Edhouse & Edhouse (No 3)
[2024] FedCFamC1F 646
•13 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Edhouse & Edhouse (No 3) [2024] FedCFamC1F 646
File number(s): SYC 4161 of 2021 Judgment of: KARI J Date of judgment: 13 September 2024 Catchwords: FAMILY LAW - CHILDREN – Ex Tempore Reasons – Interim parenting arrangements – Where the father presses an interim application to change the primary care of the child – With whom the child should live pending delivery of interim judgment – Where the child has been exposed to the risk of psychological harm in recent weeks – Where the Court is satisfied that the child would continue to be exposed to psychological harm in the mother’s care – Where the mother agreed to the child living with the father during an intervening period pending argument – Where the child is to live with the father pending delivery of judgment Division: Division 1 First Instance Number of paragraphs: 26 Date of hearing: 13 September 2024 Place: Adelaide Counsel for the Applicant: Mr Grew Solicitor for the Applicant: Coleman Greig Lawyers Solicitor for the Respondent: Mr Lowry of Matt Lowry Criminal Law Solicitor for the Independent Children's Lawyer: Mr Holmes of Holmes Donnelly & Co Solicitors ORDERS
SYC 4161 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR EDHOUSE
Applicant
AND: MS EDHOUSE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
KARI J
DATE OF ORDER:
13 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.That forthwith and pending delivery of judgment the child X (born 2019) do live with the father.
2.That judgment otherwise be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Edhouse & Edhouse has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
I propose to give short-form reasons, not in relation to the application that’s before me more broadly, but particularly in relation to what’s to occur in the adjourned period pending the delivery of my reasons.
I have, heard the submissions that have been put and consider that it is appropriate for the Court to make alternate parenting arrangements pending the delivery of judgment.
The proceedings come before the Court in relation to the party’s child X born 2019. These proceedings, and in particular the parenting proceedings, have a very protracted and lengthy history before the Court, something which the Independent Children’s Lawyer (“ICL”) in the course of submissions today has lamented.
BACKGROUND
The parenting applications that are presently before the Court find their way in an interlocutory Application in a Proceeding filed by the father on 23 August 2023 in which he sought the change of the primary care arrangements for X from those that presently exist.
The present parenting arrangement for X was made by the orders made by Austin J on 22 September 2021, almost three years ago. Those orders provide for the mother to have sole parental responsibility for X and for X to live with the mother and spend time with the father for two nights each weekend; from Saturday to Monday. Those arrangements have been in place since that time.
The reason that the father pursues an interlocutory application to change X’s parenting arrangements prior to trial are significant. His position is that the mother presents a risk, and indeed, an unacceptable risk of harm to X, such that the only protective measure that can be put in place to protect X from the risk that the mother presents is that X live with the father and spend supervised time only with the mother.
The father has articulated the supervised time-spending regime that he proposes as one which would see the time professionally supervised on a Saturday for a period of three hours. The father, in response to questions posed by the bench moments ago, would also be prepared to facilitate midweek supervised time spending between X and the mother.
The mother filed a Response to the father’s Application in a Proceeding on 3 October 2023 opposing the orders sought by the father. Having heard the submissions of each the father and the ICL, however, the mother’s position has changed and she now advances a proposal that would see an increase to the child’s time spending with the father, such that the division of the week be on the basis of X living with the mother for four days and with the father for three days of each week.
The ICL supports a change to the current parenting arrangement. The ICL, at the very minimum, supports an increase to the father’s time-spending with X. What that regime looks like, the ICL is not ultimately wedded to and has acknowledged in submissions today that the change could be so far as, for example, X living with the father for five days of each week and the mother for two days each week. The ICL does not, at this stage, support the father’s proposal such that X live with him and spend only supervised time with the mother.
I must say that the ICL’s submissions in that regard were not as forcefully put as opposing that arrangement. What the ICL said is that if the Court comes to the view that the risk to the child is immediate and acute, then the father’s proposal is one that has merit and would not be spoken against by the ICL.
The real issue for the Court, both in the short-term today and when ultimately disposing of this interlocutory application, is an assessment of the risk that the mother poses. Whether that risk is an underlying, chronic, long-term risk or whether it is an acute and immediate risk. The father’s position is the latter. The mother’s position, although not articulated in this way, appears to be the former. I say appears to be the former, because that is the only inference that I can draw from the concession made by the mother today that the father’s time-spending should increase. That concession was made in response to the submissions made by the ICL in how the Court might consider approaching the interlocutory application.
DISCUSSION
The issues that have protracted these parenting proceedings are directly relevant to the risk factors that the Court has to now turn its mind to. The issue that has plagued these proceedings for some significant time now, in excess of a year, is what the Court now understands to be a false claim by the mother that she was diagnosed with a medical condition, that she received treatment for that condition including surgery. That diagnosis and treatment regime is one that the mother maintained as the correct position for a very significant time in these proceedings. As it turns out, however, the mother now concedes that these claims made by her were not accurate, that it was a fabrication on her part and that she was not diagnosed with a medical condition, she did not undergo surgery, and she did not undergo treatment. I do not propose in these reasons to go into the detail, other than to acknowledge that the mother now concedes she fabricated this diagnosis and treatment.
The consequences of that fabrication by the mother are significant. They are significant because not only have they protracted these proceedings, they are significant because they have led to a further assessment process in the context of the litigation by the single expert, Dr F. Dr F has prepared three formal reports in these proceedings, together with what is also a report but is being described as an addendum and/or a response to questions posed by the mother’s own legal representatives, albeit that she now has different representatives acting for her.
The questions that were posed by the mother’s legal representatives arose in circumstances where in February of this year, the parties agreed that Dr F, who is a psychiatrist, having prepared two family reports in the proceedings, was suitably qualified to undertake a formal independent psychiatric assessment of the mother. Ultimately, having undertaken that assessment, Dr F came to some very significant diagnoses in relation to the mother. Significantly, Dr F rejected the possibility that the mother be diagnosed with what is called a factitious disorder. Instead, Dr F was of the view that the mother has an unspecified personality disorder. That diagnosis is significant because ultimately, and summarising Dr F’s opinions and recommendations, Dr F is of the view that the child’s exposure to the mother’s unspecified personality disorder, her deceptive behaviour and her fabrication of events is one that presents a risk to X in the form of psychological harm, and in addition, potentially physical harm.
Dr F, in her addendum report prepared on 25 July 2024 was specifically asked to consider both short, medium and long-term parenting arrangements for X. In her report, Dr F recommended that the father have sole parental responsibility for the child and that there be a gradual increase in time spending between X and the father, such that she eventually spends the majority of her time in the father’s care. Dr F also opined as to what might occur if X was exposed to the mother’s deceptive behaviours, or if incorporated into the mother’s lies. If that was to eventuate, Dr F formed the view that X should live with the father and spend supervised time only with the mother.
Since the release of that addendum report, these proceedings have progressed before me in circumstances where, having received that report, the father sought to agitate his Application in a Proceeding first filed on 23 August 2023. Up until more recently, the father was content, for a range of reasons which are not germane to the present dispute, to leave that application for determination to the final hearing in the proceedings.
The final hearing is now scheduled to take place on 10 February 2024. That listing was given prior to the release of Dr F’s addendum report of 25 July 2024. Having received Dr F’s addendum report, the father determined it appropriate to press his interim parenting application. It is against that background that some very significant events have taken place.
Importantly, the mother has made allegations that the child has suffered bruising. It is not clear to the Court today whether the mother maintains that the father is the cause of injuries to the child. What is clear to me, however, from all of the records that have been produced to the Court, is that the mother at the very least suspected that the father may have been the cause of injuries to X.
The injuries that the mother identifies X has suffered are such that it is not entirely clear to the court what exactly the mother alleges. It is apparent that the mother asserts that X has suffered some form of bruising to her shin. What form of bruising is unclear because the mother’s version and description of the bruising, when regard is had to the mother’s own evidence in her affidavit, has changed. Having had regard to the independent records before the Court, namely the records produced by the N Medical Centre following the mother taking the child for a consultation, it is apparent that, at best, the injury to X is a very small bruise, no larger than five centimetres in diameter to her shin. It is equally not clear to the Court what the cause of that bruising is.
The child does not appear to have made consistent disclosures about the cause of that bruising, as reported by the mother herself. What has occurred, however, in relation to the bruising, is that it has triggered the mother to do a number of things. Those things have included the mother; recording the child at bedtime, taking the child to the GP, making a number of reports and communications at the child’s school and after school care, and has resulted in the mother communicating with police and having police attend upon X to interview her and do what the mother describes as a “welfare check”.
Those matters are of some significant concern to the Court. Having viewed a recording taken by the mother in November 2022, together with listening to an audio recording taken by the mother in relation to the recent allegations, it is apparent that the mother sees it fit to question X in relation to what might best be described as very minor bruising on her body. The ICL submits that the mother’s questioning appears to be an attempt by the mother to blame the father in some way to assist her in these parenting proceedings. While the ICL makes that submission, at the present moment, I do not consider I am able to make that finding without carefully considering all of the evidence before the court.
I am however concerned that this is, indeed, the mother’s motive and intention, and I cannot rule out that possibility at this stage. Where all of those matters take us is that it is the father’s position that where, until now, the mother did not appear to have embroiled X in her deception and her fabrications, the mother is now doing so. The father asserts that that is the very circumstance that Dr F was apprehensive might occur as a result of the mother’s unspecified personality disorder. The father says that Dr F’s concerns have come to fruition and recent events confirm that X has now been embroiled and placed at the centre of the mother’s concerning and deceptive behaviour. At this juncture, I am satisfied that the events of the last three weeks are deeply troubling and concerning, and that X appears to have been unnecessarily exposed to questioning by the mother, by the GP and by a police attendance. That questioning could not, on any view, be in X’s best interests and has the potential to cause her psychological harm.
In all of those circumstances, and while I will give longer consideration to the appropriate interim parenting arrangement pending trial, it is my considered view that at this juncture, pending the delivery of my reasons in relation to the longer interim arrangements, that there must be a change of care for X. Lest it not be clear, my concern at this juncture is that in recent weeks, X has been exposed to psychological harm and I am satisfied that there remains a risk that if unattended, X would continue to be exposed to psychological harm in the mother’s care.
I therefore consider it appropriate and in X’s best interests that, pending the delivery of judgment, X ought live with the father. Can I indicate that it is my intention to bring the matter back next week for delivery of judgment in relation to the father’s Application in a Proceeding filed 23 August 2023 and the mother’s Response filed 3 October 2023. The period of time that I propose to have those arrangements in place are not lengthy, and it is at that juncture where I will give some consideration to the mother’s time spending and/or living arrangements and make orders. I do not consider, today, that I am in a position to come to a final view about the appropriate arrangements moving forward where the mother is concerned as I would like to reflect on the submissions made and the evidence now before the court.
In coming to the decision to change X’s primary living arrangements, I am mindful that last week, the mother, by consent, agreed to X living with the father during an intervening period pending argument in these proceedings, which commenced on Monday. This suggests that the mother does not consider X to be at risk of harm in the father’s care.
For all of those reasons, I make the following orders.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 25 September 2024
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