BRECKENRIDGE and KUDRNA - [2019] FCWA 9

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: BRECKENRIDGE and KUDRNA [2019] FCWA 9
CORAM: SUTHERLAND J
HEARD: 12-16, 19-23, & 26-29 NOVEMBER 2018
DELIVERED : 10 JANUARY 2019
FILE NO/S: PTW 3414 of 2015
BETWEEN: MR BRECKENRIDGE
Applicant
AND
MS KUDRNA
Respondent

Catchwords:

CHILDREN - Parental responsibility - With whom a child lives and spends time - Children at ongoing risk of psychological harm from exposure to mother's mental health issues and mother subjecting the children to repeated medical/psychological assessments

Legislation:

Family Court Act 1997 (WA)

Representation:

Counsel:

Applicant	:	Mrs Oakeley
Respondent	:	Mr Mather
Independent Children's Lawyer	:	Mr Athanasiou

Solicitors:

Applicant	:	Beacon Family Law
Respondent	:	Clairs Keeley
Independent Children's Lawyer	:	Ferrier Athanasiou & Kakulas

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

Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405

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

INTRODUCTION

1[Mr Breckenridge] [("the father")] and [Ms Kudrna] [("the mother")] were unable to agree the future parenting arrangements for their two sons, [Child A], aged nine and [Child B], aged six. The proceedings were complicated by the fact that the mother maintained that the father subjected her and the two boys to significant, severe and/or ongoing family violence during their relationship, as well as making numerous other allegations that the father posed a risk to them. As a result of the father's alleged behaviour towards them, the mother maintained that: she and the children now suffered from significant mental health issues, including post-traumatic stress disorder ("PTSD") and anxiety; the children suffered from other medical / developmental issues, including possibly autism spectrum disorder ("ASD"); the children were afraid of their father; and the children did not want to have any contact with him. On the other hand, the father adamantly denied the mother's allegations of family violence and/or that he posed a risk to the children. Rather, he alleged that the mother's own serious mental health issues and/or her negative and highly anxious attitude towards him had harmed, and were continuing to harm, Child A and Child B.
2The trial took place over 14 days in November 2018. Aside from the father and the mother, the parties and the Independent Children's Lawyer ("ICL") called 19 witnesses to give evidence, including numerous medical and therapeutic providers who had involvement with the family after the parties' final separation in April 2015.

ORDERS SOUGHT

3The father commenced these proceedings in June 2015. He did not particularise his final orders sought but sought on an interim basis that the children live with the mother and spend regular time with him. In December 2017, the father filed an amended application seeking that the children live with him. He did not particularise the time the children spend with the mother pending the release of the single expert report by [Mr C].
4The orders sought by the father at start of the trial were as set out in his Papers for the Judge.[1] In summary, the key orders he sought were as follows:
[1] The father's Papers were received by the Court on 6 August 2018.
a)The father have sole parental responsibility for Child A and Child B and the children live with the father in [Town A].
b)The children attend therapy with a clinical psychologist and that the parents also attend upon the psychologist as directed by him or her.
c)The mother attend therapeutic counselling with a clinical psychologist.
d)The mother undergo a psychiatric assessment to determine whether she is suffering from a mental illness or personality disorder; and if so, the psychiatrist also report as to the nature and extent of such condition, the impact it has on the mother's parenting and treatment options.
e)Subject to the mother first undergoing the psychiatric assessment (and other minor conditions), she spend time with the children in Town A, strictly supervised by a professional supervision agency.
f)The mother be subject to injunctions restraining her from discussing with the children the allegations raised by her during the proceedings and who the children wish to live with, and from denigrating the father or his family within earshot of the children.

5During his cross-examination, the father then indicated that his proposal was for the supervised visits to occur at [Supervision Agency A] in Perth (rather than in Town A), with two visits over one weekend each month and he would pay for the children to travel down to Perth. He further indicated that if Supervision Agency A was unable to provide supervision services, whether due to the family exceeding the maximum number of supervised visits allowed or otherwise, he was prepared to pay half the cost of private supervision if the mother could not afford it herself.

6 The father's Papers for the Judge were silent as to how he proposed the children would transition into his care. When the father was questioned about this by the mother's counsel during cross-examination, he indicated he was prepared to stay in Perth with the children at the paternal grandparents' house for a few weeks during the forthcoming Christmas school holidays, before travelling with the children to Town A.

7The mother sought orders in the terms of her Papers for the Judge.[2] Although the mother previously maintained that the father should not have any contact with Child A and Child B at all in the future, her position changed shortly prior to trial. In summary, the mother sought the following key orders on an interim basis:
a) The mother have sole parental responsibility for Child A and Child B, and the children live with her.
b)The parties and the children engage in family therapy.
c)If recommended by the family therapist, the father spend time with the children, supervised by a supervision agency in Perth for two three‑hour periods on the first weekend of each month.
d)The mother continue to attend upon her psychiatrist, [Dr D] [("the mother's psychiatrist")], as recommended by him; and the children continue to attend upon their paediatrician, [Dr E] [("the children's paediatrician")], as recommended by him; together with any other medical practitioner to whom he refers the children.
e)The father attend and complete the following courses: Mums and Dads Forever, Circle of Security and a men's behaviour change program.
f)The father be subjected to numerous injunctions, including preventing him from removing the children from the mother's care, attending the children's school (without firstly giving the mother notice) and attending at the premises of any of the children's medical providers (without firstly giving the mother notice).
[2] The mother's Papers were received by the Court on 9 November 2018.

8Mr Athanasiou, the ICL, did not identify what orders were sought by him at the start of the trial. This was hardly surprising given the highly contested nature of the factual disputes identified in paragraph 1 of these Reasons. However, just prior to making his closing submissions, the ICL provided a Minute setting out the orders he sought.[3] In summary, the ICL sought the following orders:
[3] Refer to the ICL's Minute which was handed up on 28 November 2018, as amended by him in his closing submissions.
a)There be final orders that the father have sole parental responsibility for Child A and Child B and the children live with him.
b)In relation to the transitional arrangements for the children to move into the father's care: the father initially live with the children at the home of the paternal grandparents in Perth, and be permitted to relocate with the children to Town A just prior to the commencement of the 2019 school year or whenever recommended by the children's treating healthcare professionals (whichever is the earlier).
c)To further assist with the transition, the father arrange for the children to see a child psychologist. In addition, the father arrange for the children to see a paediatrician and/or a child psychiatrist as soon as practicable to monitor the children's ongoing health.
d)There be interim orders for the mother to continue to engage with her psychiatrist and/or any therapist as recommended by him and for the mother provide a report from her treating practitioners in 12 months' time addressing her mental health and her beliefs about the father and his conduct towards her and the children.
e)There be interim orders in relation to the mother's contact with the children as follows:
i)After a period of approximately 30 days from the making of these orders, the mother have liberty to communicate with the children by way of written mail and spend time with the children on a fortnightly basis in Perth, strictly supervised by Supervision Agency A and on the basis that the father pays for the costs of the children's travel to and from Perth and that the mother meets the supervision costs.
ii)Upon the mother receiving a favourable supervision report (as determined by the ICL) then the mother spend daytime contact with the children each fortnight on a Saturday and a Sunday from 10.00 am until 4.00 pm, with handovers to be supervised by Supervision Agency A and on the basis that the mother meets the handover costs.

f)After a period of 12 to 18 months, Mr C undertake a review of the family and provide to the Court his recommendations as to whether it would be in the children's best interests to progress the time they spend with their mother, and if so, in what way.
g)The proceedings otherwise be adjourned generally to await the outcome of the review by Mr C.

9The ICL indicated that he also supported a number of orders sought by the father, including in relation to injunctions, provided that they were mutual injunctions.
10During his closing submissions, the father generally supported the framework of the final and interim orders proposed by the ICL. In particular, he was agreeable to the mother continuing to attend upon her psychiatrist for psychiatric assistance. The father otherwise proposed a four-week plan for the children to move into his care in the paternal grandparents' home in Perth to living with him in Town A, and he also proposed that the children attend upon [Ms F], a psychologist previously involved with Child A [("Child A's psychologist")], for therapy to assist with the transition.
11Unfortunately, when the mother was made aware of the orders sought by the ICL, she became highly distressed and was unable to provide any further instructions to her legal representatives. This was notwithstanding her counsel's concession earlier in the trial that the mother now realised that she stood "on the precipice" of the Court making orders for the children to move into the father's care. Although the trial was adjourned until the following day to give the mother an opportunity to provide her instructions in relation to the ICL's Minute, she did not do so. Accordingly her counsel closed on the basis of the orders sought by the mother at the commencement of the trial.

THE EVIDENCE

12The father was represented by solicitors throughout the vast majority of the proceedings, including at the trial by his solicitors and [his counsel]. He relied upon his trial affidavit and updating affidavit,[4] together with the affidavits of his partner, [Ms G],[5] his young adult son, [Mr H],[6] and his mother, [Mrs Breckenridge] [("the paternal grandmother")].[7]
[4] The father's affidavits were filed on 16 January 2018 and 27 July 2018.
[5] Ms G's affidavits were filed on 21 June 2018 and 6 November 2018.
[6] Mr H's affidavit was filed on 27 June 2018.
[7] The paternal grandmother's affidavit was filed on 15 June 2018.
13The mother was intermittently represented by solicitors throughout the proceedings, but was represented in the lead up to, and at trial, by her solicitors and [her counsel]. She relied upon her trial affidavit and updating affidavit,[8] together with the affidavits of her mother and stepfather, [Mrs I] [("the maternal grandmother")] and [Mr I] [("the mother's stepfather")],[9] her sister [Mrs J] [("the maternal aunt")],[10] and her friend, [Ms K].[11] In addition the mother subpoenaed the following persons to give evidence on her behalf:
a)[Ms L], the children's former counsellor and her parenting advisor;
b)[Dr M], her general medical practitioner;
c)Dr E, the children's recently appointed private paediatrician; and
d)Dr D, the mother's recently appointed psychiatrist.
[8] The mother's affidavits were filed on 1 March 2018 and 8 August 2018.
[9] Mr I and Mrs I both filed two affidavits, on 6 March 2018 and 8 August 2018.
[10] The maternal aunt's affidavit was filed on 1 March 2018.
[11] Ms K's affidavit was filed on 1 March 2018.

14The ICL relied upon the reports of the two single expert witnesses: [Dr N] (whose report was dated 20 July 2016) and Mr C (whose report was dated 17 July 2018). Dr N did not make herself available to give evidence at the trial despite attempts by the ICL to have her give evidence. Nevertheless, the parties and the ICL agreed that her report be taken into account to some extent, particularly as it was effectively a foundational document for the preparation of Mr C's report (and even though Mr C was clear that there were some aspects of Dr N's report with which he disagreed). The ICL also called the following witnesses to give evidence pursuant to subpoena:
a)[Mr O] [("the school deputy principle")] and [Ms P] [("Child A's teacher")], both from the children's school: [School A];
b)[Ms Q] from Supervision Agency A;
c)Ms F, a clinical psychologist, who was involved in the first ASD assessment of Child A in early 2018;
d)[Ms R], a social worker with the Child and Adolescent Mental Health Service ("CAMHS");
e)[Dr S], a paediatric psychiatrist, who at the relevant time consulted to Child A through CAMHS [("Child A's psychiatrist")].
f)[Ms T], a children's therapist who provided counselling to Child B [("Child B's therapist"); and
g)[Dr U], who is Child A's paediatrician through [Child Development Centre A] [("Child A's paediatrician")].

15In the lead up to the trial, the mother also sought that the parties, the ICL and the single expert witness have liberty to inspect the Family Court file relating to the father and his former partner, [Ms V] (Mr H's mother). Both the father and Ms V consented to the parties and the ICL inspecting their file.[12] The parties and the ICL had the opportunity to inspect the [father and Ms V's] file during the trial. Despite having access to the father and Ms V's file, the mother did not identify any evidence on the file to support her assertions made at various times during the proceedings that the father was violent to Ms V, or that Ms V raised any risk issues concerning the father, including in relation to illicit drug use.

FINDINGS IN RELATION TO THE FATHER'S EVIDENCE

[12] The father consented to the other party and the ICL being able to inspect the file shortly after the mother raised the issue. On the first day of the trial, Ms V also orally gave her consent to all parties and the ICL inspecting the file.

16The father was cross-examined extensively by [the mother's counsel] and the ICL. The mother's counsel made it clear that although he chose to cross-examine the father about the mother's allegations involving family violence, he deliberately chose not to cross-examine the father about numerous other allegations made by the mother.
17The father impressed as being quietly spoken, relaxed and rather "laid-back" in his demeanour. Whilst I generally considered the father was open, frank and consistent in giving his evidence, I formed the view that the father minimised the extent of the "bickering" and arguments between he and the mother during their relationship.
18The father generally had a good recall of events, albeit he was sometimes vague about the precise dates that some events occurred and the precise words spoken during some conversations. However, the father was clear in his evidence when he disagreed with the mother's versions of various incidents and/or whether the alleged incidents occurred at all, maintaining the mother either significantly exaggerated events or simply made them up. I considered that the father was balanced in giving his evidence and he readily made appropriate concessions against his interests, including that he did occasionally resort to physical disciplinary measures with the children, including lightly smacking the children (for example on the bottom).
19I considered that the father was firm, consistent, unshaken and/or unchallenged and plausible in his evidence that:
a)He did not have extreme anger management issues and aggressive behaviours, whether caused by him suffering a head injury as a teenager or for any other reason.
b)He did not subject the mother to significant, severe and/or ongoing family violence, including, but not limited to: sexually assaulting, strangling, hitting, physically restraining, verbally abusing, monitoring, stalking, intimidating or threatening the mother.
c)He was not financially controlling of the mother.[13]
[13] I accept the father's evidence that the mother had her own card attached to his account, which she kept in her purse and was able to use as she chose. In addition, the mother had her own credit card account which the parties' paid off each month, together with full access to the father's bank accounts through internet banking, including details of the father's passwords.
d)He did not subject Child A and Child B to, or expose them to, family violence, including, but not limited to: punching, hitting, kicking, beating, belittling, inappropriately disciplining, verbally abusing, taunting or being aggressive towards the children. In particular:
i)He did not hit Child B in the shower when Child B was approximately two years old.
ii)He did not punch Child A in the head or face in April 2015, or at any other time. In relation to the alleged incident in April 2015, the father was sitting on the couch drying Child B after his bath. Child A was playing around, leant over the back of the couch and punched the father in the back. The father turned around and growled at Child A, who then ran to his mother in the bathroom.
iii)He did not put Child B and/or Child A on the roof of the house in [Town B] in 40 degree heat as a punishment.

e)He did not become unduly frustrated with the children, including, but not limited to: pushing them away or forcing Child B to sit on the potty for long periods, dress himself or put on his own nappy.
f)He did not sexually molest or otherwise do something inappropriate to Child B in a toilet during a supervised visit in September 2016.
g)He was not cruel to the family pets, including, but not limited to, throwing [Tom] the kitten against the wall or unnecessarily having the old cat euthanized by the local vet.
h)He did not use illicit drugs, including, but not limited to, methamphetamines and synthetic cannabis, and he did not misuse alcohol.[14]

FINDINGS IN RELATION TO THE MOTHER'S EVIDENCE

Preliminary issues

[14] I accepted the father's evidence that as part of his employment in the resources industry over the last decade, he has been subjected to regular and random drug and alcohol tests. In his current employment, he is tested for alcohol practically every morning before starting work. He has never failed any such tests.

20Two preliminary issues arose in relation to the mother's evidence.
21 Firstly, just prior to trial, the mother filed a Form 2 Application seeking to make special arrangements for her attendance at the trial, including that: she have a nominated support person with her at all times, she be able to participate by audio visual link-up and that she be escorted by security staff at all times when she was moving about inside the court premises.[15] Save for the issue of the mother having a support person available to her during the trial, both the father and the ICL opposed the orders sought by the mother.
[15] Refer to the mother's Form 2 Application filed on 1 November 2018.
22In an affidavit sworn by her solicitor in support of the Form 2 Application, the mother's solicitor deposed that the mother had been diagnosed with PTSD in 2018 and that her current treating psychiatrist considered she would need support at court for the trial, because the mother reported her symptoms were triggered by: seeing the father, hearing his voice, seeing the paternal family in the court building and the possibility of running into the father or his relatives entering / leaving the court building. This was in the context that neither the mother nor any of her witnesses raised these issues in their trial documents to any significant extent; the mother had previously given evidence in contravention proceedings without any such supports being requested; and the mother had previously attended at court before me as a self‑represented litigant, including when the father was also appearing as a self‑represented litigant.[16]
[16] For example, refer to the hearing before me on 11 June 2018.
23In further support of her Form 2 application, the mother called her psychiatrist to give evidence pursuant to a subpoena. The mother's psychiatrist prepared a brief report dated 8 November 2018.[17] In his report he opined that the mother met the clinical criteria for a PTSD diagnosis, which appeared to have developed over several years in consequence to the alleged violence and abuse within her relationship with the father. The mother's psychiatrist also reported that the mother advised her symptoms were triggered by "anything connected with her ex-partner or Family Court‑related issues". The mother's psychiatrist gave oral evidence briefly by telephone on the first day of the trial, specifically in relation to this issue. He also gave further evidence later in the trial about the mother's mental health issues and treatment more generally. I refer to the mother's psychiatrist's evidence in more detail later in these Reasons.
[17] Exhibit R2.
24As no objection was raised by either the father or the ICL to the mother having access to a support person throughout the trial, and I was satisfied that such an order was appropriate, I made the order as sought by the mother. I was not satisfied that there was any cogent evidence before the Court that warranted the mother being specifically assigned security staff to escort her when she was moving about inside the court premises during the trial. I was also not satisfied that the mother should be permitted to give her own evidence and be cross‑examined via audio-visual linkup, given the logistical difficulties, such as being able to put documents to the mother. I was satisfied that other appropriate arrangements could be put in place to attempt to minimise any undue distress to the mother when giving her own evidence, if necessary, including changing the seating arrangements in the court, arranging for the father to leave the court room and view the mother's evidence via audio‑visual linkup and/or requesting the paternal family members not to be present in the court room. However, for all other aspects of the trial, I made arrangements for the mother to participate via audio-visual linkup, if she so chose. Save for when she gave her own evidence, the mother largely elected to participate in the trial via audio-visual linkup from another room in the court precinct. In the later stages of the trial, the mother sometimes also elected not to participate at all. For example, the mother chose not to listen to her psychiatrist giving his evidence on 27 November 2018 and she did not attend at court at all for the closing submissions on 28 and 29 November 2018.
25 Secondly, on the Friday prior to the commencement of the trial, the mother disclosed for the first time numerous audio recordings of various conversations totalling over nine hours. These primarily consisted of: dozens of telephone conversations between the father and the children over the period from 2015 until 2018; and various conversation or parts of conversations between the mother and professional providers, including the school deputy principal, Child A's psychiatrist and Ms R from CAMHS, and Child A's psychologist. By agreement between the parties and the ICL, arrangements were made for copies of relevant audio recordings to be provided to the respective witnesses before they gave their evidence, together with a request that they each consider several questions in the context of the audio recordings (including whether they were aware that their conversations were being recorded by the mother and whether they had consented to the recordings). Although the State Solicitors Office ("the SSO") became involved with the matter, insofar as it related to CAMHS, and in particular Ms R, at the end of the day, the SSO elected not to attend at the trial to make any submissions in relation to the matter. This was because the parties and the ICL agreed to the SSO's request that they would not seek to tender into evidence any of the recordings involving Ms R.
26When the mother was first cross-examined about the issue, particularly whether she made the various persons and organisations aware that she was recording them and/or sought their consent, the mother's counsel appropriately objected and raised the issue of the potential illegality of the mother's actions. He sought that a section 11 Certificate be granted pursuant to the Evidence Act 1906 (WA). I was satisfied that it was necessary for the ends of justice to require the mother to answer questions regarding the issue. With the concurrence of the mother's counsel and counsel for the other parties, I explained to the mother the issue, including the provisions of the applicable section, and her obligation to satisfactorily answer the questions put to her in order for a certificate to issue. I was satisfied that the mother did fully answer the questions put to her about the matter to the best of her ability and I was satisfied that the certificate should issue.

Arrangements when the mother was giving her evidence

27The mother was cross-examined extensively by [the father's counsel] and the ICL over a number of days. I considered that both counsel were entirely appropriate, respectful and patient in their cross-examination of the mother. It was clear that at times the mother found the cross‑examination very difficult and emotionally distressing.[18] This happened occasionally, for example: when the murder of her grandparents was referred to and when her versions of some events were challenged by counsel. The mother had her support worker close at hand and regularly took breaks from giving her evidence. At no time did the mother request that either the father or any paternal family members (who were in the court room from time‑to‑time) leave the court room. I also considered that the father and his family members also behaved entirely appropriately throughout the trial, including when the mother was in the court room and/or giving her evidence.

Creditability issues

[18] At times, the mother also found it very difficult and emotionally distressing to listen to the evidence of other witnesses, including not only the father and his family members but also the various medical / psychological witnesses.

28I accept that the mother's significant mental health issues detrimentally impacted on her ability to give her evidence during the trial. This included the mother’s long history of trauma, depression and anxiety. Nevertheless, I considered that I should be very circumspect in accepting much of the mother's evidence for the reasons set out below.
29 Firstly, the mother's evidence was often confused and difficult to follow. For example the mother's versions of events were often inconsistent and changed not just during her oral evidence in the trial, but from affidavit to affidavit over a significant period of time. The mother also regularly failed to answer questions put to her in cross‑examination (as distinct from questions put to her during her evidence‑in‑chief and her re‑examination), instead focussing on minor irrelevancies or going off on tangents. The mother's evidence was regularly also inconsistent with and/or contradicted by other witnesses, including not only the various professional providers (who invariably contemporaneously documented their interactions with the mother), but also her own family members.
30 Secondly, I concurred with the father's counsel's submission that the mother's evidence, for example, about the father subjecting her and/or the children to family violence, appeared at times to start from a grain of truth and then were developed and embellished by the mother over time into extremely serious allegations. For example, there was simply no cogent evidence that prior to early April 2015, either the mother or anyone else ever raised any concerns about the father's allegedly violent and abusive behaviour or about his alleged substance abuse. However, after the father told the mother that he wanted to end their relationship in early April 2015, there was an "explosion" of allegations by the mother to multiple third parties about these matters. Further, the mother's allegations were often reported inconsistently to third parties (for example: the mother made an allegation to her counsellor at [Counselling Centre A] but not to other professionals or to the Family Court), they were inconsistent in their nature and they also changed considerably over time. In particular, as the mother continued to engage with various counselling services and other providers, undertake her own research on the internet into family violence issues and interact with various informal women's support groups over Facebook, it appeared that many of the mother's allegations about the father grew in severity.
31In my view, the "growth" in the mother's allegations about the father were evident from a review of the various allegations made by her in: (1) her initial ex parte violence restraining order ("VRO") application made to the Town B Magistrates Court [in April] 2015; (2) her second ex parte VRO application made in Perth [in May] 2015; (3) her Case Information Affidavit and her Form 4 Notice both filed in July 2015; (4) her affidavits filed in relation to the interim proceedings in late 2015 and 2016; (5) her trial affidavit filed on 1 March 2018; (6) her Papers for the Judge received in November 2018; and (7) finally, during her cross-examination.
32Two examples serve to highlight the "growth" of the mother's allegations, both in nature and severity, over time.
a)The mother's allegation that she had been sexually assaulted by the father: the father conceded that a minor incident occurred while the parties were living in Town B, during which he went to hug the mother in the kitchen and she hurt her back when she leaned backwards onto the kitchen bench.
i)The first time the mother appeared to raise the issues of the father assaulting her near the kitchen bench and/or sexually assaulting her was when she told her Counselling Centre A counsellor in July 2015 that the father was physically abusive to her as follows:[19]
[19] Refer to Exhibit S13: Counselling Centre A counselling notes dated 20 July 2015.
... once they had moved up to [Town B]. He would push her hard against the kitchen bench, for instance, knowing that she had significant problems with her back. He hit her on one or two occasions, and attempted to rape her three times (she fought back to avoid this.)

ii)Aside from her Counselling Centre A counsellor, it appears that the mother did not tell other professional providers she engaged with, including Dr M and CAMHS, that the father had ever sexually assaulted her.
iii)The mother also did not raise the sexual assault issue in her Case Information Affidavit, or her Form 4 Notice of Abuse, or with the Family Consultant at the Case Assessment Conference in September 2015. However she did allege in her Form 4 Notice that the father would restrain her by her hands and/or arms, usually in the kitchen against the bench, and in the Case Assessment Conference that he would pin her against the kitchen bench.
iv)In her affidavit filed in October 2015, the mother then referred to the father pinning her against the kitchen bench, causing her to suffer extreme pain; and the father forcing himself on her to have sex while they were in Town B, stating "[[the father]] had never previously done this".[20]
[20] Refer to the mother’s affidavit filed on 14 October 2015, 12 [9].
v)Then, in her trial affidavit filed in March 2018, the mother deposed that "[the father] would restrain [her] by [her] hands and/or arms, usually in the kitchen against the bench" and "[on] many occasions, [the father] forced [her] to have sex with him against [her] will".[21] She went on to describe what typically happened during these alleged assaults, but did not specify how many times the assaults occurred or when. The mother made no reference to the attempted rapes she discussed with her Counselling Centre A counsellor.
[21] Refer to the mother’s affidavit filed on 1 March 2018, [242] - [243].
vi)Then, in her Papers for the Judge, the mother maintained that the father raped her on three occasions after August 2013 (when the parties were living in Town B). Again, the mother made no reference to the attempted rapes she had discussed with her Counselling Centre A counsellor.
vii)During her cross-examination, the mother firstly maintained that the father had raped her on three occasions in Town B after August 2013. When she was asked why she had not told the Counselling Centre A counsellor about the actual rapes as well as the attempted rapes, the mother maintained that she couldn’t "think anymore" and that her "head hurt", before then asserting that she spoke about it to "helplines in [Town B]". She then asserted that there were at least six events in total (three attempted rapes and three rapes), that the attempted rapes took place when the parties lived [in Suburb C in Perth] (prior to the parties moving to Town B) and that she discussed the attempted rapes during couples counselling sessions while the parties were living in Suburb C. When again questioned why she had not discussed the actual rapes with the Counselling Centre A counsellor, the mother maintained "there's a lot of stuff that happened that I blocked out". Further, when the mother was asked why she did not refer to the attempted rapes or actual rapes by the father against her in either of her VRO applications, she asserted it was because her memories must have been suppressed at the time. The mother was unable to explain the contradictions between her earlier affidavit evidence and her current evidence.
viii)However, subsequently in her cross examination, the mother then insisted that the father tried to rape her "all the time" after the parties moved to Town B, including in the bedroom and in the kitchen when he pushed her against the kitchen bench. This appeared to be the first time that the mother's two different allegations in this respect converged.

b)The mother's allegation that the father had punished Child A and Child B by putting them on the roof of the Town B house in 40 degree heat: the father conceded that a minor incident occurred after the parties moved to Town B. He was outside the home with the two boys doing some maintenance work on the house, whilst the mother rested and watched TV inside. He had placed a ladder up against the house as he had been working on the roof. Whilst his back was momentarily turned, Child B started to climb the ladder. The father turned around, saw Child B and carefully took him from the ladder, prior to Child B reaching the roof. The father then went inside with the children and told the mother what had happened.
i)The mother did not refer to the ladder / roof incident at all in her VRO applications, Case Information Affidavit, Form 4 Notice, or in her affidavits filed for the interim proceedings. There was also no evidence to suggest that the mother ever raised any concerns about such an incident with any of the professional providers involved with the family after separation.
ii)In her trial affidavit, the mother referred to a similar sounding incident that occurred sometime in 2014. The mother deposed that [the maternal grandmother] told her that during their family Christmas lunch in December 2014, the father told the maternal grandmother a story about Child B climbing up a ladder and getting onto the roof of the house while the father was inside the house for a few minutes.[22]
iii)However, in her Papers for the Judge, the mother then maintained that in February 2015, the father put Child A on the roof of the house in 40 degree heat as a punishment.
iv)During her cross-examination, the mother initially maintained that there were two separate incidents: one which involved Child B climbing up the ladder by himself and a second when the father deliberately put Child B on the roof as a punishment. However, subsequently in her cross-examination, the mother then insisted that the father had deliberately placed both children on the roof of the house in 40 degree heat as a punishment. The mother was unable to explain why she never referred to the more serious incident of putting Child B and/or Child A on the roof as punishment until just prior to trial.
[22] The maternal grandmother also confirmed the father telling her this story in her evidence.

33The mother conceded that many of her allegations (for example, of the father punching Child A in the head or face multiple times while in Town B and the father hitting Child B in the shower in Town B when he was two) were based on her beliefs and assumptions about what happened, as distinct from her having any actual knowledge of what did occur.
34 Thirdly, I am satisfied that the mother not only continually "rewrote history" to suit her own narrative in the context of the Family Court proceedings, but she also continually did so during her engagements with her own and the children's medical and therapeutic providers after separation. In my view, this seriously called into question the reliability of the various diagnoses made by these providers. I refer to this in more detail later in these Reasons.
35 Fourthly, I considered that the mother had such a negative attitude to the father, his family and any third party professionals who challenged her narrative, that she was often unable to give her evidence in a balanced manner. The mother regularly appeared to jump to sinister conclusions that cast the father, his family and the professionals with whom she disagreed in the worst possible light, rather than considering more plausible explanations for events. The mother's allegation to various medical providers that "something happened" during an "incident" between the father and Child B in the toilet during a supervised visit in September 2016 was a prime example of this. I refer to this allegation more detail later in these Reasons.

36 Finally, I considered that the mother had little if any insight into the detrimental impact on Child A and Child B of her own significant mental health issues and behaviours. For example, even though the mother continually insisted that she always shielded the children from her own anxiety and distress, it was clear that she did not. There were multiple occasions (for example, in [Hospital A] Emergency Department files, in Child A's psychologist's ASD assessment report and in Ms R's evidence) of either the professionals directly observing Child A comforting the mother when she was crying or distressed, or of the mother telling the professionals of occasions when this occurred.[23] In her re-examination, the mother also identified an occasion when she became distressed and cried at [a] Supervision Agency A handover and was comforted by Child B. In addition, there was ample evidence from Supervision Agency A of the mother being unable to shield the children from her negative views about the father. The audio recordings of the father's telephone calls with the children were also revealing for the "snippets" of the mother's interactions with both the father and the children. In particular, a telephone recording (of a call on speaker phone) of the mother demanding the father apologise to the children for a relatively inconsequential comment made by him was a prime example of the mother being utterly unable to either shield the children from her very negative attitude to the father or otherwise control her emotions whilst the children were in her presence.

FINDINGS IN RELATION TO THE EVIDENCE OF THE PATERNAL FAMILY MEMBERS

[23] Refer to Exhibits S10 and S31.

37All the paternal family members were cross-examined by the mother's counsel and the ICL.
38 Ms G and the father have been in a relationship together for approximately three years and have lived together since October 2016. Ms G was previously married. Her former husband continues to live in Town A. They have four children of that marriage: [W] aged 14, [X] aged 13, [Y] aged 12 and [Z] aged 10. Ms G and her former husband recently consented to final parenting orders in relation to their children. They continue to be engaged in court proceedings regarding financial issues. Pursuant to their consent orders, W lives with Ms G and the father and spends time with Ms G's former husband in accordance with her wishes; X lives with Ms G's former husband and spends time with Ms G in accordance with his wishes; and Y and Z live with each of their parents on a week‑about basis. Ms G works full-time for a contractor to [Company A] in Town A, on a "sportsman's roster" which required her to work a set monthly roster of day and night shifts.[24]
[24] Ms G explained that the sportsman's roster was an "equal time" arrangement whereby she worked set shifts over a month: for example, 3 day shifts, 2 night shifts and then followed by 5 rostered days off. Her day shifts were from 6.00 am to 6.00 pm and her night shifts were from 6.00 pm to 6.00 am.
39Ms G appeared to be quite nervous when giving her evidence and at times seemed to have some difficulty understanding the questions put to her by the mother's counsel. She gave vague and/or non-specific answers at times, particularly about how she and the father would integrate Child A and Child B into their household or manage any behavioural issues if Child A and Child B lived with them in Town A. Nevertheless, I was satisfied that Ms G attempted to give her evidence honestly and as she saw it. She was also prepared to make appropriate concessions against her interests, including acknowledging that it was wrong of her to send an offensive and aggressive private Facebook message to the mother in late April 2016. In particular, I accept Ms G's evidence that:
a)She and the father have a loving and mutually respectful relationship. The father has never subjected her to family violence, including, but not limited to, never physically assaulting her, threatening her or yelling at her. Ms G conceded that they did occasionally have arguments, during which she was primarily the person who did the "yelling".
b)She has never observed the father to use illicit drugs and considers that he is an occasional / social drinker of alcohol.
c)The father has an active role in assisting her with the parenting of W, Y and Z, including taking the children to school regularly when she is rostered on to day shifts and assisting with meal times. She has never observed the father to hit her children or otherwise behave inappropriately towards them and had no concerns whatsoever about the father posing a risk of harm to her children.
d)She and the father have sought professional advice about how to assist Child A and Child B in the event that the children do commence living with them in Town A, including speaking with a counsellor at [Counselling Centre B] in the Town A area on three occasions.
e)Apart from the one private Facebook message in April 2016, she has never contacted the mother or otherwise made derogatory or offensive posts about the mother on social media.

40The father's mother Mrs Breckenridge is married to [the paternal grandfather], [Mr Breckenridge Snr], and has three other adult children, apart from the father. She worked as [an allied health professional] during the parties' relationship and now works in a managerial role for a [medical practice]. When the father and the mother lived in [Town D], [the paternal grandparents] travelled there once or twice to visit the family. When the father and the mother lived in Suburb C in Perth, the paternal grandparents generally spent a day each month visiting the family. After the father and the mother moved to Town B, the paternal grandparents visited them in Town B approximately three or four times a year.
41Although the paternal grandmother became very distressed and cried during her cross-examination by the ICL (when it was incorrectly put to her that an allegation may have been made that Child B had been sexually molested during a supervised visit while she was the supervisor), I considered that the paternal grandmother was a very impressive witness. The paternal grandmother was open, frank and forthright in giving her evidence. She had a very good recollection of events (albeit sometimes she was a little unsure about the dates that certain events occurred). I considered that she was also balanced in giving her evidence, including making appropriate concessions against the father's interests. I had no hesitation in accepting her evidence. In particular, I accept the paternal grandmother’s evidence that:
a)During the parties' relationship, the paternal grandmother had a close relationship with both the father and the mother. The paternal grandmother and the mother kept in regular contact with each other. The mother occasionally confided in the paternal grandmother, for example, that she was suffering from depression; and the mother regularly sought out the paternal grandmother's advice about medical issues. On various occasions when the paternal grandparents visited, the mother was often unwell and in bed.
b)At no time during the parties' relationship did the mother ever disclose to the paternal grandmother any concerns about the father's behaviour to her or the children, including ever raising any concerns about family violence or substance abuse.
c)At different times, the paternal grandmother was present when the father and the mother had minor arguments. The paternal grandmother described the arguments as the mother "overreacting" to something minor and then the father trying to diffuse the situation in various ways.
d)From November 2016, the paternal grandmother undertook the role of physically supervising the father’s visits with the children (albeit Child A never attended any of these visits). The paternal grandmother took her responsibilities as a supervisor very seriously and closely monitored Child B during the short supervised visits. Child B very much enjoyed his supervised visits with the father and other extended family members, including Ms G and three of her children and various paternal uncles, aunts and cousins. Child B was always very excited to see the father and was often quite clingy to the father, for example, wanting to be picked up by the father. The father was appropriately attentive and affectionate towards Child B, for example, the father did not ignore Child B or push him away.
e)Aside from one occasion when Child B was bitten by an ant and became upset, Child B was not harmed in any way during the supervised visits. The paternal grandmother notified the mother about the ant incident.

42The paternal grandmother maintained that the father and the paternal family members were careful never to discuss the court proceedings in Child B's presence or hearing. However, I am satisfied (particularly having regard to the evidence of Child B's therapist and Mr C) that it was likely Child B did overhear a conversation / conversations about this issue whilst he was spending time with the father and the paternal family.
43 Mr H is the only son of the father from his relationship with Ms V. The father and Ms V separated in or about 2001 when Mr H was approximately two years old. When Mr H was approximately six years old, he began living full‑time with the father and spent regular time with Ms V. He was a member of the household from the time that the father and the mother commenced lived together until July 2013, when the father and the mother moved to Town B and Mr H stayed in Perth and lived with Ms V. From July 2013 until April 2015, Mr H travelled to Town B during school holidays on approximately four occasions for about a week at a time to spend time with the family.
44Mr H was cross-examined primarily about his observations of the parties' relationship and their relationships with Child A and Child B. I considered it telling that to a large extent, Mr H's evidence about the mother regularly being unwell and her lack of involvement in family activities were unchallenged.
45I considered that Mr H was also a very impressive witness, notwithstanding that he appeared to be a little nervous when giving his evidence. He was open, frank, forthright and balanced in giving his evidence and I had no hesitation in accepting his evidence, including that:
a)His relationship with the mother was always cold and lacked feeling. The mother was not motherly towards Mr H, but tolerated his presence and used him to care for the younger boys.
b)From the time the family lived in Suburb C, Mr H observed that the father and the mother seemed miserable in their relationship and that the "vibe" in the house was "low" and "snappy". Mr H regularly saw the father and the mother bickering with each other about minor issues, for example, who would cook the evening meal that night and who would bathe the younger children. Often there was a pattern of the mother getting upset about, or having a problem with, something minor and then bickering with the father about it.
c)When the family lived in Suburb C and the father was working FIFO (often on a two weeks on / two weeks off roster), the mother spent a lot of time in her bedroom claiming to be sick. Mr H was regularly required to care for Child A (and Child B after he was born) on these occasions, including regularly having to take days off school to do so. On the other hand, when the father was rostered home, he spent a lot of time with the three children, doing activities and trips with them. The mother often chose not to go along or said she was feeling sick and preferred to stay home.
d)When Mr H visited the family in Town B after July 2013, he observed that the parties' relationship appeared to have gotten worse. He observed that the mother appeared not to enjoy living in Town B and was bored. There was more bickering and arguments (about the "same stuff") and the parties tended to stay away from each other in separate parts of the house most of the time.
e)Mr H did not often see the father and the mother having major arguments with each other. He never heard them arguing about the father drinking too much or using illicit drugs. He never observed the father and the mother hit each other or engage in name calling to each other. He never observed the father to yell at the mother, but he did see the mother yelling at the father. On these occasions, the father never "fed into" the mother's behaviour, and instead, ignored her or backed away from her.
f)Mr H observed that the father had a typical, father / son relationship with Child A and Child B. The father often did the night time routine with the two boys, including bathing them, putting them to bed and reading them bedtime stories. Mr H never observed the father to hit Child A or Child B and had no recollection of any incident when he visited in April 2015 of the father allegedly punching Child A in the head in the lounge room.[25]
g)All three boys often engaged in boisterous play with each other and all three were told at various times by either the mother or the father to tone it down. However, Mr H did not ever deliberately harm either Child A or Child B, including, but not limited to: deliberately tripping up Child A, kicking Child A, kicking balls hard at Child A or picking on, bullying or otherwise being mean to Child A.

FINDINGS IN RELATION TO THE EVIDENCE OF THE MATERNAL FAMILY MEMBERS AND FRIENDS

[25] Notably, the father's version of the event was not put to Mr H in cross-examination: that Child A swung over the back of the couch and hit the father in the back whilst he was drying Child B and that the father then growled at Child A.

46 Mrs I is [the maternal grandmother]. [She] is now retired and travels extensively with her husband, Mr I. However they do spend short blocks of time visiting the mother and the children, staying in the mother's home. The maternal grandmother was cross-examined by the father's counsel and by the ICL. Like the mother, the maternal grandmother became highly aroused and distressed when asked a question about the murder of her parents. The maternal grandmother acknowledged that she found the topic very distressing and initially refused to answer any questions about it. However, she did eventually confirm that although she received counselling, the mother did not, reasoning that the mother didn’t then have any problems. However, the maternal grandmother then acknowledged that the mother had probably experienced some long‑term psychological difficulties as a result of her grandparents' murder.
47For the following reasons, I considered that the maternal grandmother was an unimpressive witness and that I should be very circumspect in accepting her evidence, unless it amounted effectively to a concession against the mother's interests.
a)Firstly, the maternal grandmother was a very difficult and uncooperative person to cross‑examine. She was argumentative with counsel and regularly gave a non‑responsive answer or went off on a tangent, rather than answering the question put to her. I was not satisfied that the maternal grandmother was always prepared to be full and frank in her evidence, for example, in relation to her interactions with Ms Q on 5 August 2018 during the attempted handover at Supervision Agency A.
b)Secondly, the maternal grandmother' evidence was at times confused and inconsistent. At times she contradicted not only the mother's evidence, but also her own affidavit evidence. The prime example of this was in relation to the events that occurred when Child B was collected from the Supervision Agency A handover service on 4 August 2018, the last time that Child B spent time with the father. In her cross-examination, the maternal grandmother first insisted that she accompanied her daughter Mrs J to collect Child B and that Child A was also in the motor vehicle. She gave a detailed description of the drive back to the mother's home, including describing Child A declining to open his presents from the father, the maternal aunt putting most of the presents in the boot of the car and Child B playing with some toys in the back of the car. However, later in her cross-examination, when the maternal grandmother was referred to her affidavit evidence, she confirmed that neither she nor Child A were in the car and that she was unaware of what occurred in the car, aside from what the maternal aunt may have told her.
c)Thirdly, I considered that the maternal grandmother also had such a negative and blinkered view of the father and his family that she was simply unable to give her evidence in a balanced manner. It was clear from her evidence that she had formed a view about the father being violent to the mother and the children, based upon what the mother and the children had reportedly told her. For example, she was firm in her view that the father had assaulted Child B in the shower when he was two years old on the basis of what Child B had since told her, maintaining that "little kids have long memories". She was not prepared to consider other, more plausible explanations for Child B's comments: for example, that the mother had talked to Child B about the matter or that Child B had overheard other people talking about the matter.

48 Mr I is married to Mrs I and is the mother's stepfather. Mr I confirmed that he and his wife have been staying with the mother and the children in their home since September 2018. I considered that Mr I attempted to give his evidence honestly and as he saw it, albeit he also clearly had formed quite a negative view of the father since the parties' separation. For example, Mr I gave evidence that he was "led to believe that there was physical abuse towards [the mother] and the children perpetrated by [the father]".[26] The only event that Mr I could identify in support of his allegation was of being present on one occasion during a family meal prior to separation, when he saw the father hit Child B when the child was acting boisterously at the dinner table. There was no evidence that either Mr I or any other persons present at the time considered that the father's disciplining of Child B was inappropriate: for example, by intervening, speaking to the father about the matter or reporting the incident to the appropriate authorities. I am not persuaded that even if the father hit Child B on this occasion that it amounted to an instance of physical abuse.
[26] Refer to Mr I’s affidavit filed on 6 March 2018, [17].
49I accept Mr I's evidence that:
a)He was unaware that the mother had been diagnosed with PTSD, but in any event, he considered that the mother was currently not going very well and, in particular, the trial was taking a toll on her and she was down.
b)The children were continuing to exhibit very problematic behaviours, including at times being tearful and quiet, and at other times being very aggressive to each other, the mother and the maternal grandmother. In particular, Mr I described that Child A just "goes off" or cries at the drop of a hat, for example, if Child A did not get his own way or had a little problem which he could not immediately resolve (like the battery on his electronic device going flat). Mr I also described Child B as copying Child A's behaviour to also "get his own way".

50Mrs J is the mother's sister. She lives in Perth. She has assisted the mother at various times, particularly in 2017 and 2018, by driving the children to and from their supervised handovers. For example, she transported the children to and from the CAMHS office on 10 August 2017, to enable them to spend supervised time with the father. The maternal aunt was cross-examined by the father's counsel and the ICL. I considered that the maternal aunt had such a negative attitude to the father and his family members that she was simply unable to give her evidence in a balanced manner. The maternal aunt was fixed and blindly accepting in her view that if the mother believed the father had done something "bad", then the maternal aunt also believed that it was true. The two key examples of this were as follows:

a)Firstly, the maternal aunt maintained that if her sister believed that the father had sexually molested Child B in the toilet in September 2016, then it was probably true. This was notwithstanding the fact that she had no actual knowledge of the matter herself and she had no recollection of the mother ever discussing the issue with her (although she did remember the mother telling her that Child B’s anus was very red at one time).
b)Secondly, the maternal aunt refused to accept the report of Child A's psychiatrist and Ms R that Child A eventually interacted with the father at the supervised visit on 10 August 2017, including hugging the father and the paternal grandmother and playing with the father. She maintained that she had never seen Child A do anything like that, adding that he doesn't like to let anyone touch or cuddle him, including her. Although the maternal aunt was not prepared to say that Child A's psychiatrist and Ms R were lying in their report, she maintained that she didn't see it happen and she couldn't imagine that it ever did happen.

51 Ms K is the mother's friend. Her children also attend School A. Ms K was not required for cross‑examination, and accordingly, I accept her evidence about seeing the mother behaving in an appropriate and motherly way towards her children in the school precincts. Ms K appropriately acknowledged in her affidavit that she had never met the father.

FINDINGS IN RELATION TO THE EVIDENCE OF THE SINGLE EXPERT WITNESS AND THE PROFESSIONAL PROVIDERS

52 Mr C, the single expert witness, gave his evidence on 23 November and 27 November 2018. I considered that Mr C was professional, considered and helpful in giving his evidence and I had no hesitation in accepting his evidence.
53Both Mr O and Ms P are employed at School A: Mr O is the deputy principal and Ms P was Child A's year three teacher in 2018. By agreement between the parties and the ICL, they gave their evidence together in the witness box on 20 November 2018 and were then cross-examined by the father's counsel and the mother's counsel. It was notable that the mother's counsel specifically did not put to Child A's teacher in cross-examination that Child A hated school or that she regularly bullied or picked on Child A when he was at school (an allegation which the mother made to various medical and professional providers in 2018 and which she continued to assert during her own cross-examination). I considered that both the school deputy principal and Child A's teacher were professional, helpful and considered in giving their evidence. I had no hesitation in accepting their evidence.
54 Ms Q is and was at all relevant times, the Case Coordinator of Supervision Agency A in [Suburb E in Perth]. She was involved with the family initially in 2015 and 2016 when the father was having supervised visits with Child A and Child B; and then again in 2017 and 2018 when Supervision Agency A provided supervised handover services in relation to Child B. Ms Q gave her evidence on 20 November 2018 and was then cross-examined by the father's counsel and the mother's counsel. I considered that Ms Q was professional, helpful and considered in giving her evidence and I had no hesitation in accepting her evidence, including that:
a)Ms Q has worked for Supervision Agency A for the past 10 years and has been based at Suburb E for the past six years. In her experience, the reports made by Supervision Agency A staff of supervised visits are carefully prepared and apart from some minor matters, are usually reliable and accurate records of supervised visits.
b)In relation to this family's file, apart from some minor mistakes about whether it was the mother or her sister Mrs J who attended some handovers, Ms Q was confident that the records contained in the file were accurate. This included the record in Supervision Agency A’s March 2016 report of a visit on 23 January 2016 in which the mother continued to talk to a staff member about the children not being safe with the father in the presence of the children, notwithstanding the staff member requesting the mother not to do so.

55 Ms R is a senior social worker with CAMHS who worked extensively with the mother in 2016 and 2017. Dr S is a child psychiatrist, who at the relevant times consulted with CAMHS, and who saw Child A and the mother on a limited basis. Although they were not treating Child B, they did have a number of opportunities to observe Child B when he attended appointments with the mother and/or Child A. Ms R gave her evidence on 22 November 2018 and Child A's psychiatrist gave her evidence on 26 November 2018. Both were cross-examined by the father's counsel and the mother's counsel. I considered that both the witnesses were professional, considered and helpful in giving their evidence and I had no hesitation in accepting their evidence. In particular, I accept Child A's psychiatrist's evidence that she did not physically assault Child A on 10 August 2017 by pinching Child A when he sat on her lap; and I accept Ms R's evidence that she did not observe Child A's psychiatrist to pinch, physically assault or otherwise behave inappropriately towards Child A during the visit.
56 Ms T is a child and family therapist. She provided counselling services to Child B from May 2017 until January 2018. Child B's therapist gave her evidence on 21 November 2018. She was cross‑examined by the father's counsel and the mother's counsel. I considered that Child B's therapist was professional, considered and helpful in giving her evidence and I had no hesitation in accepting her evidence.
57 Dr U is a paediatrician with Child Development Centre A who took over from [Dr AA] as Child A's paediatrician in mid‑2018. She has never met Child B. Child A's paediatrician gave her evidence by telephone on 26 November 2018 and was cross-examined by the father's counsel and the mother's counsel. I considered that Child A's paediatrician was professional, considered and helpful in giving her evidence and I had no hesitation in accepting her evidence.
58 Ms F is a psychologist at [Clinic A]. She and her colleague, [Ms BB], a speech pathologist, were requested in early 2018 to undertake part of an assessment of Child A to see if he met the diagnostic criteria for ASD. Such an assessment usually requires assessments to be undertaken by a team, comprising a psychologist or child psychiatrist, a speech pathologist and a paediatrician. Child A's psychologist and Ms BB both concluded that Child A did not meet the diagnostic criteria for ASD. It was clear from her report that Child A's psychologist assumed that Dr AA was also involved in the assessment process. However, as became clear during the trial, neither Dr AA nor Child A's paediatrician considered that Child A should be assessed for ASD and did not refer Child A for an assessment. Ms L confirmed that she was the person who referred the mother to Clinic A to undertake the ASD assessment.
59Child A's psychologist attended at court on 22 November 2018 and was cross‑examined by the father's counsel and the mother's counsel. I considered that Child A's psychologist was professional, considered and helpful in giving her evidence and I had no hesitation in accepting her evidence.
60 Dr E is a paediatrician in private practice. He received a referral in mid-2018 from Dr M to undertake assessments of both Child A and Child B to see if they met the diagnostic criteria for ASD. The children's paediatrician undertook his initial assessments and provided preliminary reports which concluded that both boys may meet the diagnostic criteria for ASD. He then referred the children to [Dr CC], a psychologist, and a speech pathologist to complete their parts of the referrals. The children's paediatrician was unaware that Dr AA had already reviewed Child A and concluded that Child A did not meet sufficient diagnostic criteria to warrant a formal assessment for ASD. The children's paediatrician was also unaware that Child A's psychologist and Ms BB had undertaken assessments of Child A in early 2018 and also concluded that he did not meet the diagnostic criteria for ASD. The children's paediatrician gave his evidence by telephone on 21 November 2018 and was cross-examined by the father's counsel and the ICL. I considered that the children's paediatrician was professional, considered and helpful in giving his evidence and I had no hesitation in accepting his evidence.
61 Dr D is the psychiatrist upon whom the mother first attended in late September 2018. The mother's psychiatrist initially gave evidence by telephone on the first day of the trial and then gave further evidence by telephone on 27 November 2018. The mother's psychiatrist was cross‑examined by the father's counsel and the ICL on each occasion. I considered that the mother's psychiatrist was professional, considered and helpful in giving his evidence and I had no hesitation in accepting his evidence.
62 Dr M is the mother's and the children's general medical practitioner. Save for one matter, I was satisfied that Dr M gave his evidence honestly and as he saw it. For example, I accept Dr M's evidence that the mother was generally the person who provided him with information about the children' general health and wellbeing, including:
a)The mother told him that Child A suffered from multiple issues, including anxiety, anger, ASD, self-harming, PTSD and being bullied at school. The mother also told him that Child A only had one friend at school. He also acknowledged receiving various reports from specialist medical providers regarding the children.
b)The mother told him she was concerned that Child B had been sexually molested by the father during a supervised visit in September 2016 and that he would not have used the phrase "sexual molestation" in his referral to CAMHS unless the mother had herself used the term.

63However, I was satisfied that the reliability of Dr M's evidence, in particular his conclusions about the state of the children's health and mental wellbeing, was detrimentally impacted by the following matters:
a)Dr M acknowledged that in the context of very limited appointment times, he had little opportunity to directly engage with the children. The matter was complicated by the fact that the children rarely spoke to him and generally appeared uncooperative and/or reluctant to engage in the appointments. Accordingly, aside from whatever brief observations he was able to directly make of the children during the appointments, he primarily relied upon: (1) information that the mother provided him about the children's previous diagnoses and their medical and behavioural issues from time‑to‑time; and (2) the reports of specialist medical practitioners that he received from time‑to‑time, including the reports from the children's paediatrician in August 2018.
b)I am not satisfied that all the information the mother provided to Dr M about the children (or to other medical specialists, including the children's paediatrician, upon whose reports Dr M relied) was factually correct.

64There was one aspect of Dr M's evidence which I found concerning. During his evidence, Dr M was insistent that he had never prescribed any anti‑psychotic medication, including Risperidone, to the children. He maintained that he always left such issues to the children's treating paediatrician and/or psychiatrist. However, after Dr M had given his evidence, the mother was required to provide details of all of the children's prescribed medications to the Court. The mother did not provide the details required, but did bring the children's current medications to court the next morning. This included Risperidone tablets prescribed to Child A, which clearly showed that the prescribing doctor was Dr M.[27]
[27] Refer to Exhibit A42.
65 Ms L describes herself as a [having a range of professional titles pertaining to clinical counselling and psychotherapy, mental health consulting, mentoring and coaching, family dispute resolution, mediation, collaborative family consulting and family and child counselling]. She commenced acting as the mother's "parenting advisor" in mid-2017 and also commenced providing therapeutic counselling to Child A in August 2017 and to Child B in early 2018. On 1 October 2018, the father's solicitors wrote to the mother's solicitors opposing the children's attendance on Ms L, particularly as Ms L was neither a psychologist nor a single expert witness in the matter.[28] Ms L ceased providing therapy to the children in mid‑October 2018.
[28] Refer to Exhibit A12.
66Ms L gave her evidence on 27 November 2018 and was cross-examined by the father's counsel and the ICL. I considered that Ms L was a very unimpressive witness. She was very difficult and uncooperative to cross-examine. I formed the view that she was highly defensive, belligerent and unhelpful in responding to questions.
67I had significant concerns about the reliability of Ms L's evidence, particularly about the disclosures allegedly made by the children in her counselling sessions, for the following reasons:
a)Firstly, Ms L made it clear at the outset that she saw her role in providing parenting advice/support to the mother as including being an advocate for the mother, both in relation to these court proceedings and in her dealings with various professional providers with whom the family came into contact. For example, Ms L was involved in:
i)the mother's engagement with School A, including writing to the school in 2017 and attending a meeting with the mother at the school in early 2018;
ii)the mother attempting to obtain a diagnosis of ASD for Child A in 2018, including referring the mother to Clinic A and then complaining directly to Child A's psychologist about her conclusions, making a complaint to Child A's psychologist’s employer about the report and showing the report to another practitioner;
iii)making a complaint to the Australian Health Practitioners' Regulatory Authority ("the AHPRA") about Child A's psychiatrist allegedly physically assaulting Child A by pinching him on the arm during the supervised visit conducted by CAMHS on 10 August 2017;
iv)lodging separate "Child Protection Concern Referral Forms" with the Department of Communities ("the Department") in approximately September 2017, October 2017 and June 2018 (including one alleging that Child A had been physically assaulted by Child A's psychiatrist and two alleging that Child B had been abused by the father);
v)contacting numerous family law barristers seeking assistance for the mother for the purposes of the trial at reduced rates; and
vi)somewhat extra-ordinarily, lodging a fourth Child Protection Concern Referral Form with the Department late in the evening on 28 November 2018, after earlier having watched the ICL make his closing submissions in court, on the basis that as a result of the trial in the proceedings, "there is now a high likelihood the boys will be removed in the near future, from the Mothers care and placed in the Primary care of the Father in [Town A]."[29] Even more extra-ordinary was Ms L's email to the mother's instructing solicitor on 29 November 2018, when she confirmed that the purpose of lodging the latest referral form with the Department was "about protecting myself, nobody else!!"[30]

b)Secondly, Ms L conceded that one of the objects of her counselling sessions with the children was to elicit disclosures from them regarding the father. It was clear both from Ms L's evidence and from her file notes of the counselling sessions that she: (1) permitted the mother to be present during a number of the sessions, including on one occasion permitting the mother to question Child B; and (2) regularly asked the children series of leading questions, for example about whether the father had harmed them, how he had harmed them and where he had harmed them. Ms L appeared to have no understanding of the psychological impact of repeatedly subjecting young children to leading questioning and the unreliability of disclosures obtained in such circumstances. Ms L also appeared to have no understanding of the potential psychological impact on the children of the mother being present during some of the counselling sessions, including the likelihood that the children would: (1) answer in a manner that they thought would please their mother; and (2) see Ms L as being "aligned" to their mother's views about their father; and respond accordingly.
c)Thirdly, Ms L was so blinkered by her own views about various matters that she was simply not able to consider other plausible explanations about issues. For example:
i)Ms L accepted at face value that the mother's narrative, for example about family violence, was entirely true. Ms L conceded that she was simply unable to entertain the possibility that the information the mother had provided to her about the father being violent to her and the children might not be true.
ii)Ms L accepted at face value whatever the children told her during her sessions. She insisted that she would continue to believe whatever the children told her until it was proven otherwise.
iii)Ms L was fixed in her view that both children were suffering from ASD, notwithstanding that she acknowledged she was not qualified to diagnose the condition. She appeared unable to consider other possible explanations for the children's behaviours, including that they were being adversely impacted by the mother's own mental health issues and/or by the conflict between the parties. It was clear that Ms L had no real appreciation of the mother's significant mental health issues. For example, she appeared unaware of the mother's long history of trauma, depression and/or anxiety, or of the more recent working diagnosis that the mother was suffering from PTSD.
[29] Refer to Exhibit ICL53.
[30] Refer to Exhibit ICL53. In the mother's counsel's closing submissions, he submitted on behalf of the mother that Ms L acted entirely on her own volition in relation to the lodgement of the fourth referral form to the Department, without reference to the mother and that it was a distraction that the mother neither wanted nor needed.

68In my view, Ms L's decision to engage in therapy with the children was highly inappropriate given her conflicting role as the mother's parenting advisor/advocate. In particular, I considered that Ms L's conduct in therapy sessions with the children, including attempting to elicit disclosures from the children about their father, was likely to have added to their confusion about their relationship with their father and their emotional distress / dysregulation. I intend to refer Ms L's conduct in relation to this family to the AHPRA.

FACTUAL BACKGROUND

Parties' personal details and commencement of relationship

69Both parties were born in Australia: the mother in [1973] and the father in [1976]. The mother is one of three children. There was some evidence to suggest that the mother was subjected to, and/or exposed to, significant family violence in her family of origin. The mother told at least one health professional (Child A's psychologist) that this was the case and the maternal grandmother described her former husband - the mother's father - as a drunk, who the mother had told her was violent towards the mother and/or the mother's siblings. When the mother was in her late teens, her maternal grandparents were murdered in their home by unknown persons (whom the family believed were associated with the mother's brother through his involvement with illicit drugs). After their murder, the mother's brother became estranged from the rest of the family. It was clear from their demeanour in court that both the mother and the maternal grandmother still experienced considerable distress about the circumstances of the mother's grandparents' murder.

f)I am satisfied that the mother will be extremely distressed by the change in the children's living arrangements and is most unlikely to be able to hide her distress from the children. I am satisfied that the children should not have any contact with the mother for a short period of time so that they can settle into their new living arrangements and school life in Town A and deal with their own emotions without having to be worried about supporting the mother and her emotions.
g)I am also satisfied that until such time as the mother has received appropriate treatment for her own mental health issues and is functioning relatively well, then her contact with the children should be supervised by a professional agency.

250 In relation to the specific orders sought:

a)I prefer the order proposed by the father in relation to sole parental responsibility, over that proposed by the ICL. In particular, I consider that the requirement that the father give prior notice of "any decision he intends to make in exercising parental responsibility" is likely to lead the parties into further conflict.
b)The mother's position was that if the court made orders for the children to live with the father, she would simply be unable to tell the children about the new living arrangements and someone else would have to do it. I am satisfied that the most appropriate arrangement would be for Child A's psychologist to explain (in simple terms) my decision. I am satisfied that the mother should be required to make arrangements to have the children delivered up to the father at Child A's psychologist's office, as soon as practicable after the orders are made.
c)I am also satisfied that arrangements should be made for the mother to deliver up to the father the children's prescribed medications, together with their clothing, favourite toys and personal effects. I am satisfied that the prescribed medications should be handed over contemporaneously with the children moving into the father's care. I am satisfied that the mother should then make arrangements for the balance of the children's belongings to be delivered up to the father within seven days of these orders being made.[118] In the event that the mother and the father are unable to agree the date, time and venue for the handover of the belongings, then I am satisfied that the orders should provide a default position. Subject to the parties and the ICL having liberty to make further submissions, I propose to make a default order that the mother deliver up the items to the father's solicitor's office during normal business hours by no later than 5.00 pm on the seventh day after the making of these orders.
[118] I do not accept the father's counsel's submission that this should include [Tom the kitten], particularly given that there was no evidence during the trial about this specific issue.
d)I am satisfied that orders should be made to facilitate the children's attendance on Child A's psychologist (or such other child psychologist as the father determines in the event that Child A's psychologist is not immediately available or otherwise subsequently declines to be the children's therapist) for the purpose of providing immediate therapeutic support to the children. I am satisfied that the father should have liberty to provide copies of the single expert reports of Dr N and Mr C, medical reports of the children's treating medical / psychological providers tendered as exhibits during the trial, these Reasons for Decision and the Court orders arising therefrom to Child A's psychologist. I am also satisfied that the father should be required to keep the mother and the ICL advised of the name and contact details of Child A's psychologist (or other therapist, as applicable).
e)I am satisfied that the children should initially live with the father at the home of the paternal grandparents in Perth, to enable the children to readily access therapeutic support from Child A's psychologist. Although the father proposed a four week plan for relocating with the children to Town A, I am not satisfied this is practicable, given the short delay in me publishing these reasons. I am satisfied that the children should only move to Town A when Child A's psychologist considers that their therapy has sufficiently advanced to enable the move to occur. I am satisfied that after the children have relocated to Town A, they will still be able to receive ongoing therapy and support from Child A's psychologist or other nominated therapist on a regular, ongoing basis or as required.
f)All the parties agreed that the mother should continue to engage with her psychiatrist with respect to her mental health issues. The ICL proposed, the father agreed and I accept that it would be appropriate for the mother to provide a report from her psychiatrist in 12 months' time, to monitor her mental health status and her progress in addressing her mental health issues and her beliefs about the father and his conduct towards her and/or the children. I am also satisfied that the ICL should have liberty to provide the mother's psychiatrist with the single expert witness reports of Mr C and Dr N, these Reasons for Decision and the Court orders arising therefrom.
g)I am satisfied that orders should also be made to facilitate the father arranging for the children to be reviewed by a child psychiatrist or paediatrician as soon as practicable, particularly in relation to any prescribed medications. Although the ICL proposed that the father be required to request the transfer of the children's care to CAHMS Town A, if he was unable to obtain an appointment with a medical practitioner in Perth prior to the children's relocation to Town A,[119] I am not satisfied that such an order is practicable, given that both children are not currently in the care of CAHMS. I am satisfied that if the father is unable to obtain an appointment in Perth, then he will make appropriate arrangements through a medical practitioner in Town A. I am satisfied that the father should have liberty to provide copies of the single expert reports of Dr N and Mr C, medical reports of the children's treating medical / psychological providers tendered as exhibits during the trial, these Reasons for Decision and the Court orders arising therefrom to the children's medical practitioners, and that he should also be required to keep the mother and the ICL advised of the names and contact details of the relevant practitioners.
[119] Refer to paragraph 10 of the ICL's Minute which was handed up on 28 November 2018.
h)I am satisfied that the mother's supervised time with the children should not start until after the children have commenced school in Town A, to give the children the opportunity to settle into their new living arrangements, and to give the mother some time to seek her own therapy and support. I accept the mother's counsel's submission that the mother may not feel comfortable with supervision being conducted by Supervision Agency A in Suburb E, given her attitude to Ms Q in particular. Accordingly, I am satisfied that the parties and the ICL should have the opportunity to agree another supervision agency; and in the event that they cannot agree, then the agency should be the government subsidised agency closest to the paternal grandparent's residence in Perth. Although the father essentially agreed with the ICL's proposal that he would facilitate the children spending supervised time with the mother in Perth on a fortnightly basis, I am not persuaded that this is financially sustainable in the medium to long term. Nevertheless, on an interim basis, I am satisfied that it is appropriate to make an order for the time to occur fortnightly. Subject to the parties having liberty to make further submissions, I intend to make the usual standard orders for supervised time. I am also satisfied that the arrangement proposed by the ICL for the extension of the mother's time is appropriate, particularly given that the Court will also have an ongoing monitoring role.
i)I am also satisfied that the mother should have regular weekly telephone / electronic communications with the children, but on the basis that: the communications not commence until the children have commenced spending supervised time with the mother; and the father has liberty to supervise the communications and terminate the calls in the event that either the communications are inappropriate or the mother and/or the children become unduly distressed. Again, I am satisfied that the delay in commencement of communications is appropriate, to give the children the opportunity to adjust to their new living arrangements and to give the mother the opportunity to attend to her therapy and support. However, I am satisfied that the mother should immediately have liberty to send the children age appropriate gifts, letters and cards each week, on the basis that the father have liberty to ensure all such items are appropriate for the children before providing them to the children, and that the father facilitate and encourage the children to respond to the mother in writing.
j)I am satisfied that the orders proposed by the ICL for the mother to be restrained by injunction from taking the children to any medical practitioners or therapists; or from contacting the children's medical practitioners or therapists, unless with the father's prior written consent, are entirely appropriate. This is particularly having regard to the mother's past history of taking the children to multiple medical providers and therapists, and my finding that the father should have sole parental responsibility for the children. However, I am satisfied that the father should keep the mother informed of any medical emergency or serious health issue concerning the children. I am also satisfied that the injunctions proposed by the father to restrain the mother from talking to the children about her various allegations, the children's future living arrangements and from denigrating the father and his family to the children are appropriate, but on the basis that they apply equally to both parties.
k)The ICL also proposed a number of orders, including to facilitate the mother's and the children's treating medical / therapeutic providers having any necessary discussions with him about the case, to enable the father to provide a copy of these orders to the children's school, and to facilitate Mr C providing an updated report in 12 to 18 months. I considered that these orders were also appropriate and with respect to the timeline in which Mr C provides his updated report, I consider that the timeframe is appropriate.

ORDERS

251I propose to make the following orders:
1.All previous orders in relation to the children, [Child A] born [in] 2009 and [Child B] born [in] 2012 be discharged.

By way of final orders:

2.The applicant, [Mr Breckenridge] ("the father"), have sole parental responsibility for the children.
3.The children live with the father, upon the following bases:
a)the father do not relocate with the children to [Town A] until considered appropriate by the children's therapist as defined in paragraph 8 of these; and
b)the father do reside with the children in the home of the paternal grandparents until such time as he relocates with the children to Town A.

4.To facilitate the transition of the children into the father's immediate care, the respondent, [Ms Kudrna] ("the mother"), do:
a)arrange for the children to be delivered to the office of the children's therapist as defined in paragraph 8 of these orders (together with all of the children's prescribed medications) at such date and time as is nominated by the Independent Children's Lawyer; and
b)within seven days of these orders being made, the mother do provide the father with the children's clothing, personal items and birth certificates, at such date, time and venue as the mother and the father agree, and failing agreement, the mother do arrange for the items to be delivered up to the office of the father's solicitors during normal business hours and by no later than 5.00 pm on the seventh day following the making of these orders.

By way of interim orders:

5.By consent, the mother do continue to engage with [Dr D] with respect to her mental health and her trauma counsellor, and / or any other person as recommended by [Dr D] (the mother's "treating therapists").
6.The mother do provide a written report from her treating therapists to the Independent Children's Lawyer and to the father, as soon as practicable after 12 months from the making of these orders for the purpose of providing feedback about her progress in addressing her mental health issues and her beliefs about the father and his conduct towards her and/or the children.
7.The Independent Children's Lawyer have liberty to provide to the mother's treating therapists:
a)the single expert reports of [Dr N] and [Mr C];
b)the reasons for decision; and
c)these orders.

8.To the extent not already complied with, the father do (at his cost) forthwith obtain a referral for the children to attend upon [Ms F], or such other child psychologist as the father determines ("the children's therapist"), for the purposes of providing ongoing therapy and support to the children, with the first appointment to be made as soon as practicable and with the said therapy to continue as per the recommendation of the children's therapist.
9.The father forthwith do (at his cost) take the children to a general medical practitioner to obtain a referral for the children to attend upon a child psychiatrist or paediatrician, whomever can accommodate an appointment the soonest, to review the children's prescribed medications ("the children's medical practitioners").
10.By consent, the father do provide the mother and the Independent Children's Lawyer with the name and contact details of the children's therapist and the children's medical practitioners as soon as practicable.
11.The father have liberty to provide to the children's therapist and the children's medical practitioners:
a)the single expert reports of [Dr N] and [Mr C];
b)any medical reports of any of the children's treating medical / psychological providers tendered as exhibits during the trial;
c)the reasons for decision; and
d)these orders.

12.No earlier than the children's commencement at school in [Town A], the children spend time with the mother, such time spent to:
a)be supervised by a government subsidized supervision agency as agreed between the parties and the Independent Children's Lawyer ("the Service Provider") and in default of agreement, the closest such Service Provider to the paternal grandparents' home in Perth; and
b)subject to the availability of the Service Provider, wait lists and the family being assessed as suitable for the provision of its services by the Service Provider, the children spend time with the mother each fortnight for a minimum of two hours;

13.Each party shall:
a)telephone the Service Provider as soon as practicable to arrange an appointment for an intake interview;
b)attend the intake interview at the arranged time;
c)attend any appointments arranged by the Service Provider;
d)comply with all reasonable requests or directions of the staff of the Service Provider; and
f)provide a copy of this order to the Service Provider.

14.The costs of the:
a)intake interview shall be borne by the Applicant and the Respondent equally;
b)supervision shall be borne by the mother; and
c)production of a report shall be borne by the mother, if not paid by Legal Aid.

15.The Independent Children's Lawyer is to request ongoing funding from Legal Aid for the purposes of determining whether the mother's time can progress to unsupervised time upon a favourable report from the Service Provider.
16.Upon a favourable report, as determined by the Independent Children's Lawyer pursuant to paragraph 15 above, then the mother spend daytime contact with the children each fortnight on a Saturday and Sunday from 10:00 am to 4:00 pm with handovers to be supervised through the Service Provider.
17.For the purposes of the mother spending time with the children, pursuant to paragraphs 12 and 16 of these Orders, the father is to meet the costs of transporting the children to the handover location.
18Contemporaneously with the commencement of the mother's supervised time pursuant to paragraph 12 hereof, the mother be at liberty to have telephone / electronic communications with the children on one occasion each week on a Wednesday between 6.00 pm and 6.30 pm and on the basis that the father have liberty to supervise the communications and to terminate the communications in the event that either the communications are inappropriate or the mother and/or the children become unduly distressed.
19.The mother have liberty to send the children age appropriate gifts, letters and cards on one occasion each week and on the basis that the father have liberty to ensure all such items are appropriate for the children, and if so, do provide all such items to the children and do facilitate and encourage the children to respond in writing to the mother.
20.The mother be restrained by injunction and an injunction is hereby granted restraining her from:
a)taking the children to any medical practitioners / therapists; or
b)contacting the children's medical practitioners / therapists as outlined in these Orders unless she has written consent of the father to do so.

21.The father notify the mother, as soon as practicable, of any medical emergency or serious health issues concerning the children whilst in his care, and provide to the mother the name of any health professional treating the children and any relevant information and the medical issue, with the father to provide the mother copies of any referral or report.
22.The therapists as referred to in paragraphs 5 and 8 of these Orders be at liberty to contact the Independent Children's Lawyer and he be at liberty to discuss any matters as raised by them.
23.The father be at liberty to provide the children's school with a copy of these orders.
24.The mother and the father be retrained by injunction and an injunction is hereby granted restraining each of them from:
a)discussing with the children any concerns and allegations raised by them during the course of these proceedings;
b)initiating discussions with the children as to their wishes about who they live with and how much time they spend with either parent; and
c)denigrating the other party or any members of the other party's family to or in the presence of hearing of the children.

25.As soon as practicable after 12 months from the making of these Orders, [Mr C] be requested to undertake a review of the parties and the children and provide recommendations to the Court as to whether it would be in the children's best interests to progress time that they spend with the mother and if so, in what way.
26.The costs of [Mr C's] review be shared equally between the parties with [Mr C] not to commence his review until payment has been received from both parties.
27.The case be removed from the Judges Defended List.
28.The proceedings otherwise be adjourned generally with liberty to re-list on an urgent basis in relation to the implementation of, or compliance with these orders.

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

KV
Associate
10 JANUARY 2019