Symons & Doucet
[2024] FedCFamC2F 1885
•9 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Symons & Doucet [2024] FedCFamC2F 1885
File number(s): MLC 2857 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 9 December 2024 Catchwords: FAMILY LAW – Parenting – Interim hearing – Orders made largely pursuant to consent minute – Scheme of consent orders changed slightly to delay progression of spend time – Where parties disagree on whether to appoint an Independent Children’s Lawyer – Where both parties’ allegations include some form of abuse – Decision to appoint Independent Children’s Lawyer. Division: Division 2 Family Law Number of paragraphs: 25 Date of hearing: 9 December 2024 Place: Melbourne Counsel for the Applicant: Mr Williams Solicitor for the Applicant: Accord Family Law Counsel for the Respondent: Ms Damon Solicitor for the Respondent: Tisher Liner Fc Law ORDERS
MLC 2857 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SYMONS
Applicant
AND: MR DOUCET
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
9 DECEMBER 2024
THE COURT ORDERS BY CONSENT THAT:
1.All previous parenting orders be discharged.
Decision-making
2.The parties have joint decision-making authority in relation to major long-term issues in relation to:
(a)X born in 2008 (“X”); and
(b)Y born in 2010 (“Y”);
(together “the children”).
Children’s time with the Mother
3.The children live with the Father.
AND THE COURT ORDERS THAT:
4.The children spend time with the Mother at all times as agreed between the parties in writing and in absence of agreement as follows:
(a)On Saturday 21 December 2024 from 10.00am to Monday 23 December 2024 at 4.00pm;
(b)commencing Friday 3 January 2025 and each alternate weekend thereafter from the conclusion of school Friday or (4:00pm on a non-school day) until Sunday at 4:00pm;
(c)Christmas Day at the home of Mr B (the maternal great-uncle) from 10.00am to 4.00pm, with the Mother to collect the children at the commencement of the time and the Father to collect the children at the conclusion of the time from Mr B’s home in Suburb C;
(d)X’s birthday, Y’s birthday, the Mother’s birthday, from 4:00pm until 8.00pm each birthday.
(e)Commencing Term 2 2025:
(i)on Friday from after school or (4:00pm if not a school day) until before school on Monday or if not a school day 9.00am on the following Tuesday each alternate week;
(ii)For dinner each alternate Wednesday evening from 4.00pm to 8.00pm;
(f)During Term 2 2025 school holidays:
(i)From 10.00am on the middle Friday of the school holidays until 4:00pm the following Tuesday; and
(ii)For dinner each Wednesday evening from 4.00pm to 8.00pm;
(g)Commencing Term 3, 2025:
(i)On Friday from after school or 3.30pm if not a school day until before school on Monday (or if not a school day 9.00am on the following Tuesday each alternate week);
(ii)Each alternate Wednesday from after school or 3.30pm if not a school day until before school or 9.00am if not a school day on Thursday;
(h)During Term 3 2025 school holidays and each mid-year school holiday period thereafter:
(i)For one half of the school holiday period as agreed between the parties 30 days prior to the upcoming holiday period and failing agreement the first half of each holiday period in 2025 and each alternate year thereafter;
(i)Commencing Term 4, 2025 and each school term thereafter:
(i)On Friday from after school or 3.30pm if not a school day until before school on Monday (or if not a school day 9.00am on the following Tuesday each alternate week);
(ii)Each Wednesday from after school or 3.30pm if not a school day until before school or 9.00am if not a school day on Thursday;
(j)for half of the long summer holidays as agreed between the parties 30 days prior to the upcoming holiday period and failing agreement on a week about basis with the Mother to have the first week in 2025 and each alternate year thereafter;
(k)X’s birthday, Y’s birthday, the Mother’s birthday, from the conclusion of school (or 4:00pm) until 8.00pm each birthday;
(l)Mother’s Day from after school Friday prior to Mother’s Day until before school the Monday immediately after Mother’s Day;
(m)Christmas Day 2025 and thereafter:
(i)From Saturday to Monday on the weekend prior to Christmas Day, for the maternal grandmother’s Christmas event from 10.00am to 4.00pm; and
(ii)On Christmas Day, from 10.00am to 4.00pm.
(n)the above school term times to recommence as though the holidays had not occurred; and
(o)Such other times as agreed in writing between the parties.
AND THE COURT ORDERS BY CONSENT THAT:
5.For the purpose of changeover, where the changeover does not occur at school, unless otherwise agreed between the parties in writing, the Father will deliver the children to the Mother's residence at the commencement of time and the Mother to deliver the children to the Father's residence at the conclusion of her time with the children.
Communication
6.That the parties communicate with each other regarding the children by text message or email in the first instance, or by telephone in the event of urgency.
7.That each parent facilitate telephone communication between the children and the other parent whilst the children are in their care as requested by the child/children.
Restraints
8.Without admitting the necessity for the same, the parties, their servants and agents are hereby restrained by injunction from:
(a)Abusing, belittling, insulting or otherwise denigrating the other party or their families to or in the presence or hearing of the children or permitting anyone else to do so;
(b)Discussing or referring to any part of family law communications, negotiations or proceedings in the presence or hearing of the children or permitting anyone else to do so;
(c)Bringing the children into contact with Ms D; or
(d)Using the children as messengers between the parents.
Supports and Assessments
9.The parties continue to engage with and attend upon Ms E (‘the joint therapist’) for post separation therapeutic sessions either separately or together as recommended by the joint therapist, with a specific focus on navigation co-parenting of the children and schooling issues for X at the parties’ equal shared expense.
10.Both parties continue to engage with their individual therapist at a frequency as recommended by their individual therapist, to address their own treatment targets, focusing in particular on the impact of their personality traits on the family dynamic and the messages they convey to the children and other issues as contemplated by Dr F in the Family Report dated 11 August 2024.
X
11.The parties do all acts and things and sign all documents necessary to cause X to be enrolled in and attend G School, commencing Term 1 2025, with the Father to provide the Mother with signed enrolment forms and the Mother to submit those forms to G School and provide the Father with written confirmation upon submission of the paperwork.
AND THE COURT ORDERS THAT:
12.In the event X does not attend G School in accordance with these Orders, then the parties shall do all acts and things to provide X with any alternative schools, including H School and J School to enable X to choose either school after the parties and X have consulted with the joint family therapist.
AND THE COURT ORDERS BY CONSENT THAT:
13.Both parties are to continue to support and encourage X to engage with mental health supports to address his severe anxiety.
14.Within 7 days of these Orders the Father provide to the Mother:
(a)copies of documents and information which X and / or the Father has received in relation to X’s prospective referral to the Suburb K Child & Youth Mental Health Service (CYMHS) and/or a paediatric psychiatrist; and
(b)referrals for three paediatric psychiatrists and any additional services suitable to assist X (e.g. CYMHS) recommended by X’s general practitioner, including full names, contact details and wait times.
15.In the event the parties are unable to agree as to any specialist treatment for X, then X’s general practitioner determine such dispute and provide a referral to the appropriate practitioner.
16.The Mother provide a copy of these Orders to the family therapist Ms E and any medical treater of the children.
Injunction
17.Unless in the event of an emergency, both parties be and hereby restrained from taking the children to any medical and/or allied health practitioner without the written consent of the other parent first obtained, with that consent not to be unreasonably withheld.
Authorities and Notices
18.Each party is at liberty to attend the children's school and extra-curricular activities that parents would ordinarily be able to attend including but not limited to parent-teacher interviews, concerts and competitions.
19.The parties be authorised to receive directly from the school, copies of all notices, information, newsletters and reports, details of parent/teacher interviews and be at liberty to arrange same by telephone, copies of photographs and order forms and any information which is relevant to the children’s education at the requesting parties’ expense, and each party shall inform the school of their respective addresses and contact details to enable them to receive same.
20.The parties keep each other advised of any medical or health issues relating to the children including, but not limited to providing particulars of any medication that has been prescribed to the children and ensuring that the medication is provided to the other party at changeover, and the name and contact details of the treating practitioner, details of any appointments with both parties being at liberty to attend such appointments.
21.The parties keep each other informed as soon as practicable of any injury or medical condition suffered or treatment undergone by the children while they are in their respective care.
22.The parties are each authorised to liaise directly with the children’s treating medical practitioners, dental or other health specialist in relation to the children’s health and welfare.
23.All interim applications be dismissed.
AND THE COURT FURTHER ORDERS THAT:
Independent Children’s Lawyer
24.Pursuant to s 68L(2) of the Family Law Act1975, X born in 2008 and Y born in 2010 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation and:
(a)forthwith upon appointment by Victoria Legal Aid or otherwise, the Independent Children’s Lawyer file a notice of address for service;
(b)within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent themselves) provide to the Independent Children’s Lawyer copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports;
(c)the Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Federal Circuit and Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and
(d)the Independent Children’s Lawyer prepare a minute of the orders they will recommend be made as final orders.
25.Leave is granted to the Independent Children's Lawyer to inspect and copy:
(a)Any subpoena material produced in these proceedings;
(b)Any material produced by Department of Families, Fairness and Housing in response to any notification made under s 67ZBD;
(c)Any documents produced by the Department of Families Fairness and Housing in response to any order to provide documents or information (s 67ZBE Order).
Further listing
26.The proceeding is listed for a Compliance and Readiness Hearing on 11 March 2025 at 10.00am in the Melbourne Registry of the Federal Circuit and Family Court of Australia (Division 2) before the Honourable Chief Judge Alstergren.
27.In accordance with the FCFCOA Central Practice Direction – Family Law Case Management, by no later than 4.00pm on Tuesday 4 March 2025, each party must file and serve:
(a)An Amended Application or Response as appropriate, setting out the precise orders sought, if the most recently filed Application or Response is not current;
(b)An undertaking as to disclosure in accordance with Rule 6.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); and
(c)A Certificate of Readiness in the approved form.
28.By no later than 4.00pm on Thursday, 6 March 2025, the parties or their legal representatives confer in order to be able to advise the Court of the following matters at the Compliance and Readiness Hearing:
(a)The factual issues requiring determination at a Final Hearing;
(b)The main legal and factual contentions advanced in relation to each issue in dispute;
(c)In parenting matters, the capacity of each party to contribute to the cost of a single expert report instead of a family report;
(d)The proposed witnesses (including expert witnesses) and their availability;
(e)Whether interpreters are required;
(f)Whether the matter is appropriate to be heard by videoconference;
(g)Whether expert evidence can be given by videoconference;
(h)The estimated length of the Final Hearing and proposed trial plan; and
(i)Whether any other step is required in order for the matter to proceed to a Final Hearing.
29.By no later than 4.00pm on Monday, 10 March 2025, the parties provide a draft minute in Microsoft Word format setting out with precision any procedural orders sought to aid the limiting of issues or time required for Final Hearing, by email to the Chambers of Chief Judge Alstergren at …@....
AND THE COURT NOTES THAT:
A.An Independent Children’s Lawyer has been appointed for the following reasons:
a.the issue of allegations of abuse.
B.Victoria Legal Aid has been given access to this file via the Commonwealth Courts Portal (“CCP”) and is granted leave to view copies of documents available on the CCP.
C.It is the Court’s view that it is a matter for the Independent Children’s Lawyer as to whether or not the children are spoken to and if so, when.
D.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
E.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
F.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
G.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
H.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore pursuant to the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and/or passages of authorities and evidence added, and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.
Background
This is an interim hearing in an interim list where the parties stood the matter down this morning to attempt to reach agreement. That process was much to the advantage of the parties, the children concerned, and the Court. The matter resumed at 2.15 pm whereby the parties had substantially agreed to matters that were previously in dispute, except the progression of time for the children.
The children are X, 16 years, meant to be in year 10, and Y, now 14 years, and in year 9. The children, X and Y, are the youngest of what was once a family of four children. They have an older sister, Ms L, and a half-sister, Ms D. Those older children are now adults and each lives independently of this family. The parties commenced cohabitation in 2000 and married in 2006. X was born in 2008, and Y in 2010. In about 2013, the child, Ms D, left the family home and, as I understand it, has lived independently since. The children’s older sister, Ms L, has also left the home and lives independently.
After a trip overseas as a family in 2023, from about mid-2023, the child, X, ceased attending school. Shortly thereafter, the parents separated in October 2023 when the respondent father, Mr Doucet (‘the Father’), either requested or insisted that the applicant mother, Ms Symons (‘the Mother’), leave the former matrimonial home. At that time, the Father had been not in paid employment outside the home, and he has not been in paid employment since. At all material times, the Mother has maintained employment and self-employment.
The other significant aspect in the chronology of unhappy events is that, on 3 September 2024 there was an order fixing specified time with substantial attendance of relatives of Ms Symons. It was also directed that the parties undertake family therapy with Ms E. And that therapy commenced on 8 October.
The parties retained sensible, experienced lawyers who insisted on the assistance of a family consultant, Dr F. Dr F had interviewed the family back on 26 June 2024 and provided a report dated 9 August 2024. She made many observations in regard to the family, including the following:
148. The interpersonal conflict between this couple means that the latter years of their marriage appear to have inevitably diminished any trust or goodwill that may have otherwise existed. This lack of trust and good will has extended to the co-parenting dynamic where it is clear neither party trusts that the other will do the right thing by the children. This is especially true for [Mr Doucet], who appears to have excluded [Ms Symons] from decision making as it relates to the children.
149. While I have not formed the opinion that either party is deliberately curtailing the other party's time with the children, there is compelling evidence that [Mr Doucet], wittingly or otherwise, has been adversely influencing the children's opinion of [Ms Symons]. He sees her through a lens of trauma, and in my opinion has transferred this onto the children to varying extents. I have no doubt that his own mental health landscape has contributed to this view. It is evident that he harbours anxiety and resentment towards [Ms Symons] for the way he perceived she treated him during their union and this appears to have continued to impact him well and truly into the postseparation period.
150. Notwithstanding the above, there is also compelling evidence from the parties to suggest that [Ms Symons] has contributed to the children's resistance to spend time with her on the basis of her own behaviours, which I detail further below. To this end, the lack of trust and goodwill between this couple will undoubtably infuse the way in which they interact with each other over the years ahead.
…
157. With regards to the children's relationship with their parents, it appeared that neither child was comfortable in the presence of their mother on the day of the assessment, although I would suggest that [Y] was also awkward to some degree in the presence of her father. The children evidenced blunted emotions at times with both parents. Notably, [X] presented as highly ambivalent towards his mother. He engaged her minimally throughout the assessment period despite her attempts. …
…
164. The bond between these two dyads was stronger than with their mother. There were greater markers of security in the children's and [Mr Doucet]'s attachment. Both children presented as moderately more relaxed than with their mother. They conversed with greater ease, and the flow in the serve and return of the parent-child dyad was smoother. The children reacted positively to their father being physically close and their levels of comfortability seemed stronger. They were able to separate from their father without evidencing great distress, which I note is an indicator that they still contain some markers of secure attachment to their mother and their ability to cope with the current circumstances.
165. In considering attunement, I note that [Ms Symons] presented as moderately attuned at best to the children's emotional needs. She, at times, seemed either oblivious of their distress, or too frightened herself to navigate it with greater presence and openness. The tension that prevailed throughout the session was clear evidence in support of this.
166. Last, I note that while both children remain vulnerable and cannot entirely articulate their wants and needs for the future, they are of an age where their opinion is more heavily weighted. The degree of appreciation by [X] and [Y], of the factors involved before the Court and their longer-term implications, are moderate at best.
The context of Dr F’s report was that after separation the child, X, did not only not attend school, but he did not attend to spend time with his mother either. Y spent some little, but of not significant consequence, time with her mother, but X did not spend time at all.
The difficulty for X of not attending school is not only what any child of his age would experience in not attending school, but it is common ground that he has a remarkable intellectual ability, and, in a particular discipline, has outstanding ability. For that particular child, as opposed to any other, not to have the advantage of an orthodox education is very serious and may well turn out to restrict his options for the rest of his life. I am concerned that he may not be able to achieve his potential as a person and as a member of society because of his absence from school.
These proceedings
The parties’ positions have moved significantly, and the chronology of events that concerns me is that there were orders made on 7 May 2024 that the children should spend time effectively as the children wanted to. The net result of that was the children themselves were unable to organise the adults to organise the time.
I take into account Dr F’s discussion about the problem of placing the responsibility on the children for the time they would spend with their parents:
176.1. The first critical point is that the current arrangements in place, whereby the children are at liberty to visit their mother 'by agreement', are not appropriate. There are several reasons for this. First, encumbering the children with this decision adds a responsibility and burden that is beyond their capacity as developing adolescents. It communicates to the children that the adults around them are unable to resolve the conflict between the parents, and as such, this major decision has been handed over to the children. Stated simply, it is a decision that is too great for the children to make in its entirety. Second, on the basis of the dynamics that have ensued to date, and [Mr Doucet]'s avoidant personality type, which is clearly evidenced in [X], there is little impetus for the children to make the choice to see their mother if they are not compelled to do so. The children have clearly aligned to their father over time, and will continue to do so, for as long as the current arrangements remain in place.
It is clear that Dr F was, in ways, critical of each parent. But Dr F’s recommendations are significant and clear. I should also note that it is not disputed that when the children were little, both parents were significantly involved in their care, but the Mother was significantly involved with the children, including breastfeeding, more or less in accordance with World Health Organisation recommendations.
Each parent has a justification for the breakdown in the relationship between the children and their mother. Dr F places this responsibility with both parents. It is unnecessary that I determine which one is more responsible than the other, and which one started the reaction, and which one is a reaction to the other one’s less-than-perfect parenting. It is unnecessary that I recite in these reasons all of the very difficult stresses and anxieties that has befallen this family.
Joint minute of orders
The parties then provided a joint minute of orders. The Father’s position had been that the children should spend time with the Mother as they wished whilst living with him.
Counsel for the Mother, in his submissions to me, referred to the chronology of events which meant that, as it turned out, at a time when the parents disagreed about which school X would attend, and at a time when X was not actually attending school, the Father commenced a process with the school of his choice – knowing that had not been agreed to by the children’s mother – whereby X attended for, as I understand it, a sort of introductory or acclimatisation-type process to assist him start school on, if not all, most Thursdays each week. That continued during the therapy with Ms E, or the time of the therapy with Ms E. In reading the Father’s affidavit filed on 6 December – that is, just a few days ago – the Mother learned of that regular Thursday attendance at, what I will describe as, ‘the new school’. In the face of all that, unsurprisingly but very sensibly, the Mother has acquiesced in the Father’s choice of the school. And it is hoped now that the parents agreeing about the school and X’s experience of connection with that school will assist the parents get X to actually attend so that he has a better chance of achieving his potential.
The other significant shift in the case is that the Father proposes, as from today, that the children’s time with their mother should move to unsupervised time and alternate weekends on a two-night Friday and Saturday night weekend. That would mean the children would see their mother on a Friday after school, or after the pick-up time, a Saturday and a Sunday. Depending on whether your glass is half full or half empty, that is two nights, or over three days.
The Mother has proposed a different regime that commences more or less the same, with a two-night regime, but then moves from term one to be the more ubiquitous after school Friday until before school Monday, plus an alternate Wednesday for dinner from 4.00pm until 8.00pm. By a careful regime of gradual improvement, that would end up, by the start of term three of 2025, being the alternate weekend, Friday to Monday, plus each Wednesday after school until the following Thursday morning – or what could be described as a ‘three plus one plus one nights per fortnight’ arrangement. The orders would progress to half school holidays on a week about basis in the long summer holidays. The Father, by the articulate submissions of his counsel, asserts that it is not in the children’s best interest to move to that regime at this point in time, and that the two-night alternate weekend regime with special days should continue until further order or indefinitely.
It is said that the evidence of the Mother’s therapist does not demonstrate sufficient engagement with the recommendation of Dr F such that the proper weight can be given to Dr F’s recommendations. The recommendation of Dr F to move to a 5/9 arrangement, effectively a shared care arrangement but not an equal shared care arrangement, is acknowledged. It is also asserted that in the circumstances of X not yet actually attending school – notwithstanding the great advance that he will have his parents agreeing, at least as to what school he should attend –that arrangement of a significant change (that is from two nights a fortnight over three days, to a Friday evening to Monday morning, three night over four days arrangement plus a meal in the following Thursday), is too abrupt in the sense that the significant change in time would coincide with the actual commencement of school.
Decision as to issues in dispute
Balancing all of those matters, and noting that this is an interim hearing, but nonetheless it is not an interim hearing that is just the first return of the matter in urgent circumstances. In this case, there is a lot of material before the Court – including expert evidence – that both parties rely upon. I place very significant weight on Dr F’s recommendations. I do not make findings that Dr F’s criticisms of either parent are made out. They may well be. And at a final hearing it may be necessary to move to making those findings. At this hearing, it is unnecessary that I do so.
I am not persuaded that the disparity between the report of Ms M (the Mother’s therapist) and what is said to be anticipated by Dr F’s recommendations is such that I can find that the Mother is not engaging with her therapist as contemplated by Dr F. However, I am satisfied that these orders and their working depend on both parties continuing to attend upon their respective therapists.
But I am satisfied that there be room for future trouble about what was ordered or contemplated. I am satisfied there should be an order whereby each of the parents provide Dr F’s report to their respective therapists together with a direction to engage in such therapy to the extent the therapist sees it as appropriate, consistent with Dr F’s report. On the Mother’s case, she is already doing that, but I would prefer an order that does not leave any doubt about it. That may turn simply on whether it is appropriate that the Mother attend fortnightly, or is directed by her therapist, or as her current regime of attendances – every four to six weeks plus further times when stressed. That may be the only difference.
However, I am satisfied that there is substance in the point of the Father’s counsel that to coincide a significant change in spend time with the start of the school year may inadvertently and unintentionally defeat the purpose of these orders.
Living arrangements and when they start
I am broadly satisfied with the regime, and consider it in the children’s best interests, as proposed by counsel on behalf of the Mother. But it is my finding that it is in the children’s best interest that the regime, as it starts out over the Christmas holidays, should continue throughout term 1 so that the new after school Friday to before school Monday with the Wednesday, regime would start at the start of term 2 rather than term 1. The regime proposed to start at term 2 should start at term 3. And the regime proposed a start at term 3 should start at term 4.
The school issue
Then, the other issue in dispute was whether there should be an order or a notation about the school. I am satisfied that it should be an order, not a notation. And the order should be: in the event that X does not attend the specific school in accordance with these orders, then the parties do all acts and things to provide X with any alternative schools, including the two schools that the parents agree should be within that area.
An ICL?
A further issue between the parties was whether, at this point, there should be an Independent Children’s Lawyer appointed. From my perception, within the current broad guidelines of Victoria Legal Aid as to when they will fund an Independent Children’s Lawyer, as opposed to when one should be appointed, it is clear that the allegations that the parties make against each other in very different ways amount to allegations of child abuse. Hence, the matter would fall within the guidelines for funding by Victoria Legal Aid. The Mother opposes the appointment of an Independent Children’s Lawyer on the basis that it is not required at this time and to have the children consulting yet another expert in their lives would be stressful and unhelpful to them.
The submissions of counsel for the Father are to the opposite effect – that an Independent Children’s Lawyer would assist the parties, including, I infer, assisting a lowering of conflict and an ability of someone involved in the case to speak to the respective experts. I am also satisfied that an Independent Children’s Lawyer would determine, him or herself, whether or not it is necessary to speak to these much spoken to by experts children, as opposed to, automatically, without considering it further, determining that the children should be spoken to by the Independent Children’s Lawyer as well as the various other professionals in their lives. In all of those circumstances I am satisfied it is appropriate to appoint an Independent Children’s Lawyer at this time.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 15 January 2024
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