Veitch and Dempsey

[2016] FamCA 365

FAMILY COURT OF AUSTRALIA

VEITCH & DEMPSEY [2016] FamCA 365

FAMILY LAW – CHILDREN – interim orders – where the father seeks a variation of the orders made by consent – where there is a family report – where consideration is given to the best interests of the children – where an order is made for an autism assessment – where orders are made for one child to live with the father and spend time with the mother on a week about basis subject to his wishes – where orders are made for therapy.

Family Law Act 1975 (Cth) s 60CC, 65DA

Goode & Goode (2006) FLC 92-286

APPLICANT: Ms Veitch

RESPONDENT: Mr Dempsey

FILE NUMBER: ADC 508 of 2015

DATE DELIVERED: 6 May 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 6 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dickson

SOLICITOR FOR THE APPLICANT: SE Lawyers

COUNSEL FOR THE RESPONDENT: Ms Lewis

SOLICITOR FOR THE RESPONDENT: Howe Jenkin

Orders

1. Within fourteen [14] days from today both parents sign authorities as required by Autism SA such authority to be obtained by the mother and forwarded to the father at his solicitor’s office and thereafter make all necessary arrangements for an autism assessment to be carried out for the child B born … 2004 at the equal expense of each of the parties.

2. Pending trial and subject to any further interim orders the child C born … 2002 (“the child C”) live with the father.

3. The mother spend time with the child C at times to be agreed in writing between the parties.

4. Both parties take all steps necessary to arrange assessment and therapy for the mother and the child C with a psychologist at the shared expense of the parties such attendance upon the psychologist to be for assessment and treatment with a view to renewing the relationship between the child C and the mother and to involve such participation of the father as the psychologist considers necessary, such assessment and therapy to be undertaken by a psychologist being either Ms D, Ms E or Ms F who is available to commence the assessment and therapy by 15 June 2016 and UPON NOTING if neither of these psychologists are available to commence the assessment and therapy by 15 June 2016 then it be such psychologist from Developing Minds who is available with the mother to choose which psychologist SAVE AND EXCEPT psychologist Ms G.

5. The parties are restrained and an injunction is granted restraining each of them from taking the children C born … 2002, B born on … 2004 and H born … 2008 (“the children”) to any further psychological, psychiatric, counselling or medical appointments including but not limited to appointments directed to issues of future parenting arrangements or the children’s wishes with respect to the same unless it is ordered by the Court or agreed in writing by both parties in advance SAVE AND EXCEPT in the event of a medical emergency involving the children.

6. The children do live with the parties on a week about basis during term time commencing with the father on Friday 20 May 2016 and returning to the mother at the conclusion of school on Friday 27 May 2016 with handover to be at the conclusion of school on Friday PROVIDED THAT this order is subject to the wishes of the child C.

7. The children do live with the parties for one half of each school holiday period as agreed between the parties with such time to be agreed twenty-one [21] days in advance of the commencement of the school holidays PROVIDED THAT such order is subject to the wishes of the child C.

8. The parties are restrained and an injunction is granted restraining each of them from:

   (a)abusing, assaulting or denigrating the other party in the presence or hearing of the children or allowing any other person to do so;

   (b)       discussing the proceedings with or in the presence of the children;

   (c)       using physical discipline with the children;  and

   (d)placing the children in vacation or after school care for more than one [1] day each fortnight SAVE AND EXCEPT should the parties agree more occasions of after school care are appropriate or when the other parent has been given the first option to care for the child or children but they are unavailable to do so.

9. The parties be restrained and an injunction is granted restraining them from removing the children from the Commonwealth of Australia without the written consent of the other party.

10. If either party wishes to travel interstate with the children during the school holiday time then they must:

    (a)advise the non-travelling party at least seven [7] days in advance of the intended travel;  and

    (b)provide to the other party a brief itinerary including travel destination, accommodation and contact details.

11. All handovers during school holidays occur at the home of the parent with whom the children are about to commence spending time by the parent with whom the children have been spending time delivering them to the other parent.

12. All interim applications are dismissed and removed from the active pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Veitch & Dempsey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 508 of 2015

Ms Veitch

Applicant

And

Mr Dempsey

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. It has to be borne in mind that these are interim applications being made with highly conflicted evidence filed in affidavit form which has not been tested.  I take into account the background of the matter which involved the children being removed from Australia and taken to Belgium where they resided for some months until the orders were made by the Belgian court for the children to be returned to Australia.  The proceedings have been on foot here in Australia since February 2015.

2. The three children of the parties are C, who was born in 2002 and is therefore aged 13, B, who was born in 2004 and is therefore aged 11 (nearly 12) and H, who was born in 2008, who is now eight years of age. 

3. The parties consented to orders in relation to the children some time ago in 2015 and again in November 2015, which provided for orders that were made for the children to live with the mother and live with the father, in accordance with the terms of the orders of 3 September 2015, until the end of term 4 2015.  Thereafter the terms as set out with the specific orders, including injunctions about the parties not discussing the proceedings with or in the presence of the children, or using physical discipline with the children, or placing the children in vacation or after school care for more than one day each fortnight, save and except should the parties agree more occasions of after school care are appropriate, or when the other parent has been given the first option to care for the child or children but they are unable to do so.  That is paragraph 3.4 of the order of November 2015.

4. The orders were made on that occasion upon noting that the parties attended Ms I on Friday, 13 November 2015 and await her report and that the husband seeks a shared care arrangement.  The arrangements basically provided for the three children to live with the mother and spend time with the father in accordance with the orders then set out and that included school holiday time.  What is significant is that the application currently before the Court is an application filed by the mother on 17 March 2016 seeking certain orders and that there is later the response of the father, filed on 26 April 2016.  It is not clear from the information before me when he was served with the mother’s Application in a Case.  It is clear however that at that stage she was unrepresented.

5. The material on the file includes the affidavits filed by the parties setting out the difficulties which have continued for the parties to carry out their responsibilities as parents of these three children and the impact that has had upon the welfare of the children. 

6. The submissions before me today relate to the incident which occurred on 8 February 2016 between the mother and the eldest child, C, which is an incident in dispute.  The mother admits to holding the child by the arm as a form of discipline and that there was a difficult interaction between her and the child C on that day.  This resulted in the child C making arrangements for the father to collect him from the home as a result of which the father then conceded to the child’s insistence that he take the child to the police to make a complaint about his mother to the police, notwithstanding what I am told from the bar table, that the father did not think that was a good idea.  This has got to be taken into the context of the child C, who is only 13, and the difficulties the parties had previously had in making arrangements for the children without the intervention of courts and other authorities.

7. The issue that I have to determine today is what is in the best interests of the children, taking into account the authority of Goode & Goode (2006) FLC 93-286 and the emphasis that I must give according to the provisions of the Family Law Act 1975 (Cth) (“the Act”), in particular s 65DA and s 60CC as to how I determine what is in the best interests of the children giving the primary tasks of encouraging the children to maintain and have the benefit of a relationship with both of their parents and to protect the children from harm, including not only physical harm but psychological and emotional harm.

8. The affidavit material filed in the Court referred to the report of the psychologist, Ms I, dated 12 January 2016 but none of the material before the Court included that report.  I therefore stood the matter down when I was given a copy of that report of some 20 pages, setting out the recommendations and the basis of those recommendations of the psychologist after she had conducted interviews with the parties and with each of the children and had a telephone interview with the deputy principal of two of the children’s school. 

9. The recommendations quite clearly indicate that she suggested that the parties have shared parental responsibility and the children live with their mother and see their father on alternate weeks from after school on Tuesday until school on Monday;  then during the time the children are living with the father they see their mother on Thursdays from after school until 7.30 pm and during the week that they are living with their mother they see their father on Thursdays from after school until 7.30 pm;  then during holidays, if Mr Dempsey’s work schedule permits, the children spend equal time with each parent. 

10. Ms I then made recommendation that the parties attend the Kids-Are-First post separation parenting programme, that the mother continue with her psychologist and that the father also consult a psychologist for support and assistance with how he can contribute to better communication with the mother. 

11. It was also recommended by the psychologist that the parties attend Autism SA or other appropriate professional for an assessment for the child B and also agree on and seek assistance for an appropriate psychologist regarding management of the child B, perhaps from Autism SA, and agree to follow the directions of this professional.

12. The incident which occurred between the mother and the child C occurred on 8 February 2016.  There is no material before the Court (save and except addresses for service) since the affidavits filed in December 2015 until the mother brings the application on 17 March 2016 supported by her affidavit.  It is not until 26 April 2016 that the father brings any application, and this is by way of response, for an order that the child C live with him.  He has not previously sought any variation of the orders of this Court which were made by consent, notwithstanding it is clear from the material before the Court, and the parties agree, that the child C has not lived with the mother, nor indeed spent any time with the mother, save and except a short period when he attended at a birthday celebration for the mother.

13. The difficulty the Court has in determining what is in the best interests of the children is the conflicting material about the basis for the children’s attitude.  It is clear from the report of Ms I that the children express some concern about the mother’s behaviour whilst they were in her care but it is also clear that they expressed a wish that they live week about with the parents.  It would appear quite clear from the report that the children were aware of the ongoing conflict between their parents and had been clearly brought into this conflict, not only by the need to attend upon Ms I but by the past behaviour of the parents. 

14. It is also clear from the summary and the major part of the report of Ms I that the children have a positive relationship with both parents.  The summary refers to the children’s observed interaction with both parents and describes the interaction being warm, responsive and engaged with both of the parents.  The positive relationship however is being impacted upon, it would appear, by the difficulties the parents have in coming to decisions about what is in their children’s welfare without involving, to some extent, the children and, to considerable extent, the Court and other parties.

15. I am now faced with the interim applications and the orders that are being sought.  The mother sought, first of all, an order that the matter be dealt with urgently.  Paragraph 2 is that the parties take all steps as are required to obtain an autism assessment with respect to the child B, from Autism SA with the assessment to be a shared expense.  The basis of that appears to be the assessment carried out which indicates that the child B is showing factors which relate to the Autism Spectrum.  He has already been assessed and diagnosed with having Tourette Syndrome.  The father opposes the order sought on the basis that the child B is doing well at school and he would not want to be involved in any further assessment.  This is by way of submissions from the bar table.

16. The difficulties which these children are facing may well be difficulties which relate to their parents inability but it is appropriate for a child who has been assessed as having factors on the autism spectrum to be properly assessed so that if there are special needs the child has they can be considered and necessary steps which would benefit the child can then be considered.  I therefore consider that it is in the best interests of the children, and in particular in this case the child B, that both the mother and father take all steps as are necessary to obtain that further assessment. 

17. It is not part of the orders but the father should be clearly aware that if the child B is in his care when the appointment takes place then it is one of his prime responsibilities to carry out his role as a father and ensure that the child attends and participates in the assessment.  The same would apply to the mother if the child B is in her care at the time of the appointment.

18. The next order that the mother seeks is that the father facilitate the child C attending at the mother’s home during all periods that the current orders require the child to be in the mother’s care and he actively encourage and support the child spending time with the mother. That is an order which is not necessary because the Act already requires the father to take such steps and he is required to ensure and actively encourage that the child live with the mother in accordance with the orders that were already in place.

19. The difficulty now appears from the affidavit material that the child C is not obeying any direction from the father, if there has been any direction from the father, that he attend and spend time with the mother.  The mother seeks that the orders which exist currently that provide for the child C to live with her and spend time with the father be continued. 

20. Taking into account the material that is before the Court, it would appear that the child C has, at the age of 13, been given the responsibility to make decisions for himself.  I am not in a position at this stage to determine who is responsible for his current attitude but it is admitted by the mother that an incident occurred as a result of which the child sought the assistance of the father and has been retained in the care of the father since.

21. Taking into account the material before me, I am therefore not in a position to say that it is in the best interests of the child C, at this moment, that the father be ordered to return him to the care of the mother prior to there being a proper assessment by a qualified person as to the emotional and psychological difficulties apparently being experienced by the child C and the capacity of the parents to improve his emotional and psychological wellbeing.  I therefore propose to make an order which would provide for the child C to, on a temporary basis, live with the father provided the father take steps to ensure that the child C attends upon and participates in therapy which is designed to renew his relationship with the mother. 

22. The order in relation to the child C attending upon therapy is also one that has not been able to be agreed between the parents although both apparently agree that some assistance is necessary for the mother and the child C to renew their relationship. 

23. The parties could not agree upon a psychologist to attend to this.  The mother was requesting that Ms J, family consultant (with social worker background) be the person to carry out this role.  I am satisfied that due to the difficulties the parents have experienced in carrying out their responsibilities as parents to encourage a relationship with the other parent and to ensure that the children are cared for in an appropriate way, that a psychologist would be more appropriate to ensure the best interests of the child C and, as an end result, the other children are attended to appropriately. 

24. When I refer to the other children, I do not propose to order that the other children attend upon a psychologist for therapy unless both parents agree as to the need for such psychological treatment for the younger two children.  That is a matter that they can attend to without the need for orders of the Court. 

25. In relation to the orders that the mother sought, that therefore covers paragraphs 3 and 4 of the orders on the basis that the orders concerning the child C living with the mother and spending time with the father, are suspended pending the further determination of the Court after the assessment and therapy by the psychologist as I have ordered. 

26. Other orders that the mother sought related to, other than in medical emergencies, neither party would take the children to any further psychological or psychiatric counselling or medical appointments unless it is agreed in writing by both parties.

27. Paragraph 6 refers to neither party will allow the children to refer to any third party as being their parent, or their mother or father.  It would be entirely inappropriate for either of the parties to allow another person to be referred to as their parent or their mother or father in these circumstances.  If they were to permit this to happen, that would be a significant issue which can be dealt with in the final hearing of the matter which would certainly call into question their attitude to their role as parents and their obligation to encourage an ongoing relationship between the children and each of the parents.  At this stage I do not make an order in those terms.

28. Paragraph 8 was that the parties attend upon a psychologist at shared expense as agreed between them or failing agreement within 14 days then as directed by the Court to assist them to improve their communication with respect to their parenting.  I understand that the mother is already attending upon a psychologist and that the orders sought in relation to the father attending upon a psychologist are not, on the face of it, opposed.  However it is opposed in his application.  If the father does not consider he needs psychological assistance then I am not satisfied that an order of this Court requiring him to attend to have such assistance would be beneficial.  It is only someone who is willing to receive psychological assistance that is likely to benefit from such psychological assistance.  Whilst the parties should be encouraged to receive all the help that they can, in an appropriate sense, I am not proposing to make an order that the father do so particularly on this interim basis.

1. Paragraph 9 of the mother’s Application in a Case seeks that each party keep the other informed by email of any health or other significant issues arising with respect to the emotional or physical wellbeing of the children or with respect to any significant changes in their home environment or proposed  alterations to the Court ordered care arrangements.  I do not consider at this stage that such an order would be beneficial to the children as it would appear that the ongoing exchange of emails between the parties has not necessarily assisted the children.  It is clear however that both parties are now represented and they will be given appropriate advice by qualified practitioners that it is necessary in their current position to keep the other person informed of significant issues in relation to the general wellbeing of the children whether it is in relation to medical, emotional, psychological or physical matters.  I therefore decline to make an order in terms of paragraph 9.

2. I turn to the response of the father. 

3. In paragraph 1 he seeks that paragraphs 2, 4 and 8 of the mother’s Application in a Case be dismissed and I have dealt with those matters.  Paragraph 2 is the order which he seeks in relation to the child C living with him and “spend time with the mother as agreed between the parties.”  I have also made orders which cover the interim orders concerning the child C which will be reviewed when the therapy has been undertaken. 

4. Paragraph 3 is an order that the father seeks that the children B and H live with the parties “(a) on a week about basis during term time with handover on Friday at the conclusion of school;”  and “(b) for one half of each school holiday period as agreed between the parties with such time to be agreed 21 days in advance of the commencement of the school holidays.” 

5. There are currently orders which are in place by consent in relation to the children spending time with the father.  I have referred to the detailed recommendations of Ms I in her psychologist’s report of 12 January 2016.

6. I have the difficulty of assessing what is in the best interests of these children, notwithstanding the dispute about the factual material upon which it is based.  However, it would appear that it would be of benefit to all of the children, C, B and H, if they were to spend week about time with both parents with handover occurring on Friday at the conclusion of school.  This would involve the children having what they say they wanted to have in the report of Ms I.  I realise that on the final hearing of the matter the report of Ms I may be questioned as to the basis upon which the children expressed those views and whose influence, if any, brought about those views and whether they can be considered independent views of the children and take into account the children’s ages.  They would not normally be given significant weight. 

7. What is important in this matter, however, is the difficulty the parties have in communicating with each other and the difficulties the children have experienced or been exposed to by the ongoing conflict between their parents.  I therefore consider that a week about arrangement for all three children, C, B and H, would be in the best interests of the children as an interim order.  I would make such an order in relation to all three children on the basis that that order would need to be subject to the child C’s wishes at this time. 

8. I have already made the order which provides for the child C to live with the father and I will however make that order subject to this current order that the child C live with the mother and father on a week about basis, subject to his wishes.  The order in relation to the children on an interim basis will be – and this is obviously until the final hearing of the matter or until further matters are brought before the Court arising out of the therapy being conducted for C –that the three children, C, B and H, live with the parties on a week about basis during term time with handover on Friday at the conclusion of school on the basis that this order is subject to C’s wishes.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 6 May 2016.

Associate: 

Date:  18 May 2016