Benson & Jeffreys
[2024] FedCFamC1F 709
•2 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Benson & Jeffreys [2024] FedCFamC1F 709
File number(s): MLC 15240 of 2023 Judgment of: SMITH J Date of judgment: 2 October 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Oral reasons – Where the Senior Judicial Registrar made orders for interim change of residence – Where the children are living with the father – Where the mother is to have supervised time and communication – Where the mother sought a reversal of those orders – Where the mother raises allegations of family violence – Principles on interim hearings – Where the court cannot make findings of fact – Where the current orders promote the best interests of the children – Where the assessed possible risks of psychological harm from the mother outweigh the possible risks of family violence by the father – Application dismissed. Legislation: Evidence Act 1995 (Cth) Pt 3.3, s 79
Family Law Act 1975 (Cth) Pts I, VII, ss 4, 60B, 60CA, 60CC, 61B, 61C, 61D, 61DAA, 61DAB, 64B, 65AA, 65D, 65DAAA
Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Dasreef Pty Ltd & Hawchar (2011) 243 CLR 588; [2011] HCA 21
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC93-286; [2006] FamCA 1346
Makita (Australia) Pty Ltd & Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
RCB as Litigation Guardian of EKV, CEV, CIV and LRV v Hon Justice Colin James Forrest (2012) 247 CLR 304; [2012] HCA 47
SS v AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 79 Date of hearing: 25 September 2024 Place: Newcastle by Microsoft Teams Counsel for the Applicant: Ms Ferrari Solicitor for the Applicant: Slf Lawyers The Respondent: Litigant in person Counsel for the Independent Children’s Lawyer: Ms Mansfield Solicitor for the Independent Children’s Lawyer: Southern Family Law ORDERS
MLC 15240 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BENSON
Applicant
AND: MR JEFFREYS
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
2 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Application for Review filed by the mother on 5 September 2024 is dismissed.
2.Orders 14 – 37 of the orders dated 19 August 2024 are confirmed subject to Order 3 below.
3.Order 26 of the orders dated 19 August 2024 be varied to read “6:00 pm and 6:30 pm” wherever it presently reads “5:00 pm and 5:30 pm”.
4.Liberty is granted to the father to file an Application in a Proceeding to change the children’s schools from the commencement of the 2025 school year.
5.All outstanding Applications are adjourned to Judicial Registrar McGee’s List (by Microsoft Teams) on Friday, 25 October 2024 at 10.00 am for a procedural hearing.
6.Costs reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Benson & Jeffreys has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SMITH J:
This matter comes before me for determination of an Application for Review in parenting proceedings pursuant to the Family Law Act 1975 (Cth) (“the Act”) in relation to an application filed by the mother on 5 September 2024.
These parenting proceedings are in relation to two children: X (born in 2013) and Y (born in 2015) (“the children”). The parties are the applicant mother, Ms Benson (born in 1972) (“the mother”), and the respondent father, Mr Jeffreys (born in 1971). An Independent Children’s Lawyer (“ICL”) has been appointed.
The father has re-partnered with Ms B and resides with her and her daughter.
The orders under review, made by a Senior Judicial Registrar, were interim orders made on 19 August 2024 following a defended interim hearing. Although this is a review, and so a determination a de novo, those orders are relevant as they have been given effect and, consequently, the children were moved from living primarily with the mother to now living, consistent with those interim orders, primarily with the father.
The mother seeks a review and, effectively, discharge or, in substance, a reversal of those orders. The ICL and the father effectively seek that those existing orders be maintained. Since this is an oral decision, and so the parties are not kept waiting, I will indicate now that for reasons which follow, I effectively accept the submissions of the Independent Children’s Lawyer, and I will, substantially, dismiss the Application for Review and confirm the existing orders.
BACKGROUND
The parties commenced a relationship in 2012. The date on which it concluded is in dispute, but it was by 2016.
The parties were involved in prior proceedings which resulted in final orders made in 2019, by consent, for the children to live in a week-about arrangement with each parent (“the 2019 orders”).
These proceedings commenced in December 2023 when the mother filed an Application for further final orders.
As I understand it, there is no dispute that the 2019 orders have irrevocably broken down. I am comfortably satisfied and find that this is a matter in which there has been a significant change, that the criteria in s 65DAAA are comfortably established, and that the best interests of the children require a reconsideration of the existing final orders.
The Independent Children’s Lawyer was re-appointed for the children on 8 February 2024, and a Child Impact Report was requested on the same date, and was subsequently released on 12 March 2024.
There were interim orders on 8 February 2024 for the children to live with the mother and spend time with the father:
(a) Each Saturday from 9.30am until 7.30pm
(b) On Wednesday from after school or 2.40pm until 7.30pm
(c) Such further and other times as agreed in writing between the parties
With the father’s partner, [Ms B] to be in substantial attendance
On 19 March 2024, there were further interim orders for the children to spend time and communicate with the father each alternate weekend from the conclusion of school on Friday, in effect, until the commencement of school on Monday, and each alternate Thursday from the conclusion of school to the Friday, and the father was at liberty to communicate with the children via SMS.
On 19 March 2024, there was a variation which is not particularly relevant now.
On 5 June 2024, there were orders for a Family Report.
The children did not, substantially, spend time with the father in breach of the interim orders.
Consequently, the father filed a Contravention Application on 18 March 2024, which was withdrawn, and a further one on 12 July 2024, which was also withdrawn.
The mother filed an Application in a Proceeding on 22 May 2024 which was set down for interim hearing on 8 August 2024. She sought the orders set out in that application.
That is the application which substantially comes before me, having been determined, and in respect of which there is a review.
I note that part of the mother’s original application was for discharge of the Independent Children’s Lawyer, however at the commencement of this review hearing the mother withdrew that application. I note that the mother’s position that the ICL should be discharged was said by the ICL to be consistent with the various issues raised by the Single Expert Ms C, in effect, of abuse of litigation, although Ms C does not use those terms. I also note, that the mother was seeking supervised time and has not pressed that and, again, the ICL made submissions about that which I will deal with in due course.
The orders subject of the review made on 19 August 2024, in effect, are orders 14 to 16, and 21 to 36:
14.All previous live with orders, spend time orders, and orders for parental responsibility are suspended.
15.The children [X] born […] 2013 and [Y] born […] 2015 (“the children”) live with the Father.
16.The Father have sole responsibility for making decisions in relation to major long-term issues in relation to the children.
… …
21.The Mother is restrained from having any contact with the children, including through social media, mobile phone or a third party, except as provided for in these orders.
22.That in the event that the children are not provided in accordance with Order 18 herein to the Father or removed from the Father’s care contrary to these orders without prior agreement or an Order of this Court, a Recovery Order will issue for the return of the children. The Recovery Order is to lie in the Registry to be uplifted upon the Father filing an Affidavit deposing to the failure of the Mother to provide or return the children to his care, and directed to the attention of the chambers of Senior Judicial Registrar Conlan.
23.That a Recovery Order do issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the police forces of 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 children [X] born […] 2013 and [Y] born […] 2015 and to deliver the said children to the Father or such other place as the Father and the person effecting such recovery agree to be appropriate; and
(b)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 children may be found.
24.All Police Officers and agents referred to in this Order be at liberty to proceed on an email copy of this Order.
25.The Recovery Order set out in Orders 22 to 24 remain in force for 12 months.
26.The children spend time and communicate with the Mother as follows:
(a)By telephone, supervised by the Father or his servants and agents twice per week on days to be agreed and failing agreement each Monday and Thursday for 15 minutes with the calls to be initiated by the Father to the Mother between 5:00pm and 5:30pm;
(b)On 23 August 2024 by telephone, supervised by the Father or his servants and agents with the call to be initiated by the Father to the Mother between 5:00pm and 5:30pm.
(c)From 30 September 2024 for 3 hours each week on a supervised basis at such days and times as can be accommodated by the supervisor.
(d)In addition to the above times there be further communication at the same time and for the same period for each of the children’s birthdays, the Mother’s birthday, Mother’s Day and Christmas Day.
27.The Mother and Father forthwith make an application to [D Contact Service] OR [E Contact Service] (“the supervisor”), for the children to commence spending supervised time with the Mother in accordance with Order 26(c) herein.
28.The costs of such supervision be borne solely by the Mother, including the intake fees and the Mother obtained a report with respect to such supervision no less than 7 days prior to the Compliance and Readiness Hearing.
29.The Father forthwith make appointments for the children to commence therapeutic counselling with [Ms F] (“the children’s counsellor”), or such other practitioner who may be recommended by the children’s counsellor and the Father follow all reasonable directions for attendance, with such counselling to be at his cost.
30.The Mother engage with the children’s counsellor as directed by the children’s counsellor, with such engagement to be at the Mother’s cost.
31.The Father be at liberty to provide a copy of these Orders together with the Family Report prepared by [Ms C] to the children’s counsellor as nominated in Order 27 herein.
32.The Independent Children’s Lawyer be at liberty to provide a copy of these Orders to the children’s school to be read by the Principal and the wellbeing officer only.
33.The Independent Children’s Lawyer be at liberty to discuss the contents of the Family Report by [Ms C] with the children’s school’s Principal or their nominee notwithstanding the consent of the parents has not been obtained AND IT IS REQUESTED that this opportunity is provided to the Independent Children’s Lawyer by the school.
34.The Mother be and is hereby restrained from attending at the children’s school at any time, save for:
(a)An appointment made by her or by the school, with such appointment to occur out of school hours and at a time when the children, or either of them are not in attendance on the school grounds;
(b)For parent teacher interviews at a separate time from the Father and not to be scheduled at a time when the children, or either of them are not in attendance on the school grounds; and
(c)Her attendance at extra-curricular or school performances and concerts to which parents are usually invited, upon obtaining the written consent of the Father but no such request be made until the commencement of Term 4, 2024.
35.Within 48 hours of these orders, each of the parents install the parent communication App Close with the Father thereafter to provide to the Mother via this App a fortnightly update as the children’s welfare.
36.The Parties be at liberty to present a sealed copy of these orders and the written reasons to the […] Magistrates Court […] in relation to case number […].
(Emphasis in original)
On 4 September, the mother filed an Application in a Proceeding to stay the orders made on 19 August 2024. The orders had been given effect. In those circumstances she sensibly agreed to withdraw that application, and that application is treated as withdrawn. That was done on the basis that there would be, as there has been, a quick review hearing.
REVIEW HEARING
At the review hearing the mother relied upon:
(1)Application in a Proceeding filed 22 May 2024;
(2)Application for Review filed 5 September 2024;
(3)Mother’s affidavit filed 1 August 2024;
(4)Mother’s tender bundle (Exhibit 1); and
(5)Mother’s Outline of Case Document (Interim Hearing) filed 19 September 2024.
The father relied upon:
(1)Father’s affidavit filed 1 August 2024;
(2)Outline of Case Document (Interim Hearing) filed 24 September 2024;
(3)Updating affidavit filed 18 September 2024; and
(4)Affidavit of Ms B filed 28 February 2024.
The ICL relied upon:
(1)Outline of Case Document (Interim Hearing) filed 7 August 2024;
(2)Child Impact Report dated 8 March 2024 (Exhibit ICL 1);
(3)Family Assessment Report dated 5 August 2024 (Exhibit ICL 2); and
(4)ICL Tender Bundle (Exhibit ICL 3).
PROPOSALS
In accordance with the mother’s updated case outline which included a minute of orders sought as filed on 19 September 2024, the mother seeks on an interim basis, that until further order: the children live with her, that she have sole parental responsibility and that the children spend time with the father on a supervised basis, although the supervision requirement was withdrawn in oral submissions before me.
The father’s updated case outline filed 24 September 2024, in effect, seeks to have the orders of 19 August maintained subject to this: at Order 26(a), there is a communication with the mother between 5.00 pm and 5.30 pm. He says it needs to be at 6.00 pm to 6.30 pm instead to allow sufficient time to collect the children from school - to get to a suitable location.
The Independent Children’s Lawyer’s case outline document hedged its position but, ultimately, the ICL supports the current orders in effect.
LEGAL PRINCIPLES
I will come to the principles that apply to an interim hearing.
The Act has changed and, of course, we proceed since the matter is being heard now under the Act as in force now.
Each party seeks parenting orders (s 64B), which the Court has power to make (s 65D(1)) within the context of the objects of Part VII (s 60B) and the requirement that each child’s best interests is the paramount consideration (ss 60CA and 65AA) having regard to the mandatory criteria for consideration (s 60CC).
I note, the parents have parental responsibility (s 61C), being all duties, powers, responsibilities and authority conferred by law upon parents (s 61B), unless and until a law is made changing their position.
I note, the allocation of parental responsibility for a child in relation to "major long-term issues" may be made to one or more people and may prescribe whether those persons have joint or sole decision-making authority (s 61D(3)). The definition of major long-term issues is set out in s 4(1) and also what joint decision-making requires (s 61DAA). I also note the fact that consultation is not required about minor decisions falling outside the concept of major long-term issues (s 61DAB). I will come back in particular to the section 60CC criteria in due course.
The critical issue here is this is an interim hearing.
Although the Act and so the specific pathway has changed, the general principles guiding interim decision-making remain substantially the same. I note what was said in Goode & Goode [2006] FamCA 1346, in particular, at [81]–[82], and as I’ve said, noting that the particular pathway has changed, but the principles which indicate the Court must be careful in dealing with untested evidence but, nevertheless, must do the best it can, remain the same. See also Marvel & Marvel (2010) 43 Fam LR 348 at [120].
I note that I am required to make a risk assessment, see SS v AH [2010] FamCAFC 13 in particular, at [88] and [100], and also see what was said in Eaby & Speelman (2015) FLC 93‑654 at [18] in particular, where the Full Court said of the difficulty faced by judges in dealing with interims in which there are competing allegations, limited common ground and the material is limited by reason of the fact that it is an interim hearing and there has been no opportunity to test the evidence, in effect, that the Court cannot make findings of fact and should be very cautious, as the authorities I have just quoted say, in the weight to be given:[1]
18. … However, that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
[1] Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104.
This is a case which falls fairly and squarely in that category.
THE EVIDENCE
The mother says in her affidavit that the father is a perpetrator of family violence, that she has attempted to comply with the spend time orders and the children, on multiple occasions, have refused and become distressed and visibly emotional when they are asked to see the father. She says that the spend time equal time arrangement was complied with until it got to the point where it could not be complied with, and I note, in particular, there are serious allegations made by her at paragraph [118(a)] to [118(i)].
The father denies the allegations of family violence and I can make no findings about them. The father says that the mother is a difficult person who seeks conflict. I note the father suggests in his most recent affidavit, that although there has been a difficult transition, the children are now comfortable in his care.
The Court is in no position to make any finding about any of these competing allegations of family violence but obviously must consider them, given that the primary issue is the children’s safety.
Child Impact Report
The Child Impact Report of 8 March 2024, prepared by Ms G, a Court Child Expert within the Court, recorded each party’s history and allegations, their versions of events, their then proposals, the issue about the mother’s time in South Australia, the recovery application litigation that followed, the disputed allegations of family violence made by the mother, and the disputed allegations that the mother is antagonistic and seeks conflict made by the father.
The mother emphasised paragraphs [18] to [19] of that report as evidence of family violence given by the children and, of course, Ms G supported the children remaining in the mother’s primary care:[2]
18.The children’s narrative presented as aligned when discussing their experiences of both parties. The children presented that they perceive [Ms Benson] and her partner, [Mr H], as safe and trusted adults in their lives. They discussed viewing [Ms Benson] as ‘kind’ and caring, who is tactile, affectionate, engages with them in different activities and is attentive to their expressed needs.
19.The children’s narrative indicated perceiving [Mr Jeffreys] as exhibiting a harsher parenting approach, that has included being ‘smacked’ whereby this has resulted in the children sustaining a bruise. The children discussed that [Mr Jeffreys] may ‘yell’ a lot, may cause them to feel embarrassed or to miss out on treats or activities, as a form of punishment, should they not do what is asked of them.
(Emphasis in original)
[2] Exhibit ICL 1.
I note, of course, that a Child Impact Report is a relatively curtailed process.
Single Expert Report
Ms C was selected and interviewed the parties, but not the children, as the mother failed to manage to obtain their attendance at interviews. The mother relies upon the children not attending Ms C as a factor which significantly reduces the weight to be attached to Ms C’s Single Expert Report.
The other view, supported by the ICL and the father, is that it shows the mother is either unable to obtain compliance by the children with simple requirements where there should be no real reason for them to be afraid or, else, that she is seeking to stop them being independently interviewed. I cannot make findings about those matters either.
There was an attempt to tender the reports of Dr J, a psychologist, from the prior proceedings and three reports of Ms K, who was a Court Child Expert and then appeared to have gone external, which were prepared during the prior litigation. I did not accept them since it is an interim hearing, but there was no objection to me accepting Ms C’s record at paragraphs [6] to [7] of her summary of their findings:[3]
6. The parties commenced a relationship in 2012 that concluded in either 2015 or 2016 or 2017. [Ms Benson] defined the relationship as one in which she was subject to family violence and [Mr Jeffreys] denies those claims. Family Law proceedings commenced in 2016. [Dr J] undertook a psychological assessment of the parties in 2019. He concluded that both parties presented with personality vulnerabilities that were serving to perpetuate the conflict. [Dr J] noted that [Ms Benson] was highly anxious. He raised concerns about the transmission of her anxiety to the children and predicted she would have difficulty facilitating and promoting the children’s relationship with the father and that a shared parenting arrangement was contraindicated.
7. [Ms K] prepared three family reports dated 20/03/2017, 11/07/2017 (update) and 11/07/2019. In her final report, she concluded that "unless the parenting arrangements change, litigation will continue and the children will ultimately be alienated from the father to their significant detriment." She recommended [Mr Jeffreys] have sole parental responsibility, that the children reside with him and spend time with their mother each alternate weekend from Thursday 3:00 pm until Tuesday 9:00 am.
[3] Exhibit ICL 2.
I note, that it was in that context that I did not accept and have not read those reports, but I proceed upon the basis that these reports exist and that that is a fair summary.
Ms C noted at paragraph [14] the children’s “poor” to “very poor” attendance at school and a range of other matters thereafter that she considered relevant to her assessment. Ms C’s assessment weighs or takes a prominent part in these proceedings, given that she is an independent single expert. I think, given the significance of the orders that have been made and the weight which I ultimately decide it is appropriate to give Ms C’s opinion, I should consider:
32. … The dominant narrative is one of family violence as alleged by [Ms Benson]. It is the subjugated narrative of [Mr Jeffreys] that is more plausible and compelling. While findings on issues of future risk remain a matter for the Court it is the writer’s view that [Ms Benson] has a demonstrated intention and a pattern of behaviour that has undermined the children’s relationship with their father. It is predicted to continue.
33. Litigation regarding [X] and [Y] commenced in 2016. The intensity and level of conflict has varied over time however the quality of the children’s relationship with their father has been more impacted. A recent Child Impact Report recommended that the children reside primarily with their mother. [Ms Benson] was assessed as having "a well-rounded understanding of the children’s need to feel safe and be supported in having their views heard." That brief assessment is in contrast in its conclusions to this writer’s evaluation. Several assessments were undertaken historically, namely three family reports by [Ms K] and individual psychological assessments of both parties by [Dr J]. Those assessments are, in the view of the writer, relevant to the current situation. The presentation of the parties and children, the family dynamics and the parenting strengths and vulnerabilities are unchanged. Both professionals highlight concern about [Ms Benson’s] restrictive gatekeeping behaviours and both predicted the current impasse.
34. [X] and [Y] have been subject to continued parental conflict, which has varied in intensity over the course of their lives. Of late it has escalated and now, unsurprisingly [X] and [Y] are engaging in resist and refuse behaviours around a relationship with their father. The writer formed a view that an intervention is required to interrupt this chronic cycle of conflict with a view to affording the girls access to a stable, nurturing environment that will promote their development and wellbeing. On the current information available, [Mr Jeffrey’s]parenting style and environment is better placed to meet those requirements.
…
36. [Ms Benson’s] conduct with professionals requires commentary. School records suggest she has considerable influence over their approach to educating and supporting the children. The continuous narrative of [Mr Jeffreys] as a perpetrator and groomer looms large in the records. When the school depart from [Ms Benson’s] script, the recrimination is swift. She holds others to a level of accountability that she does not observe herself, she is highly manipulative with information and she is intimating. She generates a sense of threat by recording professionals and documenting encounters, the latter of which are contorted to reflect her litigation goals. She is not capable of hearing information of difference. Her core beliefs about [Mr Jeffreys] are fixed and rigid. She cannot share the children with their father and it is doubtful she can share the children with the school unless they adopt her narrative. Underneath [Ms Benson’s] assertive exterior, is a devoted and anxious parent, worried that [X] and [Y] will love their father more than they love her.
37.The children were not made available for this assessment. It could be argued that if the children’s views and experiences have not been captured by objective reporting, the assessment is incomplete and/or compromised. The writer would assert that obtaining a " free narrative" (the goal of forensic interviewing) from the children is highly improbable. It is predicted that any expression would be unduly influenced by their mother’s script about their father. This view is strengthened by the knowledge that the children have not spent any significant time with their father. A narrative informed by a recent, lived experience of both parents would not be available to a report writer and the absence of this builds on to concern about imbalance and distortion in any expression by the girls. Due to the chronicity of the conflict, the children’s triangulation into the parental dispute and the transmission of [Ms Benson’s] anxiety onto the children, the writer would signal caution about weight to be placed on the children’s views.
38. … The short term impact on [X] and [Y] will likely result in elevated stress, a spike in [Y]’s separation anxiety and a grief response. There may be heightened distress with accompanying behaviours such as acting out and resistance to their father’s affection and care. They may try to return to the mother’s care. This will be more likely if [Ms Benson] sabotages arrangements. Emotionally and psychologically there may be some sleep disturbance and difficulty concentrating at school. In the medium term, there will likely be an improvement in the girls’ attendance at school, a reduction in [Y]’s separation anxiety and a resumption of the normative relationship with their father as described in [Ms K]’s report(s). How the children’s relationship with their mother fares in the medium term is difficult to predict.
…
41. … [Mr Jeffreys] has been consistently assessed in family reports as a competent parent. He is psychologically stable, and intelligent and has organised his work and other important relationships around his parenting role. The relationship between [Mr Jeffreys] and [Ms B] was assessed as trusting and secure. [Ms B] was assessed as a competent, experienced parent. She impressed as warm, responsive and accommodating. [Ms Benson] has dimensions to her parenting that are functional and attuned to the children’s needs however these strengths do not extend to facilitating a relationship between the girls and their father. She is anxious and lacks insight into the impact of this on her parenting role and responsibilities.
In that context, Ms C recommended the children live with the father, that he have sole parental responsibility, that there be supervised telephone communication and then professionally supervised time, as well as a range of other issues.
Ms C recommended that if the mother interferes at school, the father have liberty to change schools in consultation with the ICL. Ms C also said under the heading “Further assessment”:
The writer will not accept further referral of this matter. The writer has not met with the girls and therefore continuity is not a consideration. The basis for this decision is informed by [Ms Benson’s] manipulative and unsafe style of engagement. Furthermore, the writer does not have the necessary resources onsite to manage the safety needs of the girls as alleged by their mother.
It is recommended that further assessment occur closer to the time of a final hearing and consideration be given to the assessment being undertaken at Court Child Services by a Child Court Expert. The girls have previously attended the service. It is strongly recommended that any future report writer consider the subpoenaed material and all earlier assessment reports.
(Emphasis in original)
It is clear that this report had a significant impact upon the ICL’s view, as reflected in the ICL’s submissions, both written and oral, and in that context, the mother emphasised in submissions that there has been no testing, firstly, of the allegations of family violence, no testing of Ms C’s opinions, that Ms C did not have the benefit of seeing the children and hearing from them, and did not have the benefit of the most recent subpoena material around Y’s attendance at school in the wellness hub.
In that regard, I note that the principles of interim hearings require me to be cautious. Ms C’s evidence is before me, and it must be considered and weighed as part of the overall constellation of evidence. That includes the summary of Dr J and Ms K’s opinions, although they were also untested.
It is trite to say, that an expert opinion does not bind a Court. An expert opinion is provided to assist the Court within the principles in section 79 of the Evidence Act 1995 (Cth), even though, in parenting proceedings, s 79 may not apply, but the Court must never merely abdicate its responsibility to consider and weigh the material, must never merely defer to an expert, and I note the often quoted decision of Heydon JA, as he then was, in Makita (Australia) Pty Ltd & Sprowles (2001) 52 NSWLR 705 and, also, what has been said in many other cases since then. In particular, I note what was said in Dasreef Pty Ltd & Hawchar (2011) 243 CLR 588 in the High Court.
There is indeed, as is often again said, “no magic” in a family report. Further, to the extent to which Ms C formed a view about the reliability of the narratives of family violence, that too is untested, and any factual findings made by a judge who has, in due course, the opportunity to hear from the mother and the father, would be expected to have a significant impact on the final outcome.
Having said that, and with all that in mind, in circumstances where I have opinions from Dr J, Ms K and Ms C, all independent people who have all raised concerns, and where the Independent Children’s Lawyer points to documentary evidence said to be supportive of the basis upon which Ms C expresses those concerns, I find that it is evidence to which I must give some considerable weight, and I do.
The mother also relied on the views of the children which, given their ages, must be considered, and it is a mandatory consideration. The mother said the ICL had not interviewed the children prior to the interim hearing from which this Application for Review arises. However, the ICL says the children were Zoom interviewed the morning prior to the interim before me. The ICL was satisfied the children appeared settled in the father’s care. Y told the ICL she was missing the mother, as expected and, indeed, the ICL said that Y was at pains to say she missed her mother, although X was a bit more matter of fact.
The ICL said they made no complaints in the father’s care, and I proceed upon the basis that the children’s views are as previously expressed, that they would wish to live with the mother. I accept what is set out in the L School subpoenaed material, the handwritten notes including from 2024; and indeed, I have no doubt that given there has been a major change, it would be surprising if there were not some emotional and psychological trauma associated with a change of primary residence; and I accept that the children’s views are probably that they are very sad, missing the mother, not happy with the orders, and would rather live with the mother.
The difficulty is, that whilst the children’s views are a mandatory consideration; and it is clear that the children are sad and missing their mother, those views must be considered in the context of the issues raised by Ms C, and I note, as is repeatedly stated in this jurisdiction because it is repeatedly seen in this jurisdiction, the views of children are highly liable to be influenced by the parent with whom they primarily live. I note what was said in Bondelmonte v Bondelmonte (2017) 259 CLR 662, particularly at [34] to [41]; RCB as Litigation Guardian of EKV, CEV, CIV and LRV v Hon Justice Colin James Forrest (2012) 247 CLR 304 at paragraph [52].
Now, given Ms C’s opinion, which is untested, nevertheless, that is particularly relevant here and, for that reason, I have been cautious in giving significant weight to the views of the children.
I note, that the mother contends that school attendance was not in fact the issue it is said to me to be, but the evidence I have persuades me that it is. Attendance at a wellness hub part-time is not good attendance.
Submissions by the mother
In submissions the mother emphasised that she had been the children’s primary carer since birth and that in addition to the allegations she sets out at [118] and the impact she says they have had on the children, as set out variously in her affidavit, there have been six intervention orders granted by the Courts including in 2016, which, I think, was by South Australian Police; twice in 2021; in 2022, which were final orders; in 2023; and, of course, in 2024, which was listed for hearing in late 2024 as I understand it.
The mother says that while the father has never been charged, he has used others, including police officers undertaking welfare checks, to harass her and, as I have stated, she said the children began displaying symptoms of anxiety in 2023, which is when the former time arrangements ceased to be able to work. She says the reduction in time with the father was undertaken for bona fide reasons in the children’s best interests, where the existing orders were no longer working for the children, and I am required to give weight to and do give weight to those allegations, although untested and unproven.
Submissions by the Independent Children’s Lawyer
The ICL was re-appointed and noted in submissions that originally, they neither consented to nor opposed the original consent orders in 2019. So I should note, the mother says that although they favoured her over what Ms K recommended, she said at the time, in fact, she was overborne into making them or agreeing to them, but the ICL said she had concerns about the week-about arrangement at the time and that, substantially, the concerns Ms K and Dr J had have come to fruition and that this adds weight to Ms C’s untested opinion.
The ICL’s position was that the available evidence, though untested, supports Ms C’s view, also untested, that, in effect, the mother cannot or will not promote a relationship with the father and children and that the current suite of orders as of 19 August 2024, or something similar, are the appropriate orders to make on an interim basis.
The ICL properly acknowledged the significance of the removal of the children from their primary carer against their express wishes. She acknowledged that the issues arise in the context of serious, untested allegations of family violence and rightly said that the ICL’s position was not taken lightly, and I accept that.
The ICL relied upon the subpoena material tendered and the mother’s assertion that she cannot make the children to do things, including attend upon Ms C.
The ICL also relied upon the apparent inconsistency in the mother not now seeking supervised time. The ICL relied upon the mother’s actions in regard to seeking the discharge of the ICL as being consistent with Ms C’s concerns about the mother’s actions; and I note, that whilst the mother says that Ms C’s refusal to continue acting in the matter would weigh against her, the ICL says that the fact that an experienced professional has come to the view she has come to, in fact, is supportive of Ms C’s ultimate opinion and the orders that are currently in place.
So, in effect, the ICL’s position was that the children were at risk of emotional harm in the mother’s care and, although she did not phrase it this way, I would say on the evidence as I understood it, educational neglect and of losing their relationship with the father because the mother cannot or will not promote it. Further, that the evidence does not, as currently available, support the mother’s allegations of risk of lack of safety in the father’s care, but did support a finding on an interim basis, or a concern to weigh on an interim basis, that their psychological safety, their educational advancement, was best promoted by the current orders.
Submissions by the Father
The father was self-represented. He largely adopted the ICL’s submissions. As I said, the main contribution he made was he says phone calls should be 6.00 to 6.30 pm.
CONCLUSION
I have been through the principles, and I have them in mind.
Where there are untested allegations of family violence of the kind the mother makes, the Court needs to be extremely cautious. However, I give some weight obviously to the denial and to an experienced expert’s concerns about the narrative.
I am very aware that, sometimes, a judge at an interim hearing weighing the evidence as best they can comes to a conclusion which, ultimately, either that judge including me or another judge may, when they’ve had the benefit of the full evidence, realise was wrong, and that is one of the burdens we face. Nevertheless, it is required that I do the best I can to promote the children’s best interests on the evidence I have.
Weighing all the evidence as best I can, it seems to me that the children’s safety would be best promoted, particularly in terms of their psychological safety and the avoidance of potential educational neglect, by the maintenance of the current orders that they live with the father, where the evidence of risk of psychological harm from the mother seems to be more reliable to me than the evidence of risk of family violence to the children by the father.
In that context, I note what I have said about the children’s views and given that one of the issues is the mother undermining the father’s relationship and given the children’s ages, I give limited weight to their views, although I acknowledge them.
On the material before me, the children’s developmental, psychological, emotional and cultural needs, which are for a safe and emotionally supportive environment, are, best dealt with by the father who appears to have a greater capacity to provide for those needs. The children will benefit from having a relationship with each parent, but that requires it to be a safe relationship, and I am satisfied that, on balance, the best way for that to be achieved is by the current orders.
I have addressed the allegations of family violence and the family violence orders. If there has been another family violence order made which I have not been told about in the meantime, and if these orders are inconsistent with that, then I note the inconsistency and I note that I do not know what evidence may have been before a magistrate, but I know the evidence before me, and I am satisfied that the children are safer with the father at the moment than they are with the mother; and, in effect, doing the best I can, I find that the weight of the evidence supports the children’s safety and best interests being served by, in effect, the existing interim orders.
I was not given detailed submissions by the ICL or the father as to how they might otherwise be varied, nor by the mother as to how they might be varied if I did not accept her case.
Accordingly, I make Orders 1 to 6 as set out above.
I will note, that if the children’s school is willing to engage with the father, and if it is possible that they not change school, it may be better for them but, ultimately, if the relationship between the mother and the children’s school means that they have been so co-opted that they are unable to support the children whilst living with the father, and are not able to act without undermining that relationship, then, unfortunately, it may be that a further change in the children’s circumstances and schooling is required.
Those are my reasons.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 15 November 2024
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