Spellar and Spellar

[2019] FamCA 456

FAMILY COURT OF AUSTRALIA

SPELLAR & SPELLAR [2019] FamCA 456

FAMILY LAW – CHILDREN – Reportable Family Therapy – whether to make order for reportable family therapy – orders made.

APPLICANT: Mr Spellar

RESPONDENT: Ms Spellar

FILE NUMBER: MLC 8912 of 2018

DATE DELIVERED: 16 July 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: The Honourable Justice Wilson

HEARING DATE: 11 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms H Renwick

SOLICITOR FOR THE APPLICANT: Barry Nilsson Lawyers

COUNSEL FOR THE RESPONDENT: Mr S Williams of One of Her Majesty’s Counsel

SOLICITOR FOR THE RESPONDENT: Nicholes Family Lawyers

Orders

1. Each of the parties forthwith attend, and cause X to attend, reportable family therapy with Dr F at the father’s expense at such frequency, and for such period, as Dr F directs.

2. For the purposes of paragraph 1 hereof –

   (a)the parties provide a joint letter of instruction to Dr F within twenty-one (21) days of the date of this order, and with such letter of instruction to –

   (i)provide Dr F with a copy of –

   A.the court documents filed in furtherance of, and response to, this application;

   B.all court order(s) made in relation to the subject matter of this application; and

   (ii)invite Dr F to request that the parties are to subpoena such documents or information he considers to be relevant or necessary.

   (b)Dr F has leave to inspect documents produced by way of subpoena issued by the parties.

3. This proceeding is returned to the Registrar for ongoing case management.

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 Spellar & Spellar 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 MELBOURNE

FILE NUMBER: MLC 8912 of 2018

Mr Spellar

Applicant

And

Ms Spellar

Respondent

REASONS FOR JUDGMENT

Introduction  

1. The single issue for determination of the applicant’s application in a case filed 13 June 2019 was whether an order should be made for the parties and the eldest child X to attend upon Dr F for reportable family therapy at such frequency and for such period as Dr F directs.  Ordinarily such an application is dealt with by the Senior Registrar.  However, by reason of the Senior Registrar’s temporary ill health on 11 July, the Honourable Justice Williams requested me to hear and determine this application, which I did. 

2. In context, the applicant and respondent enjoyed a 19 year relationship.  They have three children – X (14 years old), Y (12 years old) and Z (9 years old).  The applicant and the respondent married in 2000 and finally separated in November 2017.  The applicant has re-partnered whereas the respondent has not.

3. The eldest child, X, while mature for his age has encountered challenges adjusting to his circumstances since his parents separated.  The evidence revealed that the youngest two children have encountered fewer challenges.  For some time X has consulted a psychologist, Ms B who has provided assistance to him.  It seems he has developed a favourable bond with Ms B.

4. The father takes the view that X’s adjournment to his present circumstances has been unduly slow.  He says Ms B’s work while useful, has not addressed the root cause of the current hostilities between X and the father.  He says that only reportable family therapy will provide any prospects of repairing the relationship between X and the father.  He said the costs of any such reportable family therapy should be shared between the father and mother. 

5. Mr S. Williams QC on behalf of the mother contended that the material filed by the father did not demonstrate the need for reportable family therapy nor should the mother be required to incur the very significant costs associated with it. 

Synopsis

1. For the reason that follow, in my judgment an order should be made for the father, the mother and X to attend reportable family therapy but at the father’s cost, the duration of which is to be determined by Dr F or by this court by further order. 

Relevant history

1. The applicant is the father.  He and the respondent married in 2000 and separated in November 2017.  They had commenced cohabitation in 1998 making their relationship of 19 years’ duration.  Their children are in year 9, year 7 and year 3 at school respectively. 

2. The father contended that since Saturday 27 April 2019 X has declined to send time with the father.  He said that his daughters continue to spend time with him. 

3. It seemed that during their marriage, the applicant and the respondent were very involved in the parenting of their children.  The father has at all relevant times been the owner of a business.  He stated in his affidavit affirmed 11 June 2019 that the three children regularly visited the father at his business.  He stated that since separation the children spend four nights with him per fortnight between Sunday and the commencement of school on Tuesday.  He said he has a three bedroom home in which X has his own room and the girls share a room.  He said the children are skiing enthusiasts and that he has taken the children skiing several times.  He said that since late April 2019 his relationship with X had deteriorated. 

4. In his affidavit made in support of this application the father recited in considerable detail the events on and from May of this year.  Mr Williams QC did not contend that the narration of these events was other than accurate.  It is not necessary to record each event set out by the father.  However, the following is a synthesis of the more important matters canvassed by the father –

   (a)on 27 April 2019 at 8:53pm X sent the father a text message stating that he, X, did not want to come to the father’s house;

   (b)on 28 April 2019 the father cancelled the skateboarding arrangements he and X had previously made;

   (c)on 4 May 2019 X sent the father a text in which X expressed his disappointment that the father, according to X, had made no attempt to discuss the situation with X;

   (d)on 9 May 2019 the father and X met after X’s school and discussed at length X’s feelings;

   (e)on 18 May 2019 X sent the father a text message saying he would not be visiting the father the following day as he needed more time;

   (f)on 28 May 2019 X sent the father a text message saying he was not ready to come to the father’s house;

   (g)on 30 May 2019 the father attended a basketball game in which X was playing and, according to the father, X appeared happy to see the father;

   (h)on 4 June 2019 X sent the father a text message saying he would love to go skiing with the father.

5. Some important factual issues emerged from that narration of events between 27 April and 4 June.  First, it may fairly be said that by late April the permanence of the father’s relationship with his new partner had become apparent to X.  X told the father that he (X) needed time to adjust to the reality of the permanence of that new relationship.  The fact of the father’s relationship with his new partner was a source of anger and frustration in X, as he stated in his text messages of 4 May 2019.  The precise reason for his anger and frustration was exposed in the second text between X and the father on 4 May 2019, namely that the father’s new partner once worked alongside X’s mother every day at the father’s business. 

The mother’s approach to this application

1. The mother swore an affidavit on 4 July 2019 in opposition to the father’s application.  In it the mother took issue with several factual assertions made by the father.  For example, the mother stated that the father has not taken X to basketball training when the father was required to do so, instead putting the father’s work commitments ahead of X’s basketball.  The mother mentioned how the father took the children’s mobile telephones from them thereby limiting the mother’s scope for contacting the children.  The mother also mentioned how the father did not, at least according to her, adequately communicate with her prior to his taking the children on a camping holiday to New South Wales in April 2019.  Those issues will undoubtedly be explored in depth if this case proceeds to trial.  At the present juncture, the issue of more immediate importance is whether orders for the commencement of reportable family therapy are likely to enhance X’s present circumstances in which he is unwilling to spend time with his father. 

2. To her credit, the mother referred in her affidavit to the father’s relationship with his new partner in frank and matter-of-fact terms.  She summarised X’s attitude towards the father’s new partner as emotionally challenging having regard to the constancy of the presence of the new partner.  The mother stated that X described the father’s new partner as being everywhere and he is unable to get away from her.  Such a reaction from a 14 year old adolescent endeavouring to adjust to his parents’ separation seemed to me to be far from unusual. 

3. The mother addressed in her affidavit the involvement of Ms B, the psychologist.  The mother said that as a result of the involvement of Ms B, X’s anger had ameliorated to some extent.  The mother said that Ms B had engaged in therapeutic counselling with all children and the mother disagreed that such counselling was not working as the father asserted.  She said X had told the mother that X took the view that the counselling offered by Ms B was beneficial.  The mother stated that in her view the appointment of Dr F as another therapeutic counsellor was unnecessary and that it may jeopardise the ongoing work of Ms B.  The mother said she was unable to afford any extra counselling.  On that latter point, Ms Renwick of counsel argued that the mother could in fact afford to meet half of the expenses of Dr F as she received already a significant property settlement. 

Consideration of this application

1. Certain factual matters may be stated as grounding the resolution of this application.  They include the following –

   (a)since April 2019 the relationship between X and his father has been strained;

   (b)the presence of the father’s new partner in the father’s life and the constancy of that presence is likely to account, at least in part, for the strained relationship between the father and X;

   (c)Ms B has been involved with X in an endeavour to assist him with issues of anger and frustration following his parents’ separation;

   (d)according to the mother, Ms B is making progress with X in addressing X’s issues and X finds her work with him beneficial;

   (e)according to the father, the work of Ms B is not advancing, or not sufficiently advancing, the resolution of the issues between X and the father;

   (f)if Dr F is appointed to undertake therapeutic counselling, yet another psychologist will be installed in an attempt to resolve X’s conflict with his father.

The two bases of opposition

1. Perfectly properly, both counsel recognised that two issues fell for resolution namely the need for and the payment of the therapeutic counselling proposed. 

2. Taking first the need for it, in my view it is warranted.  While the work of Ms B has been described by the mother as beneficial, very little evidence was given about it, although the respondent stated for a time it was weekly.  It seems tolerably plain that the process of assisting in the reparation of X’s relationship with the father will be long and probably arduous.  It is also plain that at its core the real nub of the issue is X’s difficulty in accepting the father’s involvement with his new partner and of the new partner’s constancy.  That is far from uncommon in the family law jurisdiction.  X seems to be polite towards his father in text messages.  Yet a repeat statement has emerged from X that he requires time to adjust to the new regime, inferentially meaning the new regime of the father’s involvement with his new partner.  It is not possible to say that the endeavours of Ms B are not working, as the father contended.  To the contrary, it appeared that X has found her work to be beneficial.  However, since April a significant impasse has presented itself between X and his father that remains unresolved.  A risk exists, it seems to me, that the impasse presently apparent will galvanise if not corrected immediately.  It is not possible from the evidence to conclude that the mother is orchestrating hostility between X and the father.  Yet evidence existed of a text message between X and the father on 27 April 2019 in which X stated that according to law X was old enough to choose with which parent he spent time.  That was a peculiar turn of phrase from a 14 year old.  The subject as well as the words chosen strongly suggested that X had been either instructed to use those words or that he had selected those words based on conversations in which he had participated or to which he had been exposed.  It is not usual for a 14 year old to tell a parent that according to law he or she has certain legal options.  X’s use of that language indicated to me that a risk existed that he was being exposed to the details of the litigation between his parents.  Naturally, I was unable to say who exposed him to that.  However, X lives with the mother and he spends very little time with the father so one possibility at least is that the mother has, either deliberately or unconsciously, exposed X to legal issues arising out of this litigation.  If not arrested at once a significant risk of alignment or even alienation emerges.  That is the very thing that therapeutic counselling addresses.  I do not accept that X’s recent trip to the snow with his father demonstrates that his relationship with the father does not warrant therapeutic counselling. 

3. So far as the costs associated with the engagement of Dr F is concerned, in my view those should be met by the father.  He seeks the involvement of Dr F.  The father should pay for those fees.  Whether they are adjusted at trial remains to be seen. 

4. The precise content of the therapeutic counselling should be left to Dr F.  For how long it continues should also be left to Dr F.  If the father is unwilling to incur the ongoing fees of Dr F that will probably cause the therapeutic counselling given by Dr F to come to an end. 

Conclusion

1. I make orders in terms of paragraphs 16 and 17, with modifications, of the father’s application in a case, such therapeutic counselling being limited to the mother, father and X.  Otherwise, this proceeding will be returned to the Registrar for ongoing case management. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 16 July 2019.

Associate: 

Date:  16 July 2019