Terrill & Deighton
[2023] FedCFamC2F 930
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Terrill & Deighton [2023] FedCFamC2F 930
File number(s): MLC 9773 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 24 July 2023 Catchwords: FAMILY LAW – application for recovery order – where final orders made within last 8 months – where parties consent to final orders for children to live with Father and spend school holiday time with Mother – where Mother has not returned the children to the Father’s care – where Mother alleges the children’s mental health is impacted by behaviour of the Father and seeks for children to remain in Queensland – where Father seeks the children return within three days – orders made for Mother to return children to the Father’s care within three days – Rice & Asplund decision reserved. Legislation: Family Law Act 1975 (Cth), ss 13C, 60CC. Cases cited: Rice v Asplund [1978] FamCA 84; (1979) FLC 90-725. Division: Division 2 Family Law Number of paragraphs: 51 Date of hearing: 24 July 2023 Place: Melbourne Solicitor for the Applicant: Robertson Legal & Conveyancing Lawyers Pty Ltd Respondent: Litigant in person ORDERS
MLC 9773 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TERRILL
Applicant
AND: MS DEIGHTON
Respondent
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
24 JULY 2023
THE COURT ORDERS THAT:
1.Orders and reasons with respect to the parties cross-applications regarding the principle known as to Rice v Asplund [1978] FamCAFC 128 are reserved.
2.Within three days of the date of these Orders, the Respondent Mother return the children namely X born in 2011, Y born in 2014 and Z born in 2017 (collectively “the children”) to the Applicant Father pursuant to order 3.2 of the Final Orders dated 8 December 2022.
3.In the event that the children are not returned to the Father’s care within three days the Father has liberty to apply to the Court by email at short notice.
4.The parties hereafter conduct themselves in accordance with the Final Orders made 8 December 2022.
5.As soon as practicable, the Father enol in, and complete in due course, the following programs:
(a)A parenting orders program; and
(b)A Tuning Into Teens Program.
6.As soon as practicable the Mother engage in a course of psychological counselling with a therapist for the purposes of assisting her with her parental obligations pursuant to the Final Orders of 8 December 2022 for no less than five sessions.
7.The Mother is to provide the therapist referred to in order 6 herein with a copy of the orders and reasons made this day and the two Family Reports of Ms B and the final order of 8 December 2022.
AND THE COURT NOTES THAT:
A.Costs of this day are reserved.
B.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.
C.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.
D.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.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of 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 added and an attempt has been made to make the orally delivered reasons easier to read but the substance is unchanged.
This matter comes before the Court this day by way of an application by the Applicant Father, Mr Terrill (‘the Father’), aged 50 years, for the Mother, Ms Deighton (‘the Mother’) aged 39 years, to return children to his care, after they did not return from the recent July school holidays.
MOTHER’S APPLICATION TO APPEAR VIA ELECTRONIC MEANS
As this matter came on for hearing, my associates received an email from the Mother pressing that she be permitted to appear by electronic appearance rather than travelling from Queensland merely for the purpose of this hearing. That was opposed by Mr Robertson (solicitor for the Father) on the basis there may be cross-examination. Without considering the material at all but only on the basis of merely being aware of the issues in dispute and being aware that the Mother had been residing in Queensland since Christmas or at least January 2023, as I had thought it might be, and the fact of electronic appearances now being an everyday matter, I determined that it was unnecessary to inconvenience the Mother and the children by having her fly to Melbourne merely for this court appearance. I also took into account the matter was an urgent interim hearing on the papers. I ordered the Mother be permitted to appear electronically and reserved my reasons. Those are my reasons.
SUBSTANTIVE APPLICATION
I must decide two questions. Firstly, whether I should order that the children X, Y and Z, who are aged 11, nine and six years respectively, be returned within three days to their father’s care as they would be living pursuant to the Final Orders entered into by consent on 8 December 2022 or grant the Mother’s application to reverse the live with orders to have the children live with her in Queensland.
The second question I must determine is whether I now deal with the first question on a final basis and dismiss the proceedings on the basis that there are no new facts and circumstances, or whether I should permit the proceedings to continue on the basis that the Father and Mother satisfy me that there is a new fact and circumstance. The Mother primarily relies upon the child X’s distress and threats to harm herself or, as is put by the Mother when X was expected to return in January 2023, to kill herself, and the distress of Y and Z as new facts and circumstances. Such a similar threat or statement was said to be made again recently by X to the Mother in the context of the children being expected to return to Melbourne to live with their father after the July holidays.
I propose to deal with the first decision of whether the children should return to live with the Father pursuant to the existing orders or remain in Queensland with their mother and reserve my decision and reasons about the further Rice & Asplund matters. On an interim hearing I must be circumspect about determining factual disputes as a XX “on the papers.” I must rely on common ground and clearly establish events.
CHRONOLOGY OF EVENTS
In late 2008, the Mother, then aged 25 years, moved to Melbourne for the purpose of pursuing an intimate relationship with the Father, who was then about 35 years. The parties always lived together in Melbourne. The oldest child, X, was born in 2011, then Y in 2014 and Z in 2017. The parents married in 2010, which is a bit more than a year before X was born. The parties separated under the one roof in July 2020 during a period of COVID lockdown. The Father remained in the former matrimonial home until January 2021 until the Mother took out an intervention order against him. Thereafter, there was a period of relative calm when by agreement between the parents the Father saw the children, and that either commenced straight away with a shared four plus one/nine arrangement or evolved into a four plus one arrangement/nine nights, that is, a shared care arrangement.
The child X always appears to have had more difficulty spending time with the Father than Y and Z. The Father became aware or believed that the Mother was contemplating moving to Queensland with the children after separation. On 2 September 2021, he issued proceedings seeking equal shared parental responsibility and for the children to live with him in effectively a five plus two/seven equal shared care arrangement. The September school holidays followed soon after, and X did not spend time with the Father during those school holidays. Child Protection were involved but closed the report arising from a notice of risk at intake.
First orders: November 2021
On 10 November 2021, orders were made by consent that the Father spend alternate weekends with the children from Friday until Monday before school as well as the Thursday overnight, which is a three plus one/ten arrangement. By reason of court orders, a family consultant, Ms B, was retained by the parties to undertake a report as to the children's welfare. On 25 January 2022, Ms B interviewed the children and the parents and, in addition, interviewed the Father’s son from a previous relationship, Mr C, who is the children’s half-brother. Mr C was then 17 and an apprentice tradesman.
The first expert report
At that time, each parent had concerns about the other’s mental health. The Mother alleged the Father was very controlling and emotionally and financially abusive. The child X told Ms B that she felt very comfortable with her mother and that she did not feel comfortable with her father, but on the other hand told Ms B that, “He,” her father, “cares about me a lot, the same as mum. He spoils me a lot. We usually go to his mum’s house and stay there. We don’t actually see him that often.”
Ms B observed the three children with their half-brother, Mr C, and the Father and opined that the three children were relaxed and comfortable and smiled easily and often. At times, they were laughing. The Father was very attentive. There was lots of chatting. Z loved being all over the Father, seeking his attention all the time.
The three children were observed with the Mother, and the children were observed to be relaxed and comfortable. They were smiling and laughing at times. The Mother was very attentive, providing structure and guidance.
When Ms B asked X to explain her uncomfortable feeling with her father, X told her that she wanted to go back to her mother there and then. Ms B, after further discussion, formed the view that when X was with her father, she worried about her mother, and X thinks her mother feels sad when she is not there, and that she hears her mother crying at night. It was Ms B’s view that X felt responsible for her mother’s emotional well-being and that it appeared that X was sacrificing her relationship with the Father so that she does not have to leave her mother alone.
SOCIT & Child Protection
Soon after those interviews (for the purpose of the report) it was then alleged that X had told her mother that her father had touched her inappropriately on her bottom. On the following day, 4 February 2022, the Mother took X to the police station, where X said that the Father had touched her inappropriately on her bottom for about 30 seconds. Ms B released her report on 16 February 2022, so that complaint about inappropriate touching happened in between the interview and the report. The report went on to refer how there was a high level of conflict between the Mother and the Father.
There were then further interviews regarding those allegations. X was interviewed by SOCIT on 3 March 2022, and then on 23 March 2022 Child Protection interviewed X and Z about those disclosures, but Y did not want to be interviewed. What X told Child Protection was, at least, consistent with what her mother said she had told her. On 18 May 2022 Child Protection attended and interviewed Y again. Y told them that she enjoys having contact with her father but he can get angry easily and that she does not feel safe around him. In May 2022, the Father was interviewed by SOCIT and served with a full exclusion intervention order. He denied all allegations.
On 25 May 2022, on the basis that the Mother was not permitting the Father to spend time with the children in accordance with orders made 10 November 2021, the Father filed a contravention application in this Court. Ultimately he did not proceed with that contravention application. It is not disputed the Father did not get to spend time with the children as contemplated by the orders.
The Father was interviewed again May 2022 by Child Protection, and again he denied the allegations, and he showed Child Protection a video that X had recently sent him, saying he was the best dad in the world and that she missed him. Child Protection for their records and their purposes substantiated the allegation of harm on the basis that there was a risk of harm and that the parents were not adequately protecting X.
The Mother told Ms B of a situation (in June 2022) where she had the children at a restaurant and they ordered food but it turned out she did not have a credit card with funds in it capable of paying for the bill, and there was a pretty unpleasant scene with an unhappy restaurant manager demanding payment. Ultimately a nearby bank manager gave the Mother some money to pay for her and the children’s lunch. That was put forward as an example of financial abuse. The other side of the coin is that it would be foolhardy to let the children order food at a restaurant when you were not confident that the credit card had capacity to pay.
SOCIT & Child Protection withdraw
In the middle of 2022, SOCIT advised Child Protection that they had completed their investigation and said they were not taking any action, or at least that was Child Protection’s understanding. In July 2022, Child Protection met the children again for an updated review, and Y said she felt safe with both her parents but wanted to move to Queensland. X told them that she did not want to have contact with her father. The police involvement ended on 28 July 2022 when the Father signed an undertaking without any admission in regard to the intervention order that had been sought by the police; hence, there was no intervention order. In September 2022, X commenced to spend a little time with her father.
Second expert report
The next time Ms B saw the family was in October 2022. She did so for the purpose of another report. On 10 October 2022 Ms B interviewed the father for the second report, and on 26 October 2022 Ms B interviewed the family. There was a clear disparity between X’s demonstrated affection for the Father and that of Y and Z. Both parents told Ms B that it was a week by week situation whether X spent any time with the Father. The Mother complained that she did not have food to feed the children. The Mother complained that the Father fed the children too many lollies and that they now have issues with their teeth. The Mother also told Ms B that she feels like she is trapped in Victoria and that she relies on her mother in Queensland for support and telephones her four or five times a day. The Mother criticised the Father to Ms B on the basis that he just gives the children whatever they asked, because of court, and also, for his reliance on his mother for support with the children.
X told Ms B, again, “I’m really comfortable with mum, and I don’t feel comfortable when I'm not with her.” As to the Father, she said she was not sure, “When I see him, I’m uncomfortable,” and she, again, mentioned the touching on the bottom. When asked about a week-about arrangement, which was what was being contemplated, X told Ms B, “I’d feel sad, like I was trapped if I’m not with my mum.”
Ms B observed the Father with the children, and Z sat on the Father’s knee hugging him. The three children were relaxed and comfortable, smiling easily and often. They made physical contact with the Father as well as each other. During that observation, the Father showed Ms B a video on his phone of him and X going down a slide on a recent day when they were together, smiling and enjoying it. But, Ms B opined that X did not seem to like the Father showing this to Ms B. During the observation session, Z was very affectionate with the Father, showing close physical contact with him. Y also showed some closeness to the Father, while X kept herself a little distance from him. As the children were leaving to go back to their Mother’s care after the observations, in front of the Mother, Y and Z affectionately said goodbye to the Father while X was clinging to the Mother. Ms B had some circumspection about whether the Mother was emotionally facilitating the children spending time with the Father and maintaining their relationship. Ms B was of the opinion that the Mother was feeling under great pressure and stress, and she no longer believed she had a future in Melbourne. Ms B included in her report:
124.… It is in my view, that [X] feels a responsibility for [the Mother]’s emotional wellbeing. It appeared that [X] is sacrificing her time with [the Father], so that she does not have to leave [the Mother] alone. [The Mother] needs to be mindful of how [X] feels responsible for her wellbeing. …
Ms B’s report was released the parties, and I infer from the report date of 17 November 2022 or on or about that date. On 8 December 2022 the matter was fixed for a compliance and readiness hearing. It is the practice of the court that at such matters, the matter is set down for hearing if the matter is ready, and the matter would proceed to a hearing over some time in the next two or three months. That was likely to have occurred in the circumstances where there were already two family reports, one of them very recent, and where SOCIT had completed its investigation.
8 December 2022 final orders: children live with Father
On 8 December 2022 final orders were made in chambers made by a senior judicial registrar which enabled the compliance and readiness check to be vacated, and that indicates to me that these orders had been in train for some days before that. Very detailed orders were made by consent of the parties and Independent Children’s Lawyer which provided for the children to live with the Father and for the Mother to see the children during school holidays in Queensland. In those orders, there was also a provision for the handover of the children back from the Mother’s care for the Father’s part of the upcoming summer school holidays, and the children were to return on 10 January 2023. According to the Mother’s evidence, all hell broke loose in regard to the children, she says, with them refusing to cooperate to return to the Father.
Father alleges Mother acted in “bad faith”
The Father now alleges in these proceedings that the Mother made the 8 December 2022 final orders in bad faith, in that she intended to effectively get the children to live with her in Queensland by the backdoor to consent to the orders and to avoid a court case but then not return the children. Further, the Father says the difficulties he has had with the children returning demonstrates that Ms B’s fears or the Mother not supporting his relationship were well-founded.
Trouble in summer and first term holidays
The children ultimately did return in January 2023 after considerable trouble and, I infer, emotional distress to them as on the Mother’s account, they had difficulty leaving her care and contemplating leaving her care. The next time the Mother was to see the children was for the April or Easter school holidays, and they duly travelled to Queensland. Again, there was trouble on the children returning to the Father’s care, and on the Mother’s account, it was necessary that the Father's brother and his partner be there to help, as she says, “peel the children off her” at the airport. The children cried, yelled out and demonstrated a great deal of unhappiness on the airplane on the way back on the Mother’s account. But they came back.
Children don’t return after July school holidays
The Father sent the children up to Queensland for the next school holidays, being the mid-year holidays, but they have not returned. The Mother deposed that in January 2023 the child X threatened to kill herself and that, though not set out in any affidavit, including one sworn very recently, she told me from the bar table that X had said that to her again recently.
I should indicate that the Father filed seeking an order for a recovery order and sought an order on an interim and final basis that the orders be varied so that the Mother’s time with the children be restricted to spending it during school holidays in Victoria and she not otherwise remove them. And he sought, foreshadowing a costs application, that the Mother be restrained from disposing of her house that she still owns in Victoria to ensure satisfactory funds be available in the event the costs application is successful. The Mother’s house had been on the market but has since been removed. By the time the loan to the Mother’s brother is taken into account, there is something in the order of half a million dollars equity in that home.
The Mother’s interim application
The Mother sought orders that the residence of the children be changed and that they spend one week of each Queensland school holidays with the Father in Melbourne but that the time be spent overnight at either his brother’s or his mother’s residence, that is, not at his residence. I specify the orders sought by the Mother:
1. The children remain in Queensland and live with the mother.
2.The children spend time with the father for one week during each Queensland school holidays period. The children to stay at either their Uncles' house or their Grandparents residence, while spending time with the Father.
3.That the Mother can enrol the children into a Queensland school, extracurricular activities and counselling as required
4.To facilitate these orders, changeover shall take place by the children travelling via airplane with the Mother or nominated family member (until [Z] turns 12 years of age) and the Father is to solely bear the cost of all the childrens flights.
5. he Father is to nominate a family member … to collect and drop off the children from the Mother at Melbourne airport during changeovers.
The Father’s solicitor, Mr Robertson, tells me that there is no sufficient change of circumstance to justify another case of the Mother’s application with the stress and trouble for all concerned but particularly the children of further litigation between them. Whether or not I permit the Mother to agitate her case further, I am reserving my decision on that, and the parties will have that shortly. I want to think about that issue a little bit further.
Turning then to the issue of whether the children should be returned immediately to the Father’s care, the Father seeks that they be returned to his care within 3 days, and if they don’t, there be a warrant issued. The Mother has told me this day that she would do all she can and she is certain that she will have sufficient parental authority to ensure that the children do go back to their father if that is what I order.
The Mother’s affidavit sets out in detail her very strong statements about the children’s wishes, and she makes it clear that the children’s wishes are that they live in Queensland with her. Paragraph 12 of the Mother’s affidavit is as follows:
12.…We comforted the children by telling them that mum has done everything in her power to keep the children in her care but this is out of her hands and that I love them no matter what. We reassured them that they would be able to come back and visit on the school holidays and to look at the positives that they could spend more time with their friends and family in Victoria …
It is apparent from the Mother’s paragraph 12 that the Mother has not explained to them that, in fact, back in December 2022, the Mother, Father and Independent Children’s Lawyer reached agreement that there should be court orders that the children would live permanently with their father in Melbourne and spend school holiday time with her. From the Mother’s affidavit, it is apparent to me that the children have understood that their mother was doing everything in her power to keep the children in her care but that this was out of her hands. Now, once the court orders were made, in one sense that was out of her hands but the point is that at a point where the case would move to a final hearing, the Mother chose to agree to orders that the children live with the Father. I am not satisfied that the Mother has genuinely used her parental authority to support the orders that she consented to. The extent of the parents authority and how that is exercised is a most important aspect of parenting and hence to the welfare of the children.
That the parents agreed on the children’s living arrangements is very important. Nonetheless, I am required to apply the whole of Part VII of the Act including the best interests of the children.
At this point in time, the court orders are very recent. They are final court orders. I am not satisfied for the purposes of this interim hearing that there are sufficient changes of circumstances at the point of this interim hearing to reverse the 8 December 2022 orders or to permit that to be agitated. If I was so satisfied and permitted the matter to be agitated, I am not satisfied that it is in the children's interests to have their living arrangements changed on this interim hearing. The children are entitled to some stability of education and accommodation. That the children would be distressed by not living with their Mother must have been contemplated by all concerned at the time of the 8 December 2022 orders.
When I come to consider section 60CC of the Act matters, in the circumstances of the court orders and Ms B’s recommendations but particularly and most importantly the court orders, I am not satisfied that there is any need to protect the children from abuse, neglect or family violence in their father’s care, and that is because whilst represented the Mother consented to orders for the children to live with the Father.
Turning then to the additional considerations of section 60CC, the view expressed by the children are significant and relevant. I have no doubt that if asked, the children’s expressed views would be to remain in Queensland with their mother. The children are 11, nine and six. The children have been extensively interviewed and extensively involved in the dispute between their parents and have had to talk about the most precious and dear aspects of their lives to a whole host of professionals throughout 2022. The most precious and dear things to them in their lives are their relationships with their mother and their father. Their mother lives in Queensland, and their father lives in Melbourne. They cannot live with both. They must live with one and spend time with the other. Who they would live with and who they would spend time with was determined by their parents by agreement on 8 December 2022.
The nature of the relationship with the child and with each of the child’s parents is the next matter to consider. It is quite clear that the children have a closer relationship, particularly X, with their mother than with their father. Parliament did not intend by directing me to have regard to the children’s expressed views and to have regard to the nature of their relationships that those two matters would determine where they live. The observations of the expert as to the children’s information, in January 2022 and in October 2022, are very significant at this time of crisis.
I must also take into account the likely effect of any change in the children’s circumstances. The Mother’s application would be a dramatic change in the children’s living arrangements and their schooling arrangements. I am not satisfied on this interim hearing that that is in their interests. Ordinarily on an interim hearing, there is no presumption that the existing arrangement continue. However, this is not any ordinary interim hearing. This is a recovery order application where within a tad over six months of the final orders, the children have not been returned to their father after school holidays. Their mother’s living arrangements, now living in accommodation on the one block with family, cousins and her sibling, would be, particularly during school holidays, a splendid and exciting time for the children, and that will influence their views and whether they wish to return to their father.
I must take into account the attitude to the children and the responsibilities of parenthood demonstrated by each of the child’s parents. One of the responsibilities of parenthood is to act sensibly and to follow legal requirements in regard to children. I have no doubt that the Mother misses the children deeply when they are not with her, and the children are aware of that. I have no doubt that the children miss their mother when they are not with her. However, I must also take into account any other fact or circumstance that the court thinks is relevant. The matter that is of significant weight to me is that on 8 December 2022 and not out-of-the-blue, after protracted proceedings, including two family reports, the parents agreed to final court orders that the children would live with the Father and spend time with the Mother in Queensland. That has not had a chance to settle down yet.
I also take into account that the evidence of the children’s distress is only when with their mother. The Father contends they lived calmly with him during school term once returned. In these circumstances I am not persuaded the change sought by the Mother is in the children’s interests. I am not satisfied that she has supported the orders in her interaction with the children.
Father’s interim application: school holiday time in Victoria only
I am also asked to change the order so that the children will not spend time in Queensland with the Mother anymore. The Father puts that on the basis that the Mother has demonstrated that she is just not going to return them. In answer to my direct questions, the Mother assured me that she would ensure that they return. At this point, I am not satisfied of the Father’s case on this point. He may be correct if the matter is to proceed to final hearing, but at this point, I am not satisfied that he is right. I need to contemplate whether the circumstance that he alleges, that is, the orders being made in bad faith and then that bad faith being acted upon by the children not being returned, is of itself a change of circumstance. I have not worked that out yet. But the fact and circumstance that has the most weight to me at the moment is that final orders were made very recently.
Final orders are not just a trip to the supermarket or even an overseas holiday. They really mean what they say. There are limited circumstances to change them. The fact that the children disagree with the orders does not of itself mean that they should not be followed. Parental authority is a difficult thing. Some children have to go through the ordeal of parental authority compelling them to undertake a medical procedure that is both painful and distressing to them. Responsible parents compel the children by exercise of their parental authority to undergo that medical treatment because the consequences of not doing so would be devastating. I only raise that as an example that things don't change from month-to-month or year-to-year according to the children’s wishes and of the importance of parental authority.
So balancing all of those matters, including the Mother’s submissions to me, I am not satisfied that it is necessary, at this point, to profoundly interrupt the children’s time with their mother by compelling her to be in Victoria for that time. If I determine that there is to be a further full hearing (if change of circumstances) that application would still alive, but I have not determined that yet. If the Father’s case is made out it may be.
But at the moment, I will simply order that the children be returned and that the parties hereafter conduct themselves in accordance with 8 December 2022 orders.
However, I am empowered by section 13C of the Act to order the parents to undertake an appropriate course, program or other service. Section 13C provides:
13CCourt may refer parties to family counselling, family dispute resolution and other family services
(1)A court exercising jurisdiction in proceedings under this Act may, at any stage in the proceedings, make one or more of the following orders:
(a)that one or more of the parties to the proceedings attend family counselling;
(b) that the parties to the proceedings attend family dispute resolution;
(c)that one or more of the parties to the proceedings participate in an appropriate course, program or other service.
(2) The court may suggest a particular purpose for the attendance or participation.
(3)The order may require the party or parties to encourage the participation of specified other persons who are likely to be affected by the proceedings.
(4)The court may make any other orders it considers reasonably necessary or appropriate in relation to the order.
(5) The court may make orders under this section:
(a) on its own initiative; or
(b) on the application of:
(i) a party to the proceedings; or
(ii)a lawyer independently representing a child's interests under an order made under section 68L.
(notes omitted)
The Mother is highly educated and on her way to being more highly educated. She has some exposure to health care as part of her qualifications. However, it is apparent to me that the Mother has not had psychological therapy or assistance to assist her deal with her current circumstance, that is, her children live in one state and she lives in another, and the intense feelings that she has for her children. Because I am enabled by section 13C, I will order that the Mother as soon as practical undertake a course of counselling for the purpose of assisting her deal with her parental obligations pursuant to the orders of 8 December 2022, and for the purpose of that therapy, the Mother is to provide her therapist with a copy of these reasons and the two reports of Ms B.
In regard to the Father, his solicitor tells me that he has undertaken a parenting course in the past. That was prior before the radical change in the children’s living arrangements of coming to live with him pursuant to the orders of 8 December 2022. So I propose to order him to undertake a parenting order program. In addition to that, given X’s age – and she will soon enough be a teenager – I am of the view, given the difficulties in the relationship in the past between himself and X, that he would benefit from a specific course to deal with an older child known as a “Tuning Into Teens” course, which the Father is to do that as soon as practical.
I otherwise reserve my decision in regard to the Rice & Asplund[1] aspect.
[1] Rice v Asplund [1978] FamCA 84; (1979) FLC 90-725.
In the event that the children are not return to Mr Terrill’s care within three days, the Father has liberty to make application on short notice by email, copied to the Mother, for any other order that he may seek in the event that the children are not returned.
I otherwise reserve the Father’s costs of today.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 28 July 2023