TAGGART & VLAHOS

[2019] FamCA 642

FAMILY COURT OF AUSTRALIA

TAGGART & VLAHOS [2019] FamCA 642

FAMILY LAW – CHILDREN – INTERIM – final consent orders made in 2016 for an equal time arrangement – breakdown in time between the child and the father since mid-2018 ‑ where the parents agree for the child to return to mainstream schooling – where the parents disagree as to which mainstream school the child should return to – orders made for the child to recommence mainstream schooling and reportable counselling for the child.

Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3)

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Taggart

RESPONDENT: Ms Vlahos

FILE NUMBER: TVC 315 of 2010

DATE DELIVERED: 13 August 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 13 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr W Pennell

SOLICITOR FOR THE APPLICANT: Resolute Legal

SOLICITOR FOR THE RESPONDENT: Stevenson & McNamara Lawyers

INDEPENDENT CHILDREN’S LAWYER: M M Meehan

The court orders until further order

1. That the parents sign all documents and do all things necessary to enrol the child, X born … 2009 (“the child”) in the E State School to commence on Monday, 19 August 2019 and the child shall continue at that school until further order of the Court.

2. That the child’s current counselling shall cease and in lieu the parents shall sign all such documents as may be necessary and make such appointment/s to provide background as may be necessary to engage the child in therapeutic counselling on the following basis:

   (a)The counselling shall be reportable;

   (b)The mother shall seek from the child’s general practitioner a mental health plan directed to a practising psychologist who is skilled in this area of therapy and for the purpose of so doing shall have liberty to provide the general practitioner with a copy of the family report prepared by Ms  A dated 19 February 2019;

   (c)The Independent Children’s Lawyer shall provide to the parents as soon as possible the name or names of any psychologist in the Townsville region who the Independent Children’s Lawyer believes is appropriate to undertake the counselling under this Order (and available quickly to commence counselling), and such information from the Independent Children’s Lawyer shall include a Curriculum Vitae of the counsellor if possible. The counsellor should be a registered psychologist; and

   (d)The parents are to share equally in the cost of any difference between payment under a mental health plan to the counsellor (if so prescribed) and the counsellor’s usual fee or if a mental health plan is not prescribed, then the costs of that counsellor.

3. That pursuant to s 121 of the Family Law Act 1975, the parties be granted leave to provide to any counsellor they engage  a  copy  of  the  family  report  prepared  by Ms A dated 19 February 2019.

4. That if, through therapeutic counselling as ordered by this Court for the child, the parents agree (or the Court on application orders) supervised time between the child and the father is to commence, then such time shall occur at F Group at the expense of the father with such time being further complimented by telephone time if agreed or otherwise ordered.

5. That these proceedings be adjourned for Case Management Hearing and trial directions at 9.30am on 3 October 2019 in the Family Court of Australia at Townsville.

6. That the Independent Children’s Lawyer be at liberty to apply.

7. That the parties’ costs of today be reserved to trial.

IT IS NOTED:

A.That it is the Court’s intention is to conduct a Final Hearing of issues in dispute in these proceedings in the week commencing 10 February 2020 in Townsville.

B.That pursuant to s.65DA(2) of the Family Law Act 1975 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 the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.

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 Taggart & Vlahos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: TVC 315 of 2010

Mr Taggart

Applicant

And

Ms Vlahos

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. This matter is before me today for an interim determination.  The history of this matter can be shortly stated.  X is the only child of the parties who separated, it seems, not long after the child was born, she having been born in 2009.  She is now ten and a half years of age.  X was the subject of final orders made by Judge Coker (as he then was) on 3 November 2016, which effectively provide for week-about and half holidays to occur for the child from 9 December 2016.  There are issues arising from the parties’ material that relate to difficulties both before those final orders were made and since.

2. The evidence appears to be that the week-about arrangement occurred without significant disruption until an event in or about April 2018 where it is alleged that the father, the child says, deliberately at a camping holiday, burnt the child with a frying pan and punched her on her leg, causing bruising.  It is noted that although that event occurred in early April 2018, the child had a further week when school returned with the father, but that when the child was due to return to the father after a week with the mother, the mother, she says, based on advice from police and others, withheld the child, and since that time the child has spent no physical face-to-face time with the father.

3. Even when the opportunity for X to spend time or be observed with the father during the report interviews conducted on 22 January 2019 with Family Consultant Ms A was offered, she refused to engage with the father.  Her views, as set out in a report of Ms A, are very strong, and expressly very, very negative about her father.  These seem to be diametrically opposed to what appears to have been the relationship she had with the father up until the events of early April 2018.

4. Sadly, for the child, when the difficulties arose in April 2018, neither the mother nor the father immediately took actions to bring to the Court’s attention the breakdown in the orders made.  Simply stated, the parties were bound by the orders of Judge Coker made in November 2016 unless they were altered by consent or by order of the Court.  What the father did, and from his perspective, understandably, filed a Contravention Application on 15 May 2018.

5. When the matter first came before Judge Middleton in the Federal Circuit Court of Australia on 28 November 2018 (some seven months after the camping incident), his Honour ordered the family report, and on an interim basis, seemingly through the vehicle of the Contravention Application and without there being any other parenting applications before him, suspended the operation of the final orders so far as the father’s time with the child was concerned, and ordered that time occur supervised at the B Group Contact Centre “as can be arranged between the Contact Centre and the father, with that time not being more than once a week”.

6. The father was directed to file an Application in a Case and the mother to respond to the Application in a Case by the end of the year.  A family report was ordered, and the matter was returnable before the Federal Circuit Court of Australia on 15 February 2019.  When the matter returned to the Federal Circuit Court of Australia in February 2019, the matter was transferred to the Family Court of Australia.  The order of Judge Middleton made 28 November 2018 does not on its face suspend or discharge the operation of a number of the orders made by consent on 3 November 2016, in particular, that the parties had equal shared parental responsibility, and orders in relation to travel, relocation (see Order 23), medical treatment, contact and authorities all set out in the Order.

7. I think it is fair to infer from the Order made by Judge Middleton, although the Order does not expressly refer to it, that the intent of his Honour was that all unsupervised time between X and her father was suspended and replaced by an interim order for supervised time.

8. A further factor which has been a significant issue in this case is that contrary to the obligation to consult in relation to the child’s education being a major long-term issue, the mother in mid-2018 elected to home-school the child through distance education.  The father opposes the mother doing so.  As a result, one of the issues I am required to decide today is not whether the child continue to be home-schooled, as the mother accepts the recommendation of Ms A, the family report writer, that the child would benefit from returning to mainstream schooling but rather which school the child should attend.

9. It seems that with the child’s relationship with the father having seriously broken down at this stage, it is necessary to take some steps, and both parties agree, to support X considering recommencing some form of physical time, being supervised or otherwise, with her father, and that focused therapeutic support for this to occur is indicated.  This is a matter which now, having heard submissions today from the Independent Children’s Lawyer Ms Meehan, Counsel for the father Mr Pennell and the solicitor advocate for the mother Ms McNamara, all agree on.  I will return to that subject shortly.

10. This is a matter which, in my view, requires a trial, as serious issues of parental conduct and behaviour are raised by each parent against the other.  Whether or not it was ever reasonably practicable that these parties could make an equal time arrangement work, as was ordered by consent in November 2016, might be subject to question.  Nonetheless, they were able to achieve that for a period, it seems, of over 15 months.

11. It should be noted that although the mother in her material refers to incidents in 2015 and earlier, when this matter comes to trial the Court will be entitled to merely look at issues that have occurred since the final orders were made in 2016, as it is reasonable to infer and assume that when the parties, with legal representation, consented to the orders before his Honour Judge Coker, they did so mindful of and aware of the factors and events, some of which were no doubt controversial, that occurred before those orders were made.  When this matter is listed for trial, I will be making this point again.

12. I am being asked to consider making some interim orders.  Interim proceedings in the family law jurisdiction are truncated by nature.  The Court is not in the position generally to make findings about disputed facts.  Often that can only be achieved when the parties have been tested in the usual way by cross-examination at trial.  Nonetheless, on the evidence, the Court is often required to make a decision about factors which go to the best interests of the child.  Because I am listing this matter for a hearing in February 2020, I am mindful of making orders which do not extend beyond that date.

13. As the Full Court in Banks & Banks (2015) FLC 93-637 identified, when considering the more commonly described principles identified by the Full Court in Goode & Goode (2006) FLC 93-286, in an interim decision like today, it is necessary for the Court to limit itself to the issues in dispute and only as required give some examination of the relevant section 60CC(3) additional considerations and section 60CC(2) primary considerations.

14. Before turning to the issues I identified and heard submissions on today, let me note that on the face of the current material and the history of care, it seems that the child would benefit from a relationship of a meaningful nature with both of her parents.  I accept that there is a forensic need to consider whether an incident occurred as alleged by the child (to the mother) at the campsite, which relates to the frypan and also the punching.  The father would say that there are risks to the child that arise from the mother’s minimisation and lack of support of his position as a father, and that is very much a triable issue of which I make no findings at this stage.

15. It would be a very sad case, bearing in mind the two primary considerations, if the Court was put in a position of having to select one parent to be the overwhelming primary carer, with the other parent having limited time because the Court could not be satisfied otherwise that it could make an order least likely to lead to further proceedings.  That is a matter the parties need to consider when they prepare their trial material ultimately.

16. In relation to the additional considerations at this stage, the views expressed by the child to Ms A should, in my view, in view of the history, be treated with some caution, but I do not ignore them.  By her words and actions, she is at this stage indicating it is difficult for her to spend any time with the father.  The strength of her comments to Ms A has been examined by Ms A, and she herself raises some concerns about the foundation for those expressions.  That is a matter for another day.

17. Both parents have exhibited in the past the capacity and attitude to parenting that has allowed this child to grow and develop.  They did so through an equal time regime, as I have already indicated, for some time.  The mother has a view about it being in the best interests of the child that she be home-schooled, but, to her credit, having considered the report of Ms A, has given her advocate instructions to no longer support home-schooling, but rather to return the child to mainstream schooling.  I give credit to the mother for that change of position.

18. It appears that there are events since the orders were made in 2016 that have caused domestic violence orders to be made and allegations relating to breaches of that order by the father, which have caused penalties to be imposed upon him.  As s 60CC(3) identifies, further examination of those matters within the context of the best interests of the child consideration will need to be undertaken at trial.

19. Dealing with the respective issues, I make the following findings and decisions.

Schooling

1. The mother, now having indicated that she accepts it is in the best interests of X to return to mainstream schooling, proposes the child attend D Catholic School.  The mother says that the child is a Catholic by faith, and that attending D Catholic School will allow both her faith and education to be nourished.  There is no evidence that in the period that the child has been in the mother’s care, that the child’s religious or faith needs have been nourished by the mother in any particular way.  There may be at the trial.

2. The father’s position is that the child should return to the school that she had previously attended, namely, E State School.  The school is familiar with her and she has had, for example, engagement with counselling at the school.  The child, I infer, is familiar with the school environment.  She may well have persons who could still be her peers if she returns to that school.  There is no evidence before the Court that would persuade the Court on an interim basis that the school presents as some risk or danger to her.

3. To that extent, Ms McNamara says there could be a “conflict of interest” between the fact that a counsellor has, at the school, made some reporting of something the child said to her.  That may need to be tested at trial but, nonetheless, that of itself does not, in my view, mean that the child should have a significant departure from where the child has previously been educated for the whole of her school education, but for the distance educating, namely, within the state school, even when, as Mr Pennell indicates, that the child was acknowledged to be of the Catholic faith when initially enrolled.

4. The orders I make for the child to attend the E State School from next Monday, in my view, are in the child’s best interests on an interim basis.  It may well be that at a trial in February next year, there may be evidence from the school that supports some change of schooling, but there is no evidence before the Court at the moment, in my view, that persuades me that the parents’ initial agreed, perhaps compromised, position of where the child should attend school should not be reactivated.

5. Although there is some suggestion that perhaps the child may have been better to recommence schooling at the start of the final school term in October, in my view, with the decision made that she would return to mainstream schooling, there is no evidence before me that suggests that the child should not return as soon as possible.  Monday is the appropriate start time.  Accordingly, I will make an order in these terms: that the parents sign all documents and do all things necessary to enrol the child in the E State School, to commence on Monday, 19 August 2019, and the child shall continue at that school until further order of the Court.

Counselling for the child

1. The second issue which needed to be determined is counselling for the child.  Again, having heard the submissions today, the parties appear to be in agreement that the child would benefit and at least an attempt should be made to provide her with independent, focused counselling.  The Independent Children’s Lawyer, Ms Meehan, has offered as a suggestion Dr G, a Psychologist working with families.  The recommendation of Dr G is not supported before me with any curriculum vitae by Dr G, but I am happy to accept, as a practitioner experienced in the area, that Ms Meehan would not identify a person who she did not believe was a person with the required skills.  There is no evidence before the Court as to Dr G’s availability. 

2. It should be possible to at least have a medical practitioner consider prescribing a mental health plan for the child, which would defray some of the costs of the child attending a psychologist.  If, however, the parties are not able to have a mental health plan prescribed – and that is a clinical decision, not a matter for the Court – then, in my view, the parents are going to have to meet the costs of the psychologist equally.

3. Accordingly, I make an order in these terms: the child’s current counselling shall cease and, in lieu, the parties will sign all such documents as may be necessary and make such appointments to provide background as may be necessary to engage the child, X, in therapeutic counselling on the following basis:

   a)the counselling shall be reportable;

   b)the mother shall seek from the child’s general practitioner a mental health plan directed to a practising Psychologist who is skilled in this area of therapy and, for the purpose of so doing, shall have liberty to provide the general practitioner with a copy of the family report of Ms A; and

   c)the Independent Children’s Lawyer shall provide to the parents as soon as possible the name or names of any psychologist in the Townsville region who the Independent Children’s Lawyer believes is appropriate to undertake the counselling under this order (and is available quickly to commence counselling), and such information from the independent Children’s Lawyer shall include a curriculum vitae of the counsellor, if possible.

4. The counsellor should be a registered Psychologist.  The reason simply for that is if it is not a Psychologist, you will not get a prescribed mental health plan.

1. The parties are to share equally in the costs of any difference between payment under a mental health plan to the counsellor (if so prescribed) and the counsellor’s usual fee or, if a mental health plan is not prescribed, then the cost of that counsellor.

Counselling for the parents

1. Although in the interim applications both parties indicate a request for an order for counselling for both parents, with the history of this matter and for the reasons I have explored with the parties today, in the final analysis, neither parent nor the Independent Children’s Lawyer urge such an order now.  That is not to suggest that the Court does not see the parents gaining some benefit in obtaining counselling from a person of their choice, and in that regard, the Court will give leave to the parties to provide a copy of the family report to any counsellor they engage.

2. For the reasons identified with the Independent Children’s Lawyer, I do not support the recommendation by Ms A at paragraph 207 of her report dated 19 February 2019.  No evidentiary foundation for the expert’s opinion is given.  Furthermore, there is nothing in the history of this matter that suggests the parties have suffered mental health issues sufficient to require either significant long-term treatment or hospitalisation, and the limited resources of Legal Aid Queensland are such that they will only provide aid for a psychiatric report in special circumstances.  Such circumstances do not, on the evidence at this stage, in my view, in this matter, exist.

3. The parties now agree that if, through the therapeutic counselling to be undertaken, it is possible to explore the child spending time with the father, then that should occur supervised at F Group and/or by telephone.  I think the father deserves credit in the circumstances for not pressing for a prescribed time order at this stage, although he does very much on a final basis, in accordance with his current application, seek that X live with him.  I agree that the focus should be now on therapeutic intervention.  It is a matter of some regret that such action was not undertaken over 12 months ago when the issues that disrupted the equal time arrangement at least first arose.

4. Nonetheless, I will make an order in the following terms.  If, through therapeutic counselling as ordered by this Court for the child, the parents agree (or the Court, on application, orders) supervised time between the child and the father is to commence, then such time shall occur at F Group at the expense of the father, with such time being further complimented by telephone time if agreed or otherwise ordered.

5. I propose to list this matter before me for further Case Management Hearing and trial directions at 9.30am on 3 October 2019 in Townsville.  I will be sitting there that week.  I will give liberty to the Independent Children’s Lawyer to relist.  I will note that the Court’s intention is to conduct a trial of issues in dispute in this matter in the week commencing 10 February 2020 in Townsville.  I propose to reserve the costs of the parties of today to the trial.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 13 August 2019.

Associate: 

Date:  11 September 2019