VICKERY & VICKERY (No.2)

[2019] FCCA 3951

FEDERAL CIRCUIT COURT OF AUSTRALIA

VICKERY & VICKERY (No.2) [2019] FCCA 3951

Catchwords:
FAMILY LAW – Parenting – contravention application – where Mother concedes to non-compliance with prior parenting order – where reasonable excuse advanced by the Mother relates to the child’s psychological and emotional health – historic threats of self-harm made by child - where Court finds child holds fears and phobias regarding relationship with father whether irrational or not – application of section 70NAE(5) – paramountcy principle – where Court finds suspension of relevant order appropriate – application dismissed.

Legislation:

Family Law Act 1975 (Cth), ss 60CC, 70NBA, 70NEC, Pt.VII

Mental Health Act 2007 (NSW)

Cases cited:

Vickery & Vickery [2018] FCCA 4023

R & Blaue (1975) Cr APP R 271
Stevenson and Hughes (1993) FLC 92-623
Gordon v Gordon [2015] FamCA 616

Other sources:

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

Applicant: MR VICKERY

Respondent: MS VICKERY

File Number: WOC 471 of 2016

Judgment of: Judge Harman

Hearing date: 23 October 2019

Date of Last Submission: 23 October 2019

Delivered at: Parramatta

Delivered on: 23 October 2019

REPRESENTATION

Counsel for the Applicant: Ms C. Doosey

Solicitors for the Applicant: Rossi Simicic Lawyers

Counsel for the Respondent: Mr D. Maddox

Solicitors for the Respondent: Matthews Folbigg Pty Ltd

ORDERS

1. I dismiss all extant applications for Contravention.

2. I remove from the list of cases awaiting hearing all Applications, save and except the Application Initiating proceedings filed 5 December 2018 and Response thereto filed 31 January 2019.

3. Pursuant to s.68L, an Independent Children’s Lawyer is appointed for the reasons and with ancillary orders as set out in the usual form of order Exhibit A hereto.

4. Proceedings are transferred to the Wollongong Registry of the Federal Circuit Court to be mentioned on 19 February 2020 at 9.30am before Judge M. Neville.

5. Noted: Consequent upon the above orders, an Application is made for suspension of time.

6. Pending further order, I suspend all and any parenting orders with respect to the child X which require or provide for X spending time with or communicating with his Father.

7. Note: Mr Vickery undertakes without admissions and without prejudice to such future relief as he may seek that until 5pm 19 February 2020 he will not attend at K School.

IT IS NOTED that publication of this judgment under the pseudonym Vickery & Vickery (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

WOC 471 of 2016

MR VICKERY

Applicant

And

MS VICKERY

Respondent

REASONS FOR JUDGMENT

1. These proceedings relate to an Application for Contravention filed on 9 November 2018. 

2. The Application has taken a regrettable time to reach finalisation.  However, there has been little, if anything, that could be done to expedite the determination of the matter. 

3. The parties to the proceedings are Mr Vickery, the Applicant, and Ms Vickery, the Respondent. 

4. Mr and Ms Vickery are the parents of two children, although this Application relates only to one.  Those children are X, born in 2009, (he is nearly 13 years of age) and Y, born in 2010 (he is nine, nearly 10 years of age). 

5. The Application for Contravention has been heard over a period of two days of hearing, or parts thereof. 

6. The matter first came before the Court on 5 December 2018.  Therefrom, it was adjourned for a very brief period to an expeditious hearing on 11 December 2018.  On that date, however, time was devoted to addressing an Application for Summary Dismissal of the Application in its totality. 

7. As a consequence of the hearing on that date, two of the six allegations were dismissed.  They were not summarily dismissed, but dismissed on the basis that the evidence, as led, could not possibly support a finding of contravention.  Nothing turns upon whether that is styled as summary dismissal or otherwise.  However, a separate judgment was delivered which addressed the bases for dismissal, being Vickery & Vickery [2018] FCCA 4023.

8. Four of the six allegations continued.  Those four allegations relate to periods of face‑to‑face time that were to be spent by both X and Y with the Father.  There is no dispute that Y has continued to attend. 

9. The allegations that are before the Court allege that, without reasonable excuse, X was not provided for time with the Father and, thus, there were contraventions of the Order for a period from 6 to 13 October 2018, 15 to 18 October 2018, 23 to 26 October 2018 and, finally, 31 October to 3 November 2018.

10. The primary Order to which the allegations relate are Orders made by consent on 19 September 2018.  Nothing turns upon the fact that the Orders were made by consent.  An order is an order whether the parties have consented to it or a judicial determination has occurred. 

11. It would also appear to be common ground that for the first few periods after the making of that Order, that both X and Y attended for at least some periods of time.  That is in contradistinction to that which had occurred prior to the making of those Orders.

12. The parties had entered into previous parenting Orders relating to X and Y, those Orders having been made on 23 January 2017.  It is apparent from the Father’s own evidence that from 26 July 2018, X had not attended any period of time. 

13. The Applications and Responses that gave birth to the tranche of proceedings which lead to the primary Order - now the subject of the Application of Contravention - had sought, as is styled in submissions put on behalf of Mr Vickery, to extinguish or terminate the practice of a relationship between X and his Father.  The Response filed by Mr Vickery had sought to resume time substantially in accordance with the January 2017 Orders.

14. The Orders that were entered into on 19 September 2018 provided for the “confirmation” of the earlier parenting Orders and, thus, a return to alternative weekend and school holiday periods. 

15. What is curious in relation to the Orders is their manifestation of the conflict and lack of communication and cooperation between the parents.  The Orders provided the changeovers between these parents would occur by Mr Vickery either collecting the children from or returning the children to school if changeovers occurred on a school day, or, if not, the parties meeting at a Woolworths at Town H. 

16. Again, it is common ground between the parties that the arrangement was varied between them so that instead of meeting at the Woolworths, they met at a KFC establishment instead, as though that signalled to these two children that their parents were able to cooperate and communicate effectively with each other much better.  That was the subject of comment in the earlier delivered judgment.

17. The breakdown of arrangements came relatively swiftly after the making of the primary Order, but not immediately after.  As already observed, some periods of time, at least, occurred.  What is curious and must be observed, as is submitted by counsel for Ms Vickery, is that there is no complaint that the younger child, Y, does not attend.  He most assuredly continues to attend.

18. The four allegations proceed on the basis of section 70NEC Family Law Act 1975 (Cth), an allegation that there has been, without reasonable excuse, a contravention of an Order. That section makes clear that:

    A contravention of the order means either that a party has intentionally failed to comply with the order or made no reasonable attempt to comply with the order, or has intentionally prevented compliance or aided and abetted a contravention.

Is it established that there has been non‑compliance? 

1. Yes, that must be overwhelmingly the case. 

2. At the commencement of the trial today, day two of the matter, the Mother, through her counsel, made a concession that it was so. 

3. Ms Vickery waived the right to have the allegation specifically put to her.  The Court is grateful to her for that, and I have every comfort and confidence that counsel would have explained that which was alleged in some detail.

4. The evidence that supports a finding being made irrespective of the Mother’s concession is otherwise set out and addressed as mentioned in paragraph 78 of the earlier judgment.  There are portions of that evidence that warrant repetition, even if only in summary. 

5. The Orders, the breach of which is complained of, provide predominantly that the children would be collected by their Father from their school.  As was noted in the earlier judgment, it would be trite to observe that the Mother could not, in those circumstances, be taken to have interfered with or failed to comply with the Order when she was not involved in the transaction of changeover.  That changeover was between the Father and X. 

6. The Father was to attend at X’s school and collect him.  Provided X was present, there could thus be no imputation of blame on the part of the Mother should the child refuse to attend.  Although there might be circumstances in which such issues could arise, particularly if it was suggested that the Mother had actively promoted the child’s disobedience of the Father, that is not the circumstance in this case.

7. What arose from the evidence led on the first day of trial is that Ms Vickery had attended upon the child’s school and waited at the back gate of the school on each of three occasions, or, on one occasion - a block period of time that the child was not presented at the changeover point - KFC.

8. In relation to the school changeovers, the evidence that was tendered on that occasion from that which was produced on subpoena included an email from Ms Vickery to the children’s school.  The email, curiously, predated the making of the primary Order.  Ms Vickery indicates in that email to the school:

   Just to keep you up to date, an initial hearing date is set for 19 September at which point I hope to have interim Orders to provide to you.  However [the email continues] in the meantime, I will continue to collect X from the back gate when Y is being collected from the front.  The police have indicated that they feel X is safe while not interacting with this Father.  I have been told to call them in the event he attempts to interact with X.

9. The reference to involvement of police was the subject of some criticism in the earlier judgment (paragraph 83).  What is now clear, and giving perhaps some context, is that the reference to police is the reality that X has been presented to police for the purpose of making statements regarding concerns that are suggested to be held and/or expressed by X in relation to his Father.  Those presentations would appear to have been on three separate occasions:  28 July, 29 July and 4 August.

10. Similarly, some reference was made in the earlier judgment as to why the complaints raised by X were styled as a complaint of “assault” when the matters raised by X might also be categorised as reasonable chastisement.  Those comments have validity, but certainly, as is then described in the police statements also tendered on that occasion, one might focus upon the consequence of the action, rather than seeking to typologise the action.

11. What is clear from the earlier judgment is that X described two occasions when he felt, whether his language or that which was ascribed to his statement, that he has been assaulted by his Father such that X described that he now felt intimidated by his Father.  Again, it is more germane to focus upon the suggestion of the child’s feeling of being intimidated than upon typology of whatever action may have occurred.

12. The statement also indicates - that of 21 July - that X had complained that his Father had grabbed his arm roughly and dragged him away whist shouting at him.  That had occurred at a sports game.  He described an incident which had occurred in June 2018 when his Father had become angry at him for unknown reasons, put his hand on his shoulders and pushed him up against a wall and shouted in his face. 

13. Certainly, the Father’s affidavit filed in these proceedings denies that this is so.  The Father’s denial is prefaced in response to the Mother’s suggested allegation.  The passage above is quoted from X’s statement to police.  They do not suggest that this means that a finding could be made accepting or rejecting either version - merely that the denial of the Mother’s complaint is, in fact, denial of the child’s statement.

14. The interview with police also includes the following, as is set out at paragraph 89 of the earlier judgment:

    I have been too scared to see my dad sometimes.  I’ve been to see my doctor a few times, as I was scared to see my dad and I didn't want to go, and we got a letter from the doctor.  I didn't see my dad this weekend as I told my mum I wouldn’t go.

15. The police expressed certain opinions with respect to the Mother’s involvement in those interviews or with respect to the genesis of allegations generally.  However, the police officers who formed and expressed those opinions are not before the Court, thus I do not treat their observations with any weight.

16. There is a further statement by the child on 1 October 2018, after the primary Order was made, in which, again, complaint is raised by X with respect to this Father.

17. The reality that must also be observed relates to the Father’s evidence in relation to the four contraventions alleged.  That evidence is set out at paragraphs 73 to 78 of the Father’s affidavit.  Therein, the Father’s evidence would, on its face, not alone establish that there was a complaint to answer.  However, the tender of materials on the first occasion, when read in combination with the Father’s evidence, does, to my satisfaction, particularly noting the Mother’s concession, establish that there was non‑compliance with the Order, leaving thus a determination as to whether there was a reasonable excuse.

18. Certainly, Mr Vickery is clear that on each of 15 October, 23 October and 31 October, that he attended at the school to meet X at the front gate and that X was not present, although Y was.  The further occasion, whilst the changeover point was a KFC establishment rather than the school, clearly establishes that X was not present at the changeover and, thus, was not available to be collected irrespective of any other issue arising.

19. What underpins the past history of the matter, as well as that which is led by Ms Vickery as a reasonable excuse, is the child’s emotional and psychological health.

X’s psychological and emotional health

1. There are many sources in the evidence that point clearly, as is submitted by counsel on behalf of Ms Vickery, that young X is experiencing at least serious emotional, if not psychological, disturbance. 

2. The Father, by his affidavit of 8 November 2018, sets out a history of consultation between X and psychologists.  At paragraph 38, Mr Vickery describes that in June 2017, nearly two and a half years ago, X, presumably whilst in his Father’s care, was found crying on his bed and opined, “Nobody likes me.  I have no friends”.  Arrangements were made, appropriately so, for X to attend upon his GP for the purpose of a referral to a psychologist.  The paragraph also discloses and gives meaning to the depth of dysfunction in the communication, trust and cooperation between these parents.  The Father states:

   Ms Vickery [Ms Vickery] had refused to speak to me since March 2016 and would not answer my emails or text messages in a timely manner, so Dr L, the GP, acted as an intermediary to obtain Ms Vickery’s consent.  I understand Ms Vickery gave her consent to attend upon a child psychologist under a mental health care plan.  I then arranged for X to see Ms M.  I understood that the identity of the child psychologist was explicitly related to Ms Vickery in the course of Dr L obtaining her consent.  Ms Vickery subsequently withdrew her consent and X was no longer able to see Jane after their first consultation on 4 September 2017.  On 6 November 2017, Ms N and I attended upon Ms E who was X’s new psychologist Ms Vickery had arranged. 

3. Ms N would appear to be the Father’s partner.  She is referred to in various aspects of the evidence, but I do not suggest any criticism of her. 

4. After attending upon Ms E, the psychologist, for some little time, it would seem, at least nine months or so ago, that a determination was made by Ms E shortly before the conclusion of the last tranche of proceedings giving rise to the primary Order that she would no longer provide a service for young X. 

5. A letter dated 20 July 2018 is produced and annexed to Mr Vickery’s affidavit.  The letter is the subject of some controversy on a number of bases.  Firstly, Ms Vickery was cross‑examined at length as to whether she had read and considered that letter or report prior to consenting to Orders, or for that matter, commencing the proceedings that gave rise to the last tranche of proceedings. 

6. Ms Vickery’s evidence is that the letter had gone to her junk or spam box and that she had not read the letter in its entirety, or possibly not at all, at the time that she commenced the proceedings.  Some explanation was given that this was on the basis that she had been expecting to receive a letter from Ms E confirming that Ms E would no longer provide service to X.  Whether that is plausible or not, I need not engage with.  I am not satisfied anything other than an issue of credit could turn upon it.

7. The report, under the heading “Recommendations”, has three statements.  The first is that Mr Vickery might consider being flexible in his contact with X on weekends that coincide with his contact and X’s sports games.  A serious issue was raised on the evidence and in a number of exhibits as to X being somewhat upset or possibly even distressed by his non‑attendance at, or his Father attendance at, sports games.

8. Secondly, a concern is raised in respect X’s weight.  He was observed to be underweight for his age. 

9. Lastly, the following statement is made:

   It is in the best interests of X that he have a healthy relationship and meaningful regular contact with his Father and his Mother.

10. The letter then ends.

11. The real controversy that arises with respect to the letter is what is meant by the final recommendation, as it is styled, and what was understood by the Mother as to that recommendation and what action, if any, she took in furtherance thereof.  Some insight is given by an email chain between Ms Vickery and Ms E, then no longer providing service to X.

12. Following the making of Orders on 18 September 2018, Ms Vickery writes to the former psychologist, that email dated 21 September 2018.  Preceding that correspondence, however, is an email from the Mother to Ms E the same date as the above letter.  It commences:

    Things got worse on Thursday night.  I suspected X had been carrying an increased burden.  He broke down quite badly and was unable to attend school on Friday and refused to see or speak to his Father. 

13. The last appointment with Ms E was 26 July.  That is the date upon which Mr Vickery suggests time between he and X ceased and was last practiced.  The email continues:

    X made a statement to police yesterday.  That have referred it to the Child Wellbeing Unit.

14. Then Ms Vickery makes reference to seeking assistance for legal representation and makes some final comments.  No specific reference is made to the report.  And from the email, as it is tendered, it is not possible to discern whether it is responding directly to the email of Ms E or simply corresponds in time.

15. In returning to the email of 21 September, what is immediately apparent is that Ms Vickery has, by that date, received the letter - that which is referred to - dated 30 July.  That letter would appear to have been annexed to material filed by Mr Vickery in the earlier tranche of proceedings, that which gave rise to the primary Order.

1. Accordingly, some few days after the primary Orders were made, Ms Vickery’s writes to Ms E, commencing:

   I am very confused at this letter.  As much as I respect that a child should have a healthy relationship with each parent, and hope they can, what if one of the parents is unable to provide this?  When you spoke to me on 26 July after X had left the room, you were very clear that you believe the risk factors for both boys were increasing.  X also indicated on that day that he had been hurt by his Father on two occasions.  This letter is now being used at court to force X to see his Father on 6 October for a whole weekend.  In response to hearing this, he said he may as well be dead.  And that if he was forced to go, he would just kill himself.  Afterwards, he spent nearly an hour in a webchat with Kids Helpline.  It turns out he has a lot to say if he overcomes the intimidation he feels of speaking out loud.

2. In response thereto, very shortly after its receipt, it would seem, Ms E responds:

   Hi Ms Vickery, I am sorry to hear that my letter has been used in this way.  I thought stating a “healthy” relationship would cover X for contact with dad when he is comfortable and feeling safe.

3. I pause to observe that this is the very language - “comfort”  and “safety” - that is used by Ms Vickery throughout her evidence.  The psychologist then questions:

   Has an ICL been appointed?  That would be my next step in terms of advocating for X.

4. And I pause to observe that there are now on foot substantive proceedings with respect to future parenting arrangements for both children.  An Application Initiating Proceedings has been filed by Mr Vickery.  It seeks that the children pass to live with him.  A Response thereto has also been filed.  Those proceedings are, as it were, on hold until such time as these contravention proceedings are concluded. 

5. Again, the delay in that conclusion is very regrettable.  However, there have simply not been resources to hear the matter earlier.  There have been a number of changes to the date allocated to conclude the matter, most of which have arisen through either circuit commitments in other registries or illness and hospitalisation.  In any event, the matter is now thankfully brought to conclusion, albeit with judgment delivered after court sitting hours.

6. The email from Ms E then concludes:

   Have orders been made re X spending time with dad and are there any conditions attached or provisions if X doesn’t feel okay?

7. The email from Ms E gives some force and plausibility to the evidence of Ms Vickery.  It is plausible that her first knowledge of the letter, at least in detail, has come about as a consequence of the last tranche of proceedings and its annexure to the Father’s material.  I need not make any finding as to whether that is so. 

8. What is clear is that the stridency with which it is asserted that Ms E opined that both children, and particularly X, should be practicing a healthy relationship with the Father is, as it were, subject to terms and conditions.  Ms E makes clear to Ms Vickery exactly what was intended by her by the letter by expressing her disappointment as to how it has been led, used or interpreted and clarifying that she felt that a healthy relationship would mean time and contact between X and his Father when X was comfortable and feeling safe.

9. Mr Vickery also annexes to his material two reports from the most recent treating psychologist with whom X has engaged, (annexure D).  That document, dated 5 October 2018, contemporaneous with the first alleged contravention, is addressed to “Whom it May Concern” and is under the hand of the fresh psychologist engaged.  I will deal shortly with the controversies that arise and relate to that engagement.

10. It indicates:

    I am writing this letter in relation to my recent contact with X.  I conducted an initial assessment of X on 27 September 2018 which revealed feelings of fear and feeling unsafe in his Father’s care/presence. [That is the very allegation that the Mother raises].  The main concerns X identified in the session:  feeling fearful and unsafe in his Father’s presence/care; two episodes of being physically abused by his Father, May 2018 and July 2018;  previous mention of suicide in his Father’s presence.  That would appear to be an occasion when X and his brother were holidaying with his Father and the Father’s partner in Tasmania.  More recently stating to his Mother that he will “kill himself” if he has to attend his upcoming stay with his Father, 6 October 2018;  no phone access or access of other support people while at his Father’s. 

    As X reported that he has no access to a phone and/or other support people while in his Father’s care, it was impractical to develop and implement a safety plan for X.  A report to the Child Protection Helpline was made on 28 September 2018.  A reference number is provided.

11. Certainly, the engagement of the fresh psychologist, whilst it was not intended to be in any way forensic, does assist in corroborating much of the Mother’s evidence in relation to the suggested statements of X at that period of time.

12. The records in relation to that attendance are also tendered.  What is clear from those records is that X disclosed that he had spoken about suicide whilst with his Father in the previous year.  He confirmed that he had messaged his Mother and asked her if he could kill himself.  He did not hurt himself at the time, thankfully so.

13. He confirms that he did tell his Mother, as she alleges, that upon the Mother telling him that he was to then spend the weekend with his Father, that he would rather kill himself than do so.  He confirms to the psychologist upon whom he attended, however, that he did not necessarily mean it, and again, certainly he did not carry out any such threat. 

14. X suggests to the psychologist upon whom he attended that he was feeling sad more often.  A risk assessment was undertaken.  X did not report that he had plans of hurting himself at that time, although again confirming that he did tell his Mother that he would kill himself.

15. It is also corroborated within that attendance note that X had raised issues with respect to his Father, his dislikes and likes and, importantly, feeling unsafe and scared at times.  I do not raise those matters to be critical of the Father.  It may well be, as is submitted by counsel for the Father, that those statements within the child’s mind have become exaggerated, and that his fears and phobias are either irrational or beyond all proportion to that which the child has, in fact, experienced.  I will return to that issue shortly.

16. The Mother’s affidavit gives detailed evidence as to what X is suggested to have disclosed to her or stated to her, particularly at paragraphs, 10, 13, 14, 15, 16, 20, 21, 23, 39 to 44 inclusive and 47.  Paragraphs 15 and 16 are particularly instructive. 

17. At paragraph 15, the Mother refers to a conversation that she had with X on 19 September, that is, immediately following the making of the primary Order.  The Mother indicates:

    I said to X words to the effect, “You are going to see your dad on 6 October.”  X said during this conversation, “I may as well be dead.  If you make me go, I will just kill myself.”

18. It could well be argued that language of that nature is common amongst adolescent children in this day and age, speaking generally in hyperbole and referring everything in simile rather than statements of reality.  However, what is important is the statement that is made.  The Mother is not challenged that the child made the statement.  The child confirms through the psychologist’s notes referred to above that he made the statement, although casting doubt upon his intent to follow through with it.  The Mother, of course, was not to know that this was so.

19. Paragraph 16 has the Mother reporting the above statements made by X to the school counsellor.  The school counsellor called the Mother back.  It would seem a meeting of some fashion occurred, and that X was also met and spoken to by the school counsellor.  The school counsellor indicated:

    I would like you to contact Mental Health Service D in relation to X’s suicide statements.

    and a phone number was given. 

20. The Mother suggests that she advised the Father of the referral on 26 of September, thus suggesting that some slight delay had occurred.  The referral was to be reviewed the following day.

21. The Mother refers to the Father annexing the Mother’s email to his material.  Indeed, that is so.  That which is annexed to the Father’s material makes clear that the parties had commenced the email correspondence prior to that which is annexed, arguing and accusing each other of culpability in relation to a telephone communication which had not occurred at some earlier time.

22. The Mother then states:

    X has made self-harm statements in response to the prospect of spending time with you.  On the advice of the school counsellor, he has been referred to the Mental Health Service D.  The psychologist selected is Psychology Service C.  The paediatrician selected is Mr P.

23. The reference to “selected” goes back to the primary Order.  One of the allegations that was raised in the Application for Contravention, but dismissed on 11 December 2018, was the complaint that the Mother had failed to make a selection, as was required, from lists provided to her by the Father of both psychologists and paediatricians.  The Mother had clearly made selections, and the history of what transpired thereafter is addressed in the first judgment.  Certainly, X did not attend upon the service that was nominated by the Father and selected, and the explanation for that given.  The child did find his way to the psychologist, whose report is annexed to the Father’s material.

24. The Father’s affidavit also deals with that issue at paragraph 77.  The Father indicates that on 20 September, X attended upon the school counsellor.  Clearly, from the Father’s further evidence, he was not present.  He indicates that he extrapolated that date from the Mother’s email and the availability of the school counsellor. 

25. Following the Mother’s advice to the Father that the referral had been made to a mental health service, the Father complains:

    I was not contacted by X’s school counsellor or principal in regards to the referral of X, notwithstanding my meeting with the school counsellor and principal on 30 August 2018 when they were made aware of the final consent Orders dated 23 January 2017.

26. That would represent, by reference to the earlier evidence, the second occasion upon which there has been dispute and controversy between these parents as to X receiving necessary psychological intervention. 

27. Paragraph 78 of the Father’s material then refers to X’s engagement with the current counsellor, and the report which I have referred to is then annexed. 

28. What is clear from the above evidence is that in a period of a little over two years, X has now engaged with three psychologists.  It seems common ground that X is no longer engaging with the psychologist, having withdrawn and refusing to participate. 

29. The history of psychological interventions for X would suggest that they have not aided him.  I do not put it in those terms to suggest that the psychologists have not done what they can.  They have been hampered, however, through parental discord and disagreement.  The psychologists with whom X has engaged would all appear to have been clearly aware of the parents’ disputes and distrusts of each other, their withdrawal of consent or their opposition to services at different times, commencing with the Mother’s suggested withdrawal of consent for the first psychologist.

30. What is clear from all of the psychological materials before the Court, however, whether annexed to the evidence or the parties or separately tendered, is that the statement made by counsel for the Mother, in opening his submission, that young X clearly has some degree of psychological disturbance, is accurate.  He is suffering a serious problem with at least his mood or his emotions, if not a diagnosable condition, (although I do not suggest that any diagnosis is advanced in any of the materials referred to above).

31. I am also conscious, as was discussed by Lawton LJ in R & Blaue (1975) Cr APP R 271, albeit in the context of the criminal jurisdiction, that one takes one’s victim as one finds them.  This child suffers serious psychological disturbance.  He has done for at least two years predating the primary Order suggested to have been complained of.  It is in that context that I turn to the Mother’s evidence as now led.

32. There is no controversy that the Mother, at the time of the alleged contraventions - and it is only those four dates with which I am concerned - attended at X’s school on three of the four occasions complained of, with X knowing full well, even if active discussion had not occurred between Mother and X as to how things would be at the end of the school day, that his Mother would be waiting for him at the back gate.  Thus, young Y has gone to the front gate and left with his Father, X to the back gate and left with his Mother.  That arrangement predates the primary Order by at least some weeks.

33. The Mother’s evidence is that this arrangement was initially put into place at the suggestion of the school counsellor on the basis that because of X’s express fears and concerns with respect to his Father, that without such an arrangement in place, a safety plan, as it were, from X’s perspective, that X may not attend school.  That is a significant issue in relation to X, noting that material tendered and the exhibits, as would be clear and apparent from the transcript, show a significant decline to the point of complete non-attendance for X at school this year.

34. X’s school attendance in 2018 was problematic.  This year it has become catastrophic.  In term 1, X attended for 92 per cent of the time.  By term 2 that had dropped to 64 per cent, term 3, 34 per cent.  For the week of term 4 that has passed prior to this hearing he has not attended at all.  He has not attended since 6 September. 

35. I am conscious that one aspect of the Father’s case is the suggestion that this follows from the Mother’s attitudes towards the Father and her lack of support, allowing the child’s beliefs to become irrational and hyperbolised, such that he decides for himself, firstly, whether he attended visits with his Father, and secondly, whether he now attends upon the psychologist or school. 

36. There is nothing in the evidence to suggest a correlation of such a nature.  The closest that one might come is a record from the school 6 September 2019 evidencing a meeting between the principal, another member of staff and the Mother.  The meeting was convened with respect to the child’s poor attendance.  X attended the meeting and was present during it.  It is noteworthy that that is his last day of school attendance.

37. At the conclusion of that note, whoever has made it - and that is unclear, although it would appear to be the principal - it is recorded:

    Mr Q and I strongly believe that Ms Vickery, the Mother, is fuelling X’s high level of anxiety, resulting in a highly concerning pattern of attendance.

38. The author of the document is not available.  I do not accept that opinion as expressed as warranting weight.  All that can be gleaned from the note is that school attendance has been extremely poor.  The Mother asserted to the school that they were responsible for increasing X’s fears and anxieties because the Father was able to access, if not the school, although there is no restraint or impediment that would appear clear, at least the school portal and thus information about X, X presumably being aware of that, and thus the suggestion that his anxiety is piqued.

39. The Mother is recorded as stating that X was not attending school because he did not feel safe, and was afraid that his Father would turn up at the school and possibly “take him”.  Again, an additional concern is expressed that:

    Ms Vickery is feeding this fear and actively encouraging X to avoid school.

40. Again, there is nothing that could demonstrate the basis of that opinion as recorded, save the subjective view of its author.  As they are not available for cross-examination, I do not propose to give it significant weight.

41. All of that material, however, points to that which is led in the Mother’s evidence, that X has expressed to her, albeit the latter note merely is repeating those matters by her rather than X raising them, although he has in the other documents, that the child has fears, phobias and concerns with respect to his Father, whether they are based in lived experience, based in lived experience but exaggerated or, as is submitted on the Father’s part, irrational.

42. What cannot be disputed are aspects of the Mother’s evidence.  They cannot be disputed not only because they are corroborated by the material discussed above, but because the Mother was not seriously challenged with respect to them. 

43. It was put to the Mother that following X contacting her from Tasmania and expressing what might be described as thoughts of self-harm, that she had stopped reminding the boy of the importance of his relationship with his Father.  The Mother denied that this was so.

44. When it was put that following the making of the primary Order the subject of this contravention that the Mother had not taken any active steps to change the child’s attitude, address his irrational fears or take any active step to cause the Order to be complied with, noting that it is the Mother’s obligation to comply, not X’s, the evidence of the Mother was:

    He (X) said he would kill himself if I forced him to see his Father.

45. By reference to the comments of Lawton LJ in R & Blaue, the rhetorical question must be put, how a parent might feel or respond when their child makes such a statement to them.  On the Father’s part, the Court is asked to accept that the Mother’s past patterns of behaviour, she having initiated the second tranche of proceedings leading to the primary Order and having sought therein that there be no time or communication between X, is clearly demonstrated as non-supportive.

46. That is said against the realities that X has attended on some periods of time, and that the difficulties with respect to X’s relationship with his Father predate the primary Order and are somewhat documented within the psychologist’s records, if nothing else.  It also ignores the reality that Y attends, again begging a further rhetorical question, why is it that the Mother would be so steadfastly focused upon seeking to destroy the relationship between X and the Father, but so supportive of Y’s relationship, at least supportive to the extent that there is no complaint that time is not occurring and the child benefiting from it?

47. The answer perhaps might lie in the simple reality that things are not always that simple - not always that black and white.  This child clearly, I am satisfied and so find, suffers some degree of psychological disturbance.  That psychological disturbance must be taken into account in viewing and assessing whether his views can be typified as irrational.  Certainly, on one view, they could well be. 

48. I need not explore and have not been taken to the evidence relating to the suggested events founding the child’s fears, nor need I be.  They are to a large extent irrelevant for present purposes.  The child expresses fear, expresses concern and acts upon it.  He utters statements of self-harm in response to them.  Whether they are irrational or not need not be my concern.  They may well be.  That would be the nature of a psychological disturbance - to build into something fearful, monster-like, something which is not.

49. The Mother, again when pressed on the issue that she had done nothing to support the child other than to accept his refusal to see his Father, and accepting that by not sending the child that it might reduce his anxiety, responded with some force:

    I thought that if I forced X to see his Father, he would kill himself.

1. Again, a parent faced with that prospect is placed in an invidious position.  Even accepting that the Mother may not have fully or completely desired the relationship or been as vigorous in her fulfilment of her obligations with respect to the Order - those being as discussed by Fogarty and Nygh JJ in Stevenson and Hughes (1993) FLC 92-623 to not only comply with the Order itself but its spirit - there is still the simple reality of how a parent faces and deals with such a stark statement by their child. Does a parent assume that the child does not mean it? Does the parent, as was suggested on the part of Mr Vickery, simply tell the child, “There is an Order.  You are being irrational.  Of course you must attend,” when the child has said, if that is what is forced upon them, they will kill themselves?  I simply cannot accept that it would be a rational response on the part of the Mother to do so.

2. The Mother’s evidence, which I accept, is that she has discussed those matters with the child’s prior treating psychologist, Ms E, with the child’s then-treating psychologist and with the school counsellor.  She has not sat idly.  She has sought advice.  There is, of course, that which is contained in the emails with Ms E, the suggestion in one of those emails that the Mother was doing all within her power to gather the materials and evidence that she needed to be able to address the situation. 

3. I am also conscious that to the extent that it is suggested that the Mother’s use of the word “expected”, with respect to her obligations to provide X pursuant to the primary Order indicates some lack of intent or some lack of treating her obligations seriously, I simply do not accept that submission.  It is the Mother’s language.  It is one means by which a lay person might well describe their obligations under the Order.  The Mother was expected to provide the child for time.  I am conscious the language is slightly different. 

4. The Mother was questioned as to why, bearing in mind that the relationship or its practice between X and the Father had already broken down by the time she consented to the primary Order, she would give her consent.  She must, it was put to her, have been satisfied that she was able to cause the child to attend.  I accept the Mother’s evidence that at that point in time she was not completely satisfied, and knew that X would have issues, but that, with help, she might overcome those issues and cause or persuade him to attend.

5. The Mother was clear that while she suspected that the child would have issues with being told that he would now be attending upon his Father, that she did not apprehend the strength of those convictions and issues, indicating that she had not anticipated that the child would respond when told, “If I am forced to see him, I will kill myself.”

6. It is on that basis that I have throughout submissions by counsel described the Mother’s attitude and her agreement to those Orders as aspirational.  The Mother’s evidence makes clear that she apprehended that it would not be an easy path, but that it might be one that was possible with the supports already in place, notwithstanding some of the statements that are referred to in submissions and contained within those documents that the Mother was perhaps overly optimistic at best, foolish at worst, in believing that she could correct the situation that had been developing for some 18 months.  I am satisfied she was, at the very least, aspirational, believing that something could be achieved.  That is without even opening the door to the evidence given by the Mother as to the pressures that she felt upon her as a consequence of engagement and conversation with her then legal practitioners.

7. When the Mother was asked whether she had done anything else to support X and X’s relationship with his Father following the primary Order, she was clear in indicating that she had not.  She added:

   My primary concern was X not killing himself.

8. That evidence could not be other than accepted with some degree of empathy in perhaps demonstrating an appropriate focus and insight on the Mother’s part.

9. Similarly, when issues are raised to point to the hyperbolic nature of X’s responses or his irrational responses, including more recent examples when he has become phobic of blood being taken from him or has become ill in a fashion which the Mother describes has been related to her by X’s treating doctors as psychosomatic, that those matters could be a reflection of a hyperbolic response by the child.  They could simply be a reflection of the depth of his psychological disturbance.  That might also be consistent with his generally dishevelled presentation as observed on 6 September and a number of the concerns regarding his failure to gain weight and the like.

10. I have touched upon that evidence for the purpose of now turning to the issue of whether a reasonable excuse might be established on the evidence as it is read and presented.  In doing so, I make clear that there are three questions that can be answered from the outset and which speak directly to those issues. 

11. Are X’s fears of his Father irrational?  Possibly.  If in fact not, probably.  Certainly in X’s mind, however, they are real. 

12. Accordingly, does X hold fears and phobias as regards his relationship with his Father?  Yes, he does, and those fears and phobias are significant and expressed as such.

13. Whilst there are, as submitted by counsel for the Father, various interpretations or possibilities as to why X’s school attendance, for example, has continued to deteriorate notwithstanding that he has ceased to see his Father, I am satisfied that one is preferable.  The Father advances that it may well be that it is a continuing manifestation of the Mother pandering to, if not fuelling and driving his anxieties.  There is no evidence that supports that this is so save the opinions expressed in the document on 6 September.  The bases upon which those opinions are formed, let alone expressed, is not clear.  As indicated, little weight is given.

14. An alternative proposition is that the continued decline is as a consequence of the child’s continued psychological disturbance.  It is not something unknown to the Father.  He, after all, arranged the first referral for the child when he came upon the boy sitting on his bed crying, expressing fears, which, on the Father’s evidence, might have been irrational, that he had no friends and no purpose in life.  Clearly he does.  He is a special and unique human being.  But to the extent that the question can be asked and answered, “Does the child hold fears and are they genuine?” yes, they are. 

15. Thirdly, is the Mother’s reaction to the child’s statements that he will kill himself if forced to go to his Father reasonable?  Yes, abundantly so.  Indeed, it is difficult to understand what other response might arise when a parent is told, if something is made to happen, “I will end my life.”  To suggest that they then make that event happen or even suggest to the child that it will be so, possibly stimulating the child to act upon the action that they threatened, is itself irrational.

16. I am satisfied that there may well be some basis in the child’s lived experience for the fears he expresses.  That is not to suggest that the fears he expresses are proportional with that which has occurred.  As was observed in the first judgment, the behaviours that are complained of by X of his Father would not meet the requisite standard at criminal law to constitute a conviction of assault.  That does not mean that they were not distressing to a child. 

17. And, again, returning to the comments of Lawton LJ in R & Blaue, one takes one’s victim as one finds them.  If the child has already demonstrated what might be anxiety, depression or any other condition - certainly suggesting that he is emotionally fragile at the very least - found sitting on his bed crying by himself about his lot in life such that the Father was concerned that the child needed a referral to a psychologist, it is not a long bow to draw to then accept that the child might respond in a more extreme fashion than many other children when there is the grabbing of his arm, pulling it and yelling at him, leaving aside the more contentious matters, such as the suggested pushing against walls and the like.

18. I need not delve into the truth of those experiences as alleged by X merely to observe that he is a child predisposed to sensitivity, if it might be so put, and purely for the purpose of avoiding the language of diagnosis, there being no such evidence before the Court.

19. In establishing a reasonable excuse, it is necessary for a party, as is set out in section 70NAE of the Family Law Act (supra), to demonstrate either that:

    a)They did not understand or were not aware of the Order.  That is not alleged; or

    b)They did everything reasonably within their powers to comply with the Order, but that some event or circumstance intervened.  That is not what is alleged, nor could it be, as it is clear that prior to the making of the primary Order, the arrangement was already in place whereby the Mother was at the back gate of the school should X choose to go to her, or possibly even if he were directed to do so.  There is no evidence that the latter has occurred.

20. What is relied upon by the Mother is that set out in subsection (5), that the Mother believed on reasonable grounds that not allowing the child to spend time with the other person was necessary to protect the health or safety of a person, including that child, and that the period during which the non-compliance has occurred was no longer than reasonably necessary. 

21. It is to be remembered that the Application for Contravention has been brought with expedition, even though it has not been heard with expedition after its first date.

22. The complaints that are raised have occurred within weeks of the primary Order.  Thus, there was little, if any, opportunity for the Mother to have brought proceedings in that time for further variation of the Order.

23. In any event, I am satisfied that the Mother was devoting her time and attention to seeking the psychological assistance that the child needed in that period of time.  One can only infer that both parents agreed that psychological assistance was needed, as Orders were included within the primary Order compelling that this young lad attend such assistance.

24. Accordingly, I am satisfied that the second limb of the reasonable excuse, if it might be so described, is made out.  A sufficient period had not passed by which one could suggest the Mother had failed to act.

25. I am thus left with a consideration of whether there were reasonable grounds to believe that not providing X, or not taking any other step to cause it to be so, was necessary to protect his health or safety.  As would be apparent from the answer of the above questions, I am so satisfied.

26. For a child to tell a parent, “I will kill myself if required to attend with the other parent”, and to then expect that the parent will engage in a dialogue with a child, accepted by both parents at that point to be at least emotionally disturbed, if not psychologically disturbed, would be ill-advised. 

27. Imagine for one moment, and I do not raise it to cause distress to either of these parents, if the Mother had taken the path suggested that she might have - to sit down with X and to tell him firmly, but sternly, “There is an Order.  I have agreed to it.  I think it is what is best for you, and even though you describe that you will kill yourself if you are made to go, I intend to take steps to ensure that you do”.  Imagine if the child was then found having acted upon that which he said he would, self-harm to attempt to kill himself?  Not that he would cut himself, not that he would run away.  He would kill himself.

28. It would have been, as I have already described, irrational and irresponsible to expect that reaction from the Mother.

29. There is a further limb to the Father’s case, however, suggesting that the Mother, through her very actions in having brought the earlier application to terminate his relationship with the child, as it is described, as indicated, that at that point and continuing on at the time of the primary Order and beyond, having had no intention to comply with the Order.  I am not satisfied that is made out.

30. Indeed, what the Mother did by commencing the last proceedings, the second tranche of litigation, was to discharge the very obligations that section 70NAE(5) of the Family Law Act (supra) impose upon her: to bring action to seek to be relieved from a responsibility imposed by an Order when there is believe that such relief is necessary.

31. One of the concerning aspects of those proceedings is the different interpretation, if not misinterpretation, of the letter from Ms E of 30 July.  Quite clearly, from the emails sent by Ms E to the Mother very shortly after the primary Order was made, Ms E was somewhat taken aback that anyone might have suggested that she was supporting that an Order must be made and that time should be occurring, and made to occur, between X and his Father. 

32. That would not appear to be what was intended by Ms E at all by the third recommendation contained within her letter.  What would appear to be intended is a motherhood statement, for want of better description, that of course it is best for children generally, and all things being equal, that they have a healthy relationship with both parents.  It would be difficult to find any parent who would disagree with the proposition.

33. However, Ms E, in her communications with the Mother - to which the Father, I accept, may well not have been privy - made clear that this was not what was on her mind.  The fact that she expressed concern that her letter had been interpreted or used in that way and the fact that she enquired as to whether an Independent Children's Lawyer had been appointed both point to the fact that Ms E did not support the step that was taken by these parents - perhaps one, or both, labouring under a misapprehension.  The Mother, perhaps, not having even yet seen that letter until served with it as an annexure to the Father’s material that time should be resuming as it had previously been ordered.

34. Perhaps what has occurred is that the parties, for whatever reason, perhaps a combination of reasons, have hastened too quickly, one of the very problems that occurs when focus is placed upon disposing of proceedings quickly and cheaply, rather than thoroughly and properly.  They have hastened into that issue without fully or properly addressing what might have been going on for X (clearly and thankfully not for Y at this point in time - although, if one accepts the evidence of Ms E through her report, and through the emails referred to above, the concerns raised by her, that risks continue to increase for both children, no matter what those risks may be, and the letter does not make it clear).

35. The proceedings that were last concluded might, perhaps, have best been slowed down.  That is a statement that would come with some real controversy in this age where the continuous complaint, leading to review after review, is the delay in the conclusion of proceedings. 

36. The simple reality is that the Mother’s Application is filed seeking intervention.  On the first return date of the Application, it was concluded by consent between the parties without intervention by family consultants, and importantly, and noting that self-criticism must arise - I was the judicial officer who approved the Orders without the child’s voice heard in the proceedings.  There was no Independent Children's Lawyer, no opportunity for X to participate in the proceedings, as the International Convention on the Rights of the Child[1] requires (that being incorporated by section 60CC(4) as an object of the Family Law Act (supra) in itself). 

    [1] Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

37. That might have been a better step, a better path, for this family.  It might have avoided this controversy, and the 12 months or more of litigation in which the family has now been involved.  However, they were not steps that were taken in the zealous desire by all to conclude business quickly.  It is a cautionary tale, perhaps, not only for this family, but all, that sometimes for matters to be properly addressed, to fully meet children’s best interests, that time must be taken, and even though they are scarce and difficult to find, resources applied and extended.

38. What has occurred in this matter is significant litigation.  What has not changed for this family is the complete distrust and the complete breakdown of communication.  The parents, one or both, might question the role that this has had to play, if any, in the difficulties that X now faces, and if that is even a possibility, be very concerned as to how that might now play out for Y in years to come as he ages and becomes more cognisant of the absolute disdain between these parents. 

39. I had commented in the earlier judgment with focus upon those issues.  They warrant repetition.  I accept, although as Alan Hayes has opined, it is a phrase often thrown about like confetti at a wedding, that these parents are in “high conflict”.  Certainly, their conflict has endured for so long that its maintenance must suggest some underlying cause. 

40. The issues in this family are long lasting, as the Mother makes clear in her evidence.  Indeed, she has made clear in public postings to Facebook, annexed in the Father’s material, that she feels that she has experienced abuse, coercion and control from the Father since early in their relationship together.

41. Certainly, the difficulties for this family, not suggesting that they flow from those matters, have continued post-separation.  As the Father’s material makes clear, there is no communication whatsoever between these parents.  They exchange their children between them in the carpark of a KFC establishment, sending the very clear message to these children that there is no trust, cooperation or communication between the parents. 

42. They may as well be engaged in standing on either side of the Bridge of Spies, between East and West Berlin, passing the child between them, the child being fully conscious that standing before them and behind them are heavily armed troops with fingers on triggers.  It would not be a stress that is foreign to these children, one gathers.

43. Non-compliance with an Order made by the Court is a serious matter.  So, however, is child welfare.  An Application for Contravention is a parenting application under Part VII of the Family Law Act (supra).  It is, accordingly, subject to the paramountcy principle.  Everything that is done must treat, as paramount, the child’s best interests - in this case, the proceeding focusing solely on upon X, that child.

44. Being satisfied that the beliefs held by the Mother, that she could not comply with the Order lest it would prejudice the health or safety of a person, clearly X, are reasonable, it could not be otherwise than a reasonable excuse is established.

45. It is concerning, as regards the dysfunction in communication - indeed, antipathy between these parents, each for the other - that the Father has been fully aware of that allegation for some little time, and yet has not responded to it.  The parties are left at the conclusion of this matter still with some years of litigation ahead of them if the Father’s Application and the Mother’s Response thereto, are to now proceed.

46. What is clear and apparent is that the mistakes made in the last tranche of proceedings - the child’s voice not heard, (indeed, the child’s voice, on any view of the evidence, very much stifled) - is that it must be brought to the fore on this occasion.

47. Accordingly, upon the conclusion of these proceedings, I propose to appoint an Independent Children's Lawyer to represent both X and Y.  I propose to transfer the proceedings back to the Wollongong Registry from where they have come, and where, with the greatest of respect to the parties, the proceedings belong.  They both live in Town I. 

1. The Application for Contravention that has been filed was filed before me as I had made the primary Orders whilst conducting circuit in Wollongong.  I no longer do so.  It is an onerous burden upon these parents, heaping upon other onerous burdens they must already deal with, to expect them to travel to this Registry to conduct their business, when they are not from this area.

2. What would be apparent is that, upon accepting that the Mother had a reasonable belief founded on reasonable grounds, that to not allow X to spend time with the Father would protect his health or safety, that the Applications for Contravention must fail.

3. The parties can continue their litigation if that is what they desire.  Orders have previously been made for the parties to engage in family counselling services, although in light of the depth of dysfunction and discord in this family, as is now apparent from the evidence, although not previously apparent, and noting the limitations upon those services, and the time over which that dysfunction has germinated, I hold little hope that any realistic change would arise therefrom.

4. Beyond that, however, I do not see that there is anything that can usefully be achieved with the proceedings - certainly nothing that will benefit X. 

5. X requires his parents to focus upon his psychological needs.  Instead, what these parties have done for the last 12 months is focus upon the litigation with each other.  They have issued 14 subpoenas.  They have been involved in a two-day hearing, although it is no fault of theirs that it has taken so long, or been spread over two days.  So little time has been available on any of the occasions, and difficulties with diaries have meant that they have been forced to put their lives, and their children’s lives, on hold for all of this time.

6. This family is brought asunder by conflict, and whether that has generated X’s psychological difficulties, exacerbated them, or simply made them all the more difficult for X to endure and for the parents to address - although their disputes with each other as to how that will be so has also impacted upon that factor - is unacceptable in a civilised society.

7. Children are regarded as precious.  As the International Convention on the Rights of the Child makes clear in its preamble:

   Childhood is a place deserving of special protection. 

8. What protection has X had from this system?  12 months of delay, the last tranche of proceedings knocked over as quickly as possible to achieve a cost-effective disposal, without taking the steps that, in hindsight, both from the parent’s perspective and the Court’s, might have been taken.

9. The Convention also makes clear that children are entitled to grow up in a family environment of peace, love and understanding.  That is denied X.  Both parents might reflect in the period that they will now remain before this Court, the next 18 months at least, one would think, unless their litigation can be appropriately and safely settled, as to how they propose to achieve that through litigation and the Court’s fairly continuous involvement in that matter. 

10. Section 70NBA(1) of the Family Law Act (supra) makes clear that variation of an Order can occur whether the contravention was established or not.  The purpose and intent of the section is to ensure that matters that related to, or which may have precipitated the Application for Contravention, are properly addressed, and, particularly, to ensure that children’s best interests are met and future contraventions or allegation of contraventions avoided. 

11. It is common ground between these parties that X has not spent time, irrespective of Orders that have been in force at all relevant points in time, since July 2018.  At that time, the earlier 2017 Orders were in force, and since September 2018, the primary Order, the subject of this alleged contravention, has been in force.

12. There is a possibility, if not probability, that further contravention proceedings might arise if the Order remains on foot.  Whether it is possible or probable, the Father would be entitled, in any event, to bring such an application.

13. Further, and more importantly, and directly relating to the best interests of X, there remains the substratum of fact relating to the reasonable excuse advanced by the Mother.  It is suggested and corroborated in a number of the documents that are tendered, that X holds some degree of phobia with respect to school attendance, lest his Father might attend.

14. I do not, for one moment, suggest that this is the only basis, or even the more substantial basis, upon which his school attendance has reached this present point of non-existent.  However, it is a contributing factor.

15. As discussed by Forrest J in Gordon v Gordon [2015] FamCA 616, if the paramountcy principle is to have any meaning, then it must inform each and every decision made by the Court. The child’s best interests are not served by having any basis upon which the child might perceive, rationally or irrationally, as supporting a fear, phobia or anxiety. If the child can be advised that the Order has been made which no longer requires or compels his attendance, it may bring some therapeutic relief or assistance to him.

16. I do not for one moment suspect that it will lead to a repair in the relationship between X and his Father.  There are myriad contributors and probably many presently unknown causes to any difficulties therewith. 

17. What suspension of the Order might do, however, is provide:

    a)Reassurance to X.

    b)Some comfort, thus furthering his best interests and potentially aiding in his emotional and psychological treatment; and,

    c)Avoid future proceedings between the parties, a factor in its own right per section 60CC of the Family Law Act (supra).

18. For those reasons, and whilst brief, I am satisfied that the suspension is appropriate.

19. Orders are also sought in the Mother’s case which would authorise the Mother to arrange for X to attend upon a child and adolescent psychiatrist, and various further Orders consequent thereupon.  I am not satisfied, on the evidence as it presently stands, that I could make such Orders.  It would be a significant interference with the parental responsibility presently allocated equally to the parents, although that is the least of the concerns.

20. The problem is that whilst clearly X experiences some degree of emotional or psychological disturbance and may well benefit from treatment, there is not sufficient evidence that would authorise the Court to compel even the taking of steps towards gaining that treatment. 

21. It may well be that a medical practitioner forms the view that it is necessary.  There is certainly power under State law that allows and permits the provision of such services falling short of the child becoming a forensic patient under the Mental Health Act 2007 (Cth).  In the intervening period, brief as it is, until the Independent Children's Lawyer comes on-board and the Court can have some further assistance, not only forensically, but as to what might best meet this child’s needs and interests, that is the best that can occur. 

22. I am satisfied those Orders should not be made.  That is not to suggest that they are improperly sought or that they would not benefit the child, merely that the Court’s intervention is a serious step, the State compelling that something be so, in this case, with some degree of prejudice perceived, at least, by the Father.

23. However, for those reasons, Orders are made as follows.

I certify that the preceding one hundred and seventy-one (171) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate: 

Date:  17 February 2021