Tallant and Kelsey (No 2)
[2016] FamCA 560
•10 June 2016
FAMILY COURT OF AUSTRALIA
| TALLANT & KELSEY (NO 2) | [2016] FamCA 560 |
| FAMILY LAW – CHILDREN – Interim parenting – Extent of and circumstances of the children’s time with the father – Parental responsibility – Expert Report admissibility determined – Provision of Expert Report to children’s therapeutic counsellor. |
| Family Law Act 1975 (Cth) ss 60CC, 61C, 61DA, 65DAC |
| Tallant & Kelsey [2015] FamCA 1190 Goode & Goode (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346 Rice & Asplund (1979) FLC 90-725. |
| APPLICANT: | Ms Tallant |
| RESPONDENT: | Mr Kelsey |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Jarman |
| FILE NUMBER: | PAC | 4932 | of | 2016 |
| DATE DELIVERED: | 10 June 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 6, 7, 8, 9 and 10 June 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Goodchild |
| SOLICITOR FOR THE APPLICANT: | Women's Legal Service NSW |
| RESPONDENT – LITIGANT IN PERSON: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Beck |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mills Oakley Lawyers |
Orders
IT IS ORDERED THAT
Reasons for Decision in relation to Mr R’s report raised on 6 June 2016 are published and distributed to the parties.
All previous parenting orders are discharged.
The children are to live the mother.
The father is to do all things necessary to attend upon his regular general practitioner within 7days to obtain an assessment of his mental health, including referral to any mental health professional who in the view of the general practitioner is appropriate.
The father shall attend upon all such appointments he is required to attend in accordance with Order 4 and undertake all treatment and abide by all reasonable directions of his mental health practitioner including attending all appointments, undertaking further courses, tests and taking all prescribed medications.
THE COURT NOTES
The father is required to obtain a report from his general practitioner or if he is referred to any other mental health professional for the purposes of the completion of the parenting proceedings.
IT IS ORDERED THAT
The father shall spend supervised time with the children, supervised by P Contact Centre or such other private supervision agency as nominated by the Independent Children’s Lawyer for a minimum of three hours per week or any other period as agreed between the parties.
Both parties do all such things and sign all such documents to enable the father’s time with the children in Order 6 to commence as soon as practicable and all such steps are to be taken within 7 days.
Both parties are to equally share the cost of supervision of the father’s time from funds held in the father’s account.
Order 4 of 20 April 2015 as amended on 8 May 2015 be varied to allow those funds to be utilised by both parties for the purposes of costs for supervision, and for the purposes referred to in Order 21 of these Orders.
The children have communication with their father as follows:
a.By telephone conversation each Wednesday at 7pm and to facilitate such calls, the father is to telephone the number provided to him by the Independent Children’s Lawyer for the purposes of those calls and the mother will have the relevant telephone charged and available for the children to speak with their father.
b.Telephone conversations with the father as the children may request and the mother will facilitate the making of such telephone calls.
c.The father may communicate with the children by way of letters and gifts.
The mother is to provide a telephone number to the Independent Children’s Lawyer by close of business today.
The mother shall inform the Independent Children’s Lawyer of any health professional with which the children are engaged. Information in relation to current health professionals is to be provided by 4pm today and to be updated from time to time.
Each party is refrained from making critical, racist or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
The father is restrained from entering at, or coming within 100 metres of
a.The place of residence of the mother of the children, and
b.Any school or educational institution attended by the children without the prior written consent of the mother.
The father shall submit to monthly or at the request of the Independent Children’s Lawyer, urinalysis in the following way:
a.The testing shall be by way of chain of custody urine for samples supplied in a supervised environment and check for adulteration;
b.The testing shall be broad spectrum including checking for methadone, metabolite, opiates, amphetamine types of substance, benzodiazepines, cannabinoids, cocaine metabolite, barbiturates, anabolic steroids, alcohol and any other substance which indicates behavioural changes as a side effect of the substance.
c.The drug testing shall meet the Australian/New Zealand standard 4308:2001;
d.The testing shall also include carbohydrate transference; and
e.Immediately upon the result being made available the husband shall provide a copy to the Independent Children’s Lawyer.
Both parties enrol as soon as practicable in any such parenting program as directed by the Independent Children’s Lawyer and provide written evidence to the Independent Children’s Lawyer of the enrolment and completion of such course if it has occurred prior to the resumption of the hearing.
Leave be granted to the Independent Children’s Lawyer to restore the matter to the list in any circumstances as she regards appropriate and in particular if the children’s time with the father under these orders does not occur.
The mother do all such things as necessary to arrange therapeutic counselling for the children as nominated by the Independent Children’s Lawyer and the mother is restrained from taking the children to any other counsellor or therapist other than as directed by the Independent Children’s Lawyer.
The Independent Children’s Lawyer has liberty to release to the therapist or counsellor engaged, Mr R’s report of July 2015, and my Reasons for Judgment published today with respect to admission of that report.
The mother shall do all things necessary to ensure that the children attend school each day and at the required time.
The costs of the children’s therapy should in the first instance be covered by Medicare in the event that a mental health plan is prepared for each of the children. If there are additional costs required to be paid for such therapy, then such funds may be paid from the father’s bank account under Order 9 of these Orders.
The proceedings are listed for further directions at 9.30am on 22 June 2016.
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 Tallant & Kelsey (No 2) 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 PARRAMATTA |
FILE NUMBER: PAC 3364 of 2013
| Ms Tallant |
Applicant
And
| Mr Kelsey |
Respondent
REASONS FOR JUDGMENT
For the last four days parenting and property proceedings between the parties, which had been expedited, have been heard. The parenting proceedings relate to the parties’ two children who are aged 13 and almost five. The property proceedings relate to a small pool of money in a solicitor’s trust account, being the proceeds of the parties’ joint assets following the breakdown of their relationship. The reason that the proceedings were expedited was because there’s some urgency, in particular, in determining the parenting proceedings, in particular, as the father has not spent time with the children, other than on one short occasion in Child Dispute Services at this court for around 20 months.
For various reasons, including applications made by each of the parties, which required a determination in the course of the proceedings, the proceedings were not completed within the allocated five days, even though, in my view, five days was a reasonable estimation for the length of the trial.
In December 2015 I heard and determined the father’s application for interim orders with respect to his time with the children. On that day the father was seeking a short period of supervised time, which would begin and then progress to overnight time, and that this regime be instituted immediately. The mother proposed on an interim basis that the children spend one hour with their father each fortnight, and it be supervised for a period of two months, and then move to two hours supervised per fortnight. Each of the parties was subsequently able to reach a significant compromise and agree that the father should spend three hours of supervised time on each occasion with the children, and they also reached agreement that the supervisor be the agency, P Contact Centre.
The mother then proposed that this time occur every fortnight for two months, and essentially that there be a slow reintroduction of the children to their father. That small dispute between the parties was determined, and, essentially, orders were made in accordance with the father’s proposal, and Reasons for Judgment were delivered[1]. That judgment is incorporated in and to be read with this judgment that I’m delivering today.
[1]Tallant & Kelsey [2015] FamCA 1190
It is not in dispute that the time agreed to by the mother and in accordance with the additional orders made by the Court did not occur. In summary, the mother was not prepared to make the children available in accordance with the orders. The children spent time with their father on a single occasion at Child Dispute Services. This is in accordance with a direction made by me on 14 March 2016, with which the mother complied. Since that date the children have not spent time with the father in accordance with the orders, which remain in the same terms as made on 21 December 2015. The father has not filed any contravention proceedings.
At the completion of the first part of the proceedings yesterday – and I say first part because it’s inevitably going to be adjourned for further hearing, the Independent Children’s Lawyer proposed a suite of orders for the interim. The orders with respect to parental responsibility, that the children live with their mother and spend time with their father, are in the same terms as the orders of 21 December 2015. The Independent Children’s Lawyer proposes a number of other orders relating to matters such as the father receiving treatment for his mental health, each of the parents receiving assistance with respect to the parenting, children’s communication with their father, drug testing for the father and therapeutic support for the children and other matters. Agreement has been reached between the parties as to many of these matters. And I’m now dealing with the outstanding disputes between the parties.
In particular, the main matter of contention is, again, the time that the father spends with the children, and the circumstances under which that time occur. So far as this matter is concerned virtually nothing has changed since December 2015. The Independent Children’s Lawyer simply seeks that the December 2015 orders continue and the father supports this position. Once again, the mother proposes that the children’s time with their father should not occur every week, and that the court should be very cautious about ordering that it occur weekly.
Although the mother previously consented to supervision by a private supervision service she now does not consent to what she describes as supervision at large, and proposes that if the Court is to make such an order that the father should also be ordered to first obtain a report with respect to his mental condition.
In relation to the proposal to change the current interim orders I raised the issue of whether there was a significant change in the children’s circumstances that would justify revisiting that order. It was submitted on behalf of the mother that she did not need to satisfy such a threshold in accordance with the principles in Rice & Asplund[2], but the matters put forward on behalf of the mother were, as I say, essentially exactly those that were put forward in December 2015. That is, that while the mother consents to some time occurring she expresses concerns about the time within which that should be reintroduced, the frequency with which that should occur and the circumstances of supervision.
[2] (1979) FLC 90-725.
Although this is an application for interim orders in the midst of proceedings, and, in my view, very little, if at all, has changed since December 2015, the matter will still be considered by reference to the best interest considerations set out in s 60CC as required by Goode & Goode[3]. Of course, in applying the law to the facts the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) dealing with parenting.
[3](2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346.
So far as the first issue is concerned, that is the issue of parental responsibility, unless the Court makes an order changing the statutory conferral of joint parental responsibility, s61C(1) provides that each of the parents of a child has parental responsibility for the child. In Goode & Goode (supra) the Court held that there is a difference between parental responsibility, which exists as a result of s 61C(1), and an order for shared parental responsibility, which has the effect set out in s65DAC. The Court held that in the former, as there is no court order in effect, the parties will exercise the responsibility either independently or jointly.
On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the court otherwise provides.
Under s 61DA(1), when making a parent order in relation to a child the Court must apply a presumption that it’s in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with the parent has engaged in abuse of the child or another child or family violence, or, when making an interim order, the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
The mother proposes that she be allocated sole parental responsibility essentially on the basis that that is what she has been exercising since the parties separated, or at least since September 2014. She also submits that on a final basis it is the mother’s case, and it is well known that it’s the mother’s case, that the mother and children have been subjected to family violence and abuse so the presumption doesn’t apply. It is also the mother’s case that the parents are incapable of the level of cooperation required for the exercise of joint parental responsibility.
In the submission of the Independent Children’s Lawyer it is unlikely that any major matters requiring the parents to jointly make decisions will arise in the next few months under consideration, and she supports that there be no order in relation to parental responsibility, and the parents exercise it under s 61C(1). I’m of the view that, in circumstances when I am making an interim order and matters relating to family violence and abuse have not been finally determined, and in circumstances where the parents are not capable of jointly making long-term decisions, it is appropriate in the circumstances for the parents to exercise that responsibility that they have under s 61C.
So far as the other matters are concerned the Court must make such orders as are in the best interests of the children as a result of the consideration and matters set out in s 60CC. The primary considerations, which are contained in subsection (2), are the benefit to the children of having a meaningful relationship with both of the children’s parents, and the need to protect the children from physical or psychological harm from being subjected to or abused to abuse, neglect or family violence. Of course, I have to attach greater weight to the second of these considerations.
As far as the benefit of a meaningful relationship with both parents is concerned, there is little difference between the parties’ proposals in terms of the children receiving the benefit of a meaningful relationship with both parents. While the children continue to enjoy having the benefit of a meaningful relationship with their mother, they have not had any relationship with their father for the past 20 months. Although the proposed orders of both parties will mean that the children will receive the benefit of having some relationship with their father, it is insufficient under both proposals to amount to a meaningful relationship with their father.
As it must be accepted by the mother, that there is a benefit to the children in having some relationship with their father, as she consents to orders which would support that, in my view, the greater the amount of time the children spend with their father would be, the greater benefit to them.
The mother’s proposal that prior to time commencing that the father obtain a medical report will simply delay the children’s time with the father commencing in circumstances where from December 2015 all parties have agreed that that time should occur. This is a significant issue in the lives of the children, particularly the younger one.
The mother contends that there is a great need for the children to be protected from psychological harm resulting from their exposure to family violence, which she says has been perpetrated by the father. However, in previous parenting proceedings, which were resolved by orders made by the consent of the parties, they agreed to a shared care arrangement. Most of the mother’s allegations about violence perpetrated against her, especially the more serious matters of physical assault, predate that parenting arrangement.
The mother also agreed under cross-examination that the events that really changed her mind about the risk of harm posed by the father are the alleged physical assaults upon the older child, C, and the alleged sexual assault of the younger child D. Further, the mother’s allegations about family violence are disputed by the father, who contends that the mother was also a perpetrator of violence. No finding in relation to this matter has been made, nor can I make an assessment about the probabilities as issues relating to each of the parents’ credibility have not yet been able to be finally assessed.
However, on each parent’s case, it appears that these children have been exposed to considerable conflict between their parents and the greatest need is to protect them from harm arising from the ongoing conflict. The orders proposed by both parties do not involve the parents coming into contact with each other for the purposes of the interim parenting arrangements. It is a significant plank in the mother’s case that the child, D, has been sexually abused by the father, and he poses an unacceptable risk of harm to her on this basis. I have not made any final determination in relation to this issue, nor can I assess the probabilities on an interim basis.
However, even though, as I understand it, the father’s position is that his time with the children need not be supervised for this reason, he has agreed to supervision from at least December 2015, and continues to accept that it is in the children’s best interest, at this stage, for that time to be supervised.
In relation to the additional considerations the first matter is to consider the views expressed by the children, and any factors underlying their views, noting their ages – in respect of weight to be given to their views. The views of the children concerning their time with their father are said to come from a number of sources. First, they each express their views to Mr R, the court appointed expert in June 2015, and since then it is said that they have expressed their views to various people.
Due to the nature of the dispute between the parents and the fact that the children have spent no time with their father since September 2014, and, in particular, in the case of D, given her age, I attach no weight to the views said to have been expressed by them to their mother. I also attach no weight to the views that may have been expressed to contact centre staff when the mother presented the children on the mistaken or misguided belief that supervised time with the father was to occur at that time at the contact centre. I attach some weight to the children engaging with the father at some level in Child Dispute Services in March of this year.
Mr R, the expert, was concerned that weight should be attached to the views of C, given her age, but agreed that there would be some benefit in orders being made for time, rather than leaving that to be a matter in accordance with her wishes.
It is difficult at this stage to assess the nature of the children’s relationship with each of their parents and other significant people. However, the parents do not dispute that prior to September 2014 when the mother refused to make the children available to the father, there had been some form of shared care of the children between them.
Although there seems to be little dispute that there is some level of impairment in the father’s parenting capacity, particularly in relation to physical punishment, the overall tenor of Mr R’s evidence is that there are some benefits to the children in sharing a relationship with their father.
Although the mother has grave concerns about what is described as the father’s erratic behaviour, by her consent to the children spending some time with the father and her concessions under cross-examination that she would facilitate and support that time, should the children desire it, she clearly recognises that the father’s relationship with the children is of some significance to them.
So far as the extent to which each of the parents has taken or failed to take the opportunity to participate in decision-making, spend time with or communicate with the children, the father has not been given the opportunity to participate in decision-making or spend time with the children following the allegation of sexual abuse in September 2014 because of the unilateral decisions of the mother. It appears, however, that he has found some ability to communicate with C at least from time to time.
The father’s application to spend time with the children was made shortly after Mr R’s report was released. His application for time was in accordance with Mr R’s then recommendations. Although the father has not brought contravention proceedings as a result of the mother failing to make the children available in accordance with the orders, he is not, in my view, to be criticised in not being diligent in pursuing every effort to spend time with the children.
It appears that prior to September 2014, each of the parents maintained the children when they were in their respective care. Since that time when the children have been in the mother’s care, she has solely borne the responsibility for their financial support.
The likely effect of the children spending time with their father under the proposed orders is said to be of significant concern of the mother. However, the difference between the proposals put by each of the parties in this regard is negligible, and in my view there would be little difference between the children spending time with their father each week and that occurring each fortnight. In circumstances where that time is to be supervised, where it is by consent and where it is 20 months since the children have spent time with their father, it is likely, in my view, to be more beneficial for them if this occurs more regularly.
An issue of expense associated with supervised time with a private agency has been raised. In circumstances where the parties have approximately $100,000 in joint funds in a solicitor’s account and the time with their father is to be for the children’s benefit, in my view, this would be an appropriate source of funds for that time.
The mother’s alternate proposal is that the time occur in a contact centre or similar place. However, there is no evidence before the Court that such a place is immediately available, whereas, as I understand it, the private supervision agency would be immediately available.
The issue of each of the parents’ capacity in this matter is of great significance. However, that issue has not been determined on a final basis and is not a matter of significance when considering the two competing applications for limited supervised time on a limited basis.
Issues relating to maturity, sex, lifestyle, background, et cetera of either child or parents are not matters of significance on this limited interim basis.
The children in these proceedings are Aboriginal. However, considering the limited compass of this application, issues relating to their Aboriginal culture, which in any event is enjoyed by them through their relationship with their mother, is not a matter of significance.
Although there are a number of issues related to the responsibilities of parenthood which are relevant to final orders and which have not been finally determined, it is a matter, in my view, of particular significance to this application that the mother has not complied with her obligations under the previous interim orders for the children to spend time with their father.
Family violence is a matter of great significance in these proceedings. It is central to the mother’s allegations about the need to protect the children from harm. However, on this limited application where on both proposals the father’s time with the children is to be supervised and the mother agrees that it should occur, it is not a particularly weighty factor.
Having regard to all of those matters, and bearing in mind that these are to be interim orders for a matter of months, I am of the view that the orders proposed by the independent children’s lawyer where they differ with the orders of the mother are to be made.
There were some additional matters that were raised this morning that were opposed by the mother, upon which I had heard further. In particular, they related to the issue of therapeutic counselling for the children, and the restraint, which I have to say I suggested, which did not form part of the Independent Children’s Lawyer’s initial proposal from taking the children to any other counsellor, and in relation to the Independent Children’s Lawyer’s proposal that Mr R’s report be released to that counsellor.
So far as the restraint is concerned, I accept that the mother did state that she understood that if the issue of sexual harm posed by the father and the alleged sexual abuse was not in accordance with her contention, that it would not be appropriate to take the children to the previous counsellor, who had been retained on the basis that sexual abuse had occurred. However, I won’t be making any final finding either way. These are interim orders, and in circumstances where, as I say, the mother seems to have had previously some difficulty with orders which, in my view, were unambiguous about spending time with the father, I think for more abundant caution it should be made clear that the only counsellor or therapist that the children is to see is one nominated by the Independent Children’s Lawyer.
In relation to Mr R’s report, the mother repeats the contentions put on her behalf about the issues which are said to be defects with that report. The mother’s contention went so far as to say that, in summary, the report was so defective for so many reasons that it was inadmissible. I ruled against her on that and found that it was admissible, and it was admitted and marked as an exhibit in the proceedings.
I now publish my reasons for that decision in relation to the admissibility, and in circumstances where many of those matters are dealt with in that judgment, and the report has been admitted, I do propose granting leave to the Independent Children’s Lawyer for it to go to the therapist
So far as the specific complaint about Mr R holding an old-fashioned view (concerning family violence), my interpretation of what Mr R says is not what the mother contends. Mr R under cross-examination (though I accept that his cross-examination and the transcript of his evidence won’t be provided to the therapist), made it clear that his intention was not what was put by the mother’s counsel.
He also referred to other parts of the same paragraph, and in my view, the complaint of 1950s view is simply not a view stated in the report. Considering that it has been admitted in the proceedings, I think it is appropriate by way of providing that form of background – an appropriate manner for the therapist to be informed of the context of this dispute. But, of course, the therapist will make his or her own assessment when the children commence for that therapy about the presenting issues in any event.
So for those reasons, I make the following orders.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 10 June 2016.
Legal Associate:
Date: 11 July 2016
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