Cassell & Kolar

Case •

[2022] FedCFamC1F 484

Federal Circuit and Family Court of Australia

(DIVISION 1)

Cassell & Kolar [2022] FedCFamC1F 484

File number(s): MLC4879 of 2019
Judgment of: STRUM J
Date of judgment: 4 February 2022
Catchwords: FAMILY LAW – CHILDREN – application for review– where the mother seeks to review a dismissal of an application– where the respondent father has sole parental responsibility– where the child spends supervised time with the applicant mother– where the applicant mother seeks sole parental responsibility and the child live with her–where a number of expert reports did not support the mothers case– review application dismissed– where no substantial change in circumstances.
Legislation: Family Law Act 1975 (Cth) s.69ZL, s.79ZL, s.69ZW.
Cases cited:

Goode & Goode (2006) FLC 93-286
SS & AH [2010] FamCAFC 13

1           Wendland & Wendland [2017] FLC 93-808

Division: Division 1 First Instance
Number of paragraphs: 65
Date of last submission/s: 4 February 2022
Date of hearing: 4 February 2022
Place: Melbourne, via Microsoft Teams
Solicitor for the Applicant: Litigant In Person
Solicitor for the Respondent: Ms Kotzapavlidis, Solicitor
Counsel for the Independent Children’s Lawyer: Ms Brennan of Counsel
Solicitor for the Independent Children’s Lawyer Victoria Legal Aid

ORDERS

MLC 4879 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS CASSELL
Applicant
AND:

MR KOLAR
Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

STRUM J

DATE OF ORDER:

4 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The Application for review filed by the Mother on 23 December 2021 and the Response to the Application in proceeding filed by the Respondent Father on 15 December 2021 be dismissed.

2.Paragraph 7 of the Orders made on 20 October 2021 be discharged

3.The Applicant Mothers supervised time with the child, pursuant to previous orders, be supervised by such supervisor as is nominated by Independent Children’s Lawyer and in the event the Mother and Father are unable to reach agreement in relation to funding of that supervision, then it occur at a community supervision centre as nominated by Independent Children’s Lawyer.

4.The Costs of the Respondent Father and the Independent Children’s Lawyer are reserved.

AND THE COURT NOTES THAT:

A.Justice Strum has provided oral reasons in open court on this date.

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 the pseudonym Cassell & Kolar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
DELIVERED EX TEMPORE

STRUM J:

  1. I have before me today an Application for Review filed by the applicant mother on 23 December 2021. In that application she seeks to review the order made by Senior Judicial Registrar Hoult on 16 December 2021 which dismissed the mother’s Application in a Proceeding filed on 16 November. Section 69ZL of the Family Law Act 1975 (“the Act”) provides that a court may give reasons in short form for a decision it makes in relation to an interim parenting order and I deliver these reasons pursuant to s 69ZL(1) but conscious of the fact that subsection (2) makes it abundantly clear that the preceding subsection does not otherwise affect the obligation of a court to give reasons for a decision it makes in relation to any matter arising under the Act.

  2. The applicant mother, Ms Cassell, was born in 1984 and is self-represented. The respondent father, Mr Kolar, was born in 1979. He was represented today by Ms Kotzapavlidis, solicitor, of Hargreaves Family Lawyers. These proceedings involve the only child of the parties’ brief relationship, X, born in 2018. She is four years of age. The parties’ commenced cohabitation in about 2016 and separated on 23 September 2018, when X was about eight months of age.  Since that time, for the ensuing three and a half years, the parties have been engaged in litigation regarding the parenting of X.  The litigation will come to an end in late August when I can hear and determine the parties’ respective applications for competing parenting orders. 

  3. Having separated in September of 2018, the mother instituted proceedings by way of an Initiating Application on 7 May 2019. On 10 March 2021 Senior Judicial Registrar Hoult made orders, inter alia, that conferred upon the father, until further order, sole parental responsibility and that the child live with the father and spend supervised time with the mother twice weekly, for blocks of up to three hours on each of those occasions and otherwise communicate with the mother by video each Saturday afternoon for a period of 15 minutes. 

  4. Those orders were varied modestly on 13 May 2021. On 31 August 2021, the mother filed an Application in a Case in which she sought to discharge the orders made on 10 March 2021. She sought equal shared parental responsibility and that X live with her and spend time with the father.  That Application was heard and determined on 20 October 2021, when Senior Judicial Registrar Hoult dismissed the mother’s application and made some orders varying the supervision arrangements. However, the operative parts of the March 2021 order remained, namely, that X live with the father and spend supervised time with the mother twice weekly, for blocks of up to three hours on each occasion. 

  5. Notwithstanding the dismissal of the mother’s Application on 20 October 2021, on 16 November 2021, she filed another Application in a Proceeding in which she sought to ventilate, again, the matters that had previously been ventilated by the Court throughout that year, including as recently as the Application filed in August 2021 and determined in October 2021. She again sought equal shared parental responsibility and that X live with her and spend time with the father. That Application was dismissed by Senior Judicial Registrar Hoult on 16 December 2021 and it is a review of that dismissal that comes before me today.

  6. The mother, in her filed summary of argument, listed a number of affidavits upon which she sought to rely, including two affidavits of a Mr B. She did not refer me to either of those affidavits in her submissions before me this day. As I recall from a previous hearing before me, Mr B is an accountant retained by the mother and it is difficult to see how he could add anything relevant to the exercise before me today. The mother also listed her affidavit of 31 August 2021 in support of the first of the two applications in the latter half of last year which were made by her and dismissed by the Senior Judicial Registrar. She also listed an affidavit that she filed on 7 December 2021, as well as two affidavits of third persons, namely, Ms C, filed 16 November 2021, and her long-time treating psychologist, Mr D, filed on 8 December 2021. 

  7. The mother in her submissions – both written and oral –placed considerable emphasis upon the affidavits of Ms C, contact supervisor, of 16 November and 7 December 2021. Mr D, the mother’s treating psychologist since 2016, has previously provided some letters of support, which are annexed to the mother’s affidavit material and which have been before the Court on previous occasions.  Similarly, in relation to Ms C, whilst her affidavit was filed on 16 November 2021, I note that at [6] of that affidavit she deposes to having supervised some 41 visits whilst in the employ of J Contact Service between 18 May 2021 and 12 October 2021.

  8. Accordingly, Ms C’s evidence pre-dates the determination of the mother’s 31 August 2021 Application in a Case which was determined on 20 October 2021.  I am told that her notes have been previously in evidence before the Court but, as the mother correctly states, this is the first time she has provided an affidavit.

  9. The mother, in her Case Outline, as well as in her Review Application, referred to or sought the removal of the Independent Children's Lawyer (‘ICL”). She did not address any of her submissions or take me to any material in support of that application today. In any event, it is a matter which, in my view, is not supported by the evidence before the Court. 

  10. There is nothing to which I have been taken, other than dissatisfaction on the mother’s part that she does not perceive ICL to be supportive of her case. There is nothing in the conduct of the ICL that, to my mind, would warrant any discharge and/or replacement of the ICL. 

  11. In her submissions– both written and oral – the mother challenged the three reports of the Family Report writer to date, Dr E. Dr E prepared reports dated 24 October 2019, 16 September 2020 and 18 January 2021. Those reports were filed by the ICL under cover of an affidavit of Dr E on 18 February 2021. 

  12. Insofar as the mother wishes to re-agitate her concerns about and dissatisfaction with the reports, I agree with the observation that has been made by both the solicitor for the respondent father and counsel for the ICL, both in their written and oral submissions, that there are no changed circumstances that arise out of those reports. Those reports raise some very serious concerns about the mother, and about X when in the mother’s care. I am fortified by the fact that Dr E was previously cross-examined in relation to her first two reports and that her third report does not depart in any appreciable fashion from the first two. She may be cross-examined at trial. However, I see no reason to embark upon any detailed consideration of the mother’s complaints about Dr E at this interim stage. 

  13. I understand that the mother has made complaints about Dr E not just to this Court, in the conduct of her litigation, but also to relevant professional organisations. The professional complaints await determination. However, for present purposes, there seems to be no change of circumstances in that regard. 

  14. In the mother’s Summary of Argument, she referred to the decision of the Full Court in Wendland & Wendland [2017] FLC 93-808. The mother relies upon that case in support of her submission that I am not obliged to accept the opinion of a family report writer and that the evidence of such an expert is simply evidence that must be considered along with all the other evidence in the matter. That proposition is trite. However, the difficulty facing the mother at this interim stage is that the dictum of the Full Court relates to evidence at trial. At trial, the evidence of Dr E, comprised of her three reports together, with the evidence of the new family report writer (by reason of the mother’s complaint), as well as the evidence of all the other witnesses – professional and lay – will need to be tested and, in course, considered and weighed by me. For present purposes, when the Court is constrained at an interim hearing by the truncated nature of the hearing and the absence of cross-examination, this is not the time to make the submission that the mother has made, albeit that she is a litigant in person. Further, unlike in many cases at an interim stage, Dr E has previously been cross-examined, albeit not before me.

  15. At this stage of the proceedings, Dr E’s three reports are expert evidence upon which I can and do place considerable weight, and greater weight than the untested, partisan assertions of the father and the mother respectively. 

  16. Insofar as Ms Cassell, in her written and oral submissions, referred to Ms C’s observations of supervised, whilst it may be the first time that an affidavit of Ms C has been filed, I am advised by the lawyers for the father and the ICL that her notes have previously been before the Court and, in any event, her observations pre-date the mother’s second application and the dismissal thereof in December 2021. Accordingly, no change of circumstances that is manifest in that regard. 

  17. Similarly, I was referred by the mother to various observational notes of Ms F, another supervisor of her time with X, at [13] of the mother’s Summary of Arguments. These include:

    (a)“[Ms Cassell] was observed to be appropriate in her interactions with [X] and she was responding positively to [X]” (annexure 1, page 1, Ms Cassell Affidavit 7 December 2021).

    (b)“It was observed that [Ms Cassell] has a good understanding of age appropriate child development” (annexure 1, page 2, Ms Cassell Affidavit 7 December 2021).

    (c)“Observation of two hour contact confirmed that [X] had a strong attachment to her mother” (annexure 1, page 3, Ms Cassell Affidavit 7 December 2021).

    (d)“The writer had no concerns about [Ms Cassell’s] connection, love for [X] and appropriateness during the contact” (annexure 1, page 3, Ms Cassell Affidavit 7 December 2021).

    (e)“[Ms Cassell] had a clear understanding of child development” (annexure 1, page 3, Ms Cassell Affidavit 7 December 2021).

    (f)“The writer is unclear why the contact is supervised as the interaction was appropriate, and [X] showed no signs of being unhappy or uncomfortable being with her mother” (annexure 1, page 3, Ms Cassell Affidavit 7 December 2021).

    (g)“The writer did not observe any risk of harm to [X] during the contact” (annexure 1, page 3 Ms Cassell Affidavit 7 December 2021).

    (h)“[Ms Cassell] and [X] have a very strong attachment, and given they have not spent a great deal of time together, it appears their bond has not wavered” (annexure 1, page 5 Ms Cassell Affidavit 7 December 2021).

    (i)“The rights of the children’s charter is clear that children have the right to the opportunity for a healthy and connected relationship with each of their parents however if (sic) appears that [X] may not be heard about what she wishes for” (annexure 1, page 5, Ms Cassell Affidavit 7 December 2021).

    (j)(k) [sic] “[X’s] development and emotional well-being would be enhanced with more regular face to face contact with [Ms Cassell]” (annexure 1, page 5, Ms Cassell Affidavit 7 December 2021).

    I raised with the mother my concern that, notwithstanding the apparently favourable observations of X in her care, it is premature for me to express any concluded view as to those observations in isolation from the whole of the case. There is no substantive suggestion by the father that X is not generally doing well in the context of the supervised time that she spends with the mother. (Emphasis added)

  18. The difficulty at this stage, is that I do not know whether, insofar as there have been favourable observations of X in the supervised care of her mother, that is because of the supervision or, as Ms Cassell inferentially submits, despite the supervision.  This is an interim hearing and it is well established that such a hearing is a narrow on, with a limited scope of inquiry.  See Goode & Goode (2006) FLC 93-286. Where the Court is unable to make findings of fact, as is presently the case, it should avoid being drawn into issues of fact or matters relating to the relative merits of each parties’ case where findings are not possible. In the course of my exchanges with the mother, I endeavoured to explain to her that, as this is an interim hearing, I must generally look to the facts that are agreed upon and the issues that are not in dispute. Of course, there may be a point where the Court must nevertheless consider whether it should make a decision, in particular where doing so would be in the best interests of the child. The Court may have no alternative other than to weigh the probabilities for the competing claims and the impact on the child if an assertion is acted upon or rejected: see SS & AH [2010] FamCAFC 13.

  19. However, there is a threshold issue in this case and I understand that may be one the mother, as a litigant in person, did not fully appreciate.  The matter was fully ventilated before the Senior Judicial Registrar in March 2021 and orders were then made. The mother then sought to re-agitate those same issues in her Application in a Case filed on 31 August 2021, which was dismissed on 20 October 2021. In the circumstances, it is not surprising in my opinion – although this is a hearing de novo – that on 16 December 2021 the Senior Judicial Registrar dismissed the mother’s further Application in a Proceeding brought soon thereafter, on 16 November 2021. 

  20. It is incumbent upon the mother, whether she be a litigant in person or otherwise, to demonstrate a relevant change of circumstances to warrant the Court re-embarking upon a reconsideration of the issues. In the submissions on behalf of the respondent father, reference is made to the expert evidence of Dr E and Dr G. It is submitted on his behalf that the mother has not particularised any reasonable basis for her application. I agree.

  21. The only “new evidence” to which the mother specifically refers relates to the alleged conduct of the ICL assigned to this matter and to J Contact Service. In my view, those matters are not sufficient to warrant a reopening and a reconsideration of the case. The allegations are untested. The father contends, through his solicitor, that there are no new or changed circumstances in relation to the child or either of the parties that have arisen since the October 2021 orders were made or, indeed, since the March 2021 orders were made. Again, I agree.

  22. The father concedes that there have been practical problems. Indeed, that is one of the few areas upon which the parents agree. They differ, however, as to the reasons for such problems. I cannot, at this stage, without a testing of the evidence, make any findings as to who, if anyone, is at fault. Those difficulties need to be resolved in order for X to spend time with her mother. However, they do not warrant a reconsideration of the orders for sole parental responsibility, for X to live with the father or for her to spend supervised time with the mother. At most, it may justify the Court in making amendments to previous orders to ensure that time is spent between X and her mother. That is not what the mother seeks today.

  23. The mother’s concerns were succinctly summarised by the solicitor for the father. It is not an exhaustive list of the mother’s concerns but it includes matters such as the following:

    ·the mother’s assertion that there is an immediate and imminent risk of continued emotional and psychological harm to X in the father’s care; 

    ·her assertion that the father disrupts X's FaceTime communication with her, leaving X visibly upset, as the mother asserts; 

    ·the mother’s assertion that X appears intimidated by the father; 

    ·the mother’s assertion that X verbally expresses that she fears her father and is often sad and lonely in his care;

    ·the mother’s assertion that X frequently requests more time and says that she wants to return to the mother’s home and never see the father again.

  24. Other concerns alleged by the mother are that:

    ·X displays behaviour such as anger, depression, fear and stress, as well as behaviours indicating pressure, programming and abuse;

    ·the mother believes X is under pressure and is being heavily conditioned to reject and break away from her;

    ·the father fails to facilitate a meaningful relationship between X and her; and

    ·unless urgent intervention by the Court occurs at this juncture in time, the ICL will continue to fail to act in X’s best interests and welfare.

  1. In relation to that latter concern professed by the mother, I have neither read or been taken to anything that would, at the current juncture, cause me any concern about the ICL’s conduct of the proceedings. It is submitted on behalf of the father that neither the substance nor the theme of the mother’s allegations are new, that she has made them previously and that they have been the subject of the interim hearings on 10 March 2021 and 20 October 2021. I agree. 

  2. The mother relies upon the affidavit of Mr D, which she filed on 8 December 2021 in support of her application the subject of this review. I can understand how it is that the self-represented mother is of the opinion that Mr D assists her case today. That may well be that, if she elects to call him at trial, but not today. The difficulty today is that, on the one hand, I have three reports of Dr E and the report of Dr G, a psychiatrist. On the other hand, I have an affidavit by Mr D. However, he has previously put his views forth in letters that have been annexed to affidavits filed on behalf of the mother, so they are not new. Further, Mr D is a psychologist, not a psychiatrist, and whilst he has been treating the mother for nearly six years on a ‘regular basis’, that regularity is not described.

  3. Whilst Mr D opines that Dr E’s family reports do not align with his long-term clinical work with Ms Cassell, I am concerned by the disparity between Mr D’s concerns and those of the independent expert witnesses. Whilst he appears to be an expert witness, in the sense that he appears to possess the qualifications to which he deposes, he is a witness clearly in the mother’s camp, who has provided letters supporting her in these proceedings.

  4. Mr D deposes at [13] that he does not believe Ms Cassell has a personality disorder or that she is of any threat to X. Rather, he says that she is an extremely important, positive factor in X’s life and overall wellbeing.  No party in this case – neither the father nor the ICL – and indeed neither Dr E in her three reports takes issue with the importance of a relationship between X and her mother. It is for that reason that orders have been made for twice weekly blocks of time to be spent by the mother with X but supervised, to allay the concerns that the Court has previously expressed. 

  5. I am also troubled by [15] of Mr D’s affidavit, in which he purports to opine in relation to X’s welfare, in circumstances where he is not a child psychologist. He expresses concern about the mother’s absence in X’s life and the potentially negative impact of the dynamic occurring with her father. Ms Cassell is not absent from X’s life. I accept that she is not as actively involved at present as she would wish to be but this matter will proceed to trial in some six months’ time, at which all of the evidence that is called will be tested. Insofar as Mr D opines about “potentially, the negative impact of the dynamic occurring with the father”, that must clearly be based upon what he has been told by the mother. 

  6. Similarly, I have not been pointed to any evidence where he has observed X in the company of the mother. He continues at [15]:

    “Whilst I cannot make any statement around [Mr Kolar] and his parenting skills, what is clear to me from the feedback that I have heard regarding observations on [X’s] presentation is that she cannot healthily identify with both parents co-exist, even in her mind such is the likely impact of what is being expressed or modelled to her when in her primary care setting”.

    I do not know upon what basis he considers himself able to express such an opinion. No doubt he will be tested on that at trial.

  7. As was correctly pointed out by the solicitor for the father and supported by counsel for the ICL, as with the observations of the supervisors to whom I have been referred, Mr D does not depose to any new or significantly changed circumstances concerning the mother – or more particularly, her mental health – that have arisen since either March or August 2021 or, even more recently and relevantly, since the mother’s second application last year which is the subject of the review application before me. 

  8. Returning to the evidence of the experts upon whom reliance was placed at the hearing on 10 March 2021, Dr G’s report was filed under cover of an affidavit filed on 5 February 2021. At page 12 of 24, under the heading ‘Diagnosis’, Dr G states as follows,

    “[Ms Cassell] has Complex Post-Traumatic Stress Disorder.”

  9. At page13, he refers to the assessment of Dr E which raises serious concerns about Ms Cassell’s mental health, and after speaking with Mr D, including a tendency to deceive or exaggerate the truth in order to be liked, due to underlying self-esteem issues as a result of her early life experiences, her perception of feeling abandoned and her lack of attachment to her parents. These are matters that the mother will be able to explore at trial, but there is nothing in the evidence of Mr D before me now, upon which Ms Cassell relies, that would indicate a change of circumstances from that pertaining at the time of Dr G’s assessment, especially in circumstances where Mr D had previously provided letters of support on behalf of Ms Cassell. 

  10. At page 14 of Dr G’s report, he postulates two scenarios. At [6]:

    [Ms Cassell] in turn raises significant concerns in regard to the father, his relationship with his parents., their non-acceptance of her, and an orchestrated campaign of mistreatment, manipulation, financial abuse, coercion and general lack of support, which if true, despite her various vulnerabilities, would also raise significant issues of concern, particularly if as alleged she can produce evidence of threats reported by her by his mother in particular, of wishing to remove [X] from her care and purported comments from his mother criticising [Ms Cassell] of jealously guarding her relationship with her son.

    (Emphasis added)

    I note, though, that those observations are predicated by the words “which if true, despite her various vulnerabilities”. In other words, Dr G does not discount Ms Cassell’s account to him.

  11. At [7]-[8], Dr G postulates the alternative theory:

    In the alternative, [Ms Cassell] presents as a person of considerable vulnerability and the conversation attested to by [Mr D] notes her tendency to deceive and exaggerate the truth.

    As such, the sifting of evidence will be required to determine the relative contributions of the parties to the conflict between them, and their truthfulness and candour, or otherwise. If the father’s account of [Ms Cassell] is found to be reasonably accurate, and in keeping with aspects of her presentation of [Dr E], diagnostically, [Ms Cassell’s] reported functioning would be consistent with a Personality Disorder with borderline and narcissistic traits.  If so, it would be imperative for her to continue treatment with [Mr D], and it is recommended that copies of my report and the Family Court Report be forwarded to him to assist [Ms Cassell] to co-parent with [Mr Kolar], and to come to terms with the separation and to focus on the importance of co-parenting with [Mr Kolar], despite her experiences of being abandoned by him and his family in the best interests of [X].

  12. I am troubled by the fact that Mr D, in his report annexed to his affidavit filed on 8 December 2021, seems to give no credence to the opinion of Dr G, who is a psychiatrist and whose qualifications are not challenged. 

  13. In relation, to the three reports of Dr E filed 18 February 2021, at [5] of her second report, she states::

    Sadly, during this assessment, whilst [X] presented roughly on track with her physical developmental milestones, (whilst different aspects of her development were not consistently observable in both parents’ care, with greater developmental abilities observed in the father’s care), her socio-emotional development was observed to be delayed. [X] presents as an incredibly fragile child who is lacking resilience and important age-appropriate socio-emotional competencies. Sadly, her psychological vulnerabilities and the impact of parenting is becoming more obvious with age.

  14. At [76] – [79] of this second report, Dr E amplified her concerns:

    [76] Whilst (according to [Dr G]) a clinical diagnosis of the mother with regards to her personality functioning is [sic] somewhat dependent on testing of evidence in the court (where, if the father’s evidence is accepted, she meets criteria for diagnosis of a Personality Disorder), the mother has clearly presented with disordered personality throughout each of the family report assessments.

    [77] The exact diagnosis, per se, matters little. What matters most, is how the mother’s personality impacts on her parenting of [X]. In this regard, significant difficulties have been observed with the mother, that are having an obvious impact on X’s healthy development. The mother lacks attunement to [X] and her individual needs. The mother does not possess an internal representation of [X] as her own little person with a growing personality. The mother is adult-led and intrusive in her interactions. She shares an enmeshed relationship with [X]. She does not allow opportunities for [X] to develop age-appropriate exploration and autonomy.  Her provision of ‘care’ (that is targeted to a much younger child, misattuned with [X’s] needs) comes at the (significant) cost of [X’s] development of suitable and age appropriate self-regulatory abilities and social skills.

    [78] In sum, what this means for [X], is that she has developed into an incredibly fragile child with significantly delayed socio-emotional competencies, who’s typical developmental trajectory has been interrupted. [X’s] developmental potential is not able to be reached in the mother’s care due to the mother’s parenting style and associated limitations.

    [79] The mother is not open to feedback in this regard. She is dismissive of any feedback about her parenting (at the cost to [X]). She holds the opinion that any set-backs in [X’s] life are entirely due to external factors (in her perception, the assessor’s erroneous assessment recommendations, and too many changeovers). She has not sought assistance (nor even further independent assessment and feedback from a different professional in this regard). It is therefore unlikely that her parenting [X] will change, and even if the mother was to seek assistance now (and develop insight and openness to change), it is unlikely that change in a developmentally timely fashion for [X]. This little girl needs urgent help.

  15. And I place considerable weight, especially at this interlocutory stage, upon that cry for help on behalf of X by Dr E. She continues further at [80] – [81]:

    [80] Of further concern, is the mother’s ability to support the father-child relationship. Whilst she demonstrated during assessment ability to discuss the father in a positive light with [X], she has a tendency to minimise his role in [X’s] life, struggles to speak of him as a father in a positive light, lacks trust in his parenting abilities and continues to seek to reduce [X’s] time with him.  She has also withheld [X] from time with her father.

    [81] Despite this, the mother does have some strengths.  Her and [X] share a bond, and she is [X’s] primary attachment figure. [Ms Cassell] shows incredible warmth and nurturing to [X].  There is certainly no doubt that [Ms Cassell] loves [X].

  16. Those observations in [81] do the mother credit. They are important observations, but they are observations that must be balanced, certainly at this stage, with the concerns that are raised both by Dr G and by Dr E. I do not consider Dr E’s comments at [81] regarding the mother’s strengths as being in any way inconsistent with the concerns that she has regarding the mother’s parenting of X. In support of my conclusion that the evidence of Mr D does not manifest any change of circumstances relevant to the mother’s review application, I note that at [82], Dr E referred to Mr D and the mother’s engagement with him, but she cautioned::

    …It would be unlikely that the pair are able to successfully work therapeutically regarding the mother’s mental health, and the impact on her parenting of [X] without [Mr D] having a comprehensive understanding of the issues at hand. Thus it is recommended that [Mr D] have a copy of the initial family report and also this updated family report…

  17. It is unclear whether or not Mr D has those documents. , That is not material for present purposes because, on any view, Mr D has his own view, which is at odds with those of Dr G and Dr E. 

  18. Dr E continues at [82] by noting that the mother was encouraged to seek input from a Clinical Child Psychologist or Infant Mental Health specialist with experience in family law for assistance to understand her role in X’s distress and her parenting. There is no evidence that she has taken up either of those suggestions. Had she done so, I might be in a different position today, but I take the evidence as I find it.

  19. For Ms Cassell’s reassurance, I refer to [83] of the second report of Dr E, in which she noted she had not formed the opinion that the mother’s behaviour was malicious in any way and that the mother is doing the very best she can in parenting with the resources she has. She continued:

    …And it is sad that this is not sufficiently meting [X’s] needs. Similar to the first Family Report, it is anticipated that this report will be incredibly difficult for the mother to read. It is pleasing that she has the support of a trusted professional to assist her throughout this incredibly difficult process.

  20. I accept that what the mother has read in the assessments of her by Dr G and Dr E is very difficult for her, nor do I minimise the strengths of the mother that have been observed and opined upon by Dr E. However, unfortunately the deficiencies that have been identified are such as presently, at this stage of the proceedings, to overweigh those strengths.

  21. Dr E, in her second report, concluded with the recommendation that X should shift to begin residing in the father’s primary care, and she put forward two options: a gradual increase in time with the father (which was what occurred after that report) or a swift transition into his primary care.

  22. The third of Dr E’s reports referred to her earlier assessment, Dr E said at [4], page 87 of 138:

    There have been several allegations since the last assessment. Most relevant to the potential risk issues regarding [X], is concern having been raised about the potential for “grooming” and/or sexual abuse whilst [X] is in the father’s care, and that [X] may have been “drugged”. The veracity of these allegations will need to be tested in Court. Documents (medical records and Police records) have also been subpoenaed, and further information from Child Protection was made available.

  23. I was not taken to any material today that would suggest that there has been any untoward development in the allegations and note they are just that - untested allegations. Dr E quite correctly observed that the veracity of these allegations will need to be tested in court. That will occur in about six months’ time. She continued at [5]:

    [X] remains a fragile child who is not meeting her developmental potential in her mother’s care. There are ongoing concerns regarding the mother’s parenting and her mental health. It remains the assessor’s opinion that [X] should shift into the father’s primary and full-time care. This can occur immediately. [X’s] time with her mother should shift to be professionally supervised at this point in time. 

  24. Dr E expanded upon her concerns at [35]:

    Of greatest concern to the assessor, pertaining to the risk issues regarding [X], is [X’s] presentation in the mother’s care. She is not meeting her developmental potential in the mother’s care. She presents as depressed and delayed (with regressed behaviour). She is not emotionally safe in the mother’s care, and cannot organise her behaviour healthily and securely around the mother’s. There is a lack of attunement between mother and child (which is the crux of the attachment issue). The assessor has significant concerns regarding the mother’s parenting, and her emotional stability and personality functioning. In addition, there are further concerns regarding [X] being exposed to multiple intrusive examinations, and the notion that she has been a victim of abuse.

  25. At [66], Dr E said:

    Similar to previous assessments, [X] presented with very different developmental capabilities in either parents’ care. Her developmental capabilities were observed more-so in the father’s care, when compared to the mother. From observations of [X] with the father, she appeared to be roughly on track, for the most part, regarding her physical, verbal and cognitive development. She had developed in confidence since the last assessment, but remained fragile and cautious. 

  26. That is to be contrasted that with her observations at [92] – [93]:

    Similar to previous assessment, there were major concerns noticed in [X’s] presentation in her mother’s care. In her mother’s care, [X] presented with flat and blunted effect - she could be described as depressed. She had limited verbal output. Her play was incredibly restricted, lacking in imagination. It was regressed. It lacked coherence, with loose [sic] associations. Her speech was impoverished, whispering throughout, with incredibly limited expressive speech. She did not explore her environment as a typical three-year-old should. Her head remained lowered for much of the observation sessions. She appeared confused at times, and unsure what her response should be, and unsure of what she should do. There was an obvious lack of independent thought and feeling, looking to the mother for guidance. The relationship is described as lacking attunement, and as enmeshed. In sum, [X] lacked emotional safety in this relationship. 

    In stark contrast, [X] presented very differently in her father’s care. [X] presented in her father’s care as euthymic (normal) in her affect, with much joy and excitement throughout. She explored her environment appropriately for her age, whilst seeking proximity to the father as required. She was incredibly imaginative in her play, instigating an expansive imaginative play scene with characters and roles with appropriate scaffolding from her father. Her play was synchronous and logical. She spoke at an audible level with expansive expressive speech that was appropriate for her age, and appropriate in rate, rhythm, volume and content. Her speech and play was logical and coherent. Her head was held high and she displayed a range of emotions throughout. She was confident, and congruent. [X] experienced emotional safety in the father’s care.

    (Emphasis in Original)

  27. At [94], Dr E continued:

    [X] in the father’s care, can be described as developmentally on track, and as emotionally safe. [X] in the mother’s care is regressed, delayed and depressed, lacking emotional stability. There are serious and significant protective concerns for [X] in the mother’s care.

  28. That, to me, is the crux of this case, especially at this interim stage in the proceedings. There is a little girl who, for most of her sort life to date, has been the subject of litigation between her parents. She has been described as being incredibly fragile and displaying, when observed with her father and mother respectively, manifestly different qualitative features. I cannot, for present purposes, discount the evidence of those supervisors upon which the mother relies, namely, that when they have observed X in the mother’s care their observations differed from those of the experts. However, that is but one of the many pieces of untested evidence.

  29. I do not know whether, as I discussed with Ms Cassell, those favourable observations were because X was in her mother’s care under supervision. However, I am faced with the evidence of the single experts, Dr G and Dr E. I understand that the mother is dissatisfied with Dr E and that she has made professional complaints against her. It is not for me to prejudge those complaints in any way. They will pursue whatever course it is that they must pursue with the appropriate regulatory bodies. However, the mother must understand that the fact that someone is dissatisfied with an expert report does not, in and of itself, impugn either the qualifications or the conduct of that expert. Dr E will be a witness at trial and possibly an important one.

  1. Dr E concluded at [95] of her third report, manifestly culminating in the orders that were made on 10 March 2021:

    The recommendations remain that [X] should shift into her father’s full-time and primary care. She has tolerated the changes well.  She can tolerate future changes at a rapid pace. It is recommended that [X] shift into the father’s primary and full-time care as soon as possible. 

    (Emphasis in Original)

  2. At [96], Dr E observed:

    Whilst [X’s] development (in her father’s care) appears to have flourished with increased time with her father, she remains a fragile little girl who will likely require a range of interventions in the future to assist her ongoing socio-emotional competencies. Some of these will be informal and will occur organically in the father’s care. Some of these will be formal and will be indirectly, (i.e. via the father) guided by a suitably qualified professional such as a Clinical Child Psychologist. It is great that the father has engaged such a professional, and he should continue consulting with [Dr H] (or similar other). It should remain at this stage indirectly – [X’s] exposure to further professionals will need to be very carefully considered given the number of people and investigations she has already been subject to, as discussed further below.

    (Emphasis in Original)

  3. Dr E concluded her third (and last) report with a recommendation that X’s time with her mother be professionally supervised because she presents as not emotionally safe in her mother’s care but rather as regressed and depressed; the mother’s judgment with regards to X’s best interests remain significantly impaired; X shares an enmeshed relationship with the mother, which is unhealthy and in need of significant intervention.  Their interactions require professional monitoring and guidance and that has been in place since March of 2021. 

  4. There is a clear difference, in my view, between a child being physically safe and emotionally safe in a parent’s care. Whilst Ms Cassell points me to positive observations of X in her care, that does not necessarily mean that safe physical care also amounts to safe emotional care. At present, the only expert evidence is quite to the contrary of the mother’s submission. At [113] of her third report, Dr E properly noted:

    Whilst it is understood that the parents’ evidence may require testing in the courts, the three family report assessments on this little girl have raised such significant concerns about her development in the mother’s care (and the mother’s parenting), that the recommendations remain, regardless of whose evidence is accepted in the courts. It is clear, based on observations alone, that this little girl needs to shift into the father’s full-time and primary care, where she is afforded greater opportunity to meet her developmental potential, and where she is protected from the detrimental impact of her mother’s parenting.

    [Emphasis added]

  5. Even if some of what the mother says about the father is ultimately found to be the case at trial, at this interim stage I place great weight upon the opinion of the Family Reports of Dr E, namely that X should be in her father’s care and have supervised time with the mother. The report writer, in my view, appropriately described this case as an incredibly sad one. On any view, that is so. At [114], Dr E opines:

    …This is a very serious example of poor maternal mental health (regardless of the diagnosis) and the negative impact it can have on ones parenting, and on the developing child, and the father-child relationship. It is sad that the mother has not received the assistance required to be in a position to effectively parent [X]. On a positive note, however, we know and understand the evidence-base regarding early intervention for children. In the father’s care, with professional guidance, [X] will be afforded the opportunity to continue to develop on a suitable trajectory moving forward. And hopefully the mother will seek the help that she requires to be able to have more substantial time with [X].

  6. Other than continuing her long-standing attendance upon Mr D, there is no evidence to which I have been taken, to suggest that the mother has broadened the professional assistance that she was recommended to undertake.

  7. The ICL, in her helpful case summary, similarly observes that, in her Application in a Proceeding filed on 16 November 2021, the mother essentially sought the same orders as in her previous Application in a Case, filed on 31 August 2021, which was dismissed on 20 October 2021. The ICL observes that the mother’s supporting affidavit, filed on 16 November 2021, was largely identical in substance to the previous affidavit material filed in support of her similar application three months earlier. The ICL submits, and I agree, that no new issues, and I would interpolate certainly no new relevant issues, were raised in the mother’s affidavit filed on 16 November 2021, save that the mother asserted there was then an open investigation by the Department of Families, Fairness and Housing.

  8. Reference was made by the solicitor for the father to the report ordered pursuant to S69ZWof the Act dated 27 January 2022, which confirmed that there was no open investigation at that time. However, in circumstances where the mother told me that she had not had the opportunity to inspect that report, I wished to ensure that there was procedural fairness to the mother and would not entertain further submissions in relation to it.

  9. In summary, the mother is a litigant in person who labours at least under some the difficulties identified by her own treating psychologist, Mr D, albeit that they are at a much lower level than those identified by Dr G and Dr E. Whilst one can understand that the mother is dissatisfied with, and likely even distressed by, the orders that were made in March 2021, which removed X from her care and placed her in the father’s care, nothing to which I have been taken points to a relevant change of circumstances such as would warrant the court re-opening and re-embarking upon interim parenting issues. That is all the more so when the parties now have a trial in some six months’ time. 

  10. Even if the mother could point to some relevant new circumstances, which she cannot, the outcome of this review application would likely be no different, given the reports of Dr E and Dr G.

  11. In the circumstances, I will dismiss the mother’s review application filed on 23 December 2021. That leaves the issue of supervision, which is raised by the father and supported by the ICL but opposed by the mother.

  12. It is somewhat unusual, in circumstances where X lives with her father and the only time she is to have with her mother is to be supervised, that the mother objects to an order for K Contact Service to be the appointed supervisor. She also raises issues of funding which I cannot deal with today. If the parties cannot agree upon how supervision is to be funded, or by whom, time may need to be spent at a community supervision centre. That may be less preferable but I simply cannot take that issue further today.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Strum.

Associate:

Dated:       4 February 2022

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SS & AH [2010] FamCAFC 13