Abraham & Abraham

[2025] FedCFamC1F 93

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Abraham & Abraham [2025] FedCFamC1F 93

File number(s):	PAC 2635 of 2023
Judgment of:	RIETHMULLER J
Date of judgment:	10 February 2025
Catchwords:	FAMILY LAW – EX-TEMPORE – EVIDENCE – Expert evidence – Whether single expert should be discharged – Where respondent contends single expert was biased and failed to read all the relevant documents –Where report does not address the applicant’s criminal history – Whether child should be reintroduced to applicant through family therapy – Single expert report to be provided to family therapist – Application to discharge single expert dismissed – Interlocutory injunction granted – No matters of principle.
Division:	Division 1 First Instance
Number of paragraphs:	19
Date of hearing:	10 February 2025
Place:	Parramatta
Counsel for the Applicant:	Mr Gardiner
Solicitor for the Applicant:	Mistryfallahi Lawyers & Business Advisors
Counsel for the Respondent:	Mr Stapleton
Solicitor for the Respondent:	Watts McCray Lawyers
Counsel for the Independent Children's Lawyer:	Ms Trad
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW Penrith

ORDERS

PAC 2635 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ABRAHAM

Applicant

AND:

MR ABRAHAM

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	RIETHMULLER J
DATE OF ORDER:	10 FEBRUARY 2025

THE COURT ORDERS THAT:

1.Forthwith, the parties be restrained by injunction from causing the child, Y, to attend upon Dr B, until further order of the Court. 

2.Any application by the Father for Dr B to resume treatment of Y be supported by a detailed report of her involvement, her therapeutic plans, what milestones if any they have reached and what her proposed therapeutic intervention will be.

3.The Application for Dr C to be discharged as the Single Expert Family Report writer in these proceedings is dismissed.

4.The parties be at liberty to provide a copy of Dr C’s Single Expert Report dated 11 October 2024 and any addendums to Dr B and Ms D.

5.The parties be at liberty to provide such other documents filed or subpoenaed in the proceedings to Ms D as may be significant for her if she is to undertake Family Therapy.

6.The matter is listed for further Case Management Hearing on 17 February 2025 at 9:30am (by Web Conference).

7.Should the parties reach a consent position with respect to Trial Directions they are at liberty to provide a copy of the same in word format by way of email prior to the next return date for consideration in Chambers.

8.Costs be reserved.

NOTATION:  

A.The parties are requested to ensure they do not provide Ms D with an overwhelming number of documents but only documents that go towards matters pertinent to the involvement she may have. 

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Abraham & Abraham has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX-TEMPORE REASONS FOR JUDGMENT

RIETHMULLER J:

1. This matter concerns the care arrangements for a child who is now 10 years of age, the younger of two siblings, the older of which is now 16 and beyond an age where (in the context of this case) he is amenable to orders about the parenting dispute. The matter was commenced in the court in January 2023. It has had a long history of the younger child being resistant and becoming emotionally overwhelmed to contact with the mother. This has led to various interventions. Primarily, the father arranged for him to see a psychologist, Dr B, whom he has seen a number of times, without, it seems, any significant impact upon his concerns about fear of his mother and his very significant emotional reactions to that.

2. Dr B declined to see the mother or speak to her, despite the extensive involvement with the child. There is, in Dr B's affidavit, a brief mention of one program that she was attempting with the child, but there is no discussion of what her treatment plan was, what her assessment of the child was, what milestones she expected to achieve in particular times, whether those milestones were achieved, or the reasons that those milestones may not have been achieved. What does appear clear from all of the material is that there have been no inroads made into the child’s emotional response to the idea of seeing his mother. Added to this are some concerning matters set out in Dr C’s report recounting what he was told by Dr B. Those matters are set out at [117]–[119] of Dr C’s report as follows:

   [117][Dr B] was asked to outline her experience working with children embroiled in Family Court matters and she was only able to cite one other matter (though did indicate that both parents were involved in communicating with her in that matter). [Dr B] indicated that she had contacted the Australian Psychological Society (APS) for guidance on navigating a matter of this complexity, but said that no one responded to her enquiry. [Dr B] was asked when she first became aware of this being a Family Court matter, she said it was during the initial consultation with [Mr Abraham].

   [118]When asked whether at that point she had requested [Mr Abraham] to indicate to her whether there was shared parental responsibility for the children or to provide her with any relevant Court Orders, [Dr B] indicated she had not. Having been informed that this was an active matter in the Family Court, [Dr B] was asked if that altered her approach, particularly with respect to the two (2) ‘To whom it May Concern’ letters she authored, both dated […] March 2024, she said ‘probably not’, but did regret not having requested the Court Orders from [Mr Abraham].

   [119]When asked on her awareness of, or whether she had re-read the APS’s Ethical Guidelines on working with Young Persons, [Dr B] said she had not consulted that, preferring instead ‘to have someone from the APS talk her through the process’. The Court should note that APS Ethical Guidelines are quite clear in expecting psychologists to inform themselves of Court Orders when they become aware that a child they are seeing in involved in a Family Court matter. The APS also clearly expects psychologists ‘wherever possible to consult with both parents’. The appropriateness of this practitioners ongoing involvement will be addressed in the recommendations.

   (Emphasis in original)

3. Dr B has given a number of short reports over the time, most of which are headed “To whom it may concern” and are very brief, which leads one to question the extent to which she has been involved in litigious or family matters which concern is consistent with the comments of Dr C. Dr C’s conclusions are set out at [206] with respect to the involvement of Dr B, where he says: 

   The current assessment has found that [Y] is experiencing profound levels of emotional distress as a direct result of the parental conflict to which he has been exposed. The level of [Y’s] distress at the time of the interview was very concerning, and provides a very strong indication that he will require ongoing individual therapy which can help him process his emotions in a safe and supportive environment, away from the influence of other family members. The therapy should aim to help [Y] navigate the confusion, guilt and fear he is experiencing as a result of the fractured parental relationship he has with his mother, and work to reduce his deep reluctance to engage with her. It is apparent that the current psychologist with whom he consults is not sufficiently trained for or experienced in high conflict family court matters to have been of assistance, and to the contrary in light of her partisan approach and active exclusion of the mother only appears to have made matters worse for [Y]. This should be discontinued.

4. Unsurprisingly, in the light of this, the mother seeks orders that the child no longer be allowed to attend upon Dr B as the child’s psychologist in this matter.

5. The matter is complicated somewhat by the cross-application by the father that a new family report be obtained, and the family report prepared by Dr C not be able to be relied upon.  This rests on two primary arguments, although during oral argument, further arguments were developed. The first is that it appears that the list of documents that Dr C set out in his report as documents he had received, which number 1–58 on pages 4–6 of his report, do not contain all of the documents as listed in the Independent Children’s Lawyer’s letter of instruction. It appears that the ICL placed documents in a shared cloud drive, to which Dr C was given access. Precisely what has happened, and whether or not Dr C saw the additional documents in that shared drive is unclear, although the report of Dr C does list at [39] on page 5 an entry, ‘ICL Exhibit Index’. Exactly what that is intended to refer to is not clear to me.

6. It does seem, however, that at least some of the police subpoena material that was in the ICL’s list (but not specifically in the list of Dr C) was considered by him, (which material I assume was in the shared cloud drive set up by the ICL), as at one point, Dr C notes some information from police subpoenaed material. The evidence before me today does not enable me to make a specific finding about that. A very large amount of material was sent to Dr C.  I have not been addressed upon whether any specific entries in it were critical to the report that Dr C was producing, and nor has Dr C been asked about whether this is simply an error in compilation of lists and if he had looked at all of the documents that are in the drive. Experts of this type are constantly flooded with hundreds of pages of documents to review in preparing their report and unless there is something of significance in the material that he has not noted, it is not a matter of great significance.

7. Given the nature of his report, running to some 213 paragraphs, and the many critical discussions contained within it, it does not have the appearance of a report prepared haphazardly, nor one done upon skim-reading material. The father also points to the fact that Dr C did not have the benefit of a judgment in the local court where a magistrate found the mother guilty of assaults against the eldest child and against the father. Dr C, in his report, appears to have been careful to avoid traversing the detail of that issue, given that there were criminal proceedings pending. That material can safely be given to Dr C to consider now. It does not appear to me that that, in isolation, would provide a basis for not accepting his report into evidence, rather than a basis for him to be given that material and asked to provide an addendum.

8. Counsel for the father was also careful to go through the report and the statements that were made in it, in an attempt to show that Dr C had become partisan and not brought an independent mind to preparing the material. For example, he contrasted [18] of the report, where the father recounted what the mother told him about criminal law proceedings, with another part of the report, where the father was asked not to discuss the criminal law proceedings because they were still before the court:

   [56][Mr Abraham] was questioned as to how he had prepared the children for the interview, to which he indicated he had shown the video provided to [Y], and stated ‘they understand what today is about. What time they want to spend with both parents. [X] was cross-examined in the criminal court for over an hour. The police prosecutor was disgusted that a parent would do that to a child. I was disgusted’.

   Comment: [Mr Abraham] was warned that he was not allowed to speak of the criminal matter as it had not been finalised. Despite this, he did try to raise this subject a number of times across his interview.

9. The argument also includes claims that Dr C’s interactions with Dr B were curt and confronting for Dr B. It seems that that may well have been at the very least her perception, if not perhaps the reality, given what was said at paragraphs [117]–[119] of the report that I have set out above.

10. At core, this case concerns a 10-year old's resistance to seeing his mother.  The reasons that the 10-year-old gives, at least to [Dr C], are set out at [95] and [96] of the report as follows:

    After recovering from his emotional outburst, [Y] was asked if he understood why he felt so sad. He replied, ‘because I don’t want to see her face because she was so rude, it was so rude’. When asked what he felt his mother has been rude about, [Y] was unable to say or provide any examples of why he felt this way or what he was referring to. It is strongly believed that he does not have the emotional maturity to understand the distress he is experiencing and that it has no reached such a level that it has become overwhelming for him.

    [Y] was asked to recall some positive experiences he had during his childhood.  He recalled that he had ‘picked vegetables with Mum. We picked tomatoes, corn and something else I can’t remember’. He then returned to crying audibly, ‘she’s the devil because she is so rude. She’s done so much stuff… I can’t remember everything. She pushed Dad down the stairs, [X] went up and pushed her away from Dad… Dad could have died’.

11. The incident of the mother pushing the father, at least as found by the state magistrate, was that she pushed him in the back when he was at the top of, or near the top of the stairs, when the elder child, X, was coming up, and the father grabbed the rail. It does not appear to have gone further than that.

12. The incidents involving X, for which there were convictions, were also relatively minor assaults. One was said to have been throwing a cooking utensil and/or a potato at the child, and throwing a pot on the ground, and another in a similar vein. I note that the magistrate recalls that at least precipitating one of these incidents was the child remarking to his mother when asked if he wanted more food that he didn’t “fucking want anymore” which one would imagine would have tempers flare in any household. None of this excuses assaults but they must of course be seen in context.

13. When one returns to what the child has said, as recounted by Dr C, it is difficult to understand how this has brought about the levels of distress that the child expresses about the idea of seeing the mother, for example, at [94], where it was said:

    [Y’s] responses provided a strong indication that he had been witness to physical altercations during disputes within his family context. His interview was dominated by his wish to continue to report the times his mother had hit members of the house, and in doing so he appeared to become increasingly distressed, crying audibly. [Y’s] level of distress was disproportionate to the neutral nature of the questions asked and the overall tone of the interview, and despite repeated attempts, it was not possible to divert his focus to other topics to help him regain his composure. Therefore, due to his level of distress, [Y] was supported in helping him to regulate his emotions and time to recover before continuing with his interview. [Y’s] emotional outburst appeared to be a manifestation of his profound anxiety and sadness, likely rooted in the highly adversarial home environment in which he has been raised and potentially heavily and repeatedly reinforced by his father’s negative views of his mother. His inability to contain these emotions during his interview suggests significant emotional dysregulation, where he is not able to manage or regulate his emotional responses under stress. This behaviour is indicative of emotional flooding, where the intensity of his internal distress overpowers his ability to cope, despite the non-threatening context of the interview. It reflects the pervasive psychological distress that [Y] is experiencing, which appears to be generalised but has been further exacerbated by the specific trigger of attending the interview and having to speak about matters relating to his family.

14. Dr C did set out earlier some more details about the matters that were in the criminal court that the child had recounted at [93] as follows:

    When asked about spending time with his mother [Y] stated ‘my mum has done heaps of bad stuff to Dad and [X]. She might do that to me. She might punch me or yell at me’. He then stated that he was afraid that [Ms Abraham] would harm him, explaining ‘she punches Dad in the back when he snores and I saw her hit [X] with a potato spoon because he didn’t want food’.

15. It seems to me there is a considerable force in the concerns by Dr C that the child’s reaction appears out of all proportion with what is said to have been the behaviours of the mother and whilst those behaviours may well make the child resistant in a general sense to time or upset or angry with his mother, it does not seem to explain the extent of the reaction of the child, nor that the child would, after a number of sessions with a psychologist, still be so emotionally labile and so resistant. I am not persuaded that the passages that are pointed to in submissions are sufficient to result in orders that the report not be relied upon. The report writer can be cross-examined at length. He can have this further material drawn to his attention and a further addendum asked for, if need be. To order another report would require the whole family, including the child, to go through another set of interviews and would inevitably involve considerable cost and delay, which it seems to me is not warranted in this case.

16. In these circumstances, I am not prepared to make orders for a new single expert. This does not stop the father obtaining expert advice about the report that may be the basis for instructions for cross-examination and, indeed, might even be the basis for an application for a competing expert to give evidence, if it comes to that. However, those are all matters to be dealt with at the hearing.

17. I return then to the question of Dr B. Given my views with respect to Dr C’s report remaining the single expert report, and the further matters that I have outlined that are set out in Dr C’s report, I remain very concerned as to the nature of the interventions that Dr B is setting out. She filed an affidavit in these proceedings but has not set out the therapeutic plan or assessment from the beginning of her sessions with the child, has not addressed her refusal to see the mother, has not set out her current therapeutic plan, nor any milestones or any improvements in the child’s presentation that are said to have occurred as a result of her involvement.  It appears to me that that, coupled with the material from Dr C, shows that there is real risk that the involvement of Dr B is at the very least doing no good, and at worst causing further harm or entrenchment of the difficulties.

18. I do not have material from Dr B directly addressing these matters, and therefore, I am not persuaded to make a permanent injunction restraining her from seeing the child.  Instead, it seems to me that the appropriate course is to issue an interlocutory injunction restraining the parents from having the child attend upon Dr B until further order.  Should the father wish Dr B to continue, he can arrange for her to provide a detailed report of her involvement, her therapeutic plans, what milestones, if any, they have reached and what her proposals for further therapeutic intervention are.  That can be considered by the parties and, if agreement is not reached, the case can come back before me.

1. I am not persuaded of the fact that Dr C had the assistance of another person in the interviews or that that other person may have asked some questions. The point of the interviews was to enable Dr C to form a view about the presentation of the parties and their levels of insight and engagement, which clearly was what was the focus of his report. Again, this is a matter that can be suitably addressed in cross-examination.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Riethmuller.

Associate:

Dated:21 February 2025