supervised visits at Catholic Care Suburb A within 7 days.

2. That each parent is to comply with the following:

   a.Appointments made by Catholic Care Suburb A and Supervised Contact Services for supervised time;

   b.Comply with all reasonable rules of Catholic Care Suburb A and Supervised Contact Services; and

c.Comply with all reasonable requests and directions by the staff of Catholic Care Suburb A and Supervised Contact Services;

1. If, after the assessment intake, Catholic Care Suburb A is unwilling or unable to provide supervision as set out in the orders, then each party has leave to restore the matter to the list within 7 days’ written notice to the Court and to the other party.

1. If Catholic Care Suburb A during the currency of these Orders declines or is unable to continue to provide its services, or the Director of Catholic care Suburb A recommends in writing to the parties a variation of these Orders then wither party may on 7 days’ written notice to the other and to the Court restore the matter to the list.

1. The period of time the children spend with the mother pursuant to these orders may vary by reason of the closure of Catholic Care Suburb A or supervision services during school and public holiday periods and in such event, such contact shall occur when the service can be provided by Catholic Care Suburb A.

2. That the mother be responsible for the payment of all fees associated with the children spending time with her.

Psychological support for the mother

1. That, within 56 days of the making of these Orders, the mother engage with a registered clinical psychologist and comply with any reasonable recommendation made by that psychologist for a period of at least one year, with a view to obtaining assistance in achieving and managing consistent good mental health, minimising her attribution of blame to [X] for the outcome of previous family law proceedings, and how best to communicate with the children in the context of previous family law proceedings.

2. That the mother provide the psychologist with a copy of these Orders, reasons for judgment delivered on 28 June 2017, and the Family Report released on 23 September 2016.

10.That the mother notify the father and the ICL of the name and details of the registered clinical psychologist within 56 days.

11.That the mother provide the father with evidence of her compliance with the preceding order within 7 days of receiving a request from the father.

Passports

1. That the father retain the passports of [X], born 2002 and [Y], born 2011, and that the Wollongong Registry of the Federal Circuit Court of Australia return those passports to the father.

Order sought by the Respondent Mother

1. That the orders made on 28 June 2017 be reinstated as of the date of these orders with the first visit to commence on Friday 14 21 September 2018, except a provided for in Order x below.

2. That the orders be suspended during the period from 11 October 2018 to 11 November 2018 whilst the mother is overseas.

1. That the father’s Application in a Case filed 8 August 2018 be otherwise dismissed.

1. That within 7 days from the date of these orders the father is to do all things and sign all documents to arrange an intake appointment for the child [X] born 2002 with Headspace Suburb A in the suicide prevention program and or any other such programs recommended by Headspace Suburb A and the father is to ensure that the [X] attends all such appointments recommended by Headspace. 

1. That the father whichever party arranges for [X] to attend Headspace is to authorise Headspace Suburb A to release all information, recommendations and referrals to all to which parents would be entitled to receive to the mother other party.

1. That the father is to keep the mother whichever party arranges for [X] to attend Headspace is to inform the other party of all appointments for [X] with Headspace with 24 hours of such appointment being made.

1. That if within 14 days from the date of these orders the father has failed to comply with Order 4 above, then the mother is at liberty to take such steps set out in orders 4, 5 and 6 above in substitution of the father.

1. That the parties are to attend a post separation program and are to provide to the other party and the Independent Children’s Lawyer a copy of their Certificate of Completion within 7 days of receipt of that certificate.

1. That within 14 days from the date of these orders the parties are to attend upon a family counsellor recommended by the Independent Children’s Lawyer and there after both parties are to attend all appointments and follow any recommendations or referrals made by the family consultant.

2. That from the last day of the 2018 school year [X] is to live with the mother and is thereafter to spend time with the Father at the same time that the children [Y] and [Z] spend alternate weekends, school holidays.

3. That prior to 4.00pm Friday 21 September 2018 the Independent Children’s Lawyer is to meet with [X] to explain these Orders to him.

4. That until such time as the Independent Children’s Lawyer has met with [X] and explained these orders to him, both parties are and be hereby restrained from having any communications whatsoever with the children and particularly [X] regarding these orders and as to the father’s household the father is to ensure that no other party in the father’s household or any friends or relatives of the father discuss these Orders or the content or these orders or of any information, reasons or any other details for the making of these orders with any of the children.