Snipper and James

[2018] FamCA 6

FAMILY COURT OF AUSTRALIA

SNIPPER & JAMES [2018] FamCA 6

FAMILY LAW – CHILDREN – Interim – Where an application is made for variation of the current parenting arrangements as a result of recommendations made by the single expert – Where the single expert formed the view that the husband’s behaviour towards the children has amounted to a pattern of emotional abuse – Where the single expert recommends that the children spend time with their father that is well less than 50 per cent and incorporate clear orders limiting parental coercive behaviours and at least initially occur in the general presence of another adult – Where the views expressed by the single expert are of such significance that the court should err on the side of caution and implement his recommendations on an interim basis.

APPLICANT: Ms Snipper

RESPONDENT: Mr James

INDEPENDENT CHILDREN’S LAWYER: Ms Smith

FILE NUMBER: SYC 1913 of 2012

DATE DELIVERED: 12 January 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 16 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey, counsel

SOLICITOR FOR THE APPLICANT: Harris Freidman Lawyers

SOLICITOR FOR THE RESPONDENT: Litigant in person

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

Orders

Orders  made 17 February 2017

Parenting

1. Any previous parenting orders made which are inconsistent with the following are suspended and in that regard orders made 2 February 2017 7.2, 7.3, 7.4, 7.10, 7.11 and 7.12 shall continue.

2. The children spend time and communicate with the husband as follows:

   2.1.Each alternate Sunday from 9am to Monday morning before school or 9am Monday on long weekends and school holidays;

   2.2.Telephone communication each Wednesday between 6pm and 7pm;

   2.3.Telephone communication each other alternate Sunday (not the Sunday referred to in order 2.1);

   2.4.In the event that mother’s day or the children’s scheduled camping activity in July 2017 fall at the same time as the time referred to in 2.1 then the children will be with the wife at those times and with their father on the subsequent weekend.

   2.5.Such other times as agreed between the parties.

3. The time referred to in order 2 be in the presence of the husband’s partner Ms T or the paternal grandmother.

4. A copy of these orders be provided to the husband’s partner Ms T and the paternal grandmother.

5. Prior to the time commencing in order 2 the husband’s partner and paternal grandmother shall provide to the court a written undertaking in the following terms:

   5.1.That they shall be present at all times that the husband is spending time with the children;

   5.2.That they will shall request the husband to cease any questioning or challenging of the children in respect of the following matters:

   5.2.1.Regarding their activities or plans in the maternal household or providing information about the same, beyond general interested enquiry about their life experience

   5.2.2.About their loyalty or affection for himself or the mother, or their relative loyalty or affection

   5.2.3.Challenging and exhorting the children to express certain opinions or wishes to any third parties including the mother and their therapists.

   5.3.That they shall request the father to cease any of the behaviour in respect of the following matters:

   5.3.1.Behave in a verbally aggressive way towards the children.

   5.3.2.Use physical discipline

   5.3.3.Not push, pull, drag or otherwise use physical force upon the children, or require another person to do the same, unless dealing with an issue of immediate physical safety to the child.

   5.4.That in the event that the father does not comply with their request as contained in orders 5.2 and 5.3 they shall forthwith contact the mother and advise her to collect the children and the ICL on the next business day.

6. The wife facilitate attendance at psychologists for each of the three children no less than once every three weeks between now and the date of the final hearing for all children individually with Ms U (R, B) and Ms V (G).

7. It is noted that the husband’s intention is that he will meet with the psychologist of each of the children on a monthly basis.

8. I note that the name of the psychologist replacing Mr W is Ms V (X Group).

9. I note the wife has indicated that the children do not have a regular general practitioner and she has no medical records to give to the husband and that details of school enrolments for all children can be obtained by the husband directly from the schools.

10. The wife’s application for interim parenting orders contained in her Response to an Application in a Case filed 14 February 2017 is otherwise dismissed.

11. The husband’s Application in a Case filed 9 February 2017 as amended by the document attached to his short written submissions filed 9 February 2017 be otherwise dismissed.

Property

1. I note that the husband does not press orders 1, 2, 3 of his Application in a Case filed 9 February 2017.

2. I note that on 16 February 2017 I made an order relating to the costs of the single expert for the valuation of A Pty Limited. The Application in a Case filed by the husband on 9 February 2017 is otherwise dismissed.

3. The financial orders sought by the husband in Exhibit 21 are otherwise dismissed.

Reasons

1. I reserve my Reasons for making these orders.

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 Snipper & James 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 SYDNEY

FILE NUMBER: SYC 1913 of 2012

Ms Snipper

Applicant

And

Mr James

Respondent

REASONS FOR JUDGMENT

PARENTING

1. Between 17 July 2017 and 21 July 2017 I heard, on a final basis, amongst other things, competing applications by the parents for final parenting orders. I shall make final parenting orders today and publish Reasons for those orders. On 17 February 2017 I made the interim parenting orders set out above and reserved my Reasons for making those orders. I now provide those Reasons.  

2. An interim application has been made for variation of the current parenting arrangements in relation to the three children of the marriage, G born in 2002, B born in 2004 and R born in 2010 (“the children”).

3. The Independent Children's Lawyer has made an application in the form of Exhibit 20 set out in Schedule 1.

4. On 2 February 2017 I made orders in accordance with paragraphs 1, 2, 3, 4, 10, 11 and 12 of Exhibit 20.

5. Orders proposed by the husband attached to his short written submissions are as follows:

   5.1.The children spend time with the husband from 17 to 20 February 2017; 22 to 23 February 2017; 2 to 6 March 2017; 8 to 9 March 2017 and thereafter on an alternating week basis in week one from the conclusion of school on Thursday to the commencement of school on Monday and in week two from the completion of school Wednesday to the commencement of school on Thursday;

   5.2.The children spend time with the husband during school holidays as per the orders made on 3 April 2013 (that is that they spend half of all school holidays periods with the husband) with the day calculated from the end of the last day of school to the commencement of the first day of school;

   5.3.Orders in relation to the children’s participation in counselling;

   5.4.Orders in relations to the husband’s participation in counselling and for the parties to attend joint counselling;

   5.5.A restriction on the children being left in the sole care of nominated members of the wife’s family;

   5.6.The wife to provide the husband with the children’s medical and school details.

6. Orders proposed by the wife contained in her Response to the Application in a Case filed 14 February 2017 are as follows:

   6.1.As per orders 1 to 4, 6 (with an additional order that the husband be restrained from contacting the children at other times), 10, 11, 12 as sought by the Independent Children’s Lawyer;

   6.2.The husband collect the children from and return the children to the wife’s home;

   6.3.The time the children spend with the husband be supervised by a supervised contact service;

   6.4.That the husband’s time with the children be suspended for the period of a Jewish Camp being between 6 to 11 July 2017, Mother’s Day and Easter Long Weekend;

   6.5.The wife solely determine the children’s extra-curricular activities.

7. The wife says that it is necessary to set the changeover arrangements to avoid dispute and/or error. She says that the current (suspended) interim orders provide for the children to attend at camp; and for the children to spend Mother’s Day with the wife and on the Easter long weekend in odd numbered years. These do not appear to be issues in dispute.

8. The interim applications that remain to be determined are the time the children spend with the husband, whether that time should be supervised and what telephone communication they should have with him. 

9. As I understand it, the current orders that are in operation date back to April 2013. They have been operating since that time with reasonably high compliance. The children are with their father from Thursday after school to Monday morning each alternate weekend and after school Wednesday in the off week. The children are with their father during half school holidays and other special days.

10. It is anticipated that the parenting proceedings between the parties will be heard on a final basis commencing the week of 17 July 2017.

11. The Independent Children's Lawyer was motivated in bringing this application as a result of recommendations made by the single expert Dr Y in a report dated 3 December 2016 (Exhibit 19). That report by way of order made by me in chambers on 13 December 2016 was initially released to the Independent Children's Lawyer with the matter to be relisted in court before me on 2 February 2017 for release of the report to the parents. On 2 February 2017 that report was released to the parents and the matter was adjourned to later in the day.

12. On 2 February 2017 I suspended the current parenting orders but allowed the children to continue to electronically communicate with their father. The Independent Children's Lawyer was to discuss this suspension of the then current parenting orders with the children. The purposes of the suspension was to create a short period of time in which the husband could further consider what was in Dr Y’s report and file evidence that he wished to rely upon in opposition to the interim parenting application that had been made against him. The reason for the caution in relation to the issue of Dr Y’s report arose from paragraph 715 of that report in the following terms:

    I note that the children expressed what were in my view genuine misgivings about how the father would react and how he might behave towards them after he had “heard” their expressed experiences and views. In this regard, with respect and an understanding that the observations, impressions and recommendations of this report have not been tested by the court, I recommend that simultaneously with release of this report to the parents, specific orders be made that its contents and matters related to its contents not be discussed by either parent with the children.

13. The Independent Children's Lawyer was specifically motivated by what Dr Y said at [716] and [717] of his report which were in the following terms:

    716.With respect and an understanding that the observations, impressions and recommendations of this report have not been tested by the court, I recommend that the court consider implementing some of these recommendations on an interim basis:

    716.1specifically with regard to the orders limiting parental coercive behaviours, the orders regarding therapy for the father, the orders regarding release of this report to therapist/s (with appropriate caveats about it not having been tested), orders regarding each parent not attending sports or other events outside of their designated time with the children

    716.2and possibly with regard to the amount of time spent with the father, and whether that time is spent in the general presence of a designated person who undertakes to respect the orders limiting parental coercive behaviours.

    717.If orders are made limiting parental coercive behaviours, that these be explained to the children, in a way that is respectful to both the children, and to appropriate paternal parental authority.

14. Consequently orders 7.2 to 7.4 were made on 2 February 2017 which restrained both parties from discussing these proceedings, the interviews with Dr Y and the contents of his report with the children. The following conditions were also imposed on the husband: 

    That the father shall not:-

    (a) question the children regarding their activities or plans in the maternal household or require the children to provide information about the same, beyond general interested enquiry about their life experience.

    (b) question the children about their loyalty or affection for himself or the mother, or their relative loyalty or affection.

    (c) Challenge or exhort the children to express certain opinions or wishes to any third parties including the mother and their therapists.

    (d) Behave in a verbally aggressive way towards the children.

    (e) Use physical discipline.

    (f) Not push, pull, drag or otherwise use physical force upon the children, or require another person to do the same, unless dealing with an issue of immediate physical safety to the child.

15. The wife also agreed to an order imposing similar conditions upon her.

16. The husband argues that that order, together with a requirement that his time with the children be supervised by his partner or his mother (who were in court and heard all of the submissions that were made on 16 February 2017) would provide some safeguard against the concerns that Dr Y had pending the final hearing.

17. In summary, Dr Y in his report recommends that the wife have sole parental responsibility for major decisions relating to medical, schooling and religious matters with the wife to keep the husband informed of those decisions. That order for sole parental responsibility would, as an exception, not include giving to the wife the ability to move away from her current location to a distance that would disrupt any arrangements for the children’s time with their father. Dr Y recommends that the children live with their mother. Dr Y then proposes that the children spend time with their father that is regular but well less than the 50 per cent of time that he seeks and that the orders incorporate clear orders that limit parental coercive behaviours and at least initially occurs in the general presence of another adult who understands the orders limiting such behaviours and whom the court can trust to respect the orders.

18. At [703] Dr Y recommends:

    703.1  An example of the same would be for the children to spend one weekend day with the father per fortnight.

    703.2  The father not spend time with the children outside that time, including not attending sporting or extracurricular activities outside his designated time, and not taking on roles within relevant organisations which would require him to be present when the children were engaged in these activities, outside of his designated time.

19. Dr Y formed the view that the husband’s behaviour towards the children has amounted to a pattern of significant emotional abuse of all three children. He states that the current situation for the children is one of “realistic estrangement” rather than of “alienation”. He opines that the cumulative current level of stress faced by the children places them at risk of developing anxiety or depressive disorders, and or personality dysfunction. G was observed to have developed an anxious avoidant attachment style while B and R have developed an anxious ambivalent attachment style.

20. The wife adopts the assessment made by Dr Y and the recommendations made by him subject to her proposal as to the appointment of an independent supervising organisation.  

21. The wife refers to and relies upon Dr Y’s assessment of the husband in his report. Dr Y was of the opinion that the husband is committed in his role as parent to the children and when the children meet his need for compliance, affirmation and acknowledgment he is able to positively engage with them. Dr Y was concerned however that the husband’s commitment was to “self-as-parent” as opposed to the children themselves and his commitment to them was conditional and self-serving.

22. The husband was observed to seek affirmation and acknowledgment from each child as he spoke and demanded partisan loyalty from them. Dr Y concluded that the relationship between the children and their father is an “insecure attachment relationship”.

23. B reported to Dr Y that on one occasion the husband had told G to drag her by the hair down the stairs. R similarly reported that his father dragged him. The husband had enacted disciplinary practices with B and R which had caused them distress. Dr Y also perceived that the husband’s behaviour towards and communication with the wife was intrusive, coercive and threatening. Overall, Dr Y formed the opinion that the husband has a significant personality dysfunction with prominent narcissistic, antisocial and some histrionic personality traits.

24. The husband asserts that Dr Y did not take into account the breaches by the wife of interim parenting orders and that those breaches have contributed to the children’s current situation. The husband is of the opinion that the wife’s behaviour has been aimed to marginalise and alienate him from the children. He also states that it was only until Dr Y spoke to the children’s therapists, who the husband says are not impartial, that Dr Y’s views about the husband changed.

25. In his short written submissions the husband continues to criticise “the behaviour of the mother”, “her general character, attitude and conduct”, blames the wife for the alienation of the children from him, accuses her of being “vindictive” and “not child focused”, and asserts a need to supervise the children spending time with their maternal family which has never been raised as an issue in the proceedings prior to this time and was not suggested by the husband to Dr Y as something the husband thought was necessary.

26. Dr Y observed the wife to be primarily motivated by her responsibility to care for the child rather than by a self-focussed, partisan or retributive motive.

27. The husband submitted that the orders sought by the wife and the Independent Children’s Lawyer would not allow him to be involved in the children’s lives to the same extent as the orders provided previously. He explained that G plays cricket for a period of about four hours each Sunday and if an order for supervision was made that would mean that the other two children would also have to attend G’s sporting match which, the husband says, they should not have to do. The husband says that the limited time proposed by the Independent Children’s Lawyer and the wife would not allow him to do anything else as a family with the children. However, the orders proposed mean that the paternal grandmother could be with B and R while the husband attended G’s sporting match with his partner, Ms T. The orders proposed also give the husband the opportunity to speak to the children on the telephone twice a week.

1. Dr Y recommends a reduction of the time the husband spends with the children to be in the children’s best interests.

2. The recommendations made by Dr Y in his report are based on the observations and impressions that he sets out in his report. Dr Y in his report identifies risks to the children of emotional abuse and possible physical abuse in the husband’s care. Dr Y makes some very detailed recommendations as to a suite of orders that could be made to manage the risks that he has identified. Dr Y acknowledges that his observations and impressions have not been tested at a final hearing and findings that this court may make at the concluding of a contested hearing may differ from the observations and impressions that he has set out in his report.

3. The orders sought by the Independent Children’s Lawyer are in accordance with the recommendations made by Dr Y.

4. The period of time between now and the intended final hearing date is about five months. In that time the husband can continue his therapeutic relationship with Mr Z.

5. None of the children’s or parents birthdays would fall during that period.

6. The children have an attachment to the husband and a reduction of the time will not impact on that attachment.

7. The wife seeks an order for the husband’s time with the children to be supervised by an independent supervising organisation. The wife says that the evidence presented by the husband, his partner Ms T, and the paternal grandmother Ms AA, indicate that they are inappropriate to act as independent supervisors of the children spending time with the husband. Counsel for the wife submitted that there is no evidence in Dr Y’s report that the children find solace in their relationships with the husband’s partner or their paternal grandmother nor that those adults could protect the children from the husband’s potential behaviour.

8. The wife says that the affidavit of the husband filed 9 February 2017, his short written submissions and the evidence of Ms T and Ms AA, demonstrate the husband’s continued behaviour as described by Dr Y and the proposed supervisor’s alignment with the husband. Dr Y did not read the subsequent affidavits of the husband, Ms T and Ms AA, and the short written submissions by the husband. The Independent Children’s Lawyer submitted that those affidavits describe positive relationships between the children and their father but do not address the impact that the parental conflict is having on the children.

9. It is clear that these children are stuck in the middle of parental conflict.

10. The Independent Children’s Lawyer submitted that to  make an order in terms sought by the wife for the husband’s time with the children to be supervised by a professional service is inconsistent with the recommendations made by Dr Y and would impose an artificial element into the time the children spend with their father. The Independent Children’s Lawyer’s view was that the husband’s time with the children should occur in the presence of his partner or mother. I agree with that submission.

11. Whilst I acknowledge the views expressed by Dr Y are untested, they are of such significance that the court should in this interim hearing err on the side of caution and implement his recommendations pending the final hearing in the terms of the orders sought by the Independent Children’s Lawyer.

12. The Independent Children’s Lawyer agreed to an order being made in the terms of order 2 contained in the husband’s short written submissions for the wife to facilitate the children’s attendance at psychologists and an order will be made in those terms. I note that I was informed that G’s psychologist, Mr W, was being replaced by a Ms V. The Independent Children’s Lawyer also did not oppose order 3 as sought by the husband and an order will be made in those terms.

13. The husband sought an order for the wife to provide him with details of the children’s medical records and details and school details. I note that the wife indicated at the hearing that the children do not have a regular general practitioner; she has no medical records to give to the husband and that details of the children’s school enrolments can be obtained by the husband directly from the schools.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 12 January 2018.

Associate:

Date: 12 January 2018

SCHEDULE 1

1. That reference to “the children” in these orders shall be a reference to G born …, 2002, B born …, 2004 and R born …, 2010.

2. That neither party shall discuss these proceedings, the interviews with Dr. Y, the contents of the report of Dr. Y with the children or seek the children’s wishes and views in respect of the outcome of the proceedings.

3. That the father shall not:-

   (a)   question the children regarding their activities or plans in the maternal household or require the children to provide information about the same, beyond general interested enquiry about their life experience.

   (b)  question the children about their loyalty or affection for himself or the mother, or their relative loyalty or affection.

   (c)  Challenge or exhort the children to express certain opinions or wishes to any third parties including the mother and their therapists.

   (d)  Behave in a verbally aggressive way towards the children.

   (e)  Use physical discipline

   (f)   Not push, pull, drag or otherwise use physical force upon the children, or require another person to do the same, unless dealing with an issue of immediate physical safety to the child.   

4. That the mother shall not:-

   (a)   question the children regarding their activities or plans in the paternal household or require the children to provide information about the same, beyond general interested enquiry about their life experience.

   (b)  question the children about their loyalty or affection for herself or the father, or their relative loyalty or affection.

   (c)  Challenge or exhort the children to express certain opinions or wishes to any third parties including the father and their therapists.

   (d)  Behave in a verbally aggressive way towards the children.

   (e)  Use physical discipline

   (f)   Not push, pull, drag or otherwise use physical force upon the children, or require another person to do the same, unless dealing with an issue of immediate physical safety to the child.

5. That any previous parenting orders made which are inconsistent with the following are suspended.

6. That the children spend time and communicate with the father as follows:-

   (a)   each alternate Sunday from 9 am to 4 pm.

   (b)  Telephone communication each Wednesday between 6 pm and 7 pm

   (c)  Telephone communication each alternate Sunday to order 6(a) between 6 pm and 7 pm

   (d)  Such other times as agrees between the parties.

7. That the time referred to in Order 6 be in the presence of the father’s partner Ms T or the paternal grandmother.

8. That a copy of these orders be provided to the father’s partner Ms T and the paternal grandmother.

9. That prior to the time commencing in Order 6 the father’s partner and paternal grandmother shall provide to the Court a written undertaking in the following terms:-

   (i)That they shall be present at all times that the father is spending time with the children.

   (ii)That they shall request the father to cease any questioning or challenging of the children in respect of the matters contained in Order 3(a), (b) and (c).

   (iii)That they shall request the father to cease any of the behaviour exhibited in the terms of Order 3(d), (e) and (f).

   (iv)That the in the event that the father does not comply with their request as contained in Order 5(c)(ii) and (iii) they shall forthwith contact the mother and advise her to collect the children and the ICL on the next business day.

10. That the father shall attend upon Mr. Z, Psychologist for the purpose of therapy to address the following:-

    (a)   The father’s adaptation to any orders and how he might assist the children to adapt to any orders made.

    (b)  How the father might appropriately exercise parental authority and manage the children in a positive and developmentally appropriate way.

    (c)  The concerns raised by Dr. Y regarding his parenting and personality functioning.

11. That for the purposes of implementing Order 10 the father shall within seven (7) days of the date of these orders contact Mr. Z on 9437 4765 for the purposes of making an appointment and shall attend upon Mr. Z with such frequency as directed by Mr. Z.

12. That leave be given to the ICL to provide a copy of the report of Dr. Y dated 3^rd December, 2016 to Mr. Z.