Bannerman & Bannerman (No 3)
[2023] FedCFamC2F 969
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bannerman & Bannerman (No 3) [2023] FedCFamC2F 969
File number(s): MLC 3796 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 3 August 2023 Catchwords: FAMILY LAW – application for recovery order – where child overheld contrary to court orders – where child to live with the father – where child making serious allegations against the father – where child threatening to harm the father – where mother not facilitating contact between the child and the father – orders for the child to live with the Father – orders for a moratorium of time between the child and the mother – least worst outcome – balance of competing risks to child’s welfare – allegations of “chaotic enmeshment”. Legislation: Family Law Act 1975 (Cth), ss 4, 60CA, 60CC, 69ZL. Cases cited: CAO & CAO [2018] FamCAFC 252; (2018) FLC 93-880.
Eaby & Speelman [2015] FamCAFC 104.
Goode and Goode [2006] FamCA 1346, (2006) FLC 93-286.
Isles & Nelissen (2022) FLC 94-092.
Re C & B (Children) (Care Order: Future Harm) 1 F. L. R 811.
Rice v Asplund [1978] FamCA 84; (1979) FLC 90-725.
Division: Division 2 Family Law Number of paragraphs: 93 Date of hearing: 1 August 2023 Place: Melbourne Counsel for the Applicant: Mr G. Glezakos Solicitor for the Applicant: J S Law Solicitor for the Respondent: Litigant in Person Counsel for the Independent Children's Lawyer: Ms E. Tiernan Solicitor for the Independent Children's Lawyer: KS Family Lawyers ORDERS
MLC 3796 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BANNERMAN
Applicant
AND: MS BANNERMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
1 AUGUST 2023
THE COURT ORDERS THAT:
1.Until further order, the Father have sole parental responsibility for the child X born in 2008 (“the child”).
2.Until further order (“the moratorium”), the Mother, her servants and/or agents be and are hereby restrained from spending time with or communicating with the child by any means, including mail, telephone, email, text message or social media.
3.The Father do all acts and things to enable the child’s attendance at C School as soon as practicable and attend upon Ms D, treating psychologist.
4.Until further order the child live with the Father AND IT IS DIRECTED that the Father attend upon Court Child Services this day and collect X from Court Child Services.
5.The Mother, her servants and agents, forthwith leave the Court and environment of the Federal Circuit and Family Court of Australia and vicinity of 305 William Street, Melbourne VIC 3000 and do not enter further within 500 metres of 305 William Street, Melbourne VIC 3000 now.
6.For the personal protection of MR BANNERMAN born in 1965 and X born in 2008 (collectively referred to as “the protected parties”), until further order the Mother MS BANNERMAN born in 1969 is restrained from:
(a)assaulting, molesting, harassing, stalking, abusing or otherwise interfering with the protected parties;
(b)entering upon or loitering near the premises known as B Street, Town E, Victoria or any other premises at which the protected parties are residing, employed or attending for the purposes of education;
(c)entering or contacting the place of work or the school of the protected parties in any manner whatsoever;
(d)taking X born
in2008 out of the State of Victoria;
7.The parties be at liberty to provide a copy of these orders to the Magistrates’ Court of Victoria, Victoria Police, the Australian Federal Police and the child’s school.
8.The Independent Children’s Lawyer be at liberty to provide a copy of these orders to any SOCIT officers that have interviewed X and to CP forthwith.
9.The evidence of Dr F in court this day be transcribed and a copy provided to each of the parties.
10.The Independent Children’s Lawyer is permitted to communicate with Dr F with respect to this case as the Independent Children’s Lawyer thinks fit.
11.In the event the matter does not proceed for Final Hearing in October 2023, the parties have liberty to apply on short notice.
12.All extant applications dismissed.
AND THE COURT NOTES THAT:
A.The Mother’s application for an adjournment this day was dismissed.
B.The child X was brought to the Court this day to Court Child Services on level 5.
C.Section 102NA was discussed with the Mother this day.
D.The matter remains listed for Final Hearing commencing 16 October 2023.
E.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
F.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
G.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
H.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
I.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION
These are short reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’) relating to an interim decision concerning X born in 2008 and now almost 15 years old.
Pursuant to my orders from the previous Friday, 28 July 2023, X had been brought to Court Child Services (‘CCS’) at the Melbourne Registry of this Court at 10:30am this day by his mother, while his parents tended to an interim hearing before me. On Tuesday, 1 August 2023, at 1pm, I made what can be described as drastic orders requiring X’s mother, Ms Bannerman (‘the Mother’) to leave the vicinity of the Court and for X’s father, Mr Bannerman (‘the Father’) to collect him from CCS.
Because of the pressure of time I reserved my reasons and these are my reasons for making those orders on Tuesday.
BACKGROUND
By way of background, on 30 March 2023 a Senior Judicial Registrar (SJR) had ordered that X spend time with his mother during school terms, each Friday from after school until 4pm Saturday in each week and on each Tuesday from 3:30pm-7:30pm and for additional time during school holidays (‘the March orders’). X was to otherwise live with the Father.
The matter came before me for urgent hearing on Tuesday, 25 July 2023 (‘the first Tuesday’). On the first Tuesday the parents and the Independent Children’s Lawyer (‘ICL’) were represented by counsel. The matter, which then also involved interim property issues as well as child welfare issues, had been stood down for discussions. Outlines of case had been filed providing lists of documents to be relied upon.
In the course of their duties, my associates identified a memorandum from Child Protection Melbourne Family Law Liaison (‘MFLL’) addressed to the Court dated 12 July 2023, that is not quite two weeks earlier. It became apparent to me that the parties may be unaware of this memorandum and I directed my associates to provide a copy of that memorandum to the parties counsel on the usual undertaking in regard to Child Protection documents. The memorandum, in summary manner (as is the usual practice and purpose of MFLL memorandums), referred to an interview a month earlier on 27 June 2023 between Child Protection and the Mother and X and included the observation, “Child Protection assessed that X should return to his father’s care pursuant to family law orders and that it appeared that Ms Bannerman was likely projecting her views of Mr Bannerman and influencing X”.
It transpired that at least some of the parties were unaware of this assessment by Child Protection and it was common ground that the ICL should place that memorandum before Dr F (who had very recently undertaken family report interviews and released a report) for him to have the opportunity to comment upon it. On the first Tuesday, it was expected that would all be able to occur by the following Friday and that Dr F would be available to either provide a further short written memorandum or give oral evidence at that time. The matter was adjourned to Friday, 28 July 2023.
Anticipating that the very brief and summary nature of the MFLL memorandum may cause at least one or more of the parties grief upon the return, my associates emailed Child Protection requesting, among other things that:
·Any further detail or information (in writing or short oral evidence) regarding those matters would assist the court; and
·The court also requires confirmation again about the Department’s recommendations and if it changes in any way following the content of the Family Report.
The context to that request was that the parties intended that Dr F’s family report be released to Child Protection. Dr F’s family report had, with considerable circumspection, recommended that the child “temporarily” live with the Mother and spend time with the Father at a contact centre. Further, that the Mother undertake psychiatric assessment and treatment and that X engage in a full mental health and risk assessment by an adolescent medical specialist.
Early on the adjourned date, Friday, 28 July 2023 (“the Friday’), my chambers received a detailed memorandum from Child Protection dealing with those requests. On the morning of the Friday the memorandum was made available to counsel on the usual undertaking. It then transpired that Dr F wasn’t available that day to look at the material and/or provide an opinion about it. Again, at the request of all parties, the matter was adjourned to Tuesday, 1 August 2023. I was also persuaded, at the joint request of all parties, to make an order that X be delivered to CCS at the Melbourne Registry of this Court.
New facts and circumstances: X does not return and threats to kill
Pursuant to the March orders X had gone into the Mother’s care on Friday, 23 June 2023 and was due to return to the care of the Father on Saturday afternoon the following day. He did not return to the Father’s care on that day or on any day thereafter, despite what appeared to have been attempts by X’s parents to affect a changeover into the Father’s care. On the Sunday morning, the day after he was due to return to his Father’s care, an email was sent from X’s email address to the ICL that asserted that he wanted to kill himself and his father.
The scheme of the March orders was that they would apply, subject to any further application, until the final hearing listed for October 2023. No one expressly raised the principles of Rice v Asplund [1978] FamCA 84; (1979) FLC 90-725.However implicit in the case of all of the parties was the circumstances of X not returning and the email of Sunday morning were new facts and circumstances that had arisen since the last orders had been made that justified the revisiting of those orders and I accepted that was so.
Different orders sought by the parents
The Mother sought orders in her outline of case to the effect that she have sole parental responsibility for X, that X lived with her and that the Father spend time with X as agreed between the parties in writing taking account of X’s wishes.
The Father sought orders among others, in his outline of case for:
·The Mother return X to the care of the Father immediately;
·The Father have sole parental responsibility for X;
·X live with the Father and there be only supervised time between the Mother and X;
·A psychologist and assessment be arranged for the Mother and X with written reports obtained;
·The Mother undertake psychiatric assessment and treatment to determine a capacity to care for X safely and appropriately;
·The Mother undertake psychological counselling and assessment; and
·X undertake a full mental health and risk assessment by an adolescent medical specialist.
Short history and significant events
The Father is 58 years and self-employed. The Mother is 53 years and engaged full-time in home duties. X parents married in 1996 and X is one of three children, the oldest now 26 years and the middle child now 23 years. The parents separated on 17 January 2022 when X and the Mother left the former matrimonial home. One of the matters that the parents disagreed upon was the issue of COVID-19 vaccination with the Mother wanting to home school X and ensure he was not vaccinated.
The Father remains in the former matrimonial home. The Mother moved to live with her mother in another country town within travel distance of the regional city where X attended school.
The Father issued proceedings in this court with a first return date on 19 May 2022 at which time a Child Impact Report was ordered. The matter was before the SJR again on 7 June 2022 when an order was made that instead of the Child Impact Report, that a family consultant, Ms G undertake a short form Family Report. It was ordered that X spend time with his Father supervised by a professional supervisor from a family contact service but it is clear that no time occurred between X and the Father.
Short form family report
The short form family report was undertaken by Ms G over July and August 2022. The short form family report dated 30 August 2022 includes the following observations:
4.[The Mother] on the other hand appears to dispute that many of her hospitalizations were due to mental health issues and is stating that they were often due to the husband’s violent and abusive behaviour, and while she was treated for injuries she did not disclose to medical staff that the injuries were the result of abuse. [The Mother] believes that [the Father]’s abusive behaviour has had a significant impact on all three children, with [X] in particular being traumatised by his father’s behaviour. [The Mother] believed that [X] was treated abusively by his father when she was away, and that she only realized how bad things were after she had left the family home. …
5.Since the separation [he Father] has had no contact with [X] with [the Mother] stating that [X] is scared of his father and does not want any contact with him. This has included a total failure to engage with any Court ordered contact at the … Contact Centre, and [X] not attending school since leaving the family home. [The Mother] is currently wanting to have [X] reside with her, with no contact between [X] and his father. …
…
13.… [The Mother] says that she initially left the family home in January when she says it was very difficult to remain because of the change in [the Father]’s personality over the past couple of years. She says he had changed and was now “two people”, one who was very nice, and the other who was quite volatile. She said he became worse to the point of being dangerous, where she feared for her life. ...
…
15.[The Mother] says that the main problem for [X] is that he is very angry with his father, and wants his father to return various things to him … [The Mother] described them as having very little in the way of a relationship since before [X] was born, with the inference she had become pregnant as the result of a sexual assault. [The Mother] says she wanted to have an abortion, but was worn down to have the baby.
…
17.[The Mother] appears to have fairly extreme views of [the Father], particularly around the allegations he tried to suffocate her, and not being able to acknowledge he was ever a good father, but rather seeing almost all aspects of their relationship as being abusive. …
…
20.[X] also said his Dad used to hit him “really, really, hard” on both his legs and arms. He said he used to be left with a red mark, and when asked “why?” he said there was no real reason, maybe because he hadn’t brushed his teeth. When asked how often he was hit, [X] responded that it was frequently, as in multiple times a week, with him then adding it was multiple times per day. [X] said he had never seen his father hit the older kids, and that it mainly happened when his mother was away. [X] said his father would scare him to the point of having a panic attack, with his heart racing, a lump in his throat, and he would start shaking.
…
27.[X] presents as an emotionally immature boy for his age. He is articulate and certainly aware of various medical conditions and symptoms … [X] also appears to have little resilience for a 14 year old, and as such is also exhibiting little in the way of individuation, a vital step towards developing maturity and independence. [X] needs to have stable care, and at present it appears his father is more able to provide this than his mother. He also needs to be reconnected with family and friends, something which has not been happening in his mother’s care. [X] needs to be reintegrated with his brother and sister, who while living away from the family home could contribute to him feeling connected and supported through regular phone calls and visits.
28.[The Mother] needs to reconnect with psychiatric care and for a current assessment and care plan to be provided to the Court. [X] also needs to have a mental health care plan preferably with a Paediatric Psychiatrist who could also involve both parents in both assessment and treatment.
29.Any health care professionals seen by [X] must also involve [the Father] as well as [the Mother] in any treatment plans. [X] also needs to have a period of stable care, and returning to his family home would reconnect him with home, school and community. While [X] is likely to oppose this move, it is urgent that the deterioration in his situation in terms of his lack of attendance at school, deterioration in family relationships, and lack of contact with his father, be addressed as soon as possible with some time being allowed for [X] to settle. … While it would be desirable for [X] to maintain relationships with both parents in the long term, these relationships need to be positive and supportive, and not so enmeshed that [X] has taken on and become involved in supporting his mother’s extreme views, both of things such as Covid Vaccines, and her view of his father.
September 2022 Orders: X lives with Father, no time with Mother
On 1 September 2022 the SJR ordered that X live with the Father and that there be no time between the Mother and X for a period of three months.
Treating psychologist report
On 17 November 2022 a psychologist who is providing therapy to X under a mental health care plan provided a report. Ms D[1] had seen X on four occasions between 30 September 2022 and 11 November 2022, that is, during the time that he had been in his father’s sole care and with no communication with his mother. X school had been in contact with Ms D and of particular concern was an incident on 24 October 2022 where X had apparently indicated suicidal ideation. On some occasions X had been too anxious to go to school and Ms D provided strategies to assist him with that.
[1] Although not referred to in the list of materials taken into account by Dr F, the Family Report writer, it is clear enough from paragraphs 59 and 60 of the Family Report that he had regard to the report referred to in these reasons.
Ms D’s report was part of the documentation reviewed by Dr F when he came to undertake the Family Report in July of this year. Ms D observed that X had never indicated self-harm or suicidal ideation in his therapy sessions and generally presents with a positive and cheerful attitude. Ms D opined that it was likely that X’s comments were an expression of his distress of being at school. At that time Ms D’s observations included:
5. [X] initially presented with a fixed narrative that his father is an abusive man, however when he talked about alleged abusive events, he did so with no emotion, as if he was telling a story not directly related to himself. When his disclosures were met with a minimal response, he did not seem concerned, and easily moved on to other topics of discussion. [X] has been observed with his father at the drop off and pick up for the therapy sessions. The relationship observed during this time seem to be that of a typical adolescent boy with his father, with no concerns. [X] did not demonstrate any fear, and their interactions were observed to be calm and appropriate.
…
8.It is my impression that [X] has navigated the period of adjustment to living with his father reasonably well. His negative comments about his father are reducing and his attitude toward school is slowly improving…
I give some weight to Ms D’s observations.
Report Dr H, Accredited Family Violence Social Worker
In November 2022 the Mother consulted Dr H, whose qualifications include a PhD specialising in family violence,, MSP & M, BSW, and Accredited Family Violence Social Worker, for an assessment and report for Court purposes.
Dr H interviewed the Mother on 6 October 2022 with a follow-up interview on 17 November 2022. Dr H provided a detailed 27-page report dated 17 November 2022. Dr H’s report was part of the material provided to Dr J, the single expert jointly retained psychiatrist who interviewed and assessed both parties later on, and Dr J had regard to Dr H’s report.
The Court Rules provide that unless an expert witness is a treating therapist, only opinions from a jointly retained expert can be put before the court without the leave of the court. The Mother’s outline of case filed 24 July 2023, when the Mother was represented by solicitors and counsel, listed extensive material to be relied upon but did not rely upon Dr H’s report.
On Tuesday, 1 August 2023, when the Mother appeared on her own behalf, she told me that she relied on Dr H’s report, and it not being relied upon when she was represented by solicitors and counsel was another one of the matters she disagreed with her lawyers about.
Notwithstanding that the document was not jointly retained, because the document was referred to by Dr J and because the Mother asked me to rely upon it, and assuming that reliance was opposed by the other parties, I determined that I would permit the Mother to rely upon it and, in any event prior to the matter commencing, I had read Dr H’s report along with the multitude of other material. It was also important to me to understand how the Mother felt she should be assessed. My taking account of Dr H’s report will not bind or influence a Judge at final hearing.
Dr H only interviewed the Mother. Dr H was very definite and unequivocal in her assessment of the Mother and the Father and of X’s welfare. Dr H’s observations included the following:
3.This assessment reflected that (Ms B) has experienced and continues to experience the following categories of abuse perpetrated by (Mr B):
• Psychological abuse
• Emotional abuse
• Verbal abuse
• Financial abuse
• Reproductive abuse
• Reputational damage
• Physical abuse
• Coercive control
• Systems abuse
4.This assessment also reflected that (X) experienced in-utero and post-natal abuse perpetrated by (Mr B) and continues to experience the following categories of abuse perpetrated by (Mr B)
• Emotional abuse
• Verbal abuse
• Coercive control
• Maternal alienation
• Systems abuse
5.This assessment highlights that (Ms B) was and continues to be exposed to and subject to family violence from (Mr B). Use of family violence can often be supported and justified by a sense of entitlement and rigid adherence to traditional gendered beliefs. Rigid adherence to traditional gendered beliefs has been acknowledged as a primary driver of family violence.
6.This assessment highlights (Mr B)s use of tactics in perpetrating family violence against {Ms B) throughout their relationship, including before and after the birth of (X) and (Mr B)s weaponising of systems in this control. actics utilised by (Mr B) throughout this time include, intimidation and threats, gaslighting of (Ms B)'s emotional well-being, undermining (Ms B)s confidence as a mother, isolation from family, minimisation and denial of his abuse and control, victim blaming, using his male privilege and weaponising child protection processes, the education system and legal processes to undermine {Ms B)s role as her son's primary carer. These tactics are well known perpetrator tactics.
7.This assessment highlights attempts by (Ms B) to resist this abuse and ongoing coercive control. This report will demonstrate how (Ms B)s resistance has been met with increased systems abuse initiated by (Mr B).
...
30.… Family violence is supported and justified by a sense of entitlement and rigid adherence to traditional gendered beliefs. Rigid adherence to traditional gendered beliefs has been acknowledged as a primary driver of family violence. In relationships characterised by violence, it is not unusual for there to be a strong demarcation in gender roles. This was the case for (Ms B) at this time.
…
44.This above information demonstrates that prior to the birth of (X), there were numerous incidents of family violence perpetrated by (Mr B) towards (Ms B). This abuse included:
• Financial abuse
• Emotional/psychological abuse
• Verbal abuse
• Reproductive abuse
• Gas-lighting
• Controlling behaviours
• Maternal/parental abuse
• Sexual abuse
…
69.(Mr B) has used various tactics to alienate (Ms B) from the school and the school community, and in doing so, has weaponised the school against (Ms B) and minimised responses to (X) allegations of abuse by (Mr B). I now discuss these tactics.
…….
71.This demonstrates control over (Ms B) and (X) through abuse of the education department systems, through not allowing {Ms B} and (X) to participate in discussions to negotiate a solution, and manipulation of system processes to favour (Mr B).
…
92.(Ms B)s relationship with (Mr B) continues to be one of family violence perpetrated by (Mr B) on to (Ms B) and (X) and on (Mr B) attacking the mother-child relationship. The use of power and control continues to be evident in psychological abuse, verbal abuse, financial abuse, social abuse, maternal alienation and the weaponising of systems against (Ms B) to continue this abuse.
94.Family violence consists of a constellation of coercively controlling behaviours and this assessment has demonstrated a history of ongoing controlling behaviours by (Mr B) towards (Ms B) and (X). …
(Notes omitted)
I take Dr H’s observations into account as they demonstrate how the Mother felt at the time of her interview. Dr H reached clear and definitive conclusions about past events and motivations of each of the parents. On this interim hearing, and is a matter of law, I must be circumspect about factual findings in regard to disputed events. I cannot, on an interim hearing, except as fact, Dr H’s conclusions or opinions about the events of the past and the parents’ motivations. That Dr H has only heard one side of the story, but nonetheless drawn very robust unequivocal conclusions from what she has been told, means that I cannot place significant weight on her conclusions.
Supervised time ordered
On 1 December 2022 the SJR ordered that supervised time between X and the Mother occur each week with supervision each alternative weekend to be by a family contact service.
In evidence is the report of the family contact service which observed a very close and affectionate relationship between X and the Mother in the supervised visits between 22 January 2023 and 19 March 2023.
Psychiatric examination of the parties
Pursuant to court orders the parents were assessed by a single expert psychiatrist, Dr J. The Mother’s interviews took place over three sessions in February 2023, with the first in person and the last two by video conference. The same psychiatrist assessed the Father over two sessions, 16 February 2023 in person and 23 February 2023 by video conference.
Dr J examined the Mother’s psychiatric history from subpoenaed material is which included admissions to hospital of about a month in the middle of 2000, about six weeks in 2012, a time in March 2013 and a period of about a week in September 2013. The notes of Dr K show treatment from 2001 through to mid-2018 and Dr J noted that the medical notes refer to a range of diagnosis, including a mental illness.
Dr J’s observations also included the following:
3.[The Mother] provided a vague and discursive account of her formal psychiatric history. She was similarly generally rather discursive for large parts of the assessment. It appeared difficult for her to succinctly respond to direct questions; instead, she often digressed into loosely relevant content that was often difficult to redirect. She appeared to provide an abbreviated, tailored and possibly partly inaccurate account of her psychiatric history. This was later demonstrated upon receipt of the medical file notes. It is clear that [the Mother] has a significant psychiatric history with many points of contact with mental health services, often in relation to varying mental crises.
4.[The Mother] attributed her entire psychiatric history to the direct impact of what she described as an abusive relationship with [the Father]. …
Dr J’s very detailed report also considered the observations of Dr H, referred to earlier. In regard to Dr H, Dr J opined,
8.[Dr H] opined that [the Mother] was subject to family violence through tactics including intimidation, threats, gaslighting, isolation, denial of abuse, victim blaming, using male privilege, weaponizing child protection processes, the education system and legal processes to undermine [the Mother]s' role as [X’s] primary carer. [Dr H]’s detailed report provides multiple examples of different forms of abuse allegedly perpetrated by [the Father]. I am unable to provide an opinion regarding the separate elements of alleged abuse. It is perhaps noteworthy that [Dr H] states in point 34 'These tactics also demonstrate the beginning of (Mr B)s narrative of 'mental illness' in describing (Ms B)s journey to deal with the traumatic birth of her two children, and (Mr B)s gendered expectations and consistent verbal and emotional abuse over (Ms B)'. [Dr H]'s report does not reference [the Mother]'s [mental illness]. This would appear to be a notable relevant piece of information that needs to be considered in order to provide a comprehensive formulation.
…
10.[The Mother]'s prominent mental health problems have mostly been managed by her previous treating psychiatrist [Dr K]. [Dr K] managed her complex mental health problems for many years. … [The Mother] took umbrage to [the Father] liaising with [Dr K] resulting in her declining to continue with treatment. It seems likely that [Dr K] identified [the Mother] as having such extensive mental health problems that it would likely warrant enduring treatment. [The Mother] seems to have been insulted by this proposition.
11.… It is very likely that [the Mother] is mentally fit to have more unsupervised time with [X]. However, it is not possible to forecast whether similar issues may arise in the future that could lead to [X’s] mental health being compromised.
12.[The Mother] is currently not receiving any meaningful psychiatric treatment. Whilst her mental health issues may be currently relatively dormant, it is difficult to predict what may arise under specific stressors in the future. …
13.… [Dr H] has opined that [the Mother] is a victim of serial domestic violence. I am less persuaded that [the Mother]'s account to [Dr H] is entirely accurate, but I defer to the Court to examine the evidence to assist in forming conclusions. It is possible that [the Father] contributed to triggering or aggravating [the Mother] to the extent that she adversely reacted and this further perpetuated conflict. He may have also committed acts of family violence, as alleged by [the Mother]. …
Dr J, aware of Dr H opinions of the Father, did not observe anything of significance about the Father’s mental state and observed as follows:
[The Father] presented as a pleasantly mannered man who appeared to generally engage in an open and forthcoming manner. He maintained a composed mood state. He was briefly teary when he reflected on the period of separation from [X]. He appeared to be intelligent and considered in his responses. … He openly supported [the Mother]'s relationship with [X], including to the extent that he thought they should have overnight time together.
Orders for unsupervised time on 30 March 2023
Pursuant to the March orders X was spending time with the Mother each weekend from Friday after school until 4pm on Saturday and from 3:30pm-7:30pm Tuesday until 7:30pm during school term with additional time during school holidays. The Mother was permitted to communicate with X up to 6pm at all reasonable times or in accordance with X’s wishes.
It is apparent from the Family Report later prepared that the Mother requested additional times with X and the Father agreed. It is also clear that the Mother had very frequent telephone communication with X for long periods of time including early in the morning when he should have been preparing for school. The Father complains that this telephone communication was excessive and for the Mother’s own needs and was disruptive to X’s life.
Family Report dated 19 July 2023
Pursuant to the March orders the SJR had ordered that a Family Report be undertaken and that that be prepared and released by 15 August 2023. The Family Report interviews and observations were undertaken over the 10 to 13 July 2023 by Dr F. Dr F has a PhD in psychology and has worked as a counsellor and psychologist since 1994.
Over the 2 ½ weeks prior to those report interviews, X had not returned to the Father’s care, had sent the email referred to above, had been taken to changeover points by his mother (the local police station and the McDonald’s restaurant) and his parents had been unable to persuade him to leave the Mother’s motorcar to go into the Father’s care. Hence the Family Report interviews were at a time of crisis. X and the Mother were interviewed by Child Protection on 27 June 2023, that is, in the week immediately after X did not return and sent the email to the ICL.
Whether there is any connection between the crisis of the end of June 2023 with the likely stress of the pending Family Report interviews of 10 to 13 July 2023 is not known. For the purpose of the hearing I proceeded on the basis that there was no such link. The Mother tells me and I accept that from about six weeks prior to the hearing before me on Tuesday, that is from about the middle of June 2023, the Mother and her lawyers had substantial disagreement about the conduct of the property aspect of the parents dispute. As recited in the first of my reasons delivered on Tuesday when I refused the Mother’s application for an adjournment, this dispute had moved to the point of the Mother solicitors serving a Notice of Intention to Cease Acting on are about 17 July 2023, that is roughly two weeks after the Family Report interviews. Whether there is any connection between the likely stress of the disagreement between the Mother and her lawyers about property proceedings and the crisis at the end of June 2023 is not known. For the purpose of the hearing I proceeded on the basis there was no such link.
Throughout the preparation of the Family Report X refused to have anything to do with the Father at any time during the family report interviews and observations.
The Family Report identified the following issues in dispute:
-Is the mother, either deliberately or unwittingly trying to influence, if not alienate the child against the father
-Does the mother have mental health issues affecting her actions
-What is the credibility of the child’s very recent abuse claims against the father
-Child’s possible mental health issues and his related current best interests
-Parental capacity to prioritise the child’s best interests
Dr F observations included the following:
14.The respondent mother … presented in a pleasant manner, she spoke quite articulately and without contradiction, but it was noticeable that it seemed so important to her that everything she said to the writer must be believed so she gave the impression of knowing how to emotionally behave so as to garner support for her version of events, and at no time did she offer anything positive about the father, and such appeared her sole objective to repeatedly point to how emotionally vulnerable and anxiety wracked was the child purely because of the father’s abuse of him. It was also interesting that she completely downplayed her former mental health issues and was quick to refer to [Dr H]’s report to blacken the father and show her as the hapless victim of his long-term abuse of her, and as well she tended to be exceptionally minimising or avoidant of any reports/health data that was in any way questioning of her or suggestive that she may have some ongoing untreated mental health issues that may be affecting her behaviour in this matter.
15.Also so often she seemed to speak more often of her needs rather than the child’s, and indeed she repeatedly graphically referred to the child’s mental health instability, his panic attacks, his suicidal ideation as directly caused by the father, and to his complete discontent with the school and how the school was still utterly failing him, in such a way that it seemed to be more affecting her than him, and therefore she must be his saviour and everybody must understand how right she was in what she was doing against the father.
…
29.To conclude the writer formed the admittedly quite circumstantial opinion that the mother lived very much in her world of what was right and wrong for her alone, she was very fixated, and it seemed that the way she talked about the child’s needs she was really talking about her needs, and they seemed to be for her now to keep the child safe by keeping him away from the evil father, and perhaps even that now the child no longer wished to have the father in his life, he belonged to her, and then for her to very much determine what direction his immediate future might take.
…
30.The father has shown from his previous actions to be willing to bypass Court Orders, ostensibly so he thought, to be in the best interests of both the mother and child. Now that he believes the mother is so mentally unstable that she has so influenced the child that the child has been prepared to even perhaps knowingly lie and tell horrendous stories of his abuse by him, and now refuse to have anything to do with him, the father indicated he was utterly shattered and really didn’t know what to do. As such, while he still believes the child should return to his care, he also indicated that the child’s mental health may be too unstable at the moment for such to occur without the very real prospect of severe mental health consequences for the already very vulnerable child, so he first proposed some type of Contact Centre process between him and the child and/or some type of very carefully calibrated family therapy, and with such initially only between him and the child.
31.Conversely, the mother’s proposal was quite simple and she said that the child was old enough to decide where he wished to live, and currently he did not wish to see the father anymore, so under such circumstance he should be returned to her care, and then only the child should decide at some later whether he has any further inclination to see the father or have him in his life at all.
Regarding X, Dr F’s observations included the following:
37.The writer then broached the seemingly most important issue currently, that of his strong allegation of his long-term abuse by the father and was it really true or was he saying what he knew the mother wanted him to say, and he quickly responded “of course it’s true” in a quite off-handed manner, followed by “otherwise why would I say it … he used to hit me, drag me around, once he threw me off the couch and he said horrible things about me but never when Mum was there”. The writer then continued ‘but after you came back to live with Dad you went back to school every day, did really well and the school said you had made some friends and seemed so much happier than when you had been with your Mum’, and he replied that he had never been happy with the father but had been covering up all the time until he could get back to living with the mother; “Dad never listened to me, he has terrible moods and can change so quickly and I’m very scared of him”.
Dr F’s evaluation and conclusions included the following:
58.The other key questioning factors about the mother’s and child’s abuse allegations against the father is that such only seemed to begin and increase exponentially during such two times when the mother had withheld the child from the father. In particular, it might be surmised that when the mother’s initial manipulations against the father had not only failed to impress the Court but also had resulted in her having far more restrictive time with the child, the second time she withheld the child she significantly upped the ante and then made very strong abuse allegations against the father, and then one suspects that it was more than coincidental that the child then first made similar strong allegations against the father and also seemingly then suddenly his mental health plummeted and then he became increasingly reluctant to go to his current school and then also refused to see the father.
…
72.To conclude, the writer suspects that from evaluating all the materials, for reasons not entirely clear, there now appears to be an enmeshed and psychologically-emotionally unhealthy relationship between the mother and child, and it appears to be gaining its sustenance from their shared and obsessive togetherness, and their seemingly perhaps somewhat questionable allegations about the father’s abuse of them, especially that of the child, which in turn appears to be now greatly satisfying both, but while such has enabled them to live together, what worries the writer is that neither, especially the mother, showed any apparent concern about what their allegations, if not substantially true, might be doing to the father.
73.Until further investigations have been completed the child temporarily lives with the mother.
The Late Breaking Child Protection Email
This crisis and the competing applications of the parents first came before me on the first Tuesday, 25 July 2023 for an interim hearing on the papers.
I refer to the email from MFLL discussed earlier under the BACKGROUND heading. The email recorded that Child Protection had received reports of the Father’s alleged abuse of X in May 2023 and June 2023 and that the Mother had contacted Child Protection in June 2023.
The email recorded the following summary of information:
[In] June 2023, Child Protection met with [the Mother] [Ms Bannerman] and [X]. [X] advised that he did not want to live with his father, that he is fearful of him and finds his behaviour aggressive. [The Mother] was adamant that [X] was at risk in his father’s care and that he did not wish to live with his father. File records indicate that [the Mother] interjected during [X’s] interview and that [X] appeared to parrot certain phrases and statements made by his mother. Child Protection assessed that [X] should return to his father’s care pursuant to family law orders and that it appeared that [the Mother] was likely projecting her views of [the Father] and influencing [X].
Child Protection has spoken with [X’s] psychologist who advised that she had no concerns for [X] in his father’s care.
The Child Protection investigation has not yet concluded. …
It is noted that [in mid]-2023, [X’s] school reported that [X] had said that he would kill himself or his father should he have to live with his father. The school indicated concern for [X] in the context of the back and forth between his parents.
After considering that email the parties joint position was that I should not proceed with the interim hearing, but that the email and the Mother’s affidavit in reply to the Father’s affidavit should be provided to Dr F for his comments (the parties understood that Dr F would be able to provide his comments on a before the following Friday) and that the now available Family Report of Dr F should be provided to Child Protection for their assistance. I acquiesced in the joint position of the parties and adjourned the matter to the following Friday. I refer to the request for further detail sent to Child Protection discussed earlier under the heading BACKGROUND.
The Late Breaking Child Protection detailed letter received Friday 28 July 2023
Notwithstanding the very short notice and the many demands upon Child Protection and the complexity of the crisis that X was in, between the request for information on Tuesday and by, I infer, late on the following Thursday, Child Protection prepared a detailed and considered letter or memorandum about the events of their interview on 27 June 2023 and their assessment of X best interests. I am most grateful to Child Protection as an organisation and to the individual Child Protection practitioner for providing such detailed and considered information at such short notice.
That memorandum was provided to the parties on Friday morning and tendered into evidence as exhibit C2 on 28 July 2023. All parties were represented by counsel on Friday, 28 July 2023.
The Child Protection memorandum included the following information:
[X] stated that he feels that he either has to stab [the Father] or die now as there is no other way out of this situation. [X] stated that he understands the consequences of stabbing his father and understands what it means to kill someone. [X] appeared to blame [the Father] for the cause of the divorce and that he did not understand why the courts had placed him with [the Father]. At times [X] appeared very rehearsed in his responses. … [X] appeared to have limited insight to the gravity of these statements, despite saying he understood the consequences.
[The Mother] advised she believes that whilst [X] is not able to articulate any specific memories relating to his father hitting him, she believes that it occurred. …
…
On 27 June 2023 Child Protection spoke to [X’s] psychologist [Ms D] who advised that she has no concerns for [X] in his father's care. Whilst [X] speaks of wanting to harm his father she has assessed that she is of the professional opinion that [X] will not harm his father. She believes that [X’s] mental health is grossly impacted by his mother's and that their time together should be limited as much as possible. …
…
Child Protection do acknowledge [X] is a nearly 15-year-old young person, who will think on his feet, however Child Protection believe it is in his best interest to remain in the primary care of [the Father] where he has been provided with stability, safety, and opportunities to grow and develop in an environment free from harm.
Further adjournment
As mentioned earlier in these reasons, Dr F was unavailable to view the material requested by the parties ahead of Friday’s further hearing, including the new detailed memorandum. The parties submitted that the matter should be again adjourned to a date the following week when Dr F would be available. It was also submitted, either jointly, or not opposed, that the Mother should bring X to CCS at the Melbourne Registry so that after the hearing, whatever the result, the effect of the orders could be explained to him. Again I acquiesced in the parties positions and adjourned the matter to the following Tuesday and ordered that X be brought to CCS.
The hearing on Tuesday, 1 August 2023
At 2pm on Monday, 31 July 2023 the Court and the Mother received a notice from her solicitors of ceasing to act and relying upon a notice of intention dated 17 July 2023.
X was brought to CCS at 10:30am and the hearing proceeded at 11am. By now, the Mother was a litigant in person and she sought an adjournment until she would be able to again retain lawyers and provide further information to Dr F and in particular, in reply to the matters contained in Child Protection’s memorandum now exhibit C2.
I heard the adjournment application and it was dismissed for the reasons I gave in the very short reasons of my first decision in this matter. Dr F was available and gave oral evidence. I did not permit cross-examination of Dr F but permitted the parties to raise any topic not addressed.
The time available for the parties submissions was necessarily constrained because it was necessary that X be removed from CCS at or soon after 1pm rather than be left there over a luncheon adjournment and I considered it too disruptive, in the circumstances, for X to be removed and then returned back to CCS in the afternoon. I proceeded on the basis that X would be distressed and troubled at his circumstances.
Oral evidence of the Family Report Writer
Dr F’s evidence was to the effect that he had considered the additional information of exhibit C2 and that the information confirmed what had previously been strongly held suspicions when preparing the report, and were now his opinions. With the benefit of the additional information he regarded the relationship between the Mother and X as one of “chaotic enmeshment” and that it was, in his opinion, necessary that X be placed in his Father’s care and that his Mother have no contact or communication with X for at least six months.
I raised with Dr F the circumstance that there was a final hearing listed for October 2023 with the option of X’s welfare being decided at a hearing when evidence could be tested with the status quo remaining in the meantime. I asked Dr F about the consequences for X of a decision about his living arrangements being deferred until final hearing compared with making a decision there and then.
Dr F was unequivocal in his response. He said in the circumstances, as he understood them, wherein X’s refusal to abide living with his father was relatively recent, to leave X in the environment he was in (with the Mother) would reinforce and entrench the negative influence of his relationship with his mother and empower X to maintain his current position and to also manipulate his mother to be able to do what he wanted to.
I understood the thrust of Dr F’s oral evidence to be that it was imperative for X’s welfare that he be immediately moved to live with his father.
After that evidence of Dr F, the Mother addressed me, in clear and articulate terms, and at the same time demonstrated grace and dignity in making her submissions in what must have been for her the most difficult of circumstances. The Mother strongly opposed any change in X living arrangements. The Mother submitted to me that both her and X were managing the effect of the severe domestic violence that they had endured. She submitted that she had listened to the child, and what he has said to her is the fact, and she rejected that she has led or influenced X in any way. Further and alternatively, she submitted that no time with her, as recommended by Dr F, would impact on X “very badly”.
The Mother submitted that X had been there in the household and had seen the level of violence she had endured. That each time X had tried to say something no one had listened to him. She addressed the issue of the lack of emotion observed when X was complaining of violence from his father. She told me that mental health experts at L Organisation had told her that X cannot show emotion. Hence, she argued, his lack of emotion had been erroneously regarded by the various experts.
The Mother submitted that to remove X from her care would do damage and that it was preferable to work with “both parties”, and I infer meaning herself and X as one party and the Father as the other, to find a way forward in the current crisis.
The Mother submitted that most people have denied X the ability or opportunity to speak and that this had resulted in real damage to X. The Mother told me that it was important that the SOCIT information from an interview that had occurred on 26 June 2023 be made available to Dr F. The Mother concluded by submitting that this court does not take domestic violence seriously. All her submissions were clear and courteous.
I only permitted short submissions from the Father’s counsel and the ICL’s counsel because they were of the same position, and their position was clear enough and it was 1pm and X needed to be removed from CCS. Both the Father’s counsel and counsel for the ICL submitted, in substance, that it was necessary to immediately adopt the urgent recommendations of Dr F.
I made orders to the effect that the Mother immediately leave the Court not attend within 500m of the Court, and the Father attend CCS to take X into his care. I ordered that X live with his father and that the Mother not spend time or communicate with X until further order. I did not accept that the hiatus of time with X should be for at least six months as recommended by Dr F, but that it should continue until mid-October when the matter was listed for Final Hearing and that if for any reason the Final Hearing was not able to proceed that the parties be at liberty to make application on short notice to review the orders I made.
I reserved my reasons.
Application of the law to circumstances
Notwithstanding the urgent nature of the hearing it was still necessary that I consider all of the relevant provisions of Part VII of the Act and I did. Six provisions overwhelm all others on this application and are as follows:
60CAChild's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
…
60CC How a court determines what is in a child's best interests
…
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
…
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
…
(j)any family violence involving the child or a member of the child's family;
In the Act ‘abuse’ is defined as follows:
4 Interpretation
…
“abuse", in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
(emphasis added)
I refer to the following observations by Thackray, Ryan & Forrest JJ in Eaby & Speelman [2015] FamCAFC 104:
[18]It is true that in Goode & Goode, at [68], the Full Court said that the circumscribed nature of interim hearings means that the court should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. However, that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts. Rather, the proper approach to contentious matters of fact in the determination of interim hearings is as explained in Marvel v Marvel at [122] and [123], as follows:
[122]In SS v AH[2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:
[100] The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The observations of Austin J sitting as the Full Court in the appeal from interim orders in CAO & CAO [2018] FamCAFC 252; (2018) FLC 93-880 at [36] are helpful to me:
[36]For the present purposes, it is important to note her Honour found there was no “unacceptable risk” of harm posed to the children in the mother’s household; not that there was no risk of harm at all. There is obviously a difference between a risk of some occurrence and an unacceptable high risk of the same occurrence. The former may be tolerated, but not the latter.
It is clear that X expressed views are to live with the Mother and not spend any time with the Father. It is clear that the recommendations of Dr F and Child Protection, and the orders sought by the Father and the ICL, are completely contrary to X’s expressed views, the views expressed by an almost 15 year old young man. To go against those expressed views at any time is a serious matter, and particularly on an interim hearing, when evidence cannot be tested in cross-examination.
It is clear that at least initially, the forced change of X’s returning to live with the Father rather than living with the Mother as he has been for the last month, will be distressing to him. That weighs heavily on me.
There are live allegations of serious family violence by the Father upon the Mother and to a much lesser degree upon X. The allegations of family violence are a most important aspect to this case and those allegations weigh heavily on me and I take them very seriously. Notwithstanding that they are denied on an interim hearing I cannot simply dismiss them. There is the possibility that the allegations of family violence made by the Mother are true or substantially true.
In this case I have given greater weight to the need to protect X from physical or psychological harm than the benefit to maintaining a meaningful relationship with both of his parents.
Balancing the risks to X’s welfare
On an interim hearing I am circumspect about making factual findings. I placed significant weight on uncontested evidence and common ground matters. It is significant in this case that two bodies or persons, Child Protection and the family report writer Dr F, charged with the burden and responsibility of looking at the relevant circumstances as best they are able and of expressing opinions and assessments or recommendations about X’s best interests, both urge a drastic change in X’s immediate circumstances.
It is significant to me, that apart from the opinions and assessments or recommendations of Dr F and Child Protection that, when X was placed in the Father’s care without time or communication with the Mother after the SJR orders of 1 September 2022, the evidence suggests that X settled down and his attendance at school and his demeanour at school improved. The observations of Ms D, X’s treating psychologist recited above back in November 2022 corroborate the assertion that X’s welfare improved in that unfortunate circumstance.
The statements by X of wanting to kill himself and also the Father are extremely serious and very concerning. The observations of the experts and of Ms D about those statements are also very significant to me.
For the purpose of this interim hearing, and acknowledging that the evidence is controversial and has not been tested in cross-examination, I found the observations and assessment of Child Protection to be careful, considered and compelling. For the purpose of this interim hearing, and acknowledging that the evidence is controversial and has not been tested, I found the written report Dr F and his oral evidence qualifying or changing his position, to be careful, considered and compelling.
The decision I made last Tuesday was to choose the least worst outcome for X in this crisis or emergency situation. There is a possibility that the factual assertions of the Mother and X, when the evidence is tested at final hearing, will be made out or found to be true or substantially so. There is a risk that the events described occurred.
I will, as shorthand, describe the factual allegations or hypothesis of the mother as, the “family violence and denial of it, situation”. If they have occurred the consequence of forcing X to live with the person who has committed such domestic violence on the Mother and who has assaulted him[2], and of X not having any time or communication with the Mother with whom he wants to live, is most serious.
[2] There is no suggestion being “hit” was lawful chastisement.
On the family violence and denial of it, situation, there is a risk that X would suffer abuse by assault, such as being hit, and a risk of serious psychological harm of enduring living with the Father. I also had and have the Mother’s repeated accounts to the various experts and Dr H’s report and analysis that either supports, or is consistent with, the family violence and denial of it, situation. I found and find that risk to be only a small risk.
If Child Protection and Dr F and the Father and the ICL are correct in their analysis of the situation, what I will, as shorthand, describe as the “chaotic enmeshment and sharing of a false narrative situation”, is correct or substantially so, the consequences for X in remaining in his current circumstances are very serious, if not devastating, and may not be able to be reversed. And the longer the time X remains in that situation the more that dynamic may become entrenched. On the chaotic enmeshment and sharing of a false narrative situation hypothesis there is a risk of psychological harm to X from being exposed to abuse, as defined in the Act, of causing X to suffer serious psychological harm.
On the evidence I have, notwithstanding it is untested in cross examination, the “chaotic enmeshment and sharing of a false narrative situation” is not only a possibility, but a real and substantial risk. It is also the more likely of the two competing factual hypothesis.
On the interim hearing I was faced with conflicting facts[3], but also with a lot of helpful evidence, including detailed analysis by Child Protection who considered both sides of the story, detailed analysis by two family consultant’s (Dr F and Ms G) and the psychiatric examination of the parties by Dr J who all considered both sides of the story. That considerable body of evidence either supports or is consistent with the chaotic enmeshment and sharing of a false narrative situation.
[3] See [81] of the precedent decision or “authority” of the appeal Court, the Full Court, of Goode and Goode [2006] FamCA 1346, (2006) FLC 93-286.
The competing allegations or hypothesis also come down to a situation where it is likely that only one or the other hypothesis will be made out. This is not a situation where it is alleged, or the evidence suggests, that there is a risk that both hypothesis are made out or substantially made out.
I weighed, in both scenarios, the degree of risk of the alleged events occurring or having occurred and the consequences for X if they had occurred or were to occur. Even a comparatively small risk of really serious harm can justify action, while the virtual certainty of only slight harm might not[4]. Looking at all of the evidence, including how X and the Father were likely to have fared after the 1 September 2022 orders, I found and find, that there is only a small risk that the family violence and denial of it, situation has occurred. But that the consequences for X if that small risk comes to pass, would be very serious.
[4] See the discussion at [50] in the precedent or authority of Isles & Nelissen (2022) FLC 94-092 adopting the statement of Hale LJ in Re C & B (Children) (Care Order: Future Harm) 1 F. L. R 811 at [142]..
Looking at all of the evidence, again including how X and the Father were likely to have fared after the 1 September 2022 orders, I found and find, that there is a real and very substantial risk that the chaotic enmeshment and sharing of a false narrative situation had occurred and would continue to occur, and if not interfered with or remedied immediately, would become more entrenched and damaging to X. The consequences for X of that risk would be very serious and maybe devastating for X.
I regarded, and regard, the risk that the chaotic enmeshment and sharing of a false narrative situation has occurred and will continue, and the consequences of that, as an unacceptable risk to X’s welfare.
I was also asked to make an order for the personal protection of the Father and X in the same terms as had been made on 1 September 2022 by the SJR. On the evidence there was a real and substantial risk of the smooth operation of the orders, that X live with the Father and not spend time with the Mother, being interfered with or not complied with. For those reasons I made the order for the personal protection of the Father and X.
For those reasons I made orders that until further order the Father should immediately attend upon CCS and take X into his care and that, until further order, the Mother not spend any time with him.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 3 August 2023
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