Campi & Ferrin
[2022] FedCFamC2F 1621
Federal Circuit and Family Court of Australia
(DIVISION 2)
Campi & Ferrin [2022] FedCFamC2F 1621
File number(s): PAC 4152 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 24 November 2022 Catchwords: FAMILY LAW - Interim family - Application for reportable intensive family therapy for parents and children - Application dismissed Legislation: Family Law Act 1975 (Cth) ss 13C(1)(c), 62G
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.04
Division: Division 2 Family Law Number of paragraphs: 40 Date of hearing: 16 November 2022 Place: Parramatta Solicitor for the Applicant: Ms Belovic Counsel for the Respondent: Mr O’Reilly Solicitor for the Respondent: ATW Family Law Solicitor as the Independent Children’s Lawyer: Ms Wilkins ORDERS
PAC 4152 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CAMPI
Applicant
AND: MR FERRIN
Respondent
order made by:
JUDGE NEWBRUN
DATE OF ORDER:
24 NOVEMBER 2022
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The Mother’s proposed orders 1–3 in her Application in a Proceeding filed 13 September 2022 are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Campi & Ferrin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
Introduction
This is the determination of the Mother’s Application in a Proceeding filed 13 September 2022 seeking orders, inter alia:
1.That [Dr B] be appointed as Court expert to conduct Reportable Intensive Family Therapy with each of the parents and the children [X] born [in] 2009 and [Y] born [in] 2011 and in performing this role [Dr B] is appointed as a Single Expert to :
a.Conduct Reportable Intensive Family Therapy.
b.Prepare if necessary a Report following the conduct of Reportable Intensive Family Therapy.
2.That the parties shall do all things necessary to:
a.Complete any intake and provide any necessary information as requested by [Dr B].
b.Participate in any sessions jointly or individually as directed by [Dr B].
c.Facilitate the children’s participating in any sessions as directed by [Dr B].
The Father opposes Dr B’s appointment as a court expert and opposes the proposed reportable intensive family therapy sought to be conducted by Dr B, clinical psychologist.
The subject children are X born in 2009 and Y born in 2011.
The Mother relied upon the following documents:
(a)Her Case Outline filed 14 November 2022;
(b)Her Application in a Proceeding filed 13 September 2022;
(c)Her Affidavit filed 13 September 2022;
(d)Family Report dated 7 July 2022;
(e)Therapy Report of Dr C provided to the parties on 14 November 2022.
The Father relied upon the following documents:
(a)His Case Outline filed 15 November 2022;
(b)His Response to an Application in a Proceeding filed 9 November 2022;
(c)His Affidavit filed 9 November 2022;
(d)Family Report dated 7 July 2022.
The Independent Children’s Lawyer (“ICL”) relied upon the following documents:
(a)Her Case Outline filed 15 November 2022;
(b)Child Impact Report dated 16 November 2021;
(c)Therapy Report of Dr C provided to the parties on 14 November 2022.
Legal principles at interim hearings
At the outset of the interim hearing, the Mother’s solicitor submitted to the Court that should the Mother’s above proposed orders 1 and 2 be made then not only would Dr B’s intensive family therapy be permitted but Dr B would be permitted to prepare an expert report “following the conduct of reportable intensive family therapy”. It was submitted that such expert report could potentially include any opinion by Dr B as to the issue of parental alienation. This last submission was consistent with the Mother’s Affidavit filed 13 September 2022 at paragraphs 15 and 16 where the Mother had stated:
15.The orders that I seek are that [Dr B] be appointed as a single Expert to address and assess whether due to the high level of parental conflict the children were subjected to parental alienation, conduct Reportable Intensive Family Therapy and to prepare a single Expert report for the Court (if needed).
16.I seek Expert assessment and evidence in relation to these issues because of the children’s refusal to spend time with me and [the Father’s] refusal to encourage them to have a meaningful relationship with me…
An order that expert evidence be given by a single expert witness is permissible pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), in particular rule 7.04 which provides:
7.04 Order for single expert witness
(1)The court may, on application or on its own initiative, order that expert evidence be given by a single expert witness.
(2)When considering whether to make an order under subrule (1), the court may take into account any matters relevant to making the order, which may include the following (without limiting the matters which may be relevant):
(a)the overarching purpose of these Rules (see rule 1.04) and the purpose of this Part (see rule 7.02);
(b) whether expert evidence on a particular issue is necessary;
(c) the nature of the issue in dispute;
(d)whether the issue falls within a substantially established area of knowledge;
(e) whether it is necessary for the court to have a range of opinion.
(3)The court may appoint a person as a single expert witness only if the person consents to the appointment.
(4)A party does not need the court’s permission to tender a report or adduce evidence from a single expert witness appointed under subrule (1).
Discussion
The Court has a real concern that the children may be exposed to a significant risk of psychological harm if they participate in the intensive therapy Reportable Intensive Family Therapy (“RIFT”) model proposed by the Mother to be afforded by the psychologist Dr B. And further, the Court has a real concern that should the children be required to participate in the proposed intensive therapy RIFT model that they may well become even more resistant to spending time with the Mother; if this risk comes to pass, then the prospect of restoring the children’s relationship with the Mother may become even more difficult. It is helpful, at this point, to set out some background context to these concerns of the Court.
There is a significant suggestion, on the material before the Court, that the children’s former meaningful relationship with the Mother has broken down and become fractured. The children have been strongly resistant to spending time with the Mother since at least about 1 March 2022 being the date when the children last spent supervised time with the Mother at a contact Centre. An order, by consent, for supervised time at a contact centre between the children and the Mother, had been made on 9 September 2021.
That order was discharged on 31 March 2022, by consent, and an interim order was made that the child Y spend time with the Mother each Friday from after school until 7.00pm to occur in a public place. A further interim order was made at that time that the older child X also spend that time with the Mother should he express a wish to do so. That unsupervised time did not eventuate; there is a suggestion, on the material before the Court, that the children were resistant to spending that time with the Mother. The Court is unable, in the context of this truncated interim hearing, to determine whether the Father, through his actions towards the children, as contended by the Mother, influenced them not to spend time with the Mother at this time.
More generally, the Court is unable at this truncated interim hearing to determine the contention of the Mother that historically and to date the Father has significantly influenced the children not to spend time with the Mother; indeed, the Mother’s significant contention in these parenting proceedings is that the Father has sought to alienate the children from her.
The Court notes that the children lived in an equal time arrangement with the parties from about February 2017 until November 2019, and then again in an equal time arrangement from July 2020 until July 2021. Then the children spent no time with the Mother until about September 2021 when they began to spend supervised time with the Mother for two hours each Sunday at a contact centre.
The Court further notes that family therapy with Dr C commenced in late October 2021 and concluded in about 30 August 2022. Dr C had, inter alia, two sessions alone with the children, one session with the Mother and the children, and one session with the whole family. An order for family therapy with this doctor had been made on 9 September 2021, by consent.
In her report recently provided to the parties and ICL, Dr C stated, inter alia, that the children had been oppositional to the Mother during family therapy. In particular the doctor stated that the child X was particularly hostile to the Mother.
In the Family Report dated 7 July 2022 (interviews with the family by the Family Report writer had occurred on 24 June 2022), the Family Report writer observed that the children displayed significant anger and rejection towards the Mother throughout their individual interviews and during the observation session. The Family Report writer noted that this response to the Mother had been consistently commented on in contact reports, family therapy sessions and school counselling records.
The Mother, in her Affidavit filed 13 September 2022, refers to text messages passing between herself and Dr C in which Dr C informed the Mother that she, Dr C, held fears that if she continued to press the children they were more likely to become more resistant (to spending time with the Mother).
The Court observes that it would appear that the proposed intensive therapy RIFT model of Dr B is of a different nature to the form of family therapy previously afforded the family by Dr C. In particular, Dr B’s proposed family therapy is stated to be “intensive” therapy where the therapist may enter the parties’ homes at certain stages of the therapy.
On the material before the Court, there is quite scant information relating to the nature of the proposed intensive therapy RIFT model proposed to be afforded by Dr B.
Annexure B to the Mother’s Affidavit filed 13 September 2022 is a document from Dr B headed, “Information Intensive Four Day Family Therapy RIFT Model”. The document sets out some description of the therapy provided by Dr B but it is quite general and lacks specificity.
For example, it states:
The form of the therapy entails an intensive form of therapy over a few days (usually about four days) where the therapy is crafted around individual family needs…With the four day Intensive Family Therapy Model, on the first day of the therapy I usually conduct home visits with the children and the parent they usually live with and then a later appointment with the other parent and typically have some type of joint session. The subsequent therapy sessions and configurations will also follow on from discussions and agreement with family members but likely range from 11 am until after dinner each day…I…focus, during the therapy, on parents and children developing their own solutions to the family problems.
Further, there is no material adduced by the Mother as to whether Dr B’s intensive therapy RIFT model has been independently evaluated for effectiveness.
And further, there is no indication as to whether there is to be any risk screening conducted for the children in relation to the children’s possible participation in the intensive therapy RIFT model; for example, there is no reference to any risk screening protocol for children in relation to this intensive therapy RIFT model.
The Mother contended that the Family Report writer’s commentary in her Family Report dated 7 July 2022 supported the Mother’s proposed order for intensive therapy RIFT model through Dr B and it also supported her proposed order that Dr B be permitted to provide to the Court an expert report commenting upon the issue of parental alienation. The Court does not accept these contentions.
In the Family Report at paragraph 100, the Family Report writer stated that it was difficult to ascertain the reasons behind the children’s strong feelings against the Mother. She noted that the Mother had alleged that she was the victim to parental alienation and that the Father has turned the children against her. The writer stated that the potential of parental alienation needs to be further explored.
In paragraph 102 the writer stated that more information was needed to determine whether or not the children have been manipulated by the Father to reject the Mother. In this paragraph she stated that in many cases of parental alienation children cannot provide logical reasons for their hatred towards one parent. She stated that however in this matter, the children disclosed to specific reasoning, including child safety issues. The eldest child stated firmly that he does not wish to spend any time with the Mother because she yelled at them a lot and physically hurt them. The youngest child stated that the Mother hits him and yells at him. The writer stated the child safety matters are of paramount concern and cannot be taken lightly and therefore more information was also required as to the risk of any current child protection issues.
In paragraph 104 the writer stated that it was difficult to comment on care arrangements when there was a lack of certainty as to the reason the children are rejecting the Mother, whether this be due to parental alienation or if they have been subject to excessive discipline and verbal abuse as alleged.
In paragraph 105, the writer stated that the Mother’s proposal put forward (the children live with her, spend alternate weekends with the father in addition to Wednesday nights in the off week, together with a block out of one month in which they have no contact with the Father) is not considered appropriate until there is a more definitive explanation of the children’s rejection towards the Mother and reassurance of their safety in her care.
In paragraph 106, the writer states, inter alia, in relation to the Mother’s allegations of controlling and intimidating behaviour by the Father during the parties relationship that, “it is difficult to ascertain the prevalence and potency of family violence, as there is limited external information available.”
In paragraph 107 the writer states, “[w]ith the limited information available, it is difficult to ascertain whether or not [the children] have been subjected to excessive physical discipline.”
In paragraph 108, the writer states, inter alia, that the Mother’s proposal a primary care for the children is further problematic due to the children’s ongoing resistance and anger towards her. She stated that such a dramatic shift in care arrangements could escalate the children’s anger towards the Mother rather than helping to heal the relationship. The writer stated that the Mother does not appear to recognise the enormity of ongoing relational work that needs to occur. The writer stated:
108.She appears hopeful that once [the children] are out of [the Father’s] care, they will change their attitude towards her and the relationship will gradually return to how it was. The Family Consultant considers that [the children’s] anger towards [the Mother] is far more complicated, particularly if shaped by parental alienation, and will take significant efforts over a long period of time to heal.
(Emphasis added)
In paragraph 113, the writer discusses the issue of parental responsibility. She states, inter alia, that:
113.The Family Consultant considers that more clarification is needed prior to determining parental responsibility for [the children]. If the court deems that [the children] are not impacted by parental alienation or child safety concerns, shared parental responsibility may be a plausible option. However, there will need to be support in place to assist the co-parenting relationship, such as mediation and ongoing family therapy.
(Emphasis added)
In paragraph 114, the writer states:
114.The priority at this stage needs to be on relational repair between [the Mother and children]. It would be helpful for the family to continue to engage in family therapy with [Dr C]…In conversation with [Dr C], it is clear that this matter is highly complicated, with contested accounts provided by each family member regarding the situation and limited information regarding actuality…Long term care arrangements for [the children] are dependent on the court’s views regarding the reasons behind [the children’s] current rejection of [the Mother] and further assessment is considered necessary prior to final orders being made.
(Emphasis added)
Under the heading “Recommendations”, the writer stated, “It is recommended that further assessment be conducted by the court regarding the reasons contributing to [the children’s] rejection of [the Mother]” (emphasis added). The writer then went on to make certain interim parenting recommendations including that the children spend three hours each Sunday with the mother in a public setting, and that the family continue to engage in family therapy with Dr C.
In the view of the Court, there is a significant suggestion, from the above excerpts from the Family Report, that the Family Report writer was recommending further assessment by the Court, and not by a family therapist, such as Dr B, to clarify the competing contentions of the parties and children as to the cause of the children’s rejection of the Mother. Such further assessment by the Court would include cross examination of the parties at final hearing in relation to their competing contentions (parental alienation contended by the Mother, and, on the other hand, adverse behaviour by the Mother towards the children as contended, inter alia, by the Father). And further, the Court would observe, there is no reference in the Family Report to Dr B’s proposed intensive family therapy including the RIFT model of intensive family therapy sought to be conducted by Dr B.
The Court observes that Dr C, former family therapist, was appointed to provide reportable family therapy under section 13C(1)(c) of the Family Law Act1975 (Cth) (“the Act”).
Rule 7.04(2) provides that the court, when considering whether to order the expert evidence be given by single expert witness, may take into account any matters relevant to making the order, and which may include certain matters set out in subclauses (a)–(e).
As to the Mother’s proposed order that Dr B be permitted to conduct intensive four day family therapy RIFT model, and provide an expert report in relation to the issue of parental alienation, the Court is of the view that such an order would not be in the best interests of the children, and nor would such an order be in the interests of justice, and in reaching these views, and in summary, takes into account the following matters having regard to rule 7.04 and section 13C(1)(c):
(a)The Court’s concern that the children may be exposed to psychological harm if subjected to the proposed intensive four day family therapy RIFT model;
(b)The lack of material before the Court relating to risk screening of the children prior to participating in the proposed intensive family therapy;
(c)The lack of material before the Court relating to the nature of the proposed intensive family therapy;
(d)The lack of any independent evaluation of the proposed intensive family therapy;
(e)The content of the Family Report does not suggest that expert evidence from a clinical psychologist such as Dr B and/or further family therapy is required to elucidate the issue of parental alienation;
(f)The Family Report writer, appointed under section 62G of the Act to provide a Family Report, is well able to provide appropriate evidence and opinions in relation to the issue of parental alienation (the Family Report writer, refers to and/or discusses the issue of parental alienation in paragraphs 76, 100, 102, 104, 108, 111, 112, 113 albeit she does indicate that the Court needs to conduct a further assessment of this issue). The Court is of the view that it is not necessary in this case for it to have a range of opinion on the issue of parental alienation;
(g)The content of the Family Report does not refer to and/or support Dr B’s proposed intensive four day family therapy RIFT model.
The Court should state that towards the end of the interim hearing, following oral exchanges between the Court and the Mother’s solicitor in relation to whether Dr B should be permitted to, inter alia, provide a report to the Court touching upon the issue of parental alienation, the Mother’s solicitor indicated that the Mother would be prepared to accept, through an order of the Court, a limitation upon Dr B potentially reporting upon the issue of parental alienation. The Court should state that it would still be of the view, for the above reasons, that even were a limitation placed upon Dr B not commenting upon the issue of parental alienation, it would not be in the best interests of the children nor in the interests of justice for the Court to order this family, including the children, to participate in Dr B’s proposed intensive four day family therapy RIFT model.
The Mother’s proposed orders 1–3 in her Application in a Proceeding filed 13 September 2022 shall be dismissed. The Court notes the Mother did not press her proposed order 4 in that Application.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 24 November 2022
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