Barber & Khatri
[2021] FedCFamC1F 325
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Barber & Khatri [2021] FedCFamC1F 325
File number(s): MLC 9649 of 2018 Judgment of: WILLIAMS J Date of judgment: 20 December 2021 Catchwords: FAMILY LAW – PARENTING – Consideration of parental responsibility – Where the father seeks an order for sole parental responsibility and the mother seeks equal shared parental responsibility – Consideration of which parent the child should live with and time spent with the other parent – Where the mother seeks orders for the child to spend day time only with the father – Where the mother has repeatedly and deliberately failed to comply with orders for the child to spend time with his father and absent the scrutiny of the Court, would not comply with court orders for the child to spend overnight time with his father and is unable to facilitate a meaningful relationship between the child and his father – Where the mother has consistently in the past presented the child both for Covid-19 testing and to various medical practitioners and pathologise his anxiety and alleged physical injuries in an effort to minimise the child’s time with his father to daytime only – Where the mother’s view of the risk the father poses to the child is unsubstantiated and myopic in the extreme and she has an inability to articulate or understand the benefit to the child of spending overnight time with his father – Where the father does not pose a risk of harm to the child – Where the expert witnesses accord with the view that it is in the child’s best interests to live with the father which will alleviate the stress and anxiety he currently experiences by being caught in the middle of a toxic and dysfunctional parental relationship – Where orders are made for the father to have sole parental responsibility and for the child to live with the father – Orders for a moratorium period of four weeks between the mother and child followed by a period of supervised time prior to commencing graduated periods of unsupervised time. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 68R
Cases cited: Banks & Banks [2015] FamCAFC 36
Khatri & Barber (No. 2) [2021] FamCAFC 158
Khatri & Barber [2021] FamCAFC 121
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 311 Date of last submissions: 11 October 2021 Date of hearing: 14–16 October 2020, 4–5 & 10 November 2020, 11 & 18 December 2020, 4 February 2021, 24 May 2021, 4–6 August 2021 Place: Melbourne Counsel for the Applicant: Mr Marchetti Solicitor for the Applicant: KS Family Lawyers Counsel for the Respondent: Mr F (Day 1–9), Mr Jackson (Day 11–13) Solicitor for the Respondent: Hope Earle (Day 1–9), Knight Family Lawyers (Day 11–13) Counsel for the Independent Children's Lawyer: Ms Hutchings Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 9649 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BARBER
Applicant
AND: MS KHATRI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
20 DECEMBER 2021
THE COURT ORDERS THAT:
1.All previous parenting Orders with respect the child Z, born … 2012 ("the child") be discharged.
2.The father have sole parental responsibility for the child.
3.For the purpose of exercising parental responsibility for the child by the father, the father shall consult with the mother regarding decisions for the long-term care, health, education, welfare and development of the child including, but not limited to:
(a)educational issues and schooling for the child, including decisions relating to schooling activities and the schools which the child shall attend; and
(b)medical issues and surgery, hospitalisation and medical treatment for any serious injury, illness, condition.
4.For the purpose of Order 3 above, the father shall consult with the mother about decisions to be made as follows:
(a)the father shall inform the mother about the decision to be made;
(b)the father shall make a genuine effort to consider any input made by the mother and to reflect any views expressed by the mother with respect to the determination to be made.
5.The child live with the father.
6.If the child is not in the care of the father, the mother deliver the child to the father by 6.00 pm on 20 December 2021.
7.The child spend time and communicate with the mother as follows:
(a)for a period of four weeks, following the making of Orders, there be no time spent and there be no communication;
(b)following 7(a), for a period of two hours each week, on a supervised basis, with such supervision to be provided by M Contact Centre or L Contact Centre at the mother's sole cost, for a period of six occasions;
(c)following 7(b), each Saturday from 1.00 pm until 5.00 pm for a period of six occasions;
(d)following 7(c), each Thursday from 3.30 pm until 8.00 pm and each Saturday from 1.00 pm until 5.00 pm for a period of six occasions each;
(e)following 7(d), each Thursday from 3.30 pm until 8.00 pm and each Saturday from 10.00 am until 6.00 pm for a period of six occasions each;
(f)following 7(e), each alternate Saturday and Sunday from 10.00 am until 6.00 pm and each Thursday from 3.30 pm until 8.00 pm for a period of six occasions each;
(g)following 7(f), each alternate weekend from Saturday at 10.00 am until Sunday at 6.00 pm, and each Thursday from 3.30 pm until 8.00 pm for a period of six occasions each;
(h)following 7(g), each alternate weekend from Friday at 3.30 pm until Sunday at 6.00 pm, and each Thursday from 3.30 pm until 8.00 pm for a period of six occasions each;
(i)following 7(h), each alternate weekend from Friday at 3.30 pm to Monday at 3.30 pm, and each Thursday from 3.30 pm until 8.00 pm during all school term periods.
8.Following the introduction of time arrangements pursuant to Order 7(i) above, DURING SCHOOL TERM HOLIDAYS for the first week of such holidays, commencing and concluding at 3.30 pm.
9.Following the introduction of time arrangements pursuant to Order 7(i) above, DURING THE LONG SUMMER HOLIDAYS, on a week about basis, commencing the first week of the holidays and in each alternate week thereafter, commencing and concluding at 3.30 pm.
Attendance at school events and extra-curricular events
10.That the mother and the father authorise by this order, the school or any educational or extracurricular facility attended by the child to give each parent information about the child's education or extracurricular progress and other related activities and supply them with copies of reports, notices, photographs, certificates and awards obtained by the child (at the requesting parent's costs).
11.Subject to Order 12 herein, the mother and the father be at liberty to attend all school related events and extra-curricular activities that the child may be involved in from time to time and that parents are normally invited to attend, regardless of which parent the child is in the care of.
12.Order 11 take effect contemporaneously with the commencement of Order 7(c) herein.
Changeover and nominated agents
13.For the purpose of changeover for the child pursuant to these Orders, where this does not occur at the child's school, changeover shall occur at the C Resources Centre.
14.In the event that the mother and the father cannot undertake changeover as per these Orders, they be at liberty to nominate an agent to undertake changeover on their behalf, provided that such agent is known to the child and that the parent has provided notice by text message to the other parent as soon as practicable.
Restraints and injunctions
15.Without admitting the necessity for same, the mother and the father and their servants and/or agents are hereby restrained from:
(a)abusing, criticising, or belittling the child or the other parent in the presence or hearing of the child, or permitting any other person from doing so;
(b)administering corporal punishment to the child or permitting any other person from doing so;
(c)discussing the evidence in the Family Law proceedings and Family Violence proceedings or matters emanating from same, with the child or in his presence or hearing; and
(d)permitting the child to engage in any unsupervised internet usage on such items as computers, smart phones, and tablets.
16.Except as otherwise provided for in these Orders, the mother will not take the child to see a Psychologist/Psychiatrist or any other mental health professional for counselling or therapy, without the Father's prior knowledge and written consent.
17.Each of the mother and the father ensure that the child continues to attend upon his psychologist, Ms H (or such other psychologist as nominated by Ms H in writing) and that each shall follow all reasonable recommendations and directions of Ms H (and/or her nominee) AND IT IS REQUESTED Ms H explain the Final Orders to the child as soon as possible after the Orders are made.
18.The parents continue to do all acts and things to attend upon Dr D, paediatrician, as needed and as directed by Dr D, and the parents are hereby restrained by injunction from taking the child to attend upon Dr P.
19.The mother and the father ensure that the child sleeps in a bed on his own when he is in their respective care.
20.The mother shall, in any application for Orders concerning or effecting the child, including but not limited to any Orders pursuant to the Family Law Act and any Family Violence Intervention Orders (or like proceedings), provide the Court a copy of these Orders.
21.The order appointing the Independent Children's Lawyer be discharged upon the later of the expiration of the appeal period in respect of these Orders, or the determination of any appeal that may be brought therefrom.
22.All extant applications be otherwise dismissed.
23.In the event the mother fails to comply with Order 6 hereof, a Recovery Order do issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)to find and recover the child: Z born … 2012;
(b)to deliver the said child to the father at such place (reasonably accessible by the father) as the person effecting such recovery nominates; and
(c)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.
24.The operation of Order 23 herein is stayed, and will issue if the mother fails to provide the child to the father pursuant to these orders.
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 the pseudonym Khatri & Barber has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J
INTRODUCTION
The applicant is the father and the respondent is the mother of the child Z born in 2012 (“the child”). Following separation the child has lived principally in his mother’s care and has spent various periods of time with the father. Between the commencement of this proceeding and the final trial, the child had only spent sporadic overnight time with his father. The mother contends that there are significant concerns about the father’s care of the child which require orders that he not spend overnight time with his father. The father denies the mother’s allegations and contends that the only way the child can have a proper relationship with him, is for the child to live with him.
For the reasons which follow, I have determined that the father does not pose a risk of harm to the child, and that the mother is unable to facilitate a meaningful relationship between the child and his father. It is therefore in the child’s best interests to live with his father and for him to have sole parental responsibility. I also propose to order that after a moratorium period of four weeks, the child commence spending supervised time with his mother for six weeks, prior to commencing unsupervised time.
Issues in Dispute
The following issues were in dispute in the proceedings:
(a)parental responsibility;
(b)does the father pose a risk of physical or emotional harm to the child or a risk of exposing the child to family violence, so that time between them should be limited to daytime?;
(c)does the mother have the capacity to facilitate a relationship between the father and the child?;
(d)does the mother pose a risk of harm to the child by reinforcing allegations of harm perpetrated by the father?;
(e)with which parent should the child live;
(f)the time the child should spend with the parent with whom he does not live.
Background and relevant procedural history
The parents commenced cohabitation on 1 February 2006 and married in 2006.
The child was born in 2012. He is now aged nine years and is in grade 3 at Q School.
According to the father, the parents separated on 13 August 2017 but continued to live under the one roof. According to the mother, the parents separated on 23 May 2018 and continued to live under the one roof until the father vacated the home.
On 7 June 2018, the father vacated the former family home and commenced family law proceedings in the Federal Circuit Court on 21 August 2018.
Father asserts that between June 2018 and the commencement of proceedings in August 2018 the child spent three hours with him from after school until 6.30 pm each Monday and Thursday and from 7.00 pm Friday until 7.00 pm Saturday each week.
On 1 October 2018, orders were made in the Federal Circuit Court for the child to live with his mother and spend time with his father each alternative weekend from Friday to Sunday, on two evenings per week and for one half of school holidays.
On 7 October 2018, the first weekend for the child to spend time with his father, the mother reported having observed bruising on the child’s right shin, which the child advised her occurred accidentally on an exercise bike at his father’s home. The mother also asserts that the child repeatedly requested his mother to remove overnight time with his father. The mother photographed the bruises on the child and took him to see a doctor.
On 21 October 2018, the second weekend for the child to spend time with his father, the mother asserts that the child returned with a dried blood nose. The mother photographed the child upon return from his father’s home.
On 27 October 2018, the mother asserts that the child told her that if she did not stay with him, he would self-harm, specifically he would hit himself with a brick or cut himself with a knife.
The mother photographed injuries or bruising which she attributes to the father on 4 November 2018, 25 November 2018, 27 November 2018, 2 December 2018, 6 September 2020 (Father’s Day) and 13 September 2020.
In October 2018, the mother filed an application seeking to suspend overnight time between the child and his father and for time to take place during the day.
On 31 January 2019, the interim orders of 1 October 2018 were suspended by consent, without admission by the father, so that the child’s time with his father occurred on two evenings per week from 3.30 pm to 6.30 pm and each Saturday from 10.00 am to 6.00 pm.
The father asserts that the child did not spend time with his father between February and April 2019 on eight occasions and that medical certificates were not provided by the mother.
The trial was scheduled to commence on 17 October 2019 in the Federal Circuit Court, however on that day it was transferred to this court.
On 23 April 2020, Senior Registrar Field, after an interim, hearing made orders for the child to spend time with his father each alternate weekend from Friday to Sunday, each Wednesday for three hours and every alternate Friday evening for three hours.
The mother filed an Application for Review of the orders of the Senior Registrar on 22 May 2020.
Between May 2020 and September 2020, the child did not attend time with his father on 5 June 2020, 19 June 2020, 26 June 2020 (holiday time), 11 July 2020 and 29 August 2020. On 5 June 2020, 19 June 2020 and 29 August 2020 the child was not made available because of the mother had arranged for him to have a COVID-19 test.
On 1 September 2020, the mother’s application for review of the orders of Senior Registrar Field was heard by me. On that day, orders were made requiring the child to spend time with his father each alternate weekend from Friday to Sunday, each Wednesday and each alternate Friday for a period of three hours.
Subsequent to those orders, the child did not spend time with his father in accordance with those orders. The child spent time with his father for one night on the weekend of 21 September 2020 and two nights on the weekend of 2 October 2020.
The trial commenced before me on 14 October 2020.
On 10 November 2020, the mother proposed amended final parenting orders which significantly reduce the child’s time with his father so that the parenting arrangements of the April 2020 orders would commence as from May 2023, when the child was aged 12 (Exhibit M-4).
On 18 December 2020, the mother made an application during the running of the trial, for interim parenting orders for the child during the long summer holidays. She proposed the child would spend one day a week with his father as agreed, and failing agreement on Wednesday from 10.00 pm until 6.00 pm and additionally on Saturday from 10.00 am until 6.00 pm, during the long summer holidays.
On that day, orders were made for the child to spend the long summer holidays on a week about basis with each parent, commencing his time with the father on Sunday, 20 December 2020.
The mother failed to comply with the orders made 18 December 2020 and did not deliver the child to the father on 20 December 2020. She presented the child for a COVID-19 test on 19 December 2020, which was ostensibly her “reasonable excuse” for failing to comply with the orders.
On 21 December 2020, a recovery order was made for the mother to deliver the child to the father’s care on 22 December 2020 and for him to live with the father until further order.
On 4 January 2021, the matter was listed for mention. Upon the mother’s undertaking to comply with all orders, further orders were made for the child to spend the balance of the long summer holidays effectively on a week about basis. The trial was adjourned to recommence on 4 February 2021.
On 4 February 2021, the trial was not able to proceed because the mother filed an affidavit on 3 February 2021 alleging significant concerns about the father’s care of the child. Specifically, she alleged that on 18 January 2021, whilst eating dinner, the child reported being made to do all kinds of jobs like vacuuming, mopping, laundry, gardening and dishes, being yelled at by his father and the father hitting the child on the back every two or three days. She also alleged that on 22 January 2021 the child had cut himself under his left thumbnail because he really missed his mother and that she had reported those concerns to police and presented the child to the local medical clinic. On that day, Counsel for the Independent Children’s Lawyer advised the Court that Child Protection had closed the case and that no investigation was warranted.
On 22 February 2021, the mother filed a further affidavit. She deposed that the child attended the local GP on 25 January 2021 and not 22 January 2021, as she had previously said, and that the child had attended the Suburb C Police Station on 25 January 2021 to enable him to make a statement about what happened at his father’s house. The Victoria Police records suggest that the mother attended the police station on 28 January 2021 and not on either of 22 or 25 January 2021.
On 18 March 2021, the mother attended at Suburb B Magistrates’ Court and sought an order pursuant to s 68R of the Family Law Act 1975 (“the Act”), to vary the interim orders of this Court, so that the child did not spend overnight time with his father. In the absence of the father, the Magistrates Court suspended the child’s overnight time with his father. Her application was heard in the Magistrate’s Court on 18 March 2021.
On 24 March 2021, the father filed an affidavit in this Court to reinstate his time with the child which was listed on 26 March 2021. The mother sought interim parenting orders for the child to spend day time periods only in his father’s care. Orders were made for the child to spend time with his father in accordance with previous orders.
On 31 March 2021, the mother did not deliver the child to school or to the father and reported that the child had undertaken a further COVID-19 test. On 1 April 2021, the mother did not deliver the child to school as she was ostensibly awaiting results of the COVID-19 test.
On 4 April 2021, the child was eventually delivered to the father. The mother insisted that the child be returned to her care on 8 April 2021, being the mid-period of the school holidays and advised the father that she would report any over holding to Victoria Police as a breach of the intervention order. The father returned the child to his mother on 8 April 2021.
On 15 April 2021, the child was returned to his father’s care until 17 April 2021 being make up time for the period between 1 and 4 April 2021 when the child was not in his father’s care.
On 20 April 2021, the mother filed a Notice of Appeal in relation to the orders made 26 March 2021.
On 23 April 2021, the mother filed a further application seeking orders that orders made 26 March 2021 be stayed pending the appeal, that the orders made in the Magistrates’ Court be given full force and effect, and the trial be adjourned pending the interim appeal. On 13 May 2021, the court dismissed the mother’s application filed 23 April 2021.
On 24 May 2021, the mother filed a further Application in a Proceeding seeking the matter be listed before another judge of the Family Court of Australia and on 28 May 2021 the mother filed a Notice of Appeal with respect to the dismissal of her application which was determined on 13 May 2021.
On 7 June 2021, the mother filed a further Application in a Proceeding.
On 25 June 2021, which was the last day of term two 2021 the mother failed to deliver the child to the father and reported that the child had undertaken a further COVID-19 test.
On 27 June 2021, the mother proposed to deliver the child to the father on the basis that the child be returned to her on 2 July 2021. The child spent time in his father’s care from 28 June 2021 to 2 July 2021 and from 9 July 2021 to 11 July 2021, despite orders providing for the child to spend additional time with his father.
The trial recommenced on 4 August 2021 and evidence concluded on 6 August 2021. Orders were made for all parties to file final written submissions.
Proposals of the parties
The father’s proposal
The father proposes:
(a)he have sole parental responsibility for the child;
(b)the child live with the father;
(c)for a period of four weeks following the making of orders the child spend no time with his mother;
(d)thereafter the child spend graduated time with his mother, including supervised time, culminating in each alternate weekend from Friday 3.30 pm to Monday at 3.30 pm and each Thursday from 3.30 pm to 8.00 pm during school term;
(e)during school holidays, subsequent to the commencement of alternate weekend time as follows:
(i)for the first week of the term holidays;
(ii)week about during the long summer holidays.
(f)time on special occasions.
A minute of precise orders sought by the father were tendered to the court on 5 August 2021.
Documents relied upon by the father
The father relied upon the following documents:
(a)Further Amended Initiating Application filed 25 September 2020;
(b)Trial Affidavit filed 25 September 2020;
(c)Affidavit of Dr T (father's treating psychiatrist) filed 25 September 2020;
(d)Family Report of Dr J filed 17 September 2019;
(e)Documents tendered by counsel, including documents produced pursuant to subpoenae;
(f)Outline of Case document filed 13 October 2020;
(g)Minute of Orders sought by the Applicant Father and supported by the ICL tendered to the Court on 5 August 2021;
(h)Aide Memoir and Chronology on behalf of the Father dated 3 August 2021 (F-9);
(i)Affidavit by Mr Barber filed 22 March 2021;
(j)Affidavit by Mr Barber filed 24 March 2021;
(k)Reports by Ms H (Psychologist) filed 26 September 2019 and 29 August 2020 (as adopted on 11 December 2020).
The father’s witnesses
Both the father and his psychiatrist, Dr T gave evidence and were cross-examined by both counsel for the mother and the Independent Children's Lawyer.
The father gave evidence in a straightforward and direct manner. He addressed all questions asked and was thoughtful and considered in his responses. He did not attempt to avoid answering questions and demonstrated considerable insight into the needs of his son. Where his evidence differs from the mother, I generally prefer the father's evidence.
Dr T is the father's treating psychiatrist. He has treated the father continuously since 2014. He impressed me as a highly professional and insightful expert who had a long and deep understanding of the father's psychiatric treatment and mental health. He did not attempt to embellish the father's prognosis or minimise his mental health issues. He answered all questions succinctly and directly. He was appropriately objective and a highly impressive witness and I unreservedly accept his evidence.
The mother’s proposal
The mother proposes:
(a)an order for equal shared parental responsibility;
(b)the child live with her;
(c)the child spend time with his father:
(i)during school term on two evenings a week from conclusion of school until 6.30 pm and on Saturdays from 10.00 am to 7.00 pm;
(ii)during school holidays, for two weekdays from 12.00 noon until 6.00 pm and on Saturdays from 10.00am to 7.00pm;
(iii)time on special occasions during the day.
The precise orders which the mother seeks are set out in her Outline of Submissions dated 30 August 2021. Those proposed orders differ from the minute tendered by the mother’s counsel on 10 November 2020, which are Exhibit M-4.
Documents relied upon by the mother
The mother relied upon the following documents:
(a)Further Amended Response filed 9 October 2020;
(b)Minute of Orders dated 10 November 2020 which is exhibit M-4;
(c)Trial Affidavit filed 9 October 2020;
(d)Affidavit of Ms U (mother's psychologist) filed 9 October 2020;
(e)Affidavit of Dr P (paediatrician) filed 4 October 2019;
(f)Affidavit of Ms V filed 2 October 2019;
(g)Affidavit of Mr W (maternal grandfather) filed 4 October 2019;
(h)Affidavit of Ms X filed 26 September 2019;
(i)Reports by Ms H (Psychologist) filed 26 September 2019 and 29 August 2020 (as adopted on 11 December 2020);
(j)Family Report of Dr J filed 17 September 2019;
(k)Documents tendered by counsel, including documents produced pursuant to subpoenae;
(l)Outline of Case document filed 12 October 2020.
The respondent's witnesses
The mother, Ms U, Dr P, and Dr Y (a general practitioner at the AA Medical Centre), gave evidence and were cross-examined by counsel for the father and the Independent Children's Lawyer.
Counsel for the father objected to the mother's reliance on the affidavits of Ms V and the paternal grandfather because:
(a)the affidavits did not comply with paragraph 8(b) of the procedural orders made on 5 May 2020;
(b)the affidavits were contrary to rule 15.06 of the Family Law Rules 2004 (the relevant rules of the court at the time);
(c)neither of the affidavits were relevant as events deposed to were largely historical;
The objections were resolved on the basis that neither Ms V nor the paternal grandfather were required for cross-examination, subject to counsel for the father and the Independent Children's Lawyer making final submissions as to relevance and weight of each of the affidavits.
The mother gave evidence and was cross-examined by both counsel for the father and counsel for the Independent Children’s Lawyer. The mother was not an impressive witness. She was evasive and non-responsive. The majority of her answers to questions were speeches where she attempted to justify her past behaviour as having acted in the best interests of the child. She was unable to provide answers other than in the framework of her entrenched and myopic views.
Ms U is a clinical psychologist who has treated the mother since October 2017 on 39 occasions. Despite the limitations of a treating psychologist giving evidence on behalf of a current patient, she gave evidence in a professional and forthright manner. She made appropriate concessions which were adverse to her patient, the mother. I accept her evidence, which I refer to in greater detail later in these reasons.
Dr P is a consultant paediatrician. The child has been a patient of Dr P since 2016 when the family consulted him about immunisation issues. In 2018, subsequent to the breakdown of the parents' marriage, the child again attended Dr P in the sole company of the mother.
A subpoena was required to compel Dr P to produce his notes and be available for cross-examination. He was comprehensively cross-examined about the reports annexed to his affidavit sworn 25 September 2019. He was initially defensive of his opinions stated in the reports however when faced with the inevitable and indefensible during cross-examination, he made appropriate concessions. I refer in greater detail to his evidence later in these reasons.
Dr Y is a general practitioner at the AA Medical Centre. Dr Y did not swear an affidavit but prepared a report for the mother's solicitors. A copy of her report dated 12 October 2020 and an additional letter dated 12 October 2020, whereby she declined to provide an affidavit, are exhibit M-3. A subpoena was required to compel her to give evidence.
Dr Y was a somewhat combative witness who did not concede that the mother's conduct had been highly manipulative and duplicitous and that she had not been told the true extent about the child's involvement with his psychologist Ms H prior to providing a medical report. I refer to her evidence later in these reasons.
Proposal of the Independent Children’s Lawyer
The Independent Children’s Lawyer proposed orders in the same terms as the father’s proposed orders.
Documents relied upon by the Independent Children's Lawyer
The Independent Children's Lawyer relied on the following documents:
(a)Family Report of Dr J filed 17 September 2019;
(b)Reports by Ms H (Psychologist) filed 26 September 2019 and 29 August 2020 (as adopted on 11 December 2020).
The Independent Children's Lawyer's witnesses
Ms H, the child's treating psychologist gave evidence and was cross-examined by all Counsel. She gave evidence in a manner which would be expected of a respected professional witness. She was highly responsive and demonstrated considerable insight into the complex dynamic of the family, and in particular the child’s needs and relationship with his father.
Dr J, psychiatrist, prepared the family report in September 2019. He was cross-examined by all Counsel. Dr J is a highly regarded psychiatrist who has prepared many reports in family law proceedings. He is well known to the court. His evidence was responsive and insightful about the child’s relationship with both his parents.
I refer to the evidence of both Ms H and Dr J in greater detail later in these reasons and I accept their evidence.
The following documents were tendered by the parties and received into evidence:
Exhibit Number Description M-1 Application and summons for Intervention Order dated 19 July 2018 made by Father to Suburb B Magistrates Court – Annexure A to Affidavit of the Mother sworn 27 September 2018 M-2 Medical Certificate 1 July 2020 M-3 Letter from Dr Y dated 12 October 2020 to mother’s solicitors M-4 Mother’s minute of Orders sought dated 10 November 2020
F-1 Records of AA Medical Centre from March 2019 to 1 July 2020 F-2 Text messages between mother and father on Friday 30 October 2020 F-3 Text messages of 16 October 2020 F-4 Emails between mother and her solicitors from 26, 27 and 30 October 2020 F-5 Text messages between the parties between 28 June to July 2020 and the email from the mother to Ms H dated 14 July 2020 F-6 Medical certificate from Mr BB dated 26 April 2019 together with the accompanying emails of Friday 26 April 2019 F-7 Extracts of Dr P notes F-8 Lease of father’s new property F-9 Chronology prepared by Applicant Father dated 3 August 2021 F-10 The bundle of documents produced pursuant to Victoria Police including referral letter from AA Medical Centre to Dr D F-11 Text messages between Sunday 4 April 2021 and Thursday 8 April 2021 F-12 Bundle of notes of Ms H (including emails with the mother and Ms S) between 6 January 2021 and 9 April 2021
ICL-1 The chain of emails between mother and Ms H commencing 30 June 2020 and Ms H’s attendance note of 2 July 2020 ICL-2 The two reports from Mr BB dated 30 April 2019 and 27 August 2019 (p.469 and p.477) PRELIMINARY MATTERS
Electronic Trial
The matter was heard electronically during the COVID-19 pandemic, with the consent of both parties.
On 5 May 2020, I conducted a mention to ascertain the views of the parties to conduct the proceedings electronically by Microsoft Teams. Both parties were agreeable to that course of action and did not seek an adjournment until the court resumed in-person trials.
Procedural orders for an electronic trial were made and undertakings sought and accepted from counsel as to the practicalities and logistics of the witnesses giving evidence and being cross-examined.
I am confidently satisfied that the matter was appropriate for an electronic trial and that justice and equity, and procedural fairness were afforded to all parties. I wish to compliment all Counsel for the manner and spirit of cooperation in which the trial was conducted.
Complaints by the mother in her Final Submissions dated 27 August 2021
In her final submissions, the mother asserted she “has concerns that she may be prejudiced for accessing legal aid during a part-heard trial at the issue of costs without handover from her previous lawyer and barrister”. Subsequent to her lawyers seeking to withdraw from the proceedings on 4 May 2020, the mother obtained transcripts of the trial. Some transcripts were obtained directly by her, including those obtained during the appeal hearings, and some were provided by the court. On 12 July 2021, transcripts for 14, 15 & 16 October 2020, 4 & 10 November 2020, 11 & 18 December 2020 and 4 May 2021 were emailed to the parties by the Court. The orders of 4 May 2020 include a notation that the mother’s former lawyer advised the court that he would cooperate to transfer the file to the mother’s new lawyers. The mother’s Reply to Submissions dated 7 October 2021 are replete with references to transcripts of hearings before other judges, prior to the proceeding being transferred to this Court.
During the remainder of the trial, when she was represented by her second set of lawyers, who were appointed pursuant to the legal aid scheme arising from s 102NA of the Act, there were no complaints raised by her counsel that he or the mother had been disadvantaged by assuming conduct of the trial whilst the proceedings was part-heard. I am satisfied the mother did not suffer any procedural disadvantage by changing lawyers during the trial.
The mother complains that she did not consent to the Minute of Orders tendered by her counsel on 10 November 2020 and which she later sought to withdraw. That is a matter for the mother and her former representatives, and not the Court.
The mother also complains that she was informed by Dr D, Paediatrician, during his appointment on 30 July 2021 that he would be writing to the court however, his paediatric advice remains inaccessible. She also asserts that she was not permitted to call Dr D as a witness or rely on his evidence during trial. There was no application made by her counsel to call Dr D or tender any report by him.
In her Final Written Submissions and Reply Submissions, the mother makes reference to the evidence of various expert witnesses as somehow being compromised because she asserts they did not read her trial affidavit and were supposedly unaware of all the “evidence/facts surrounding the abuse and significant history of family violence that are relevant for this matter”. These witnesses include Dr T, Ms H and Dr J.
On 18 December 2020, during cross-examination of Dr J, counsel for the mother queried whether Dr J had been provided with copies of documents, including the mother’s trial affidavit, as these documents had been emailed by the mother’s solicitors to Dr J on 12 October 2020. Dr J apparently missed the email and it was agreed that he would continue his cross-examination after an adjournment to enable him to be appraised of evidence which had come to light during the trial.
After various scenarios were discussed between counsel and the court about how to update Dr J about the events which had occurred since he conducted his assessment, it was agreed by all parties that rather than providing Dr J with a transcript of evidence of other witnesses, which would have been prohibitive in cost and not feasible, or arranging for an updated assessment, all counsel could update Dr J during their further cross-examination of him. The following comments were made by the Court at the conclusion of that discussion:
…You can update Dr J. If there is any objection to that, then obviously, it will be made by counsel, and if there is any comments that Mr F wants to make during his cross-examination by way of updating evidence, the same thing applies. He can put those propositions, and if there is any objection, I’m sure that will come to the surface. I think that’s really the only way we can do it. We can’t expect Dr J to read a transcript, and indeed, as Mr F says, well, family report writers don’t read transcripts of people’s evidence, as a matter of course.
During the further mention which took place on 4 February 2021, the issue of providing Dr J with updated information was raised again by the mother’s counsel. An order was made for Dr J to be provided with a copy transcript of the evidence of Ms H and further updated material. The further cross-examination of Dr J took place on 5 August 2021.
I reject the submission that Dr J was unaware of relevant information which became apparent subsequent to his assessments as he was either provided with transcripts of evidence, or it was up to counsel to orally update him during their respective cross-examination. I also reject that submission in regard to other professional witnesses. Dr J, Dr T and Ms H were comprehensively cross-examined by the mother’s counsel. Both of her counsel were highly competent and had an opportunity to put additional facts to the witnesses during cross-examination, if they deemed it necessary. The mother was obviously present during all cross-examination and had ample opportunity to instruct her counsel, should she have chosen to do so.
THE APPLICABLE LAW
Evidence
The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
The father and mother relied upon their respective affidavits. The affidavits exhaustively recounted the history of the parties' relationship. I have examined that evidence and do not propose to repeat it in these reasons.
It is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial nor make findings of fact on every factual dispute between the parties. That principle is well established in a number of authorities.
In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
STATUTORY PATHWAY
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how the court is to determine what is in a child's best interests by reference to the primary considerations (s 60CC(2)), the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence and additional considerations (s 60CC(3)) including any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the child and any other relevant fact or circumstance.
In applying the primary considerations, the court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse neglect or family violence (s 60CC(2A)).
Abuse is defined in s 4 of the Act and family violence is defined in s 4AB of the Act.
In considering what order to make, s 60CG of the Act requires the Court, to the extent possible, to ensure that the order does not expose a person to an unacceptable risk of family violence and enables the Court to include in the order any necessary safeguards.
I have considered all relevant sections of s 60CC(3) in reaching my decision, although I have not specifically referred to each consideration: Banks & Banks [2015] FamCAFC 36.
I will now address the relevant issues.
PRIMARY CONSIDERATIONS
There did not seem to be any dispute about the benefit to the child of having a meaningful relationship with both of his parents. Both the submissions of the father and the Independent Children’s Lawyer recognise that benefit. The mother submitted that her evidence during cross-examination included significant evidence about her encouragement and facilitating the child’s time with his father despite the child’s apparent refusal to attend changeovers to comply with court orders.
I can infer from the mother’s submissions that she considers it beneficial for the child to have a relationship with both parents and that her proposal for daytime time only is sufficient, in her opinion, for a relationship between the child and his father to flourish.
The primary focus of the proceedings was the primary consideration of the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse. I will now turn to the allegations of each of the parents in this regard.
Father’s allegations against the mother
The father asserts that the mother:
(a)is unable to facilitate a relationship with him and the child, except on her own terms;
(b)will not or is unable to comply with orders for overnight time between himself and the child;
(c)is unable to provide the Court with any believable assurance that she will comply with future orders, which would require the child to spend substantial and significant time with his father, including overnight and holiday time;
(d)exposes the child to her negative views.
The father's initial proposal was for orders for equal time with each parent, configured two nights with the mother in week one and five nights with the mother in week two. At the conclusion of the trial, the father amended his proposal so that the child would live with him and spend time with his mother after a moratorium period of four weeks and a gradual reintroduction of time, for three nights a fortnight. The father asserts that the mother is unable or unwilling to facilitate and encourage a relationship between the child and himself.
The father submits that exposure to the mother's persistently negative views of the father amounts to a risk of harm to the child, however, that is not an unacceptable risk so as to require the child's time with her to be supervised or limited in the long term However, to ameliorate any risk from her views, the father's proposal is that there should be a moratorium on the mother's time with the child and that that the child should remain primarily in his care.
I will firstly address in greater detail the father’s allegations against the mother.
On 1 October 2018, the first return date of the father's application in the Federal Circuit Court, orders were made by consent providing for the child to spend time with his father two evenings each week from 3.30 pm to 6.30 pm, each alternate weekend from 7.00 pm Friday to 6.00 pm Sunday and shared holidays. Orders were also made for the parties to attend Dr J for a psychiatric assessment and a family report. Both parties were represented.
On 11 December 2018, the mother filed an application seeking to vary the orders made on 1 October 2018, so that the child's time with the father was daytime only. On 31 January 2019, the father consented to orders for daytime only, without admitting any of the allegations made by the mother and according to him, on the basis that there would be an imminent family report from Dr J.
Subsequent to the 31 January 2019 orders, the father asserted that the mother did not comply with time on Saturday 16 February 2019, Saturday 23 February 2019, Saturday 2 March 2019, Saturday 9 March 2019, Saturday, 16 March 2019, Saturday 23 March 2019 Saturday, 30 March 2019, and on Saturday, 6 April 2019. The mother acknowledged that time did not take place on those occasions although she asserts that time scheduled for 23 February 2019 was rescheduled to 24 February 2019 and time scheduled for 9 March 2019 was rescheduled for 11 March 2019.
There were difficulties arranging an assessment with Dr J and further orders were made on 16 April 2019 providing for appointments with Dr J in June 2019. The father asserted that there was a delay of six months in obtaining a family report from Dr J, due to the mother's prevarication and conduct dragging out the proceedings.
On 17 October 2019, the matter was due for trial, however, did not proceed and was transferred to the Family Court. Between October 2019 and 23 April 2020 there were a number of interim hearings including an application by the mother seeking to discharge the appointment of the Independent Children's Lawyer. Her application to discharge the Independent Children’s lawyer was unsuccessful.
On 23 April 2020, Senior Registrar Field made orders for the child to spend time with his father essentially in accordance with the consent orders which had been made on 1 October 2018. On 22 May 2020, the mother filed a review of the orders of the Senior Registrar. The mother's review application was eventually heard by me on 1 September 2020.
On 24 April 2020, the day after the orders were made by Senior Registrar Field, the mother arranged a telehealth appointment between the child and Dr N of the AA Medical Centre. When cross-examined about that appointment, the mother said she had taken the child to the doctor because he had a blood nose. That answer is completely contradictory to the records of the clinic which stated that "she wanted a letter to separate child from father".
It was put to her in cross-examination that she had no intention of facilitating the time which had been ordered by Senior Registrar Field. In response, her evidence was that she did have an intention to facilitate the time when she had consulted with Ms H. When it was put to her that she had an obligation to comply with orders and not what Ms H thought should occur, and that she had failed to comply with orders, again her response was she had a reasonable excuse.
Between April 2020 and 1 September 2020, on numerous occasions the mother did not comply with the orders of the Senior Registrar. Time did not take place on:
(a)5 June 2020, because the child allegedly required a COVID-19 test;
(b)19 June 2020, because the child allegedly required a further COVID-19 test;
(c)26 June 2020, which was scheduled holiday time and which is referred to in my discussion of the evidence of Dr Y;
(d)Saturday 11 July 2020;
(e)29 August 2020, when the child allegedly required a further COVID-19 test.
Counsel for the father vigorously cross-examined the mother about her non-compliance with orders. The mother conceded that the child had undergone COVID-19 tests on 5 June 2020, 19 June 2020 and on 29 August 2020. She was unable to explain why she only had a COVID-19 test on 5 June 2020 and not another occasions when the child did, despite the fact that they lived in the same household. She conceded that she was the one who provided the information to the GP and booked the COVID-19 test for the child.
The AA Medical Centre records, which are Exhibit F-1 show that she attempted to persuade Dr N, a general practitioner at the clinic, for a COVID-19 test on 24 April 2020 and on 18 May 2020. On 2 June 2020, she consulted Dr O, another general practitioner at the clinic about COVID-19. A COVID-19 test eventually occurred on 5 June 2020.
The records of the telehealth consultation on 24 April 2020 state:
Requested for a letter to her to who that because she has asthma should keep her son with her and not letting see his father until COVID–19 get sorted.
We had a long chat.
She was advised that we cannot issue a letter to separate child from father we can mention that she is at more risk for COVID-19 but we cannot recommend to stay with whom.
She understood and agreed to leave it now.
The records of the telehealth consultation on 18 May 2020 state:
She phoned back again…
Keen to do COVID-19 and its test. Very high specificity and low sensitivity…
Long chat...
Has some cough…
Her response to the proposition that it was extraordinary to suggest that it took two weeks to obtain a referral for a COVID-19 test was non-responsive. In my view, it is apparent and supported by the records of the medical clinic that the repeated visits to the GP seeking a COVID-19 test were clearly for the purpose of frustrating the child's time with his father pursuant to the orders of the Senior Registrar.
In relation to the time ordered to take place in the June/July 2020 school holidays, which commenced on 26 June 2020, the mother conceded that the child had not attended. Her evidence was that he did not do so because the child was hugely distressed and was making very concerning threats to self-harm, which necessitated the mother consulting with a GP and the child's psychologist, Ms H. Furthermore, according to the mother, the child did not want to go to spend time with his father despite her encouragement and an order compelling her to do so. Again, she was of the view that she had a reasonable excuse and did not have to comply with the orders.
The mother's conduct in relation to the time which was to take place in the June/July 2020 school holidays can only be described as manipulative and duplicitous.
On 30 June 2020, the mother arranged for consultation with Dr O of the AA Medical Centre. Counsel for the father put to her that the attendance on Dr O had been arranged in order to obtain a letter to stop the child's holiday time with his father. The mother disagreed with that proposition and said the consultation was for the child's behaviour. Dr O refused to provide a letter as sought by the mother.
The record of the consultation on 30 June 2020 states as follows:
Mother Ms Khatri called and stated…that Z is disturbed due to parents separation. Court case is going on. Z doesn’t want to go to dad’s, angry, not sleeping. Ongoing behavioural issues. Z sees psychologist as well. He was seeing Dr P and then the paediatrician didn’t want to see Z? There was communication breakup or disagreement? Mum didn’t agree with what the paediatrician was saying. Mum asking me to do something so he doesn’t go to his dad’s as it upsets Z.
Reason for visit:
Mum wanted to discuss Z
Management:
Advised it’s not my place to stop his visits.
Advised in a situation where court case is going on over custody, all the consultations/visits with the doctors and all decisions should be taken mutually by both parents. She can’t make decisions on her own.
She has referral for Dr D. She is asking whether Z should see him.
Advised to discuss with Z’s situation with his dad and his psychologist and come to a mutual decision. Advised to speak to her lawyer.
Listening/advised
Allowed to vent.
In her trial affidavit at paragraph 119(p)–(q), the mother refers to the events of 30 June/1 July 2020, but did not refer to the consultation with Dr O on 30 June 2020 and was unable to provide any satisfactory explanation why she had omitted evidence about that particular consultation.
On 1 July 2020, the mother arranged a consultation for the child with a different doctor from the practice, Dr Y. She obtained a medical certificate from Dr Y so that the child did not have to attend holiday time with his father.
The record of the consultation of 1 July 2020 states as follows:
mother explained
he has previously issues of anxiety and other psychological issues
he has referred to paediatrician and child psychologist in the past
currently he was supposed to go and spend one week with father in school holidays
which he don’t want and started behaving abnormal and tried to harm himself with knife or choking with coin
mother contact paediatric psychologist and had phone consultation who suggest try to convince child if not then take him to GP and get medical certificate from GP
with current situation only telephone consultation done
spoke to child
he refused to go to father
he is willing to psychologist to discuss on this behaviour and relationship with father
he has appointment with psychologist tomorrow
advise mother not to miss his appointment
Actions:
letter printed.
Letter written re. certificate.
The mother omitted to discuss with Dr Y the recommendations of the child's psychologist, H, arising from a consultation which had taken place earlier on 1 July 2020.
Exhibit ICL-1 is a chain of emails between the mother and Ms H commencing 30 June 2020, together with an attendance note of Ms H of 2 July 2020.
On 30 June 2020, the mother received an email from Ms H. At 7.34 pm on 30 June 2020, the mother replied to Ms H, but omitted to advise her of the consultation with Dr O on that day. On 1 July 2020 at 8.05 am, Ms H forwarded an email to the mother enquiring whether there was a particular GP she had consulted. At 9.53 am on the same morning the mother replied that she had spoken to a few GPs and did not refer to her consultation with Dr O the previous day. She also advised Ms H that the child wanted to swallow a coin and that had occurred on 30 June 2020. During cross-examination, the mother agreed that the alleged threat to swallow a coin occurred on 30 June 2020 and not 1 July 2020, and therefore could not have been the precursor for her contacting Dr Y on 1 July 2020.The mother denied that there had been no incident on 1 July 2020.
During the afternoon of 1 July 2020, Ms H spoke with the child and was able to convince him to see his father at the conclusion of the session. Subsequent to that, the mother arranged for an appointment with Dr Y and obtained a medical certificate purportedly suspending the child's time with his father for a period of 10 days.
In my view, there can be no other explanation for the mother contacting Dr Y on 1 July 2020 other than an attempt to undermine the work of Ms H who successfully persuaded the child to spend time with his father. Her consultation with Dr Y and the resultant medical certificate was a blatant attempt to disregard and avoid compliance with orders for holiday time.
Dr Y was cross-examined about her consultation with the mother and the child on 1 July 2020. Her evidence is referred to under the heading Evidence of the Experts.
On 1 September 2020, I made orders providing for the child to spend time with his father in accordance with the orders of Senior Registrar Field in anticipation of the trial commencing on 14 October 2020.
Between 1 September 2020 and 14 October 2020, the mother failed to provide the child for time in accordance with the orders. On 4 September 2020, the mother advised the father via text message that the child had undertaken yet another coronavirus test, which was the fifth test undertaken since June 2020 and that the child would not be made available that weekend.
The mother agreed that subsequent to the orders of 1 September 2020 she forwarded a text to the father suggesting that time take place only on Sundays because she did not believe that the orders were in the child's best interests. Remarkably, she seemed to genuinely think that the father had agreed at that time to an arrangement different from those ordered very recently.
The child spent time with his father for one night on Saturday, 21 September 2020 and for two nights on 2 October 2020.
During cross-examination on 16 October 2020, the mother agreed to facilitate time in accordance with the orders of 1 September 2020, however when the matter resumed on 4 November 2020 it was apparent she had not done so.
The scheduled time on 16 October 2020 did not commence on Friday afternoon in accordance with the orders. The time commenced on the Saturday, 17 October 2020. The mother attempted to justify this on the basis that the father had agreed to vary the time although it was apparent from the communications between the two of them that the mother had deliberately engineered time to commence on the Saturday and when the father was faced with no alternative, then he agreed to that occurring.
The time which was scheduled to commence on Friday, 30 October 2020 did not occur. The child was eventually made available for changeover during the afternoon of Saturday, 31 October 2020. Exhibit F-2 is a series of text messages between the mother and the father on Friday, 30 October 2020. During cross-examination, the mother seemed to think she had a reasonable excuse for not providing the child on Friday, 30 October 2020 as her evidence was that the child did not go to school on Thursday and Friday as he had a sore tummy and a headache.
On 18 December 2020, the mother made an application for interim parenting orders during the forthcoming summer holidays so that the orders for the child to spend alternate weekends with his father, revert to one day on a weekday from 10.00 am until 6.00 pm and on Saturdays from 10.00 am until 6.00 pm. That application was determined and orders were made providing for the child to be in the care of his parents during the long summer holidays on a week about basis, with the father’s time to commence on Sunday, 20 December 2020.
On 19 December 2020, the mother presented the child for yet another COVID-19 test. On 21 December 2020, an order was made for the mother to deliver the child into the father’s care on 22 December 2020, failing which a recovery order would be made. The mother delivered the child into the father’s care and the matter was listed for further determination on 4 January 2021. On that day, the mother provided an undertaking to the court to comply with all orders made by the court relating to the child. Orders were also made for the child to spend the remainder of the summer holidays on a week about basis with each parent. The trial was scheduled to recommence on 4 February 2021.
On 3 February 2021, the day before the trial was due to recommence, the mother filed an affidavit alleging various reports by the child on 18 January 2021, including that the father had made him do all sorts of domestic jobs, the father had yelled at him and had hit him on the back every two or three days. She also deposed to the child having cut himself under his left thumbnail because he really missed his mother. The mother deposed that she reported her concerns to the police and presented the child to the AA Medical Centre, both of which were confirmed by subpoenaed records, although there was a significant discrepancy between the actual dates and those deposed to by the mother. The mother again sought that the child’s time with his father be reduced to daytime only. On 4 February 2021, orders were made adjourning the part-heard trial for further hearing on 24–26 May 2021 and for each of the parties to file further affidavits pertaining to the mother’s most recent allegations.
Notwithstanding the orders made on 4 February 2021, on 18 March 2021, the mother attended the Suburb B Magistrates’ Court to obtain an order pursuant to s 68R of the Act so that the child not spend overnight time with his father. That application was heard without service on the father of the mother’s application to vary the intervention order and in his absence the Magistrates’ Court suspended the child’s overnight time with his father.
On 23 March 2021, the father became aware of the order of the Magistrates’ Court made on 18 March 2021. His legal representatives immediately sought to urgently list an application in this court seeking reinstatement of his time with the child. The father’s application was urgently listed before me on 26 March 2021 and each party was represented by counsel who made lengthy submissions. At the conclusion of the hearing, orders were made reinstating the father’s time with the child.
The mother was not satisfied with those orders and filed a Notice of Appeal on 20 April 2021. On 23 April 2021, the mother filed an Application in a Proceeding seeking a stay of the orders made 26 March 2021 pending determination of her appeal, that the orders made by the Magistrate on 18 March 2021 be given full force and effect, and that the trial of the parenting proceedings be adjourned pending the outcome of the first appeal.
On 13 May 2021, I dismissed the mother’s Application in a Proceeding. The mother then filed a further Notice of Appeal. Both appeals were subsequently consolidated.
On 16 June 2021, the mother filed an Application in an Appeal seeking orders, the effect of which would be to revert to the orders of the Magistrate made 18 March 2021. Her Application in an Appeal was heard and determined on 8 July 2021, when the application was dismissed: (Khatri & Barber [2021] FamCAFC 121).
On 11 August 2021, the mother’s appeals were heard by the Full Court and reasons were delivered on 23 August 2021. Both appeals were dismissed: (Khatri & Barber (No. 2) [2021] FamCAFC 158).
It is obvious from the mother’s actions referred to in the preceding paragraphs that she has gone to extraordinary lengths to frustrate the child’s overnight time with his father during the course of the protracted trial. As can be seen from the notes of doctor’s consultations she has taken the child to various medical professionals in an attempt to obtain medical certificates to prevent the child spending overnight time with his father and has subjected him to multiple COVID-19 tests, none of which have been positive. Despite her undertaking of January 2021 to comply with all orders of the court, it is blatantly obvious that the mother has not abided by that undertaking. She has attempted to justify her defiant attitude as acting in the child’s best interests, which I do not accept.
Her actions in obtaining the order from the Suburb B Magistrates’ Court on 18 March 2021 are demonstrative of her attitude towards compliance and lack of respect for court orders. It is almost inconceivable that a party to proceedings during part-heard adjournments of a trial would not assiduously comply with orders for a child to spend time with the other parent.
Whilst it is the mother’s right to pursue appeals from orders made by a judge of this court, her conduct in prosecuting futile appeals is further demonstrative of her attitude. The Application in an Appeal filed 16 June 2021 was yet another desperate and misguided attempt by her to achieve the orders she sought from the magistrate and not to comply with long-standing orders of the court for the child to spend overnight time with his father. At [7] of Khatri & Barber (No. 2) [2021] FamCAFC 158, Strickland J said:
Indeed, what the appellant mother is seeking in the appeal from the orders of 26 March 2021 is, in effect, to be able to revert to those orders of the magistrate of 18 March 2021. However, that will be dealt with in that appeal, and it cannot be dealt with in the way that she is now attempting to do.
Not only has the mother demonstrated her inability to comply with orders of the Court, her actions, have also impacted on the child. As submitted by the Independent Children’s Lawyer, and I agree, there are multiple examples of the mother taking steps she considered appropriate, but which have been harmful to the child and or harmful to the child’s relationship with the father. These examples include:
(a)her application to the Court on 18 December 2020 for the child to spend time with his father during the long summer holidays for daytime periods, twice-weekly;
(b)her failure to deliver the child to the father as provided in the orders of 18 December 2020, necessitating a recovery order application on 21 December 2020;
(c)the mother’s decision on no less than seven occasion between June 2020 and December 2020 to have the child tested for COVID-19, with the testing coinciding with the time the child was due to commence time with the father pursuant to court orders;
(d)the mother presenting Z as unwell to the extent Ms H communicated with AA Medical Centre and considered making a notification to Child Protection. The evidence adduced multiple examples of the mother attempting to obtain medical certificates and indeed obtaining certificates to prevent the child spending overnight time with his father during the term two, 2020 school holidays;
(e)the mother photographing the child’s injuries she alleged he sustained during time spent with the father, and discussing the photographs with Dr P, whilst the child was present;
(f)the mother discussing her concerns for and about the child in relation to the father, in the child’s hearing and/or presence and creating opportunities for the child to convey his complaints about the father to medical practitioners and health professionals including Dr Y, Dr P and Ms H;
(g)the mother’s insistence on being present at the appointment with Dr D, contrary to orders which nominated the father as the attendee;
(h)despite the opinions of experts, Dr T, Ms H and Dr J, and determinations following interim defended hearings in this Court and the involvement of Victoria Police and Child Protection, the mother’s repeated insistence that the child is at risk of harm in the father’s care, and her multiple interlocutory applications to vary orders providing for the child to spend overnight time with his father.
Apart from the mother's disregard and breach of orders for the child to spend time with his father, the mother has demonstrated her lack of regard for court orders by her actions during the progress of the trial.
The mother was warned by me on a number of occasions while she was being cross-examined that she should not speak to her solicitors about any of the evidence or indeed contact them or any other witness.
During cross-examination it became apparent that:
(a)the mother had communicated with her solicitors by email while giving evidence, despite being warned not to do so;
(b)the mother had communicated with Ms H by email while Ms H was giving evidence, despite being warned not to do so.
The mother’s application to the Suburb B Magistrates’ Court following 10 days of hearings in this Court, achieved by way of an application for variation of an interim intervention order resulted in the child’s overnight time with his father being suspended and necessitated additional hearings in this court, including appeals, all of which lead to further destruction to the child’s overnight time with his father in accordance with long-standing court orders.
I have no confidence that the mother would comply with any orders for the child to spend time with his father other than what she believes is appropriate time during the day, and I so find. She has behaved in a highly manipulative manner and sought to incorrectly cast her actions as acting in the child's best interests and to manipulate the father, so that she alleges that he has agreed with her unilateral decisions to disregard court ordered time.
The evidence of her psychologist, Ms U, to the effect that the mother may find it difficult to overcome mental roadblocks and that the mother held particularly firm views about the child’s time with his father supports my assessment of the mother. Of significant concern was Ms U’s evidence that she was unable to give any indication or assurance that she had any confidence the mother would comply with parenting orders of the court in the future. Ms U’s evidence is referred to later in these reasons in greater detail. Her evidence in cross-examination traverses the mother’s psychological health, her concerns about the father and her capacity to comply with future orders which may not coincide with the mother’s view of the time the child should spend with his father.
It is also of significant concern that subsequent to Ms U giving evidence in the proceedings, the mother did not continue her therapeutic relationship with Ms U, and failed to provide any convincing evidence that she would meaningfully engage in future counselling or therapy to challenge her strident and entrenched views.
In her final submissions, and consistent with her attitude during the trial, the mother perceives herself as actively complying with orders and not a “no contact” parent, because she considers daytime time between the child and the father are in the child’s best interests. I implicitly reject that submission.
Having considered the matters referred to in the preceding paragraphs, I find that the mother:
(a)has repeatedly deliberately failed to comply with orders for the child to spend time with his father;
(b)absent the scrutiny of the Court, would not comply with court orders for the child to spend overnight time with his father;
(c)is unable to facilitate a relationship between the child and his father, except to the extent she considers time to be appropriate;
(d)has attempted to reinforce to the child negative views about the father.
In reaching my conclusion, I have had regard to the matters referred to in the preceding paragraphs and in particular:
(a)the conduct of the mother in repeatedly breaching court orders on the pretext of acting in the best interests of the child;
(b)taking the child on multiple occasions to doctors to obtain justification for not complying with court orders and preventing him spending time with his father;
(c)preventing the father from accompanying the child to appointments with Ms H by engineering COVID-19 testing;
(d)attempting to obtain evidence from medical practitioners to support her convictions without informing them of all relevant facts, including Dr Y and Dr P;
(e)the evidence of Ms U, her psychologist;
(f)obtaining the intervention order in March 2021 without notice to the father and during the course of the trial;
(g)the mother’s myopic and unwavering acceptance of complaints of the child about his father, when the objective evidence of experts, Ms H and Dr J does not support the child’s alleged criticisms of his father;
(h)her inability to articulate or understand the benefit to the child of spending overnight time with his father.
Mother’s allegations against the father
I will secondly address the mother’s allegations against the father.
The mother asserts that the father poses a risk to the child, so that the child should not spend overnight time with him. She alleges the father:
(a)has exposed the child to family violence, abuse or neglect;
(b)has mental health difficulties, specifically bipolar disorder and the risk of deterioration of his mental health, which impacts on his capacity to adequately care for the child for extended or overnight periods;
(c)has inadequate sleeping arrangements for the child to spend overnight time with him in the immediate future.
She further asserts the degree of risk is not unacceptable so as to require the child’s time with the father to be supervised, however it is to the extent that his time should be daytime only, despite current orders providing for overnight time.
The mother's initial position during the course of the proceedings, until a minute was produced by her counsel on the sixth day of the trial, was as set out in her Further Amended Response filed 9 October 2020. She sought orders that the child should only spend day time periods with his father including during the holidays, in perpetuity.
On the sixth day of the trial, counsel for the mother brought to the court's attention a minute of the mother's revised proposal, which is exhibit M-4. That minute provides for the child to spend time with his father during the day until May 2022 when she proposes one night of overnight time for a year, progressing in May 2023 to two nights overnight per fortnight. In her Final Written Submissions, the mother asserts she did not agree to such a proposal. In any event, her final minute of proposed orders seek that the child’s time with his father only occur during the day.
The mother devoted considerable time and evidence to the events of 2018, subsequent to separation and the asserted consequential effect on the child. Counsel for the Independent Children’s Lawyer submitted the mother’s case was that the catalyst for the child’s reticence to spend over night time with his father, was the father’s unilateral decision to travel interstate with the child in June 2018, without the mother’s prior knowledge.
The mother’s trial affidavit was replete with allegations of family violence during the relationship, at separation and subsequent to separation. Her allegations include that the father has been emotionally, verbally, and at times physically violent towards her and sometimes family violence has occurred in the presence of the child. She asserts that the father was controlling and deposes to specific numerous incidents of family violence which she says occurred in September 2009, late 2013, late 2014, April 2015, late 2015, June 2017 and April 2018. The father denied the allegations of family violence.
The mother categorises the father’s removal of the child from her in June 2018. Both parties agree that the father collected the child from school June 2018, without the mother’s knowledge and thereafter travelled interstate with the child. The mother eventually collected the child from a station in Sydney on 20 June 2018.
On 7 June 2018, the father had obtained an intervention order in a local Magistrates Court against the mother, listing the child as an affected family member and on 28 June 2018 the mother obtained an intervention order against the father. The mother also attended the Suburb B Magistrates Court on 12 June 2018 to seek to vary the intervention order obtained by the father however the hearing was adjourned until 19 July 2018.
According to the father, from the date of cohabitation in February 2006, the mother had periods of extreme anger, during which she attacked him verbally and physically, including chasing him around the house, throwing household objects at him and sometimes locking him out of the house. The abuse included scratching, punching and kicking. The father deposes to the mother having slapped the child in his face with her open hand on three to five occasions when he was aged between one and two years. The mother denies the father’s allegations of family violence.
Both parties were cross-examined about the historical allegations of family violence against the other. After hearing cross-examination, it is apparent that the parties had a tempestuous and at times acrimonious relationship. I find it more probable than not that both parents engaged in historical family violence towards the other, and that sometimes the parental arguments occurred in the presence of the child.
The mother devoted considerable time and evidence to the events of 2018, subsequent to separation and the asserted consequential effect on the child. Counsel for the Independent Children’s Lawyer submitted the mother’s case was that the catalyst for the child’s reticence to spend over night time with his father, was the father’s unilateral decision to travel interstate with the child in June 2018, without the mother’s prior knowledge.
Counsel for the Independent Children’s Lawyer also submitted, and I agree, that while the father’s actions immediately post separation, occurred some time ago in June 2018, and demonstrated a lack of insight on his behalf, those events do not preclude the making of final orders in terms of the minute submitted by the father and supported by the Independent Children’s Lawyer. That is particularly so in the context of the mother’s current complaints against the father, which are referred to at paragraph 154 of these reasons, which are significantly more limited than the historical allegations of family violence levelled by each parent against the other.
It is notable that those concerns raised by the mother at trial are similar to the allegations she made to Dr J during the interview for the family report assessment in June 2019. During cross-examination, Dr J’s evidence was that at the time he conducted the interviews and assessments and prepared his report, he had given consideration to the mother’s concerns, as they were serious matters. However, ultimately and notwithstanding those concerns Dr J found no evidence to support the proposition that the child was at an unacceptable risk of harm in the father’s care as at June 2019. Rather, it was implicit in Dr J’s recommendations in the June 2019 assessment, that the father was capable of meeting the child’s needs including his psychological and emotional needs.
Scenario two, as proposed by the father and the Independent Children’s Lawyer is that the child should live with his father and spend time with the mother following an adjustment period of no contact with his mother, to enable the child to settle with his father. The time spent with the mother would be either a shared care arrangement or permutations thereof.
If the court determined that scenario two was in the best interests of the child, then the child’s reaction would be likely to say such an arrangement is unfair and he would be likely be very or quite angry on behalf of his mother. That reaction would be also likely be met with relief that it was not the child’s decision and that he is no longer in the middle of his parent’s conflict, which would be beneficial for the child, both short and long-term.
In terms of how the child could cope with living with his father, Ms H was of the view that the child would express an enormous sense of relief so that he was not in the middle of his waring parents, someone else had made the decision and he does not have to negotiate each parent. As for as the long term benefits of such an arrangement, the child would have a positive relationship with both parents and anything that facilitates a positive relationship with both parents is going to be vital for his development into the future. Prescriptive court orders would be required for the new arrangements to prevent the child being subjected to any pressure exerted by his mother for him to spend additional time with her, which would again place the child in the middle of parental conflict.
Dr J generally agreed with Ms H’s evidence about the possible long-term effect on the child of continuing to live with his mother. He was more concerned about the immediate impact on the child, which he described as a child being clearly caught in a tug-of-war between two warring parents with no resolution, which has gone on for the best part of three years. That situation engenders an anxiety that is immediate and palpable and one, which he was of the opinion, would not resolve until the litigation was at an end.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that the difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
At the commencement of the trial until late December 2020 the father lived with the paternal grandfather, his partner and her adult daughter in the three bedroom home in Suburb CC. The father had lived at that address since he left the family home at the time of separation and the child has spent time with the father at that address for a significant period.
In December 2020, the father secured and moved into a four bedroom rental property in Suburb DD, which is a short distance to the mother’s rented home and in closer proximity to the child’s school. He did so to enable him to live closer to the child’s school by the commencement of term one in 2021.
It was common ground that the child shared a room with his father in the Suburb CC property. It was the father’s evidence that subsequent to the move to his new home, the child, at his request, continues to sleep on a bunk bed in the father’s room although he will transition to his own bedroom in time.
Ms H gave evidence that the child also sleeps in the same room as his mother.
There was no identified problems about the distance between the two homes, following the father’s relocation around December 2020 and there is no practical impediment to the child spending time or communicating with both parents.
The capacity of each of the child’s parents to provide for the child’s needs, including his emotional and intellectual needs
Counsel for the Independent Children’s Lawyer submitted that the evidence supported a finding that both parents have capacity to meet the child to day-to-day needs however the father is better placed than the mother to meet the child’s emotional and psychological needs.
Ms H’s evidence was in the context of the child picking up and reacting to the mother’s anxiety and thereby triggering the child’s anxiety. The mother previously sought to discuss issues concerning the child in the child’s presence and attempted to utilise a significant period of the child’s session with Ms H or Ms S for her own purposes. She thereby placed her own needs above those of the child, although she may not even have been aware she was doing so. Ms H spoke of the child’s anxiety triggering the mother’s anxiety so that in the mother’s household, each triggered and increasingly heightened the others anxiety. It would be difficult to establish whether the child’s anxiety was about the prospect of a visit to his father’s home or whether it would be about letting his mother down by actually having a positive experience at his father’s home. In any event, the message the mother is sending to the child is very implicit, and not necessarily explicit at all and she may even be unaware that she is doing so.
The other issue was the mother’s pathologising of the child’s physical symptoms when the mother was presenting him to various medical practitioners as unwell and using COVID-19 tests as an excuse to prevent the child spending time with his father. Ms H was of the view that the child’s lack of contact with his father was having a big impact on the child in terms of what was observed by her including the child’s withdrawal from therapy, failure to interact and failing to turn on his camera and microphone during video calls. She considered it highly unusual that he did not want to interact and his conduct was a serious sign to her that the child was not doing well. Such was the extent of her concern around July 2020 that she considered making a notification to the Department of Human Services, although that did not eventuate.
The mother gave evidence about the child engaging in what she described as self-harming behaviours, which included deliberately falling off a scooter because he missed his mother, threatening to bump his head against the wall, punching his face, threatening to cut himself with a knife, and expressing a wish not to live, all of which she seemed to attribute to the child’s stress and anxiety and his reluctance to spend overnight time with his father. At times she also took photographs of the alleged injuries and the child’s bloodshot eyes.
Ms H agreed with the proposition that if the child was engaging in self harming, as reported by the mother, then those behaviours were a result of the child’s anxiety in the mother’s household. That would explain the father’s evidence that such behaviour did not occur in his household. She also agreed that the child is more at risk of harm in the mother’s home in a psychological and emotional sense and possibly a physical sense, if he actually does engage in self-harming behaviours, than if he is in his father’s home. That was particularly so during lockdown and COVID-19 when he was by himself with his mother.
Dr J described the mother’s beliefs about the harm the child comes to arising from his relationship with his father, as real beliefs, but ill conceived. Neither expert concurred with the mother’s view that the child should only spend daytime with his father.
After considering the evidence of Ms H and Dr J referred to in the immediately preceding paragraphs, I accept the submission of counsel for the Independent Children’s Lawyer that the evidence supports a finding that the father is better placed than the mother to meet the child’s psychological and emotional needs, and I so find.
The maturity, sex lifestyle and background of the child and of either of the child’s parents and any other characteristics of the child that the court thinks is relevant
According to Ms H, the child is a “very intelligent little boy”, is “innovative” with an “active mind” and has a “cheeky sense of humour”. He is described as “very perceptive emotionally” and has a “sad side … where he feels pulled in two directions by his parents.” She also opined that the child is relatively immature in some ways, but mature in other areas.
Dr J described the child as “an articulate seven-year-old boy of average intelligence”. When asked during cross-examination about the child’s maturity, with respect to the views he had expressed about spend time arrangements at the date of the assessment, Dr J responded that the child’s maturity “seemed age-appropriate”.
As far as the child’s health and well-being is concerned, the child experiences anxiety. Referrals from his general practitioner refer to diagnoses of “anxiety disorder” or “mixed anxiety and depression”. During cross-examination Ms H’s evidence was that the child experiences “generalised anxiety” with an element of depression linked to the anxiety, which is triggered by the acrimonious parental relationship and is experienced predominantly in the mother’s home. This anxiety is not experienced in the father’s home nor at school, although the transition between the parent’s homes is particularly triggering for the child.
The mother’s complaints about the deterioration in the child’s behaviour subsequent to commencement of overnight time include elevated anxiety from lack of proper care and sleep with the father, severe aggression and death threats at the prospect of spending overnight and block time with the father, anxiety observed at school during class due to his difficulty in retaining the prior learnings, involvement in physical fights and conflict at school and sharing negative thoughts happening during and after weekend time with the father.
Counsel for the Independent Children’s Lawyer submitted that the child’s mental health challenges should also be considered alongside the mother’s mental health presentation. It was Dr J’s assessment that the mother presented to him “as a highly anxious 36-year-old woman” and although the mother referred to suffering physical, mental, emotional, financial and social abuse she gave little evidence during the interview to support these claims. Similarly, Ms H gave comprehensive evidence about her observations of the mother’s anxiety and the impact on the child. The impact included triggering and exacerbating the child’s own anxiety, which in turn heightens the mother’s anxiety and so on in a cyclical fashion. When the mother was cross-examined about her anxiety in relation to the child spending overnight time with his father, her evidence was that she was not anxious. When asked about the role she plays in exacerbating and influencing the child’s anxiety, the mother initially saw no connection, between her conduct and the child’s anxiety, although she later conceded she may play some role.
I agree with the submission of Counsel for the Independent Children’s Lawyer that the mother’s complaints about the child’s anxiety and deterioration in behaviours and health are inextricably linked with the mother’s own anxiety, in accordance with the evidence of Ms H. It is no surprise that the alleged behaviours do not occur in the father’s home. I am also of the view that the mother implicitly accepts any troubling conduct of the child as having been caused by him spending overnight time with his father. She is unable to objectively assess the effect of her own anxiety on the child and the triggering cycle on the child’s behaviour.
Ms H observed that the child was less anxious than during the preceding months as was her evidence in December 2020. The reduction in anxiety could be attributed to Ms H’s restructuring of appointments between the child and his mother so that the mother is afforded less opportunity to participate in the child’s counselling sessions and air her grievances in the presence of the child.
With respect to the child’s physical health, it was common ground between the parties that he suffers from nasal obstruction and a recurring epistaxis and that he consults an ear nose and throat specialist in relation to his condition. The mother has also complained that the child’s physical health has been adversely affected by spending overnight time with the father, particularly since the orders of April 2020 and September 2020. The mother asserts that the father does not respond appropriately or adequately when the child has nasal congestion and a blood nose, including allowing the child to swim when he should not be doing so. She also claims an exacerbation of the child’s tonsillitis, recurrent upper respiratory and throat and chest infections, headaches, bloodshot eyes, changes in eating behaviours and itching with rashes, resulting from overnight time with the father. There was no credible medical evidence to link these asserted physical problems with spending overnight time with the father. It seemed beyond the mother’s comprehension that her anxiety may also have impacted the child’s asserted physical health and that the child’s symptoms may have been exaggerated and misinterpreted by her to fit in with her agenda of preventing overnight time between the child and his father.
The father denies the mother’s allegations and says that he has the capacity to deal appropriately with the child’s medical needs. Having regard to the comments of the expert witnesses, including Ms H and Dr J that the child is not at risk in the father’s care, I am able to extrapolate that comment to the father’s physical care of the child. I also have regard to Dr T’s evidence about the father’s responsible and insightful management of his mental health and the nature of his prescribed medication. I find that the father does respond appropriately to the child’s physical health issues.
The father’s mental health was raised by the mother during the course of the proceeding as a potential risk factor. I refer to the evidence of the father’s treating psychiatrist, Dr T in my discussion of the mother’s asserted risks.
Additionally, Counsel for the Independent Children’s Lawyer submitted, and I agree that based on the evidence of Dr T, the court can be assured that the father is proactive in managing his mental health, the medications prescribed to and taken by the father do not impact or impair his ability to respond to the child’s needs during the night provided he continues to administer the correct dosage, further deterioration of the father’s mental health in the future is likely to be gradual rather than acute and the father would be able to recognise the onset of symptoms and be likely to seek treatment or appointments with Dr T if deterioration occurred. Dr T’s evidence in relation to the father’s ability to tend to the child during the night and in relation to any deterioration of his mental health was supported by the oral evidence of Dr J, who is also a psychiatrist, and whose evidence was carefully considered.
The child’s extended family
During the trial there was little focus on the child’s relationship with his extended family, other than Ms H’s evidence was that there was a close relationship between the child and his paternal grandfather. The mother’s unchallenged evidence was that the child enjoys a close relationship with her parents who live in Country EE and she seeks permission for the child to travel to Country EE to spend time with her parents. The Independent Children’s Lawyer does not support overseas travel for the child at this stage. Given the current COVID-19 international travel uncertainties, the issue of the child’s future travel is not paramount. There was insufficient evidence to make a determination about whether it is in the child’s best interest to travel overseas. Should the mother wish to make such an application in the future, she will need to make a discrete application supported by relevant and appropriate evidence with discrete proposals. I do not propose to make an order permitting her to take the child overseas at this time.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Counsel for the Independent Children’s Lawyer submitted that the child is fortunate to have two parents who love him, are committed to him and provide for his physical day-to-day needs. I agree with that submission, save that each of the parents has diametrically opposed views as to what is in the child’s best interests.
It was further submitted that the father has demonstrated appropriate propensity to prioritise the child since the commencement of the proceedings and has demonstrated compliance with court orders. The mother, on the other hand has demonstrated that she will comply with court orders, subject to her desire to do what she feels is necessary to protect the child and to act in his best interests, according to her view of the world. That desire compromises her capacity to regulate her conduct and to comply with court orders. Rather she has engaged in systematic manipulation of various professionals in an attempt to attain her objective to minimise the father’s time with the child to daytime only.
It was submitted by Counsel for the Independent Children’s Lawyer, and I agree that the mother’s conduct, which she considered appropriate and beneficial to the child, was at times harmful to the child or his relationship with his father. Examples of this include her non-compliance with court orders around the long summer holidays in December 2020 and her application to vary the orders of this court in March 2021 by seeking a variation to an intervention order in the father’s absence. Further examples are:
(a)presenting the child for COVID-19 testing on at least seven occasions between June 2020 and December 2020, all of which coincided around the time the child was due to leave her care;
(b)presenting the child to medical practitioners as unwell including obtaining a medical certificate in June/July 2020 to prevent the child spending overnight time during the holidays with the father;
(c)photographing the child’s injuries and discussing the photographs with the child in the presence of Dr P;
(d)discussing her concerns about the child and the father in the child’s presence and/or hearing and creating opportunities for the child to convey his alleged concerns to health professionals including Dr Y, Dr P and Ms H;
(e)her repeated insistence that the child is at risk of harm in the father’s care, despite the evidence of Dr T, Ms H and Dr J and repeated interim orders of this court providing for the child to spend overnight time with his father.
Any family violence involving the child or a member of the child’s family
I have addressed allegations of family violence made by each parent against the other in the context of my assessment of whether the parents pose a risk to the child.
Family violence orders
Subsequent to separation each of the parents has obtained family violence orders against the other.
The extant intervention order proceedings relate to an intervention order obtained by the mother on 11 February 2020 for a period of two years, when the father was not present, listing the mother and the child as affected family members. On 20 July 2020, the father made an application for an interim intervention order, with the father and the child as affected family members. On that day an interim intervention order was made in the absence of the mother. That application was listed for 31 July 2020 when the mother made a cross-application to vary the intervention order in her favour. The matter was listed for hearing and subsequently adjourned on various dates. As at the date of conclusion of the trial, the proceedings remained extant.
I have earlier referred to the circumstances in March 2021, when the mother obtained a variation to her existing intervention order, without the father’s knowledge, so that orders of this court were varied to eliminate overnight time between the child and his father.
Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings
The parents have been engaged in litigation about the child for over three years. It is in the child’s best interests for the proceedings to be finalised and for him to have stability and certainty in his living arrangements. Dr J was vocal about the need to finalise the dispute between the parents. The orders which I intend to make, which are proposed by the father and the Independent Children’s Lawyer, have been endorsed by both Ms H and Dr J, after each expert afforded careful consideration to alternative proposals. As referred to previously, I have no confidence that if the child continued to live with the mother and the court ordered overnight periods of time, the mother would comply with orders which would necessitate further proceedings by the father.
Which parent should the child live with and what time should he spend with the non-residential parent
The father proposes that child live with him and there be a moratorium on time between the child and his mother, subsequent to the child commencing to live with his father. At the expiration of the moratorium period, the child should spend time with his mother, initially supervised with a progression to unsupervised. The Independent Children’s Lawyer supports the father’s proposal. The father’s proposal is made in the context of the mother’s demonstrated inability to recognise and prioritise the child’s needs for a fulsome relationship with his father including an inability to comply with court orders which do not accord with her views. A change of residence is also necessary and appropriate for the child’s present and future mental health which is consistent with the expert’s assessments.
The mother proposes that the child continue to live with her and his current time with the father be reduced to daytime only, including during school holidays. Her proposal remains until the child attains the age of 18 years, despite having proposed previously some progression to overnight time upon the child attaining 12 years of age. The mother’s proposal is made in the context of her allegations of the child’s elevated stress and anxiety, including self-harm, such as deliberately cutting his fingers in the father’s care to return to the mother, the father’s inability to regulate his behaviour in response to stressful situations where the child has alleged abusive behaviours, including physical abuse, being required to do chores in the father’s home and the number of times the child has become ill after overnight time with the father. The mother also perceives that she has facilitated and encouraged a relationship between the child and his father and all attendances upon doctors were medically warranted and appropriate.
Both Ms H and Dr J agreed with and support the father’s proposal for a change of residence for the child.
As has previously been stated, Ms H has been involved with the family since August 2018 to provide psychological assistance and therapy to the child. Her evidence in December 2020 was that the parents have a poor co-parenting relationship, engage in high conflict and the child occupies a very uncomfortable space in the middle of his parents which causes him to suffer every day. Rather than recognising the child is suffering, the mother pathologises the child and uses that as a justification to keep the child away from his father as much as possible. According to her, the longer that continues the worse it is going to be for the child. According to the mother, the child actually experiences a whole range of physical symptoms. Ms H attributed physical symptoms to the child’s fears that something will go wrong and in particular what will happen to his mother in his absence, which is demonstrative of a co-dependency between the mother and child. Ms H, after observing the child with both parents, opined that the child did not experience anxiety in the father’s home.
Ms H also expressed her concerns about the mother’s presentation of the child to medical practitioners, to prevent the child from spending time with his father and to prevent Ms H being able to observe and have sessions with the child, when he was in the care of his father. The mother was continually able to make the child available for sessions with Ms H when the child was with her, but not with the father. During the COVID-19 lockdown, Ms H observed that the child’s lack of contact with his father was having an adverse impact on the child to the extent that she considered making a notification to Child Protection. She was also of the view that the child was more at risk of harm in the mother’s home in a psychological and emotional sense, and to some degree a physical sense, if the self-harming type behaviours continued in the mother’s home, but were not apparent in the father’s home. She was of the view that the child’s best interests were served by spending overnight time with his father and that she had no concerns with the father meeting the child’s needs for overnight extended periods. In response to the mother’s proposal that the child not spend overnight time with his father until the age of 12, she considered the mother’s expectations to be unrealistic, that arrangement was not reflective of the child’s wishes and he would not say that voluntarily, in the absence of his mother.
Various proposals for the child’s living arrangements were posed to Ms H for her comment. The first proposition was that the child live with his mother and spend regular day time with his father, in accordance with the mother’s proposal. Her response was that she did not see any progress at all and it would keep the child caught in the middle of parental conflict. The second proposition for her consideration, was for the child to remain primarily in his mother’s care and spend five nights in his father’s care or even week about and the parents would attend upon Ms H to improve the co-parenting relationship, whilst the child continued to attend upon Ms H or Ms S. Ms H’s view of that proposal was that it was idealistic, but the orders had not been complied with to date and the proposition was predicated upon the parents having improved their co-parenting relationship, which has not occurred. The third proposition for her consideration was a change of residence with a moratorium period. Her evidence was that she was torn in relation to what to do as between the second and third propositions, but if the court was required to make a decision she would have to say the third proposition was the most appropriate arrangement for the child. If the Court made orders in accordance with the third proposition, after the moratorium and reintroduction time, an arrangement where the child lived ten nights a fortnight with the father and spends four nights a fortnight with his mother, would be appropriate.
Ms H was again cross-examined in August 2021, after she had further opportunity to conduct sessions between the child and his parents and her evidence was she was unable to see any alternative to a change of residence for the child. She did not lightly advocate a change of residence and was very considered in her responses and opinion.
In his family report dated 8 July 2019, Dr J recommended that the child remain living with his mother and spend three nights a fortnight with his father as well as an evening each week after school. He also recommended the child spend half school holidays and special occasions with his father. As an alternative to those recommendations, Dr J suggested an equal time arrangement, with some transition period.
Dr J’s oral evidence about the child’s living arrangements concurred with Ms H. His evidence was that upon reading the material he was provided with he thought the Court may need to consider whether the current situation was viable at all and whether a change of residence would be necessary. In expressing that opinion, after an update of the situation by counsel for the Independent Children’s Lawyer, Dr J said:
I reached that position quite reluctantly, but it was even before I heard any of the information that you’ve currently given – or – given me today. And the information you’ve given me – and I say that genuinely sadly, but I actually think – sadly, it – what you’ve given me today has only served to reinforce the position that the court may have no alternative but to consider a change of residence.
It is most telling that the mother retracted her proposal for the child to spend overnight time with his father from the age of 12 and thereafter increasing, after she heard the overwhelming evidence of both Ms H and Dr J. In the context of that evidence, it is remarkable that she chose to persist with her proposal for daytime only. It is abundantly clear that the mother holds entrenched views about the father and his capacity to care for the child in the future, which are not substantiated by any legitimate evidence and is unlikely to grant emotional permission to the child to have a proper relationship with his father.
A proper and meaningful relationship between the child and his father is absolutely essential for his emotional and psychological well-being and that will not be the case if the child lives with his mother and spends daytime only with his father. It is in the child’s best interests for the mother’s influence in his life to be contained so that he is no longer burdened with her anxiety and unsubstantiated beliefs about the father, including that he engages in family violence and poses a risk to the child’s welfare. I have no concerns about the father’s capacity to facilitate a relationship between the child and his mother and that he will comply with court orders. That will ensure the child has an ongoing and substantial relationship with both his parents.
I have no doubt that the change of residence and a moratorium period may present some difficulties for the child, although I am satisfied he will experience an enormous sense of relief from the cessation of being caught in the parental conflict and enmeshed in the mother’s anxieties and beliefs. Such an arrangement will also present difficulties for the mother, and I would urge her to reengage with a psychologist to enable her to come to terms with the new parenting arrangements for the child.
Upon the expiration of the moratorium period the child will recommence spending time with his mother, initially supervised and thereafter progressing to substantial and significant time, as recommended by Ms H.
In relation to a moratorium period, Ms H’s evidence was that it would be necessary to establish the child’s relationship with his father and that a four week period would be appropriate to enable that to occur. Thereafter, time should progress to two hours supervised each week for a period of six weeks prior to commencing unsupervised time on a Saturday afternoon for six weeks and thereafter Thursday afternoon and each Saturday for a further six week period prior to increasing to each Saturday and Sunday. At the conclusion of that time, overnight time should recommence each alternative weekend from Saturday 10.00 am to Sunday 6.00 pm and each Thursday from 3.30 pm to 8.00 pm for a further six occasions. She agreed it would be appropriate for time to then increase in accordance with the father’s proposal culminating in each alternative weekend from Friday 3.30 pm to Monday 3.30 pm and each Thursday from 3.30 pm to 8.00 pm together with school holidays and special occasions. Ms H also advocated prescriptive and clear orders for the child’s time with his mother, to avoid the possibility of the mother pressuring the child to spend more time with her.
I implicitly accept the evidence of both experts that it is in the child’s best interests to live with his father and spend time with his mother in accordance with the proposal of the father and the Independent Children’s Lawyer. I reach that decision having regard to the matters referred to in this judgment and in particular my findings that the father does not pose a risk to the well-being of the child and I have no confidence whatsoever that the mother will promote and facilitate an overnight relationship between the child and his father. The living arrangements which I propose to order will ensure that the child will have the benefit of a relationship with both his mother and his father and will alleviate the stress and anxiety he currently experiences by being in the middle of a toxic and dysfunctional parental relationship.
I have absolutely no confidence that the mother would comply with orders providing for the father to continue to have overnight time with the child absent the court’s scrutiny. That would inevitably lead to further parenting proceedings including possible contravention proceedings and a further application for change of residency. The mother’s view of the risk the father poses to the child is unsubstantiated and myopic in the extreme and I do not accept that any counselling or therapist would be able to successfully challenge or change her views in the short to medium term. It is my view she will continue to present the child to various medical practitioners and pathologise his anxiety and alleged physical injuries to minimise the child’s time with his father to daytime only, which she alone deems appropriate and acceptable time. The consequences to the child of such a regime are bleak and may well have serious long-term ramifications affecting his emotional and psychological well-being. Those consequences are discussed earlier in these reasons.
I intend to make orders in accordance with the proposal of the father.
PARENTAL RESPONSIBILITY
Section 61DA provides, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interests of the child for the child's parents to have equal shared parental responsibility.
In this case, the father seeks an order for sole parental responsibility, which is supported by the Independent Children’s Lawyer. The father initially sought an order for equal shared parental responsibility when he sought orders for the child to live equal time with each parent. He has now amended his application to seek an order for sole parental responsibility
The mother seeks an order for equal shared parental responsibility. She originally sought an order that she have sole parental responsibility for the child. During cross-examination she conceded that the parties should have equal shared parental responsibility and she has amended her application accordingly.
Counsel for the Independent Children’s Lawyer submitted, and I agree the statutory presumption is rebutted in this matter by the evidence adduced during the trial. Specifically, it is common ground between the parties that the relationship was fraught with difficulties from the time the child was born until the parties separated in acrimonious circumstances at the time the child was five years and three months old. Both parties make allegations of family violence against the other and there are still intervention order proceedings on foot in the Magistrates Court. As referred to in these reasons, the mother made an application to vary the existing intervention order in March 2021, in the father’s absence. The allegations of family violence, the poor co-parenting relationship between the parents and the harm the child has suffered and will continue to suffer whilst the current parenting arrangements are in place, as identified by both Ms H and Dr J, all warrant that an order be made for sole parental responsibility in favour of the father.
In particular, Dr J’s evidence that the non-existent co-parenting relationship between the parents and the mutual degree of mistrust would lead him to support a recommendation of sole parental responsibility being vested in the father, as there may be “no alternative in these circumstances”.
Whilst I understand it is a significant step to deprive a parent of parental responsibility, in the context of specific, multiple and entrenched problems in the relationship between the parents, I can only reach the conclusion that it is appropriate for the parent with whom he will primarily be living, the father, to exercise sole parental responsibility for the child. I intend to make an order for the father to have sole parental responsibility for the child, subject to him notifying the mother of decisions that he may make, which is in accordance with the proposal of the Independent Children's Lawyer. Such an order is in the child's best interests.
As I have determined, there should be an order for sole parental responsibility, I am not required to address the statutory pathway set out in s 65DAA.
I have concerns about the mother’s compliance with the orders I intend to make changing the child’s residence. I will therefore make orders providing for that to occur immediately following my decision. In the event the mother does not comply and deliver the child to the father, if the child is in her care, then I anticipate an application will be made for an urgent recovery order. Subsequent to the events of December 2020, the mother is well aware of the actions which will be taken in executing a recovery order and the impact on the child.
I certify that the preceding three hundred and eleven (311) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 20 December 2021
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