Waverley and Labelle (No 2)

[2018] FamCA 919

FAMILY COURT OF AUSTRALIA

WAVERLEY & LABELLE (NO 2) [2018] FamCA 919

FAMILY LAW – CHILDREN – Parenting proceedings – interim orders only made by consent and final hearing adjourned to permit the mother to obtain psychiatric treatment – some observations about psychiatric treatment – no findings of fact at this stage.

APPLICANT: Mr Waverley

RESPONDENT:	Ms Labelle
INDEPENDENT CHILDREN’S LAWYER	Ms M Lonergan

FILE NUMBER: MLC 1021 of 2017

DATE DELIVERED: 30 October 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 30 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Kildea

SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

BY CONSENT IT IS ORDERED:

1. That the children, B born … 2006 and C born … 2008 live with the mother.

2. That the children spend time with and communicate with the father as follows:

   a.During school terms each alternate weekend from the conclusion of school Friday, or 3:30pm in the event of a non-school day, until the commencement of school Monday, or 9:00am in the event of a non-school day;

   b.During the term holidays from the conclusion of school until 9:00am on the middle Saturday of the holiday period;

   c.During the long summer holidays from the conclusion of C’s school on 23 December 2018 until 9:00am on 9 January 2019;

   d.Such further and other times as agreed between the parties in writing.

2A. Both parents be at liberty to communicate with the children at reasonable times.

1. That changeover take place at the children’s school, or in the event the children, or either of them, are not attending school at the relevant time, at KFC Suburb F.

2. That from Friday 1 March 2019 B be permitted to travel to and from school whilst spending time with the father via public transport but, prior thereto, the father accompany or cause her to be accompanied by a responsible adult to and from school.

3. That within 7 days the mother undertake the following and provide proof of completion to the independent children’s lawyer and the father:

   a.      Make arrangements for and facilitate C’s ongoing attendance upon H Speech Therapy, or such other place/treator as recommended by C’s GP, in accordance with the recommendations of the treator;

   b.     Make arrangements for and facilitate C’s ongoing attendance upon Ms U Occupational Therapist, in accordance with the recommendations of Ms U;

   c.     Make arrangements for and facilitate B’s ongoing attendance upon a  private psychologist as recommended by B’s GP, in accordance with the recommendation of the treator.

5A.The father make arrangements for and facilitate B attending upon her General Practitioner for the purposes of receiving a Hepatitis B Vaccination, MMR booster and polio on Thursday 1 November 2018.

1. That within 7 days from the date hereof the Mother advise the independent children’s lawyer in writing the names and contact details of the treaters attending to the children pursuant to paragraph 5 herein.

2. That, in the event the mother attends upon a psychologist, psychiatrist and/or counsellor, upon whose evidence she will rely at the final hearing, the mother provide the names and contact details of the said professional/s to the independent children’s lawyer so as to facilitate the provision by the independent children’s lawyer of the documents as provided for in paragraph 11. 

3. That the independent children’s lawyer be at liberty to liaise with, speak with and obtain information from any and all medical, or allied medical, professionals the children may attend upon from time to time and these Orders act as an irrevocable authority to that effect.

4. That B continue to attend J School.

5. That C continue to attend Suburb F Primary School.

BY THE COURT IT IS ORDERED:

1. That the independent children’s lawyer be at liberty to provide a copy of the following documents to the children’s treating practitioners and any psychologist, psychiatrist or counsellor the mother may attend upon:

   a.Psychiatric assessment of Dr P dated 26 February 2018 and 4 October 2018;

   b.Family report of Ms L dated 27 September 2018;

   c.S11F Memorandum of Ms W dated 10 July 2017;

   d.Transcript of today’s proceedings; and

   e.Any reasons for decision.

IT IS FURTHER ORDERED BY CONSENT:

1. That the matter be adjourned to Mention on 22 May 2019 at 9am (estimated to take 40 minutes).

2. That the mother and father be equally liable for all expenses associated with the children’s treatments outlined in paragraph 5 herein, save that the father will not pay for therapies undertaken at home.

3. That within 14 days the mother cause passport renewal forms for the children to be provided to the father and within 7 days thereafter the father return completed and signed forms to the mother.

4. That forthwith both the mother and father download and utilise the application My Family Wizard.

5. That not less than 7 days prior to the father changing his place of residence

   a.      He notify the mother and independent children’s lawyer of the address of his new residence and the precise tram route or bus route or other public transport that will be taken by B in accordance with paragraph 4 of the Order.

   b.     For one month following any change of residence which requires any alternation to B’s route to the father’s residence, the father accompany B.

6. That pursuant to Sections 65DA(2) and s62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

IT IS DIRECTED:

1. That the proceedings this day be transcribed.

2. That my reasons for decision be transcribed and when settled placed on the Court file and a copy provided to the parties.

AND IT IS NOTED:

A.It has been recommended that the mother obtain weekly psychiatric treatment from a psychiatrist.

B.It has been recommended that the mother obtain weekly trauma psychological treatment, and the mother may wish to attend upon her GP to obtain a mental health care plan and referrals, or seek a referral through the Australian Psychological Society Website.

C.The independent children’s lawyer will forward to the mother recommendations for psychiatrists she may wish to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Waverley & Labelle (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1021 of 2017

Mr Waverley

Applicant

And

Ms Labelle

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me on the second day of what was to be the final hearing of parenting proceedings in relation to B, who is 12 years of age, and C, who is 10 years of age.  Having had the benefit of reading the final instalment of expert evidence in this matter, which is the psychiatric assessment of the mother by Dr P, dated 4 October 2018, I informed the parties that I would exceptionally be open to making interim orders in this case rather than disposing of the matter finally.  This is a case of considerable complexity, where the children appear to be failing in the immediate and short-term and I do not consider, on a preliminary basis, that there is sufficient evidence on which I can make final orders which reflect the best interests of the children.

2. The assessment by Dr P identifies the mother as needing urgent psychiatric intervention and trauma counselling, the need for both of which may have its genesis in her relationship with the father.  It is possible that she is high functioning in all aspects of her life and work except where the mother interacts with the father, directly or indirectly.  In relation to the father, I detect from Dr P’s report in relation to the mother that he is somewhat more circumspect than he was in his reasonably favourable assessment of the father made earlier in these proceedings, and appearing as the assessment dated 26 February 2018.

3. The family consultant in this matter who is Ms L, psychologist, and the author of the family report dated 27 September 2018, conferred with Dr P, and then the family consultant conferred with counsel for the independent children’s lawyer.  I am informed by the independent children’s lawyer that both the family consultant and Dr P consider it preferable that this matter be dealt with on an interim rather than final basis.  That is in no small part in order to permit the parties to undertake certain things and for the court to be in a position to scrutinise whether that in fact occurs.

4. This morning, with the assistance of counsel for the independent children’s lawyer, the parents have agreed on a raft of interim parenting orders. 

5. I have been handed a minute of consent order with only two matters which require my determination.  

6. The minute of order provides for a continuation, as I understand it, of current arrangements, but also contemplates the mother receive some psychiatric and psychological support in the very short-term.  When I say “in the very short-term” I mean as soon as possible, but I would have to say that as soon as possible might not be very soon because these services may not be readily available.  It is important that the mother immediately take steps to obtain the treatment so that she can start that treatment as soon as possible.

7. A matter not addressed in these orders is concern about the possibility of the father undermining of the mother’s parenting of the children, his influencing the children against the mother and his destabilisation of the mother’s parenting.  The gist of the mother’s case, in summary and as best I understand it, is that the father is passively aggressive and resolute in his desire to undermine her relationship with the children.  One means of doing so is to place her under pressure of legal proceedings in Singapore and Melbourne whilst paying no child support and criticising her care of the children.  The father denies doing any such thing.  These are very difficult matters to control in orders, but they are not very difficult matters to deal with in the context of parenting orders.  I mean, they are difficult matters to regulate by orders, but they are not difficult matters to take into account when making final orders.  I am not in a position to make any findings of fact at this juncture and do not so in relation to contested matters.  As stated, I have not finally decided any issue.

8. I have not heard evidence from the parties.  All of the evidence which I have is untested.  The father staunchly denies any of the sinister motives which have been attributed to him by the mother and which the family consultant has opined could be a possibility.  However, I make these comments so that the parents know that both of them are under scrutiny during this interim period.

9. I will make orders by consent in the terms of the minute. 

10. In relation to the matters that I am required to decide, one related to B travelling to and from school whilst she spends time with the father.  She goes to school in Suburb R, C goes to school in Suburb F, and the father lives in Suburb N, although he is likely to move quite soon.  When he does move, he thinks he will move somewhere close to Suburb F so as to be close to C’s school. 

11. The father says he has little income, has not been able to get a full time job, although he has got some part-time employment at the moment, and he does not have a car.  When his partner from Singapore joins him in Melbourne, she gives him money.  Otherwise the father is supported by his family who live in Sydney.  He says that his family will not be able to continue to support him but that they are currently paying his rent of more than $2,000 per month.  He says that it is difficult for him to be in two places at once to collect the children from school in two different areas.  That may be right, but many other people manage to coordinate the collection from and the delivery to school of children in disparate areas.  A solution is that, for as long as necessary, the father pays for after school care for C and collects C after he has collected B from school.

12. In discussion with the independent children’s lawyer, the father and the mother, it appears that there is now agreement that as of 1 March 2019, B will be able to travel independently by public transport to and from the father’s residence for the purpose of spending time with the father.

13. It is agreed that from 1 March 2019 B will commute independently to the father’s residence.  In the event that he changes residence, there will be a further settling-in period of a month, when the father will accompany B to and from school on the days on which she spends time with him. 

14. The matter which remains in contention is paragraph 11 of the minute which provided that:

    The independent children’s lawyer be at liberty to provide the following documents to any of the children’s treating practitioners and any psychologist, psychiatrist or counsellor the mother may attend upon.

15. The documents were the assessments of Dr P, dated 26 February 2018 (of the father) and 4 October 2018 (of the mother), the family report of Ms L, dated 27 September 2018, an earlier child and parent issues assessment by Ms W, dated 10 July 2017, a transcript of today’s proceedings and, finally, these reasons for decision.  The only reports that the parties have difficulty about are the psychiatric assessments by Dr P, dated respectively 26 July 2018 and 4 October 2018.

16. The father’s position, as will be disclosed in the transcript of today’s proceedings, is that there are inaccuracies in the reports of Dr P, and he takes exception to those inaccuracies where they pertain to him and also in instances where they pertain to the mother. 

17. From the mother’s point of view, she says that if a clinician whom she consults for therapeutic purposes has Dr P’s reports, that will mean that the clinical work is not going to be based solely on the practitioner’s impressions of her.  That the practitioner may be contaminated by the prior views of Dr P and, most importantly, the mother has not and will not have an opportunity to adduce evidence to address many of the matters raised by Dr P.

18. In terms of the mother’s concerns, I fully respect that there will be a relationship which is therapeutic in nature, and I would not want to do anything to undermine that therapeutic treatment.  By the same token, however, the stakes in this case are high.  I am satisfied that unless the mother’s clinician has the reports of Dr P, the mother’s clinician is not going to know what in colloquial terms “the mother is up against”.  That is, he or she will not appreciate how the mother was motivated to see him or her in the first place.  Of course, reality testing is not necessarily part of a therapeutic relationship but it might be, and in the event that it is, the start of reality testing the mother’s perceptions is to have regard to the previous expert evidence in the case.  It is context rather than pre-judgment.

19. The matter has been adjourned from a final hearing, in part, to permit the mother to undergo treatment and receive such therapy as she considers appropriate.  When I order, as I will, that Dr P’s reports on both parties be provided to the relevant clinicians, I am not doing so with the interests of the father or the mother first and foremost in mind, but the interests of the children as the paramount consideration. 

20. I am satisfied that providing Dr P’s reports as proposed will render more authentic treatment for the mother, which treatment I note is not only in relation to certain aspects of her personality, but apparently to address certain trauma to which she has previously been subject.  I am satisfied that the interests of the children in these proceedings require that course to be taken and I will make orders accordingly.  Therefore, in the engrossed minute of order, paragraph 11 as amended should be referred to as an order which is made by the Court and not by consent.  The transcript of today’s proceedings will accompany this decision.

21. There is another provision in the orders that somewhat bothers me.  It is paragraph 7, and it provides that:

    If the mother attends upon a psychologist, psychiatrist or counsellor, the mother provide the names and contact details of the said professionals.

    Clearly the independent children’s lawyer needs to know those from whom the mother receives treatment in order to be able to forward the reports to that psychiatrist and/or psychologist.  However, I do not think it is incumbent upon the mother to announce to the independent children’s lawyer and the father every psychologist or psychiatrist or counsellor she sees because, quite frankly, she might see one that she does not want to proceed with, and she should not thereby feel locked into any treatment relationship of which she does not want to be a part.

22. The independent children’s lawyer has clarified that it was only ever intended that the independent children’s lawyer know the identity of the practitioners, but, at the end of the day, I think that is difficult.  I cannot see that the independent children’s lawyer or the mother could sustain knowing material facts in this case of which the father is not be made aware.  So I will amend paragraph 7 to add the words “so as to facilitate the provision by the independent children’s lawyer of documents  as provided for in paragraph 11”, but add after the word “counsellor” in the first line “upon whose evidence she will rely at the final hearing”.  So now it reads that:

    In the event that the mother attends upon a psychologist, psychiatrist or counsellor upon whose evidence she will rely at the final hearing, the mother provide the names and contact details of the said professionals to the independent children’s lawyer so as to facilitate the provision by the independent children’s lawyer of documents as provided for in paragraph 11.

23. In amending the order in this manner, I am not requiring the mother to provide details of all clinicians she attends upon, unless she is going to rely upon their evidence at the final hearing.  It goes without saying that if the mother relies upon their evidence at the final hearing, the father will know their identity because there will be evidence from them. 

24. Finally, I have to adjourn the matter to a mention date, and it seems to me that that would be about six months hence.  That is in line with what the family consultant and Dr P have considered.  So we are looking at May.  I will make the mention date 22 May – I am actually out of the registry until that week – at 9 am, estimated to take 40 minutes. 

25. This being an interim parenting matter in which I have made orders, section 61DA is engaged.  That provides that:

    When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.

    At the moment there is no order allocating parental responsibility, so each party has parental responsibility.  The operative presumption in favour of equal shared parental responsibility can be displaced in interim proceedings.

1. From my current vantage point, it seems highly unlikely that this is a matter where the parents will be able to conduct themselves appropriately as holders of equal shared parental responsibility.  There may have to be, at the very least, a division of parental responsibility.  At most an allocation of sole parental responsibility to one parent as a result of the final hearing.

2. This is very much a case yet to be started and one in which no findings of fact have been made, or the evidence tested at this stage.  I commend the parents for coming to a constructive agreement today.  The children will benefit from a pause in the proceedings.

3. I am satisfied that the orders which I have made are consistent with the best interests of the children.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 30 October 2018.

Associate: 

Date:  12 November 2018