FLAST CASE SUMMARY:Herbert & Herbert (No. 2) [2019]-Children – Parenting – Interim

Herbert & Herbert (No. 2) [2019] FamCA 79 (22 February 2019)

We posted a case summary in February that involved a 15-year-old boy who was ordered to live with his father. The boy does not want to reside with the father, gets on his pushbike, rides home to his mother repeatedly, and refuses to leave. 

The mother tries to take the child back to the fathers house multiple times, only to have the 15 year old jump on his bike and return back to her. It was established the mother contravened orders and visitations between her and the children were ceased

Here is the link to refresh your memory

FLAST CASE SUMMARY: Herbert & Herbert [2019] FamCA 5 (10 January 2019)

This is now the follow up case to that where the mother who is self representing now seeks a number of orders on an interim basis. This includes but is not limited to, variation of interim parenting orders for the children to return to her care on the lead up to trial, for the ICL to be discharged and the Psychologist the father and children are attending to be restrained due to ‘conflict of interest.”

FACTS SUMMARY

• The mother is presently restrained from seeing or contacting her two sons.
• The mother seeks interim parenting orders varying the current routine to return the boys to her care in the lead up to the trial.
• The mother seeks that the ICL be discharged.
• The father and the two boys are attending a psychologist for family therapy.
• The mother seeks to terminate the psychologist from providing family therapy to them, she claims there is a “conflict of interest,” - the father and psychologist work in the same building and share the lunchroom- claims the psychologist is lying to the court about it.

ISSUE

• Has there been a significant change to warrant the boys living arrangements to be varied in the interim to the Mothers care?
• Has the ICL not been discharging her duties independently and professionallyto warrant dismissal?
• Is there a conflict of interest to permit the dismissal of the Family Psychologist?

HELD

It was determined during the previous orders the 15 year old boy had missed a significant amount of school whilst in the mothers care, the court is presently satisfied the boys have been attending school whilst they are in the fathers care, the ICL asserts that there should be no change to the existing orders for the present time.The mother did not provide acceptable evidence to change the boys living arrangements to return to her care. The application was dismissed.

Furthermore, in relation to the matter of terminating the current ICL in favour of a new one, the mother did not sufficiently demonstrate that the ICL is not discharging her responsibilities independently and professionally. It was stated that it’s not an adequate reason to discharge a ICL just because they are not acting in a way that agrees with the parents’ expectations.The application was dismissed.

Moreover, the evidence specified by the mother does not warrant restraining the psychologist from seeing the father and the children. However, the Judge informed the mother that she has an opportunity to challenge the psychologist in cross-examination at the trial if she wanted to try to discredit her. The application was dismissed.

In conclusion, the judge informed the mother that this matter may be resolved without the need to go to trial if she had a family lawyer advising and representing her; she was directed to the QLD Law society to seek assistance in locating a possible family lawyer who may represent for her trial on a deferred payment basis.

#Parenting #Interim