BAYMAN and FJELSTAD

[2022] FCWA 23

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: BAYMAN and FJELSTAD [2022] FCWA 23

CORAM: DUNCANSON J

HEARD: 31 JANUARY 2022

DELIVERED : Ex tempore

FILE NO/S: [Redacted]

BETWEEN: MR BAYMAN

Applicant

AND

MS FJELSTAD

Respondent

Catchwords:

CHILDREN - where the single expert witness holds a high level of concern for the mental health of a child - where the Independent Children's Lawyer supports the recommendation of the single expert witness for a change in the children's living arrangements - where it is in the best interests of the children to order that their living arrangements be changed notwithstanding the proximity of the trial

Legislation:

Family Court Act 1997 (WA)
Family Court Rules 2021 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr D Kalle
Respondent	:	Ms R Mitchell
Independent Children's Lawyer	:	Ms J Brinkley

Solicitors:

Applicant	:	DK Family Legal
Respondent	:	Ruah Legal Services
Independent Children's Lawyer	:	Legal Aid WA

Case(s) referred to in decision(s):

Hall and Hall (1979) FLC 90-713

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bayman and Fjelstad has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

INTRODUCTION

1These proceedings concern the children, [Child A] who was born [in] 2015 and [Child B] who was born [in] 2017. The children are six and four years of age respectively.

2The children's parents, [Ms Fjelstad] the mother and [Mr Bayman] the father, are unable to agree the children's living arrangements on an interim basis. The proceedings have been listed for trial not before 8 March 2022.

3Briefly by way of background, the parties began living together in mid-2014 and separated finally in mid-2018. Both parties expressed concern about the other's care of the children with each party making serious allegations against the other. Those allegations are summarised by Magistrate Stewart in her reasons dated 31 May 2021.

4The children lived with the mother however on 25 January 2021 orders were made providing for the children to live with the father and spend time with the mother. When the children's living arrangements were changed the father enrolled Child A at [School A] and Child B at the early learning centre there.

5[Ms A], Psychologist, was appointed single expert witness. She has provided three reports in these proceedings, the first dated 17 February 2021, a report dated 9 December 2021 and answers to questions dated 10 January 2022.

6At the time of Ms A's first report, she reported that the children were not coping with being away from their mother and more harm than good was being done at that time. Ms A recommended the children stay with the mother from Monday after school to Friday morning school drop off and spend time with the father at the weekends. At that time, a concern was the mother's partner and whether he posed a risk of harm to the children.

7On 31 May 2021 Magistrate Stewart made orders which were supported by the Independent Children's Lawyer (ICL), which provided for the children to continue living with the father and spend time with the mother three weekends out of four from Friday to Monday.

8On 15 December 2021, the mother filed an application in a case in which she seeks orders that various paragraphs of the orders dated 25 January and 31 May 2021 be discharged and the children live with her and spend time with the father each weekend from Friday to Sunday in week one and Friday to Saturday in week two. The father filed a response on 18 January 2022. He seeks to have the mother's application dismissed and he seeks a recovery order for the children.

9At the hearing, the ICL handed up her minute of proposed orders. The ICL proposes the children live with the mother and spend time with the father each alternate weekend from after school (or 3.00 pm if not a school day) on Friday to 5.00 pm on Sunday commencing 4 February 2022.

10After spending time with the mother recently the children were not returned to the father. She has retained the children in her care. The children should have resumed their attendance at School A today. The mother proposes to enrol them in a local school.

11The mother's position is that she relies on the evidence of Ms A in her report dated 9 December 2021. The mother asserts the children are at risk in the care of the father. She referred to Child A suffering separation anxiety. She alleged the father failed to obtain psychological help for the children as recommended, and she referred to "the single expert's opinion that it was unacceptable and neglectful for psychological support to have not [been] provided to the children". She also said the father has also not enrolled them in a protective behaviours program. The mother's position is that the children are at risk harm in the care of the father, and that in particular Child A is at risk of self-harm.

The father's position

12The father's position is that he provides well for the children's needs including their psychological needs. He referred to the mother's breach of an injunction preventing the children from having contact with her partner and placing the children at risk. He asserts the children are doing well and says that their health issues have been addressed.

The independent children's lawyer's position

13The ICL's position is that she is concerned about the terms of Ms A's report dated 9 December 2021 and in particular at paragraph [50] where Ms A stated:

50. [Child A] reported finding her parents separation very difficult. She explained she has a lot of emotions inside of her that make her confused and sad a lot of the time. "Mum wants us more, and dad wants us more, and they both tell us, and I don't like the feelings".

(as per the original)

14The ICL also referred to paragraph [61] of Ms A's report where she stated:

61. Throughout the course of the assessment [Child A] described at times wanting to hurt herself and sometimes thinks about hurting herself so that she would die. She reported that if she was going to hurt herself so that she would die she would "use a knife to cut my head". This constitutes suicidal ideation involving planning. This is EXREMELY CONCERNING (sic).

(as per the original)

15The ICL was mindful that the trial is only a number of weeks away and referred to an unusual course of action in seeking a change in the living arrangements at this time. The ICL said however she could not ignore the significant risk that Ms A thinks Child A to be at and for that reason she supports the mother's position.

DISCUSSION

16I have considered the evidence and the parties' submissions very carefully. These are interim proceedings only. I am unable to make any findings in fact and that cannot be done until the evidence has been tested at a final hearing.

17Child A and Child B's best interests is the paramount consideration. To determine what orders are in their best interests, I consider the primary and additional considerations as set out in the Family Court Act 1997 (WA) to the extent that I consider them necessary and relevant. There is much contested evidence in these proceedings, and I can only therefore give limited consideration to those matters.

18Ms A's reports are of assistance to me but I am mindful that as with all of the evidence in the matter, her evidence has not been tested. Further as was stated in Hall and Hall (1979) FLC 90-713 at 78,819:

There is no magic in a [single expert report]. A judge is not bound to accept it and there should never be any suggestion that the [expert] is usurping the role of the court or that the Judge is abdicating his responsibilities.

19With that in mind, I am of the view that the children have a meaningful relationship with both of their parents. They are accustomed to living with and spending time with both of them and moving between homes frequently. The issue which forms the basis of both parties' arguments is whether the children are at risk of harm in the care of a party. Ms A has very firmly given her opinion as set out above that Child A is at risk of harm. Ms A described Child A's presentation during her assessment as "extremely concerning". Ms A holds a very high level of concern for Child A. She reported as follows:

67. [Child A] is not coping. As a result of her assessment, it is clear she has post-traumatic stress symptomology involving anxiety, depression, dissociation, and suicidal ideation. [Child A] needed therapeutic support, as was clearly detailed in the previous SEW report, urgently ten months ago. This was clearly communicated to both parents and was detailed in the FCWA orders. For this to not have occurred, and for this child to be experiencing the level of internal distress that she has clearly articulated to the SEW is both unacceptable and neglectful.

(as per the original)

20Balanced against that risk is the risk of disturbance to the children if there is a change in their living arrangements at this stage such that they return to live with the mother and then after a trial if it is found that their best interests are served by an arrangement whereby they live with their father. That would lead to significant disruption for the children. Although they are accustomed to living with both parents it would involve a change of school and possibly a change back.

CONCLUSION

21I have balanced these risks and concluded that I cannot ignore the concerns expressed by Ms A about Child A's mental health and the urgency with which that matter requires to be addressed. It is a most unusual step to make the orders sought changing living arrangements in circumstances where the trial is a short time away and the evidence is, as yet, untested. I am satisfied however that in these unusual circumstances such a step must be taken to address the safety concerns of these young children, and in particular, Child A.

22Consequently, I propose to make the orders sought by the ICL which in my view are orders which are in the best interests of the children. Those orders are set out in the ICL's minute handed up in court today and subject to hearing from counsel will be orders 1 to 9.

THE ORDERS

1.Orders not by consent in terms of paragraphs 1 to 9 of the Independent Children's Lawyer's minute handed up today in Court.

2.By consent in terms of paragraphs 10, 11 and 12 of the said minute.

3.Within 14 days the Applicant, [MR BAYMAN] and the Respondent, [MS FJELSTAD] shall file and serve a written undertaking as to disclosure in the form set out in the form set out in Rule 211(4) Family Court Rules 2021 (WA) (Form NP 15), attaching each party's list of disclosure documents.

4.Not less than 7 days prior to trial each party shall file and serve an updating affidavit of evidence on which they rely.

5.The Principal Registrar is requested to contact the parties in the file of [Mr B] [File number omitted] to advise that a request has been made of the inspection for the file by the parties in these proceedings.

6.The parties will be notified if and when the file is to be made available.

7.The children, [CHILD A] born [in] 2015 and [CHILD B] born [in] 2017 have reasonable telephone communication [with] the Applicant and unless advised against by the children's psychologist, that communication take place between 5.00 pm and 5.30 pm each Tuesday and Thursday with the Applicant to initiate the call to the Respondent's mobile number.

8.The proceedings otherwise stand adjourned to trial listed not before 8 March 2022 at 10.00 am.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CL

Judicial Support Officer

15 MARCH 2022