BENDER & MATTHEWS - [2018] FamCA 184

FAMILY COURT OF AUSTRALIA

BENDER & MATTHEWS

[2018] FamCA 184

FAMILY LAW – CHILDREN – Where final orders were made in 2013, 2014 and 2015 but another application is made by the mother to remove supervision restrictions. Where there are no changes of circumstances – Application dismissed.
Family Law Act 1975 (Cth) Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Matthews & Bender (2015) FamCA 654
Neil v Nott (1994) 121 ALR 148
Poisat & Poisat [2014] FamCAFC 128; (2014) FLC 93-597
Rice and Asplund (1979) FLC 90-725:

APPLICANT:

Ms Bender

RESPONDENT:

Mr Matthews

FILE NUMBER:

MLC

3524

2008

DATE DELIVERED:

27 March 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

22 March 2018

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

Orders

That the mother’s application filed 26 October 2017 and the father’s response filed 5 December 2017 are dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bender & Matthews has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3524 of 2008

Ms Bender

Applicant

And

Mr Matthews

Respondent

REASONS FOR JUDGMENT

This parenting dispute between Ms Bender (the mother) and Mr Matthews (the father) has been going on for nearly ten years since they separated in 2007. Before that, they had lived together for about four years during which they married. In that time, M (the child) was born. She is now not far off her 13th birthday.

The present application

The present proceeding was begun as an application by the mother to change the existing parenting orders that have been extant for four years. As the mother said, she has spent seven months with a psychologist and is now ready to parent the child “amicably” with the father. She submitted she had “come a long way”, having regretted that she kept the father out of the child’s life which ultimately led to the child going to live with him under a court order in 2013. She said the child needed a mother because of her age.
The mother makes no secret of the fact that, as she sees it, there is no justice in the Family Court. She complained she was not allowed to give explanations for what she saw had happened but she also accused the father of “colluding” with a private contact supervision facilitator to preclude her from being with the child. There is no foundation for any of these complaints as I shall endeavour to explain.
Both parties represented themselves but each identified the documents upon which they relied having been reminded of the directions of the Court when the matter was set down. Both said they had consulted legal advisers and in the case of the mother, followed advice. Each confirmed their evidence was as set out in a trial affidavit but it soon became obvious that there were other documents that assisted in determining what has happened in the past. I have had resort to those documents but identify them in these reasons.

Self-represented litigants

Notwithstanding the mother’s complaint about lack of justice, I have taken into account what the High Court said in Neil v Nott (1994) 121 ALR 148, that a frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. This is such a case. It is difficult to explain the complexity of determining something as serious as a parenting case when the Court’s file is in two large boxes and there are over 200 documents of various sizes. The degree of difficulty is exacerbated by statements from the parties such as the evidence is “in the file”. Here, I have been assisted by the three judgments provided by Macmillan, Johns and Thornton JJ and I refer to them below.

Supervised contact service dispute

To give context to what this case is presently about, the mother, on a number of occasions, referred to being denied contact at the I Contact Service for nine months after September 2015. It is such a point of her focus that I consider I should deal with that now.
On 24 November 2016, the Practice Leader of the I Contact Centre wrote to the father (presumably in anticipation of a court hearing) that between July 2015 and September 2015, the mother was supervised in her time with the child. The letter said that the September visit was “cancelled after 1 hour due to (the mother) being inappropriate during the visit”. On 19 June 2017, the same author of that letter wrote that it was not September but March 2015 when the visit was cancelled after 1 hour due to “Mo being inappropriate” and that in fact, the September visit was completed after the designated two hours. The letter ended with the following words:
Apologies for any confusion this may have caused.
The mother saw this letter as explaining why her time was stopped after September 2015 for nine months; she says it was wrongly stopped as there was no conduct or behavioural issue arising from the September 2015 visit. The “evidence” she relies upon is the “apology” from the contact service. She maintains that in a subsequent court hearing (presumably before Thornton J) as she did not have this “apology” in writing and an injustice was therefore done. That was a simplistic view of the issue because the evidence explaining the suspension of the child’s supervision was before Thornton J and referred to in her Honour’s reasons for judgment.
The mother’s complaint on which her argument largely rests is better understood when the following matters are considered.
First, (Exhibit H2) the same contact service wrote to the father in March 2017 to say that:
In October 2015 a counsellor from the Parenting Orders Program (POP) engaged in counselling with (the child) due to anxiety. Following this, the Children’s Contact Service in consultation with the Parenting Orders Program withdrew due to Child Refusal. (my emphasis).
The letter went on to say in bold type:
The [I Contact Centre] was not engaged with the family from October 2015 until April 2016.
On the basis of that evidence, the mother’s complaint about what happened in September has little merit but it is significant in the bigger picture because she alleges that this is evidence of collusion between the father and the contact service. Nothing supports that assertion.
Secondly, previous orders of the Court had restrained the mother from bringing applications associated with the parenting orders without permission of a judge. The application heard by Thornton J was filed in November 2016 and notwithstanding the involvement of the father should have been unnecessary, he participated. The issue of what the Contact Service wrote (incorrectly) about the contact in September 2015 was again part of the mother’s focus before her Honour and the argument then seemed much the same as the one put before the present hearing.
In determining the matter in 2017, Thornton J refused the mother leave and explained why as follows saying:
[27] The father filed affidavits annexing letters from the Contact Service which corroborated his untested evidence that there was “a gap in visits” at the Contact Service due to the mother “not organising visits and later due to her inappropriate behaviour” and child refusal. The father deposed that the child received counselling offered by Family Life, because the child displayed extreme levels of distress about visiting the mother and it was agreed that visits should not continue due to child refusal.
[28] The mother agreed with the correspondence from the Contact Service annexed to the father’s affidavit material that she had withdrawn from the contact visits for some months because she was very depressed. The mother was aware of the views expressed by the Contact Service that the child was refusing to spend time with her and that the mother’s conduct at the Service was inappropriate on occasions. However the mother generally took issue with the correspondence from the Contact Service annexed to the father’s affidavit material. The correspondence referring to “child refusal” and inappropriate behaviour by the mother was not accepted by the mother. The mother referred to a meeting which she attended with the Contact Service after the contact visit on 26 September 2015 before the visits were suspended for about eight months. The Contact Service visits were suspended when the mother was told about the child’s refusal to attend contact. The mother claimed that she was not provided with any reasons at that meeting and that she does not accept that the child was refusing to participate in spending time with her at the Contact Service. The mother was aware of all of the material contained in the correspondence from the Contact Service and disagreed that she had denigrated the Service or that she had not complied with the rules as set out in that correspondence.
In her affidavit filed for the present proceeding, none of this was mentioned and there was certainly no reference to any concession she made to Thornton J. Her Honour’s order was not the subject of any appeal and the two mentioned paragraphs are findings of fact.
I do not read the letter of “apology” as an apology for lying about the contact being terminated after 1 hour in September. The letter is really one correcting an error in the dates. I read it as an admission of a mistake. The mother does not dispute that in the March visit, her time was curtailed but it would seem that the visits thereafter proceeded. I am at a loss to see how any of this assists her unless she establishes that there was collusion between the service and the father and that the letter about her behaviour was written to enable the contact service to cease the supervision after the September visit. Evidence of that has not emerged. On the contrary, the evidence indicates that after the September visit, supervision was stopped because the child was not coping.

Collusion

On the issue of collusion, the mother asked the father about his relationship with the contact service centre but all he said was that he knew the employees professionally; there is no evidence to the contrary.
It is concerning that the mother’s intense focus on this issue distracts attention from the bigger and wider picture but it may also explain some of the concerns expressed by two previous trial judges about her ability to focus. As the mother would have it, she has no such problems and her seven months with a psychologist have shown that. I am not convinced she is correct. Again, it is convenient to turn to a report she provided which was attached to her affidavit.

The mother’s psychologist

Mr JK describes himself as a clinical psychologist. The mother pointed to the academic letters after his name to establish that he is an expert. She said he has five clinics and she spent some thousands of dollars seeing him and getting this report. Over a muted objection by the father, but which seemed to be about form rather than substance, I examined what the report writer said. The issue is what weight, if any, should be given to this “report”.
Mr JK said he had undertaken various professional tests on the mother but at no time did he speak to either the father or the child. He provided a list of documents he relied upon including many documents that were not in evidence before me. He read the Court’s orders of September and October 2013 and various reports of KL Group which presumably have something to do with supervised contact. I do not know what period they cover. He read 2014 family reports but critically, missing from his list are the judgments of Macmillan and Johns JJ. In fairness, that is unclear because he said that “the reader is referred to the Court Report written by Family Court of Australia Parenting Orders made 27 September 2013 and 25 October 2013”. He then made reference to “According to Justice Macmillan”. I am guessing, but I think he is referring to the judgments. It is unusual to accept that a professional who has a number of clinics would not be able to understand the importance of correct descriptions.
He also had the affidavits of the mother filed subsequent to the court judgments but critically, he does not seem to have the evidence (if any) of the father. He read the I Contact Service notes of February 2017 but does not tell me what observations were important to his determination.
At paragraph [9] of his report, the psychologist said that the mother “appealed to the Victorian courts to increase the amount of contact she has with her child.” He said the “outcome” of this appeal was that the mother was to see the child once a month. Those observations lead to some confusion but I suspect he is referring to an application to vary the earlier orders of Macmillan J in which the mother was unsuccessful in obtaining any significant alteration. These inaccuracies of language have been a distraction but explain why the courts have to interpret some of the papers provided, to see their relevance.
One example of how confusion has occurred here goes back to the earlier issue of the September 2015 loss of time. Annexure BAB-7 to the mother’s affidavit is a letter dated 29 October 2015 in which the contact service wrote that they would not be facilitating contact “at this time”. The mother observed that not only was she not told of any reluctance by the child to attend but that this letter gave no explanation about why her time was stopped. She said that at a meeting referred to in the letter, she was not given any explanation as to why, for the ensuing nine months, she would not see the child. I found that evidence hard to accept but at paragraph [15] of the psychologist’s report, he said:
In an interview conducted on 9 November 2015, (the mother) reported that she had been told at a meeting with (the contact service) that [the child] had reported to her counsellor that she was anxious about the supervised visits with (the mother)…
The reference to 9 November (I think) was to a day upon which the mother had a session with Mr JK so it would seem unlikely that the interview to which he was referring was with the contact service. The plausible likelihood is that it was with him. November was only days after the contact centre letter of 29 October. It is more likely and probable that the discussion with the psychologist was about the service terminating the mother’s time and accordingly, the mother well-knew the reason. The reason mentioned to the psychologist is the same as the one to which the contact service pointed (exhibit H2). Accordingly, I find the mother’s evidence is unreliable about the relevance of the suspension of time.
Mr JK saw the mother over a period of 18 months. With all of the reservations of the underlying facts of this report, I am hesitant to place much weight on his opinion if it was intended to give expert advice to the Court about a specific topic. For example, was the report intended to address problems detected by the two previous judges? Was it intended to show that the family report writer was previously wrong about the mother? Was it intended to be advice that the mother and child relationship would be fostered and enhanced by something different from the existing orders and if so, how could that be done without interviewing the other critical person, the child?
The mother’s observation was that the Court had told her to get psychological help and that was what she had done. I am not sure whether Mr JK had experience of a forensic nature such that he understood the role he was to fulfil here and whether he would agree that his report was deficient in relation to the answers to the questions I have just raised. I have some uncertainty whether he knew that this report was going to be produced to a court.
The psychologist turned to his testing of the mother and opined:
·her answers were consistent;
·she appeared to have no clinically significant personality abnormalities;
·she answered the questions in an orderly manner;
·the validity indicators were within acceptable limits;
·overall, the profile seemed valid but was to be interpreted with caution; (my emphasis)
·the depression anxiety scale was within normal range.
I do not know why there was caution expressed but at [35] and referring to the period prior to the 2013 final orders being made, the psychologist said that it remained difficult to ascertain the nature of the mother’s psychological condition. He thought her problems were from the “custody” issues and that she was suffering from stress, depressive and anxious symptomatology. His diagnosis was an Adjustment disorder with mixed depression and anxious mood.
The psychologist then made “recommendations”. Rather than deal with his apparent diagnosis, the psychologist seemed more concerned about the parenting dispute. He said at [41]:
In my opinion, it is recommended that (the mother) has more of a shared custody arrangement and that the goal should be to work towards that. ([The child]) would benefit from having both parents in her life on a more consistent and regular basis.
With the greatest respect, I am at a loss to understand how that diagnosis translates to that “opinion”. The underlying basis for the opinion is missing. To the extent that the mother understood this report was what the Court needed, and had recommended, and that it provided the answer, the report was flawed and misleading to her. I give it very little weight in all of those circumstances.

Rice v Asplund

The approach to what is really a significant variation of parenting orders has been the subject of a number of authorities. To be clear, it was not argued here by either party, but particularly the father, that the Court did not have power to re-open a parenting orders case. However, as both parties were without legal representation and with the history of this litigation, the Court should approach the matter according to authority rather than just allow the parties to use up community resources when they (or one of them) think it is time to “move forward” or have a rethink about what had previously been done.
As the Full Court explained in Poisat & Poisat [2014] FamCAFC 128 (2014) FLC 93-597 in relation to the approach about what was described as the “rule” in Rice and Asplund (1979) FLC 90-725 and in particular, the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth):
The Explanatory Memoranda ………….. refer(s) to “the principle in Rice and Asplund” limiting:
89.…the court’s capacity to rehear matters in two kinds of cases: those where there is a change in the circumstances of the parties where some new factor has arisen which would justify a serious step; and those where there is some factor which was not disclosed at a previous hearing that would have been material.
90.It is not generally in the best interests of the child to have repeated applications concerning them before the courts…
91.The note following sub-item 47(2) directs the reader to the principle in Rice and Asplund. This note is to assist readers, particularly self-represented litigants, to understand how sub-items 47(2) links to the common law. (my emphasis)
As the Full Court went on to explain, even in a case where there is an argument about the extent (if at all) to which a parenting orders case should be re-opened:
The nature and extent of the consideration of the mandatory statutory considerations must, of course, depend upon the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings (see, for example, SCVG & KLD [2014] FamCAFC 42).

As to how to approach, and when this “rule” should be applied, the Full Court said:
(t)his Court made clear in Miller & Harrington ((2008) FLC 93-383), that the “rule in Rice and Asplund” might be applied either “at a preliminary stage” or at another stage of parenting proceedings (see, for example, [72]). That conceptualisation of the “rule” is entirely consistent with what the High Court said in the unreported decision in Lowe v Lowe (Unreported, High Court of Australia, Mason CJ, Dawson and Toohey JJ, 6 April 1990):
Mason CJ said (at p 11):
…It may be that in some cases the judge, in order to evaluate how strong the case is in relation to change of circumstances, needs to do little more than read the affidavits. He may need to have the benefit of cross-examination of some of the witnesses in order to evaluate how strong the case for change of circumstances appears to be. It seems to me that each case must be tailored to its own circumstances and an approach worked out which in the mind of the primary judge is best for that particular case. (Emphasis added).
It can also be seen that the Full Court supported the concept that:
(i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.

Change

The present application was before the Senior Registrar in December 2017 and he considered it appropriate to not deal with the matter at a preliminary level but rather, request the Case Management Judge to allocate a trial. That is what has happened and accordingly, the principle can still be applied after such a hearing and in any event, the best interests’ principles apply.
For the reasons that follow, I am satisfied that there has been no change of circumstances here because whilst the child has grown older and her mother struggles to accept that she is not in her daughter’s life as she would like, nothing else is different from what Macmillan J found even though there has been a psychological evaluation by Mr JK. I find also that there is no evidence that is material and which was not disclosed at any of the previous hearings. To the extent that the mother asserts collusion to preclude her relationship with the child, the evidence is also missing. To the extent that the child wishes to have unrestricted time with her mother, the evidence does not support such a conclusion. The following explains my reasons.

The mother’s application

The mother’s application sought orders that:
·The parents have equal shared parental responsibility;
·the child live with her father;
·the child spend time with the mother on alternate weekends from Friday to Monday and half of the school holidays along with Christmas and Easter time;
·The school email newsletters to both parents and both parents be permitted to attend school events; and
·Each party be able to telephone when the child is in the other’s care.
As I observed to the mother, some other orders she sought were not sought by the father so I intended not to address those, such as Fathers’ Day and his birthday. Another example related to passports.

The mother’s evidence

The mother’s evidence was contained in an affidavit she swore and filed on 13 February 2018. In it, she said she had completed seven months of counselling where she had worked “extremely hard” to have “insight” and an understanding of the “importance and benefits of (the child) having a healthy relationship with both parents”. Even without that evidence being tested, it is hard to see how the fruits have been shown.
The mother went back to 2015 and described visits and their consequential reports. I have dealt with that earlier too.
She maintained that the father had withheld the child over the 2015-2016 months. Based on the objective evidence, that assertion cannot be sustained.
A contentious issue was about her discussions with the child at Christmas. She said the child was crying and saying she missed her mother. The father had a different view. He said telephone conversations were on loud speaker. He said, and the mother denied, the child was told to say that she did not want to go to a contact centre, wanted her to say that she did not want to live with her father and also not to do what her father wanted her to do.
The mother’s curious response was that there was no evidence of this and she seemed to deny that the calls were on loud speaker. Of the two versions, the father’s is more plausible. There is evidence of the mother previously whispering to the child and also criticising the contact service to another person indicating that she lacked insight. There are the findings of Johns J in June 2015 that:
·The mother has little insight as to the impact of her behaviour upon (the child) (Paragraph [274])
·The mother has an extremely limited capacity to appropriately provide for (the child’s) emotional needs ([278]);
·There is a poor prognosis for positive change ([273]);
Johns J accepted the evidence of Dr Y that the mother’s personality traits would likely impair her parenting capacity including what he described as “a more than usual level of obsessive and paranoid” traits.
Despite the opinion of Mr JK, which has a slightly different diagnosis, none of those matters seem to have been addressed.
Johns J accepted the evidence of the father about the mother’s behaviour. That does not mean that I have to blindly accept that those findings determine what happens here but I am obliged to determine this issue on the balance of probabilities. In those judgments, the lack of criticism of the father combined with the findings of a lack of insight on the part of the mother, enables me to accept that the father’s version of the telephone calls is more probable.
When I asked the mother to tell me how this specific issue should be determined with that evidentiary clash, her retort seemed to be that the father had no evidence which was a reference to recordings. The absence of corroborative evidence simply makes the task of deciding between two competing versions a bit harder. Here, I have struggled to think of any reason why I would not accept the father’s version. Accepting the father’s evidence about that telephone call, I accept that not much has changed.

The mother attends the school

Another issue ventilated by the mother’s evidence was that she had gone to the child’s school on her birthday to give her presents and a cake. I inferred that this evidence was presented to show that her relationship with the child is good as evidenced by her desire to be involved in activities such as celebrating the child’s birthday. It had little relevance otherwise. What she said was that she rang the father and asked could she give him the birthday items. She said he replied that the child would be at a netball tournament and not at school. She said she asked could she drop the items at school with the principal. She then added:
Both (the Principal) and The (sic) Father agreed that was fine.
The father disputed this version of facts and the issue took on a life of its own but it is of significant assistance in working out whether the mother is manipulative as the father suggests or whether there are signs of potential co-operation as she would have it.
The father alleges that what the mother said was not true. In cross-examination, the mother conceded the sequence of events was that she had rung the father but not spoken to him but left a message. She then went to the school where the Principal told her that she had to contact the father. There was then a telephone conversation between the mother and the father and the parties’ versions differ markedly as to the outcome. From the mother’s perspective, the father agreed that she could leave the items with the Principal for the child but the father said he disagreed.
The father put to the mother that she was restrained by injunction from attending the school and she agreed but she then added that in four years, she had not gone there. She then volunteered that she rang the father and the Principal and that the latter said he would “allow” it.
Like the telephone issue above, what occurred here has to be determined on the balance of probabilities. That is, which version is the more probable?
The mother’s written evidence is at best, a truncated version but one which is also misleading. The reader would think that this was all organised in advance and all agreed. There is no evidence from the school’s principal but the father said that the injunction order was in the Principal’s hands. With the enmity between the parties, it is implausible that at the urging of the school, the father would simply respond that it was fine to leave the items there particularly where there is a complete absence of trust arising from events at the contact centre to which I refer below in the judgment of Johns J.
When I asked the father of the sequence of events, he said that when he found out that the mother was at the school, he discussed with the Principal the existence of the injunction and the school confirmed it had the order. That is plausible. He said that when he finished speaking to the Principal, he was advised that the mother had already left the school. That too sounds plausible because if the school wanted the mother to ring the father and she was unsuccessful in getting his agreement, there would be no point in her remaining there as the school was obliged to follow the father’s directions.
The mother’s differing version of events is disconcerting. She portrays a picture of agreement in an environment which has never been that way as can be seen from the hearings over the years. It is critically important in court proceedings that litigants tell the full story. That did not happen here and the mother’s lack of candour was exposed. One must wonder why a school visit on 20 July 2017 would have an atmosphere of agreement when there was a contested and unsuccessful court application by the mother only on 2 May 2017.
I am comfortably satisfied that the mother was in breach of the orders by attending the child’s school and that there was no arrangement involving the father beforehand. I am comfortably satisfied that the Principal was unaware of the mother’s impending arrival and took the steps described by the father. The relevance of those finding is that evidence shows that the mother does not abide by orders.
All of these matters have to be seen in the context of how the Court has approached the matter of the child’s best interests over the last few years because the mother says there is no justice in the court system not to mention her unfounded accusation against the father of collusion.

The October visit with the grandparents

There is another piece of evidence that impacts upon whether there has been a change and whether there might be a proposal that could work in the child’s interests.
In October 2017, the child had organised time with her mother at the home of the maternal grandmother at Suburb LM. She said it was emotional and the child said she missed her mother and hated the contact centre “desperately” wanting to spend time with her mother away from there. The grandparents were not on affidavit to corroborate just what did take place.
It is not contentious that the father agreed to the visit but he made no mention of it in his affidavit notwithstanding the mother had raised it in hers. I asked him why that sort of environment would not be a good idea for the future. He said that the same things as had occurred in the past had happened again. I understood that to mean that the grandparents did not stop the manipulation and he was not prepared to contemplate that again. I asked him about moving away from the private contractor supervision system back to the Commonwealth Government supported system because the mother had nominated a centre at Suburb MN and he said he would consider it. There was no evidence of what the facility can provide, how it is funded and whether there are delays in getting in there.
From the father’s perspective, there is no alternative to the strict supervision system. The mother’s final submission was:
·She had been punished enough; four years is long enough and the continuation of this environment does not enable her with the child to do what mothers’ and daughters’ do; and
·the child will suffer incredibly, and so will she, if the system is not changed.

The 2013 final hearing outcome

Whilst each of those may not have been more than an emotional plea, they are each underpinned by an argument that there has been a change justifying a re-opening of the parenting proceedings. To assess that change, one has to understand why the orders were necessary in the first place. It is helpful to expose what previous judges have decided, to see in the context of the evidence above, whether there has been a change of the type asserted by the mother.
In a long and thorough judgment published on 27 September 2013 by Macmillan J, the following relevant paragraphs appear:
[29]The(se) assessments and observations of the mother accord with my observations of her and her evidence. When confronted with an aspect of the evidence that might be unfavourable she would try to introduce evidence or direct the court to evidence, including the evidence of expert witnesses, which she perceived to be supportive of her version of events and her case generally. Beyond that she would highlight parts of the evidence of those experts which she perceived to be supportive, totally disregarding those parts of their evidence that might not be or were less so.
[47]The mother may genuinely believe her version of events, although that belief does not appear to be well founded. Alternatively, based upon her fixed and negative view of the father, she is incapable of any rational reflection or consideration of the evidence in the case and, as a result, has intentionally undermined ([the child])’s relationship with the father. Whichever is the case, insofar as there is a dispute between the evidence of the father and the mother, or for that matter the mother and the expert witnesses, I have little confidence in the mother’s evidence and prefer the evidence of the father and those expert witnesses.
[178]The most obvious risk to ([the child]) of her mother’s behaviour is that until she is able to act independently of the mother she will not have the benefit of a relationship with the father. The mother opened her case and it continued to be her case until the closing submissions that no orders be made for ([the child]) to spend time with the father. It was only during the final submissions that Ms Samson (the mother’s lawyer) submitted that ([the child]) and the parties should attend family therapy and that the mother would comply with any order that the Court might make for (the child) to spend time with the father. It was not until the last day of the hearing the mother having been given the opportunity to consider her proposals that Ms Samson produced and sought to rely upon a minute of proposed orders which included an order that ([the child]) begin to spend time with the father upon the recommendation of [Dr J], beginning with four hours on a Sunday and progressing to 9.40pm to 5.00pm on one Sunday per month.
Paragraph [178] I significant in the context of the present proceedings because in final address, the mother said she had done wrong things in excluding the father and she now understood that but I am conscious that Macmillan J was concerned about the mother’s behaviour which suggested that the child would not be able to act independently of her mother. The evidence of the father is that the child is distressed by what her mother does which, if accepted, means that not much has changed. The fact that some years have passed and the child is entering her teenage years does little to indicate that she is not still influenced by her mother’s behaviour.
Macmillan J went on to say:
[181][Dr P] (the family report writer) said that although the consequences of the mother’s alienation of the father may be unclear, it is undisputedly emotionally abusive. I am satisfied that there is a need to protect (the child) from the risk of psychological abuse by the mother.
In the hearing now, does the evidence show that the identified risk is still present? and does the child need to be protected from it? On the findings I have made above as to the telephone conversations, I could not say things have changed.
Macmillan J said:
[193]…I have no confidence that if ([the child]) were to continue to live with the mother that the maternal grandmother would have either the will or the capacity to either influence or contain the negative impacts of the mother’s behaviour upon ([the child]) or promote or facilitate ([the child])’s relationship with the father.
[193] assists in considering the evidence about the October 2017 visit of the child with her mother outside of the contact centre and, according to the father whose evidence I accept, it was supposed to be without the pressures of the nature that the child has endured particularly about her relationship with her father.
At [202], Macmillan J said:
It is clear from the evidence and I am satisfied that the mother is able to provide for ([the child])’s physical and intellectual needs. The evidence suggests that she has a warm and loving relationship with ([the child]) and there are many aspects of ([the child])’s life that have to date been extremely positive and it is the mother who is primarily responsible. However, I am not satisfied that the mother is able to provide for ([the child])’s emotional and psychological needs or that in the future ([the child]) will not experience problems in her day to day life because of her mother’s lack of insight and boundaries.
A poignant statement by which to judge change here is seen in the following:
The mother’s case is that to remove ([the child])’s from her care would be a total catastrophe, however she has shown a complete lack of capacity to either reflect upon or moderate her behaviour to avoid that catastrophe in circumstances where she had been alerted to the problem and has had ample opportunity to address the issues and avoid that catastrophe. Whether it is because she intentionally chooses to disregard the evidence or she has no capacity to reflect upon her own behaviour, it raises significant questions about her parenting capacity. The concerns for ([the child])’s welfare go well beyond the fact that she will not have a relationship with the father. They go, as identified by Associate Professor [Y], to the mother’s immediate and long term “parental capability”.
It is no longer the mother’s view that it would be a total catastrophe to remove the child from her life but that she should have largely unrestricted access to the child. Her justification for that is as I have set out above. I find however even on the limited evidence before me that she views and presents the facts as she sees them and there is a strong element of manipulation of them. Her parenting capacity was challenged in 2013 and on accepting the father’s evidence about the telephone calls, I find nothing has changed. The evidence of her attendance at the school and her disregard for rules indicates that she still does not accept the damage she did. The evidence she presented of her psychologist is flawed if it is an opinion that she has no personal difficulties. The diagnosis seems to be there but the opinion presented as to what sort of relationship she should have with the child is perplexing if for no other reason than that it seems to ignore aspects such as how the proposed outcome would impact upon the child.

In the substantive proceedings before Macmillan J in 2013, the mother stated that if the child was removed, she would not have contact with her. Her Honour then left the contact question open but also encouraged the mother to “seek the help she needs” to enable the development of a healthy mother and daughter relationship. The mother said she had done what the court wanted but this is some years later and, as I have observed, not much help to the Court. The mother’s attendance upon Mr JK has to be seen in the context of what happened after the orders of Macmillan J.

A hearing in 2014

A further hearing took place in February 2014 where her Honour observed:
[7]The mother was reported by [Dr P] (the family report writer in the 2013 trial) to have told her that she had consulted [Ms R] (a clinical psychologist) on three occasions, after which time [Ms R] had advised her that she did not need to attend any more, and that she had seen [Ms T] (a counsellor), two or three times. [Ms R] reported to [Dr P] that she had had three or four sessions with the mother but that it was her assessment that the mother required a more intensive psychiatric focus which she could not provide. [Ms R] described the mother as presenting as remorseful and displaying a level of understanding about the need for change and the importance of the child’s relationship with her father, but that she easily slipped back to her familiar narrative about the father being unable to provide appropriate care for the child. (my emphasis)
To the extent that the mother should know what professional opinion the Court needs to re-open or re-assess the issue of the needs of the child, Macmillan J said:
[8]Contrary to what the mother was reported to have told [Dr P], [Ms T] reported to [Dr P] that the mother had attended one or two sessions with her but that she was no longer a client. [Ms T] also reported that she had not received any information from the Independent Children’s Lawyer and had relied upon what she was told by the mother during her sessions with the mother.
The warning can be seen in those words about the necessity for any health professional to have a comprehensive history. I am not convinced Mr JK had that history and I am perplexed as what he considered he could say bearing in mind he began with a reference to the limitation on his report being affected by what he was told. I question why he did not ask for more.
Macmillan J considered that time between the child and the mother was important and ordered the supervision which now seems to be a problem but her Honour otherwise reserved time. The mother lodged notice of appeal against the orders but later withdrew the appeal.

The hearing before Johns J 2015

The reserved time question led to the proceedings before Johns J. in January 2015 (see Matthews & Bender (2015) FamCA 654). The mother’s position then was that the child should be returned to her primary care. The father’s position was that there should be monthly time at a contact centre under supervision and other special occasions.
The change of circumstances argued by the mother for the child to return to her was that the father was not the person caring for the child, the child had lost weight, there was no encouragement of the child’s development and the child’s schooling performance had deteriorated.
Johns J heard the dispute over a number of days as a full trial. I do not intend to repeat what is a long judgment as I have mentioned the citation above. However, one significant finding must be mentioned. It concerned allegations that the mother was manipulating the child by passing notes surreptitiously in the contact centre. These actions were denied by the mother. In the context of the present case and the mother’s relationship with the contact service, the following is important:
[232]I am satisfied that the mother has not been frank with the Court as to her conduct at the contact centre. The manner in which she has sought to conduct this aspect of the case is again indicative of her attempts to manipulate evidence and findings so as to restore herself to the position of primary carer for ([the child]). The mother has elevated her own needs to be restored as primary carer above ([the child])’s needs. The mother had no regard as to the impact upon ([the child]) of her conduct in passing notes or whispering to her. Those actions placed ([the child]) under intolerable pressure and ultimately led to her disclosing her mother’s behaviour. That ([the child]) was placed in that position was due to the mother’s behaviour.
There were also allegations of the mother “whispering” to the child at the contact times and to the family report writer, the child said that it did not
hurt that much cause I know she’s just saying it. Up to me what I say to you. My visit not hers. Shouldn’t have to say stuff I don’t want to. Shouldn’t have to say hate dad because that’s not true.
That last sentence is troubling because over two years later, but now by telephone, the same types of comments are being made by the mother to try and influence the child to distance herself from her father.

Best interests’ principles

As mentioned earlier, at whatever stage of a hearing the “rule” in Rice v Asplund is applied, its application should remain merely a manifestation of the “best interests principle”.
The “best interests” principles are found in Part VII of the Act. To determine best interests, the court is obliged to consider the matters in s 60CC and many of these have already been considered by previous court determinations. To assist in assessing those matters, it is helpful to remember that s 60B of the Act is the legislative objects which are intended to reflect how children in the community are best served. Those objects include:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 61DA requires the court to apply a presumption of equal shared parental responsibility when making a parenting order but that is not relevant here because there is no suggestion of an intention to alter the decision-making provisions of the orders and the issue has already been previously determined.
Section 60CC(2) requires the court to consider the parental attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents. After all that has occurred, I find that the mother’s approach to parenting has not changed. Her behaviour at the contact service worried Johns J. Her time at the centre in 2015 and 2016 was, at one point, stopped because of her behaviour but the significant suspension thereafter was because the child was not coping. Whatever occurred in the October 2017 private arrangement involving the maternal grandparents, it did not work. The telephone contact has been problematic. All of that exposes the mother’s parenting capacity and responsibility as being flawed because she is concerned about her own interests rather than those of the child.
Section 60CC also obliges the court to consider both the benefit to a 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. If there is a clash between those, the latter is more important. The primary objective here must be to reduce the child’s exposure to psychological pressure as described in the two previous judgments. The evidence now shows that nothing much has changed.

Conclusion

In addition to assessing the best interests by reference to s 60CC, the Court must not make an order unless it is proper (s 65D). A consideration of all of those matters indicates that the best interests of the child are served by supervised time to protect her from the psychological pressure to which she is subjected by her mother. The sooner the mother accepts that her time should be just enjoyable and of benefit to the child, the sooner that the father should consider a relaxation of the restrictions. Similarly, as the child grows older, there will be difficulties in occupying her at the contact service but no doubt the father will be able to know when she is mature enough to handle the pressure her mother is still applying.
I find there is no basis to re-open the orders of 2013 and 2015 and consider them again.
The mother’s application is dismissed.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 27 March 2018.

Associate:

Date: 27 March 2018