In the recent case of Miyajima & Mikkelsen, the Appeal Court had to consider whether an Order requiring the father to engage in psychological therapy ‘to address and manage his depressive disorder’ as well as complete two accredited programs before the children could spend time with him was suitable.
The history for this family was that final Orders had been made in 2018, providing for the children to spend substantial and significant time with the father. In December 2021, the father assaulted the middle child on two occasions in the presence of the other two children. The father pleaded guilty to common assault and the mother withheld the children from spending time with the father.
The trial judge accepted that the father posed an unacceptable risk to the children; but found that the children would not be placed at an unacceptably high risk of physical and psychological harm if they spent time with the father with ‘safeguards’ in place.
The Appeal Court said that there were essentially two fundamental difficulties with the Order made by the trial judge.
Firstly, that it is unclear what the word ‘engaged’ means. From the words used in the orders, ‘engaged’ seemed to be different to ‘completing’ such treatment. Thus, the Appeal Court said, is it that the Order is satisfied if the father engages in therapy, albeit entirely unsuccessfully; or does it simply mean he is to employ a psychologist? Does he need to attend a session only for a few minutes?
Secondly, to the extent that the psychologist is required to confirm that the father no longer requires psychological therapy, that must be a conclusion that the therapy has been such that the father no longer poses an unacceptable risk of harm to the children. So understood, that order is a devolution of the Court’s power to the psychologist, who is in effect making a finding as to the acceptability of the risk of harm posed to the children by the father.
The Appeal Court referred to the principles identified in the 2023 decision of Lainhart & Ellinson and confirmed that ‘Courts must take the litigants as they find them … Courts are not, and cannot operate like, therapeutic agencies, using litigation as the vehicle to meddle by making aspirational directions about how litigants should improve their parenting capacity in the hope of enhancing their children’s familial experiences.’
The Appeal Court sent the matter back for the arrangements to be redetermined.
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