EVANS and DRAKE
[2021] FCWA 15
•10 FEBRUARY 2021
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: EVANS and DRAKE [2021] FCWA 15
CORAM: TYSON J
HEARD: 29, 30 and 31 MAY 2018, 1 JUNE 2018, 23, 24, 25, 26 and 27 NOVEMBER 2020
DELIVERED : 10 FEBRUARY 2021
FILE NO/S: PTW 965 of 2016
BETWEEN: MS EVANS
Applicant
AND
MR DRAKE
Respondent
Catchwords:
Family Law – Child related proceedings – Where there is one child, aged 6 years – Where the respondent is not the biological father of the child, but was led to believe he was – Where the child lives with the mother and presently spends supervised time with the respondent – Where the respondent seeks for the child to immediately live with him, and ultimately live in a shared care arrangement – Where the applicant seeks no orders for any time between the child and the respondent, but if the court considers time is in the child’s best interest, for the time to be supervised – Where there is high conflict between the parties – Where the respondent’s ongoing allegations and criticisms of the applicant, coupled with the litigation, impact on her mental health – Where the parties have no capacity to communicate and co-operatively parent – Where an Independent Children’s Lawyer and Single Expert Witness have been appointed – Where consideration is given to the impact on the applicant, if the child continues to spend time with the respondent – Best interests – Case turns on its own facts
Legislation:
Family Court Act 1997 (WA)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr Kearney |
| Respondent | : | Self-Represented Litigant |
| Independent Children's Lawyer | : | Ms Korzeniecka |
Solicitors:
| Applicant | : | Rattigan Kearney & Bochat |
| Respondent | : | Self-Represented Litigant |
| Independent Children's Lawyer | : | Platinum Legal |
Case(s) referred to in decision(s):
DL & W (2012) FLC 93-496
Donnell & Dovey (2010) FLC 93-428
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Yamada & Cain [2013] FamCAFC 64
TYSON J:
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Evans & Drake has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).
1 These proceedings concern [the Child], who is seven years old. The Applicant, [Ms Evans] and the Respondent, [Mr Drake], were in a short relationship, which ended in 2010. Despite their separation, Mr Drake and Ms Evans continued to live together until either June or July 2015, according to Mr Drake, or September 2015, according to Ms Evans.
2 Ms Evans gave birth to the Child [in] 2013. Mr Drake believed he was the Child’s father and Ms Evans supported that belief. [In] April 2016, paternity test results excluded Mr Drake as the Child’s biological father. Mr Drake is the only father the Child has ever known. The Child believed Mr Drake was his father, although there is now some controversy as to whether that remains his understanding.
3 Ms Evans considers [Mr Z] is the Child’s biological father. Mr Z has had no involvement in the Child’s life, nor has he participated in the proceedings. Mr Z told the Single Expert Witness, [Dr X], that he does not wish to be involved in the Child’s life. Ms Evans says she has recently had contact with Mr Z, who may now hold a different view.
4 Mr Drake and Ms Evans do not agree on the arrangements that are in the Child’s best interests. Central to their dispute, is who the Child is to live with.
WHAT ARE THE ORDERS SOUGHT?
5 After the conclusion of the evidence, the ICL handed up a Minute setting out the orders she sought. She proposes final orders be made, for the Child to live with Ms Evans and for Ms Evans to have sole parental responsibility for the Child. She proposes Mr Drake send cards and gifts to the Child for his birthday, Christmas and two other occasions each year, subject to Ms Evans determining whether they are child-focused and appropriate. If the Child expresses a wish to spend time with Mr Drake, she proposes Ms Evans contact Mr Drake and make arrangements for visits of not less than two hours, on terms and conditions to be agreed. If the Child wishes to have electronic or telephone communication with Mr Drake, then Ms Evans is to facilitate the contact.
6 The ICL proposes Ms Evans enrol the Child in one extra‑curricular team sport activity each summer and winter, and Ms Evans be injuncted from advising the Child about his biological father, pending input from a child psychologist. If Mr Drake spends time and communicates with the Child, she proposes he be restrained by an injunction from recording the Child and each party be restrained from denigrating the other party, or members of their family.
7 Ms Evans agreed with the ICL’s proposals, with one amendment. Ms Evans seeks if the Child spends time with Mr Drake, that it be supervised.
8 At the commencement of the trial, Mr Drake sought interim orders be made, for the Child to immediately live with him, spend alternate weekends with Ms Evans, with a gradual transition where the Child would ultimately live in a shared care arrangement. He sought the Child attend [Suburb A Primary School] and handovers occur at [Suburb B Police Station]. He proposed the Child and both parties continue to attend on their respective psychologists and Ms Evans complete a parenting program. Mr Drake also sought various alternative orders.
9 Following receipt of the ICL’s Minute, Mr Drake maintained interim orders only should be made. He seeks an order for the parties to have equal shared parental responsibility, for the Child to live with Ms Evans and spend alternate weekends, half the school holidays and special occasions with him. He proposes the Child return to reside with him by the commencement of school in 2021. He then proposes the Child spend alternate weekends, half the school holidays and special occasions with Ms Evans. In three years’ time, Mr Drake proposes the Child live in a shared care, week about arrangement, subject to the input of the psychologist, upon whom the parties are to consult. That psychologist was not named. Mr Drake seeks supervised handovers with [Social Service A]. He also seeks orders to enable his mother and stepfather to attend the Child’s school events.
WHAT IS THE LAW?
10 These proceedings are to be determined pursuant to the Family Court Act 1997 (WA). In deciding whether to make a particular parenting order I must regard the Child’s best interests as the paramount consideration. Section 85 of the Act provides that a parenting order in relation to a child may be made in favour of a parent of the child or some other person. The fact Mr Drake is not the Child’s biological father, is not an obstacle to parenting orders being made in his favour, if considered appropriate.
11 The presumption required to be applied is that it is in the best interests of the Child for his parents to have equal shared parental responsibility. Regardless of the application or otherwise of the presumption, if an order is to be made for the Child’s parents to have equal shared parental responsibility I must then consider if it is in his best interests to spend equal time and whether such an arrangement is reasonably practicable. I must, if I am not going to make an order for equal time, consider whether spending substantial and significant time would be in the Child’s best interests and reasonably practicable.
12 The Child’s biological father is not a party to these proceedings. I must, therefore, determine what is in the Child’s best interests based upon the legislation which refers to primary and additional considerations. I must also be guided by the objects of the Act and the principles underlying them.
13 In determining what parenting orders will be in the best interests of the Child, I am required to consider the matters set out in s 66C of the Act. The Full Court in Yamada & Cain [2013] FamCAFC 64 acknowledged that parenthood is centrally important to a decision as to what is in a child’s best interests, and that the primary considerations, under s 60CC of the Family Law Act 1975 (Cth) do not apply to non-parents. The Full Court noted it was not parenthood, per se, which is crucial to the best interest of the child, but rather parenting and “the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders”.[1]
[1] Yamada & Cain (supra), at [27].
14 The Full Court in Yamada & Cain (supra) approved the comments of the Full Court in Donnell & Dovey (2010) FLC 93-428 where they stated:
In our view, there can be no doubt that s 60CC(2)(a) has no application to a person who is not a “parent”. This is so because the paragraph refers only to “parents”, and there is no extended definition of that word – save for the one incorporating adoptive parents (and query the potential application of s 60H). However, that fact does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.
We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent…[2]
[2] Donnell & Dovey (supra), at [101]-[102].
15 Pursuant to s 70A of the Act, when making a parenting order, the Court must apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. That presumption only applies between parents. Ms Evans presently has sole parental responsibility for the Child, pursuant to interim orders.
CONDUCT OF THE TRIAL
16 Mr Drake was a self-represented litigant. I explained the trial procedure to him. I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants.[3] I applied those guidelines during the course of the proceedings. I am satisfied the trial was fair and Mr Drake was able to fully participate. Mr Drake was well prepared. He asked a number of relevant questions and conducted himself appropriately. He was respectful and polite with the Court, and in his cross‑examination of Ms Evans and each of the witnesses.
WHAT IS THE EVIDENCE RELIED UPON?
[3] And the associated discussion contained in Re F: Litigants in Person Guidelines (2001) FLC 93-072 at [209] to [253].
17 Ms Evans relied upon her affidavits filed 6 November 2017, 13 November 2019 and 2 November 2020, the affidavits of [Mr Y] filed 1 March 2018 and 2 November 2020, [Ms W] filed 8 May 2018 and [Ms V] filed 8 May 2018.
18 Mr Drake relied upon his affidavits filed 25 July 2019, 30 July 2019, 6 November 2019 and 31 October 2019, together with the affidavits of [Ms U] filed 5 November 2019 and 31 October 2020 and [Mr T] filed 5 November 2019.
19 The parties relied on three affidavits of Dr X filed 28 July 2017, 23 May 2018 and 3 December 2019, together with the affidavit of the ICL filed 14 August 2019. A number of documents were tendered by way of exhibits. A number of witnesses attended pursuant to subpoenas issued by the ICL.
WHAT WAS AGREED?
20 At the conclusion of the trial I made the following interim orders by consent:
(a)[Ms Evans] enrol [the Child] in [Social Service A’s] [parenting] program, with the ICL to provide the reports of [Ms S][4] and [Dr X] to the Child’s counsellor.
(b)Restraining [Ms Evans], on a without admission as to needs basis, from advising [the Child] about his biological father until such time as she has engaged a child psychologist for guidance.
(c)[Ms Evans] continue to engage with [Social Service A] for therapy, as recommended by her therapist.
(d)[Ms Evans] enrol and complete [Social Service A’s] [other] parenting program.
[4] A clinical psychologist the Child attended on five occasions: 27 June 2018, 11 July 2018, 8 August 2018, 29 August 2018 and 25 October 2018.
21 I was satisfied those orders were in the Child’s best interests and supported by the available evidence.
THE PARTIES AND THE WITNESSES
22 Ms Evans is 44 years of age and lives in [Suburb C]. She is presently unemployed. She lives with her partner Mr Y. Ms Evans and Mr Y have been in a relationship for over four years.
23 Ms Evans was previously in a 17-year relationship with [Mr R], which ended in 2008/2009. Ms Evans and Mr R have two adult children, [Mr Q] and [Mr P]. Ms Evans says her relationship with Mr R was marked by family violence, which culminated in her obtaining a Violence Restraining Order for her protection.
24 Ms Evans presented as a vulnerable person. She was frank and direct in her evidence. Ms Evans deposed she was exhausted by the ongoing accusations made by Mr Drake and his family, and the court proceedings. She presented as deeply hurt by Mr Drake limiting her time with the Child, explaining she felt she was “grieving for a child that was still here”. Ms Evans was candid, saying she did not trust Mr Drake or his family.
25 Ms Evans was visibly upset at Mr Drake calling her a bad mother and the claims that she was unable to care for the Child. Ms Evans described the “ongoing pick, pick, pick” by Mr Drake, his mother and stepfather, and the constant “put downs” over an extended period, made her believe she was a poor parent. Ms Evans has worked hard to maintain her mental health. She is taking medication and consulting with a counsellor when she needs additional support. She explained she had already parented two boys and she was parenting the Child to the best of her ability.
26 Ms Evans maintained her concerns that the Child was at risk from Mr Drake and his family. She expressed her fears if the Child were to spend unsupervised time with any of them. Ms Evans said the current arrangements for supervised time made her feel anxious, and she was constantly worrying about what further allegations would be levelled against her. Ms Evans presented as nervous, emotional and sensitive. I consider she was an honest witness.
27 Ms Evans maintained that Mr Drake had denigrated her during supervised visits, based on comments the Child made to her. I accept the evidence of [Ms O][5] that no such comments had been heard by the supervisors.
[5] Who is a supervisor from Social Service A.
28 Ms Evans was initially dismissive of the benefits therapy would provide for the Child, however, to her credit, when she heard the evidence of Ms S and Ms O, Ms Evans agreed to the Child doing so. Ms Evans expressed she felt if the Child attended counselling, that was suggestive of some failure on her part as a parent. Ms S was clear and consistent in explaining that was not the case. I agree.
29 Ms Evans was dismissive of sharing information with Mr Drake when the Child saw health professionals. It was clear Ms Evans continues to feel persecuted by Mr Drake. She is concerned that any information she provides to Mr Drake, will be used against her. For the reasons that follow, some of her concerns are reasonably held.
30 I consider Ms Evans was unrealistic and naive in terms of how she would manage the introduction of Mr Z into the Child’s life, assuming that he is the Child’s biological father, noting paternity testing has not occurred. To Ms Evans’ credit, having heard the professionals’ evidence, she agreed to the injunction proposed by the ICL to obtain psychological input, before raising the issue with the Child.
31 Mr Y is Ms Evans’ partner and works as a construction worker. He was previously married and has two children. Mr Y listened carefully and was considered in his responses. While Mr Y was strongly supportive of Ms Evans, I consider that he gave his evidence in a straightforward and direct manner. He was candid in explaining how he thought Ms Evans could improve her parenting, the difficulties he experienced with Mr Q, and his views about Mr Z, which differed to those of Ms Evans. Mr Y loves the Child and has been actively involved in the Child’s life, since the Child came into Ms Evans’ care. He and Ms Evans intend to marry when his divorce is finalised.
32 In around March 2019, Mr Y posted on [social media] as follows “Angelic five‑year‑old turns into spawn of lucifer in only one minute of trying to select a toy at Kmart. Punishment…no toy and now, a scene from the exorcist. Want a bath little man? I have plenty of h2so4”.
33 Mr Y accepted his post[6] was a misguided attempt at humour. He apologised to Mr Drake and his family for any hurt or distress caused. I considered his apology was genuine. The post was inappropriate, and understandably, caused Mr Drake concern.
[6] Annexure “Paragraph 40A” of Mr Drake’s affidavit filed 31 October 2020.
34 I accept Mr Y’s evidence that he and the Child have a good relationship. Mr Y does not hold any concerns about Ms Evans’ capacity to care for the Child. He described the “leaps and bounds” the Child had made since coming into Ms Evans’ care, while being frank about the difficulties they initially experienced with the Child’s behaviour. Mr Y acknowledged the Child had voiced wanting to spend time with Mr Drake, which had reduced in recent times. Mr Y said the Child plays on Ms Evans’ sensitivities and on occasions, she panders to him more than she should, which he said was improving.
35 I found Mr Y to be an impressive witness, who is clearly a source of significant support for Ms Evans.
36 Mr Drake is 52 years of age and lives in Suburb A, close to his mother, Ms U and stepfather, Mr T. Mr Drake [receives a pension].
37 Mr Drake loves the Child and misses him. He desperately wants the Child returned to his care. To his credit, Mr Drake made some concessions against self-interest. Mr Drake accepted the Child had settled in to living with Ms Evans, and that the Child liked Mr Y. Mr Drake accepted it was extremely unlikely he and Ms Evans could ever “get on”, unless there was counselling.
38 In Mr Drake’s opening statement, he explained he understood Ms Evans felt attacked and criticised by him and his family. He accepted Ms Evans was upset, and expressed his desire was to find a way they could “get on”. He made repeated expressions of remorse and regret. Mr Drake said following a deep search in the two weeks prior to trial, he realised he needed to be more peaceful and respectful in his dealings with Ms Evans. He said while he and Ms Evans held different opinions about parenting, the “way I went about it was not healthy”. Mr Drake apologised to the ICL for accusing her of negligence, explaining he overreacted when he learnt the Child was not receiving ongoing counselling.
39 I accept Mr Drake is remorseful for his previous conduct videoing the Child. Having heard his evidence, I am not satisfied Mr Drake fully appreciates why his actions were inappropriate. Unfortunately, Mr Drake has not addressed these matters with [Mr N], his treating psychologist. I make no criticism of Mr N, who did not consider that to be the purpose of his referral. Regrettably, it means Mr Drake continues to hold the view that his actions were not emotionally or psychologically abusive to the Child.
40 Mr Drake presented with some rigidity and concrete thinking. There were also many examples of inconsistencies in Mr Drake’s evidence. For example, Mr Drake expressed that he had made mistakes, then sought to justify and defend his actions. Mr Drake said he had forgiven Ms Evans and he wanted her to forgive him, then continued to criticise Ms Evans, Mr Y and Ms Evans’ parenting.
41 Mr Drake’s most recent trial affidavit, focused on his complaints and criticisms of Ms Evans, the ICL, Dr X and the Court proceedings. His evidence focused on trying to prove how unsuitable Ms Evans was as a parent. When Mr Drake was asked to describe three positive things about Ms Evans, he said she loved the Child, clothed him, fed him and kept a roof over his head. Mr Drake was unable, or unwilling, to make any concessions or to give Ms Evans any credit for the positive gains the Child has made since being in her care.
42 Mr Drake confirmed he did not trust Ms Evans and accused her of lying. Mr Drake accepted none of his affidavits made any positive remarks about Ms Evans or her parenting.
43 Ms U is retired. She spoke highly of Mr Drake and is clearly supportive of him and his application. She holds a negative view of Ms Evans. She too is saddened about the loss of contact with the Child. She says, and I accept, she considers the Child to be her grandson and she loves him and desperately wants to be in his life.
44 Ms U was highly critical of Ms Evans, Mr Y and the Single Expert. She accused Dr X of having lied twice. When I asked what the lies were, she said Dr X attended Mr Drake’s home in 2017 for seven minutes only, not 25 minutes as she claimed. Ms U was unable to recall the other alleged lie. Ms U does not consider Mr Drake has ever harmed the Child.
45 Mr T is also retired. He is strongly supportive of Mr Drake and is critical of Ms Evans. He considers the Child was removed from Mr Drake’s care because “unfortunately he was doing the right thing, it was the wrong thing for the court”. Mr T maintained that the Child was not coerced or pressured to make comments about wanting to live with Mr Drake.
46 I consider both Ms U and Mr T gave their evidence as they saw it. However, in my view, their evidence was tainted by the highly negative views they hold of Ms Evans, and their perception that Mr Drake has been treated unfairly.
The professional witnesses
47 The parties and the ICL were each granted leave to cross-examine the professional witnesses. They each gave evidence, after the other witnesses.
48 Ms O is the supervisor at Social Service A’s Child Contact Service. She has a Master in Counselling and an undergraduate Bachelor of Psychology. She has been working with Social Service A for the last six – seven years.
49 Ms O has been involved with the family from 2018 when supervised visits commenced between the Child and Mr Drake. She attended trial by way of telephone (by consent), pursuant to a subpoena issued by the ICL.
50 Mr N is a clinical psychologist, who has been treating Mr Drake since 2018. He attended trial pursuant to a subpoena, issued by the ICL.
51 Ms S is clinical psychologist who saw the Child. She also attended trial pursuant to a subpoena. I consider they each gave their evidence in a professional and helpful manner. I will return to their evidence later in these Reasons.
52 Dr X is the Single Expert Witness. She was appointed pursuant to orders made by consent on 2 March 2017. Dr X is a registered clinical psychologist and has a Bachelor of Psychology, a Master of Applied Psychology and a Doctor of Philosophy. She has worked as a psychologist since 1995. Dr X’s qualifications and experience were contained in pages two – three of her first report.
53 Mr Drake was highly critical of Dr X. He accused her of being biased, untruthful, “very willing to mislead the court”, prepared to “go to extraordinary lengths to trivialise [Ms Evans’] breaching of court orders”, and “falsely accuses me of trying to control [Ms Evans]”.[7] He suggested Dr X was guilty of “Criminal Conduct”,[8] and she had acted “unprofessionally and unethically and has engaged in criminal conduct”.[9] He maintained Dr X was unreliable and suggested he should have permission to report Dr X to the appropriate regulatory board for further investigation and action.[10] As a result of his criticisms, Mr Drake suggested no weight be attached to Dr X’s evidence.
[7] Paragraphs 41, 42 and 49 of Mr Drake’s affidavit filed 31 October 2020.
[8] Paragraph 43 of Mr Drake’s affidavit filed 31 October 2020.
[9] Paragraph 47 of Mr Drake’s affidavit filed 31 October 2020.
[10] Paragraphs 46 – 47 of Mr Drake’s affidavit filed 31 October 2020.
54 Mr Drake cross-examined Dr X at length, both in 2018 and in 2020. It appeared Mr Drake’s complaints centred around a number of matters. I have not listed all of his complaints, nor do I consider it helpful to do so. I have carefully considered his complaints. The key complaints are set out below:
(a)Dr X reported in 2017 her visit to Mr Drake’s home took approximately 25 minutes. Mr Drake said the visit lasted seven minutes. Dr X said she had not recorded with precision the time she spent at his home. She was clear the visit was longer than seven minutes, but accepted 25 minutes was an approximation.
(b)Mr Drake disagreed with Dr X’s assessment of him. For example, at the home visit, Dr X described Mr Drake holding the Child like he was an infant and that Mr Drake was reluctant to put the Child down. Dr X said Mr Drake’s home appeared set up for a much younger child than the Child. Dr X described the Child as behaving very differently in Ms Evans’ home.
(c)Mr Drake said the Child was anxious and nervous at the home visit, because of Dr X’s demeanour, which required him to console and support the Child. Dr X rejected that she was in a hurry or had behaved in a manner that would have upset the Child. She explained she was there to complete an assessment and tried to engage with both Mr Drake and the Child, noting Mr Drake appeared reluctant to allow her to engage directly with the Child.
(d)Mr Drake suggested Dr X yelled, shouted and berated him in her assessment, when he set out his concerns about why the Child was unsafe in Ms Evans’ care. Dr X denied doing so. She acknowledged she tried to explain to Mr Drake, in response to his repeated concerns about Ms Evans’ mental health, that in her view, Ms Evans’ health did not prevent her parenting the Child. Dr X accepted that shouting at a client would be unprofessional, but consistently denied having done so.
(e)Mr Drake was critical of Dr X’s third report, which referred to him cancelling two appointments. I accept Mr Drake only cancelled one appointment. The first appointment, scheduled for 23 October 2019 was rescheduled by Dr X, after Mr Drake wrote, asking if he could record the session or have a third‑party present. Dr X did not agree and then made an appointment for 30 October 2019, which Mr Drake then cancelled on 29 October 2019.
(f)Mr Drake was critical of Dr X not conducting a further home visit in her updated assessments and for not contacting [Ms M]. Ms M had sworn an affidavit in support of Mr Drake. She was a parent whose child attended the same playgroup as the Child. Dr X explained she had limited funding from Legal Aid and in circumstances where the Child was not in Mr Drake’s care, she did not consider it critical to conduct another home visit. Dr X did not consider there was any merit in speaking with Ms M, nor was it her task to investigate every complaint raised by parties or to speak with any third parties they proposed. Dr X said Mr Drake was reluctant to share information with her and when she asked, he and his parents advised they had additional evidence they would adduce at trial. She accepted there was always more work that could be done as part of any Single Expert assessment, but a balance needed to be struck between the funding available, the desire to publish a report in a timely manner, and the issues in the case.
(g)Mr Drake complained he had insufficient time to complete the questionnaire requested by Dr X in 2017, and suggested being rushed had negatively impacted on his results. Dr X explained usually an hour and half is allocated to complete the questionnaire, Mr Drake had more time afforded to him and while he had to leave to collect the Child, she did not consider his results were unreliable, if Mr Drake felt rushed.
(h)Mr Drake maintained that Dr X had not taken seriously his concerns about the Child’s safety in Ms Evans’ care. She denied doing so and set out at some length, the enquiries she had made about Ms Evans’ mental health, including her interviews with Ms Evans, her inspection of Ms Evans’ medical records, speaking with [Dr L][11] and her recommendations Ms Evans undertake a psychiatric assessment, and the subsequent report that has been produced. Dr X said given Mr Drake’s concerns about the Child’s diet, his school attendance and the video games he played, she raised those issues with the Child during her recent interview, as well as inspecting the school’s records. Dr X did not consider there was any evidence to suggest the Child was being permitted to play inappropriate games. She agreed the Child could eat a wider range of fruits and vegetables. She considered the Child’s school attendance was low, but acknowledged, consistent with Ms Evans’ reporting, that the Child’s difficulties moving to live with her had likely impacted on his school attendance. Dr X observed most of the Child’s absences from school were authorised.
[11] A psychiatrist attended on by Ms Evans, who prepared a report dated 24 October 2017.
55 Having had the opportunity to consider the evidence carefully, including Dr X’s extensive cross-examination by the ICL, Ms Evans’ counsel and Mr Drake, I am not satisfied there is merit in Mr Drake’s complaints. I accept Dr X cancelled one appointment, which was later rescheduled. I accept Dr X did not record the time she spent at Mr Drake’s home for the first home visit precisely. Accepting those matters, I found Dr X to be professional, measured and balanced in her evidence. I did not consider Dr X demonstrated animosity towards Mr Drake or bias, nor was there evidence to support Mr Drake’s complaints that Dr X had “made up her mind” and was not interested in hearing his complaints. I found Dr X’s evidence to be clear, concise and very helpful.
56 In my view, Mr Drake’s complaints about Dr X were more centred on the fact Dr X’s recommendations did not support Mr Drake’s proposals.
WHAT ARE THE BACKGROUND FACTS?
57 Ms Evans and Mr Drake continued to live together after the Child was born. There is a significant dispute about who was his primary carer.
58 Mr Drake says that he was the Child’s primary carer as Ms Evans was disinterested and was suffering from postnatal depression. Ms Evans acknowledges she was diagnosed with postnatal depression but says Mr Drake would not allow her to care for the Child. She says Mr Drake was controlling, including preventing her from leaving the house with the Child and limiting the time that her family could spend with him.
59 the Child remained living with Mr Drake and spent time with Ms Evans at his home or supervised by Mr Drake’s mother. Mr Drake says the Child was at risk of harm because of Ms Evans’ mental health and it was for the Child’s safety that he insisted on Ms Evans’ time being supervised.
60 Mr Drake maintained that Ms Evans’ GP, [Dr K], recommended Ms Evans not spend unsupervised time with the Child after he was born. He claimed Ms Evans had expressed suicidal thoughts and articulated that she may harm the Child. Ms Evans acknowledged that she had expressed thoughts of self-harm and thoughts of harming the Child, but she never acted on them. Ms Evans said she immediately sought appropriate medical advice and her health had been well-managed. Ms Evans denied Dr K said her time with the Child needed to be supervised.
61 Dr K was not called to give evidence; however, his files were subpoenaed. The file notes recorded Dr K saw Mr Drake, Ms Evans and the Child [in] August and September 2014. Dr K’s notes [in] September 2014 recorded Ms Evans had resumed work, which Mr Drake did not agree with, and that Mr Drake did not want to leave the Child with Ms Evans. Ms Evans denied having harmful thoughts or that she was suicidal. Mr Drake saw Dr K on his own [in late] August 2014. Dr K’s file notes did not corroborate Mr Drake’s claims.
62 In early January 2016 the parties attended a conference and proceedings were shortly thereafter commenced by Ms Evans. When the matter first came before the Court, orders were made on an interim basis for Ms Evans to spend supervised time with the Child, on various terms. Ms Evans was permitted to attend the Child’s playgroup, with Mr Drake not to be present, unless invited by Ms Evans. Mr Drake continued to attend playgroup when Ms Evans was spending time with the Child, which caused some difficulties.
63 The Court received information from the Department of Child Protection and Family Support, as it was then known, indicating it had one initial inquiry into allegations the Child had been neglected in Ms Evans’ care. The Department did not consider there were any concerns to warrant their involvement and closed their files [in] April 2014.
64 An interim hearing was held in July 2016 and orders made in August 2016, for the Child to live with Mr Drake and spend time with Ms Evans on each Monday and Friday, supervised by either the maternal grandmother or [Ms J]. Orders were made for Ms Evans to continue to attend the Child’s playgroup. Additional orders were later made for other people to supervise Ms Evans’ time, including [Ms I].
65 The proceedings were adjourned, ultimately, after orders were made for the appointment of Dr X.
SINGLE EXPERT’S FIRST REPORT –JULY 2017
66 Dr X interviewed each of the parties and conducted home visits. She set out a list of the material she had received and the subpoenaed material she had read.
67 Dr X described the Child as more reserved and less outgoing with Mr Drake, whom she described as demonstrating an overprotective parenting style. In contrast, Dr X described the Child as outgoing, talkative and happy in Ms Evans’ care, observing him to be running around and playing. In her words, the Child appeared like a ‘different boy’. Dr X described being impressed with Ms Evans’ parenting style and how she provided an encouraging environment, providing safety but allowing the Child to play freely. Dr X considered Ms Evans’ home was set up with age-appropriate toys for the Child, while Mr Drake’s home was catered for an infant, or child of 18 months of age. At the time, the Child was around three and a half years of age.
68 The Child was not toilet-trained and was sleeping in Mr Drake’s bed. Mr Drake reported the Child was upset when returning into his care. Dr X acknowledged, given the circumstances and the different parenting styles, that the Child likely found it difficult to transition between Mr Drake and Ms Evans. She recommended Mr Drake complete parenting courses.
69 Dr X described Mr Drake as not supportive of the Child’s relationship with Ms Evans. In contrast, Ms Evans acknowledged the Child had a healthy, loving bond with Mr Drake. She considered Ms Evans would encourage contact between the Child and Mr Drake.
70 Dr X indicated Mr Drake’s lack of insight was problematic for future parenting. She recommended he access counselling. Dr X did not consider the Child was at risk of harm in either parties’ care.
71 Given Ms Evans’ history in terms of her mental health, particularly in the context of relationship breakdowns, Dr X recommended Ms Evans undertake a psychiatric assessment and continue to attend upon a psychologist.
72 Dr X recommended the Child spend increasing time with Ms Evans and, ultimately, return to her care full-time, subject to a positive psychiatric assessment and a future review.
AFTER PUBLICATION OF THE SINGLE EXPERT’S FIRST REPORT
73 Orders were made discharging the requirement for Ms Evans’ time with the Child to be supervised. The parties attended a late intervention Legal Aid conference, which led to the orders made by consent in January 2018, to which I have already referred.
74 Additional orders were made for the Child to attend speech therapy, for the parties to keep one another informed of the Child’s health and for each of them to complete a parenting course. Both parties were restrained from discussing the proceedings with or in the presence of the Child. Ms Evans was required to continue to attend upon her psychologist, [Ms H], to improve her self-esteem and to monitor her mood. Mr Drake was required to continue to attend upon his psychologist, [Ms G], for the purposes of reducing his stress and/or stress management, providing assistance in relation to parenting and developmental milestones of children, reducing his fears about Ms Evans’ mental health and assisting him to act in a supportive way and encourage the Child’s relationship with Ms Evans.
DR L
75 Ms Evans attended upon Dr L, a psychiatrist, who prepared a report [in] October 2017. Dr L summarised Ms Evans’ historical mental health issues. She confirmed Ms Evans had suffered from depression in 2010 in the context of an abusive relationship, which had improved with medication.
76 Ms Evans relayed to Dr L that she experienced a number of stressors during her pregnancy with the Child, which did not require psychiatric intervention. She had a difficult birth and the Child was born prematurely, requiring him to remain in hospital for around a month. After his discharge, Ms Evans reported Mr Drake would not allow her to care for the Child, he isolated her from her parents, and the complaints Mr Drake and his parents made about her parenting, made her feel worthless and unable to parent. Ms Evans advised when she had thoughts of harming the Child, she immediately sought help. She denied ever intending to harm the Child.
77 Ms Evans attended on her GP and was prescribed Escitalopram and Lorazepam. At one time, Ms Evans was prescribed Quetiapine. Ms Evans also attended group sessions for a year, and subsequently saw a psychologist. Ms Evans reported she had been diagnosed with [a mental health disorder], but she was unsure what it meant.
78 Ms Evans explained that after physically separating from Mr Drake, his refusal to allow her to spend unsupervised time with the Child, continued to impact on her mental health. She disclosed having fleeting suicidal ideations in 2015, grieving the loss of [family members] and being denied access to the Child.
79 Dr L noted that Ms Evans had continued to attend on her GP and take medication, until such time as she no longer considered it necessary. Ms Evans denied any suicidal ideations or further thoughts of harming the Child. Dr L noted Ms Evans’ health had improved with medication and ongoing psychotherapy. In her view Ms Evans’ mental health had stabilised and improved, despite being off medications since January 2017.
80 Dr L found Ms Evans remained well and from her history, she had experienced episodes of depression, which had been appropriately treated. Dr L opined that Ms Evans displayed traits of [a mental health disorder], which may result in low frustration tolerance and emotional dysregulation. Dr L considered Ms Evans’ health did not impact on her parenting, and recommended Ms Evans continue to attend monthly appointments with a psychologist and be reviewed in 12 months’ time.
ONGOING COURT PROCEEDINGS
81 In March 2018, the matter was listed for trial. On 20 April 2018, Mr Drake filed an application, seeking to vacate the trial and to suspend the Child spending Friday evenings with Ms Evans. Mr Drake asserted the Child was displaying “heightened anxiety … anger and distress at being forced to go”. Mr Drake also sought an order preventing Ms Evans from collecting and delivering the Child from kindergarten, asserting “the Child was anxious and very insistent that I be the only one to do it”.
82 Mr Drake’s application was listed to the status hearing, where the Court indicated there was not sufficient time to hear any argument about changes to the Child’s care. Mr Drake filed a further Notice of Risk on 24 April 2018, which was accepted notwithstanding it repeated concerns that had been previously raised and investigated. Mr Drake’s application to vacate the trial was dismissed. Mr Drake was given leave to issue further subpoenas.
SINGLE EXPERT’S SECOND REPORT –MAY 2018
83 Dr X set out the updated evidence and documents she had read, including Mr Drake’s Notice of Risk. Dr X conducted a home visit with Ms Evans and the Child only, explaining her focus was on assessing how Ms Evans was coping and what progress had been made. Dr X spoke with Mr Drake and Ms Evans by way of telephone. She also spoke with Mr Drake’s mother and Ms Evans’ psychologist.
84 Dr X found the Child to be a happy little boy and observed no signs of anxiety in Ms Evans’ care. She described Ms Evans’ interactions and parenting of the Child, as effortless. Dr X considered the Child appeared at ease in both Ms Evans and Mr Y’s presence.
85 Mr Drake told Dr X that the Child was exhibiting anxiety, Ms Evans had lied, and the Child remained at risk in her care. Mr Drake reported the Child was upset after visits, he was reluctant to attend and when he did return, he would often swear. Mr Drake said Ms Evans allowed the Child to watch violent programs and video games, which Ms Evans denied.
86 Mr Drake’s mother also reported to Dr X her concerns about Ms Evans’ mental health. Mr Drake’s mother considered Ms Evans’ depression and previous mental health struggles precluded her from spending more time with the Child. After speaking to Ms Evans’ psychologist and reviewing De L’s report, Dr X considered Ms Evans’ mental health was well-managed, and she was capable of caring for the Child. Dr X wrote, at paragraph 20, that:
Any further reference to mental health issues is likely to exacerbate the mother’s anxiety and cause unnecessary friction between the families. The [Court’s] recent order for the child to spend more time with the mother, in my opinion, has created further anxiety [for] [Mr Drake] and he remains reluctant to help the child transition over.
87 Dr X raised concerns about the lengths Mr Drake may go to, to prove Ms Evans was not fit to care for the Child and to reduce the Child’s time with her. Dr X saw no evidence to support Mr Drake’s concerns for the Child in Ms Evans’ care. Ms Evans’ psychologist reported Ms Evans felt stressed and was constantly worried, about Mr Drake’s ongoing allegations.
88 Dr X did not consider Mr Drake was promoting the Child’s relationship with his mother and cited a Mother’s Day card which the Child had given to her that read, “Dear [Ms Evans’ first name]”. Dr X said Mr Drake needed to proactively support the Child’s relationship with Ms Evans.
89 Dr X concluded Mr Drake remained critical of Ms Evans and observed the adversarial nature of the proceedings, and Mr Drake’s view that the Child should not spend more time with his mother, was problematic and causing further tension. Dr X considered the Child should transition into the care of his mother and spend time with Mr Drake, and hoped Mr Drake and his parents could find a way to encourage the Child’s relationship with Ms Evans, which was in his best interests.
2018 TRIAL
90 At the commencement of the trial the parties agreed that:
(a)The Child had a close and loving relationship with Mr Drake and Ms Evans and it is in his best interests for those relationships to be maintained.
(b)The Child was not of an age that his views, if known, should attach significant weight.
(c)There were no current family violence orders between the parties.
(d)It was in the Child’s best interests for the Court to make orders that are the least likely to lead to further litigation.
91 At the commencement of the trial, Mr Drake advised he had a number of videos he wanted to rely upon, none of which had been disclosed. Arrangements were made for the videos to be copied and viewed by each of the parties.
92 By consent, in Mr Drake’s evidence-in-chief, nine videos were played and accepted into evidence. The videos were filmed between 2017, [on] the Child’s birthday, and [mid-2018]. A number of videos were taken on the same day, such as [in] March 2018. Mr Drake deposed he had multiple videos dating back a number of years, which he suggested were far worse than those he had disclosed. By consent, the ICL provided the videos to Dr X, who viewed them prior to giving evidence.
93 The videos were each filmed by Mr Drake on his mobile phone. The Child was aware he was being filmed, and on a number of them, Mr Drake apologised to the Child for filming him. Mr Drake acknowledged the Child disliked being filmed, but that he had been advised he needed proof.
94 The videos were highly concerning. Mr Drake confirmed on many occasions he had decided to film the Child after already questioning him, saying he wanted the Child to repeat what he had said earlier, for the purposes of the video.
95 Mr Drake asked the Child a number of leading questions, such as, “Do you want to stay at mummy’s overnight? Do you want to go to mummy’s?” When the Child said no, his usual response was, “I know, mate” and “I’m sorry”. Other leading questions were asked such as “Do you still want me to pick you up from school all the time?… I’m trying… I don’t think mum will let me… I would like to pick you up earlier. I will as soon as I’m allowed”.
96 Mr Drake’s questions were repeated and closed. Dr X said, and I accept, the Child was being prompted to give Mr Drake the answers he wanted. When the Child said no to spending time with his mother, Mr Drake’s tone was agreeable and reinforced the Child’s negative comments. That was completely inappropriate and demonstrated a lack of insight into the Child’s emotional needs. Those comments were not supportive of the Child’s relationship with Ms Evans, nor did they assist the Child in transitioning between two homes, noting many of the videos were taken before the Child was due to go into Ms Evans’ care.
97 Mr Drake also made a number of comments to the Child, which made it clear that Mr Drake was not supportive of the Child spending time with his mother. For example, Mr Drake said “I’ll pick you up tomorrow at lunch time. I would like to pick you up earlier but I’m not allowed to”.
98 Despite the injunction that neither party is to discuss with the Child the Court proceedings, Mr Drake made comments to the Child in the videos such as:
I’m sorry I had to ask that question, mate, but I had to put it in the video because people keep saying that I’m lying…
All I’m trying to do is to convey your wishes, mate.
Unfortunately, there’s more changes coming soon next month.
99 Mr Drake filmed the Child standing over the toilet, after apparently having been sick. Instead of comforting the Child, Mr Drake filmed him. Mr Drake explained he did so to prove the Child was sick. Mr Drake did not send the video to Ms Evans. When Mr Drake told Ms Evans that the Child was sick, she accepted what he said.
100 There was very little in the videos to indicate Mr Drake was supporting or easing the Child’s transition to spend time with his mother. Mr Drake’s comments to the Child suggested it was the Child’s decision whether he spent time with Ms Evans. Mr Drake demonstrated no insight that the Child may say things to please him.
101 Mr Drake’s questioning placed the Child under unnecessary stress and pressure and divided his loyalty. The Child was not of an age or a maturity where he should be forced to deal with such matters. I found Mr Drake’s comments to the Child were likely to be highly confusing for him. Mr Drake also made a number of emotionally laden comments to the Child, such as, “You know I have to take you to see your mum or I will get into trouble… Do you really love me? Are you all right with me?”
102 Mr Drake’s tone and comments to the Child made it clear he was sorry the Child had to spend time with Ms Evans, he was trying to change it and that people did not believe him.
103 Dr X commented the videos did not demonstrate the Child was displaying any anxiety or distress, but simply that the Child wanted the filming to stop or to go to the park. She noted the Child did not volunteer information, but rather his answers were responsive to leading and repeated questioning by Mr Drake.
104 It is not known what transpired prior to the filming, or the content of the other videos Mr Drake said he had.
105 In light of the videos, Dr X expressed concerns about the Child’s emotional well-being in Mr Drake’s care. She recommended the Child live with Ms Evans and the Child’s time with Mr Drake be supervised. When asked about the impact on the Child not spending time with Mr Drake for a number of weeks, and if the time was supervised by an agency, Dr X voiced some concern, but suggested a period of no contact, might assist the Child to settle into Ms Evans’ care.
106 As foreshadowed by Dr X, Mr Drake’s fear of losing the Child led to an escalation of allegations in an attempt to reduce the Child’s time with his mother. I found the available independent evidence did not support Mr Drake’s allegations. I found Mr Drake had struggled to manage the Child spending increased time with his mother, and that his actions had not supported the Child’s relationship with his mother. I held concerns about the Child’s wellbeing remaining in Mr Drake’s care, in light of the contents of the video, his Notice of Risk and his evidence, which demonstrated Mr Drake lacked insight into the Child’s emotional and psychological needs. I found Mr Drake had not promoted the Child’s relationship with Ms Evans, which I found was a meaningful relationship and, in the Child’s best interests. The evidence supported a finding that Mr Drake had sought to undermine and sabotage the relationship between the Child and his mother.
107 I granted interim orders to immediately change the living arrangements for the Child. I delivered ex tempore reasons on 1 June 2018. I incorporate and adopt those Reasons.
EVENTS SINCE 2018 TRIAL
108 The interim orders provided for the Child to live with Ms Evans and to spend time with Mr Drake, on a supervised basis. Additional orders required Ms Evans to continue to attend upon her psychologist. Ms Evans was required to take the Child to see a psychologist recommended by the ICL, to assist him to manage the change of residence. Ms Evans was restrained by an injunction from allowing the Child to watch or play any games with adult-rated material. Both parties were restrained from denigrating the other parent.
TRANSITION INTO MS EVANS’S CARE
109 Ms Evans explained when the Child came into her care, he displayed difficult behaviours. He would swear and misbehave. He did not like being told no. He struggled to manage boundaries and called her and Mr Y a “fucking bitch”, and “mother fucker”. The Child displayed a number of regressive behaviours including in relation to toileting, being unable to tie his shoelaces and he insisted on being carried. The Child was often clingy and reluctant to leave Ms Evans. He would complain about having stomach-aches and headaches. He would say he did not want to spend time with Mr Drake.
110 Pursuant to the interim orders, Mr Drake initially had telephone contact with the Child. Ms Evans described the contact as problematic from the start. The Child was often reluctant to speak. Mr Drake became emotional and cried. Mr Drake said words to the effect that the Child “had to come and see him” and that Mr Drake had “lots of presents for him”. On 20 August 2018, the interim orders for telephone contact were suspended.
111 Following the hearing, there was an incident outside of Court between Mr Drake’s mother, Ms U, and his stepfather, Mr T, and the ICL. Ms Evans says Mr T and Ms U began shouting at her and her lawyer, which led to the ICL intervening. Ms U accused the ICL of lying to the Court.
112 Ms Evans described the Child as gradually growing in confidence and improving at separating from her, including to attend school. Ms Evans was then living with Mr Y, and her son Mr Q moved in. In January 2019, Ms Evans obtained her own rental accommodation with Mr Q and the Child, due to difficulties between Mr Q and Mr Y. She and Mr Y maintained their relationship and resumed living together in August 2020.
SUPERVISED VISITS BETWEEN THE CHILD AND MR DRAKE
113 Social Service A have supervised visits between Mr Drake and the Child between September 2018 and November 2020. Social Service A prepared two reports. The first report [in] January 2019[12] covered eight visits between September 2018 and December 2018. The second report [in] August 2019 covered visits between [late] December 2018 and [mid‑July] 2019.[13]
[12] Exhibit 7, Social Service A supervision report, January 2019.
[13] Exhibit 7, Social Service A supervision report, January 2019.
114 Ms O confirmed since the last report, Social Service A had supervised an additional 37 visits, the most recent [in] November 2020.
115 Ms O has personally supervised some visits, but otherwise oversaw the supervision provided by individual support workers. The visits occurred on a fortnightly basis, but were interrupted with COVID-19, which led to some telephone and video contact. Since [mid‑August] 2020 the visits have occurred on a monthly basis.
116 The supervision reports are generally positive in terms of Mr Drake’s interactions with the Child. Mr Drake was child-focused and responsive, encouraging of the Child and aware of his needs. The Child was affectionate, engaged with and bonded to Mr Drake.
117 While the Child was initially unsure at visits, he was consistently happy to see Mr Drake. The Child has become more outgoing and confident. At times, the Child has presented as anxious when Ms Evans has appeared anxious. At the end of visits, the Child has often expressed reluctance to leave, said he wanted to go home with Mr Drake and hung onto Mr Drake’s neck. It was unclear precisely when the Child had expressed those views and whether they were continuing at this time.
118 Ms O explained she considered the Child would benefit from therapeutic assistance for a number of reasons. Firstly, based upon her observations, in which the Child presented as anxious on occasions. Secondly, Ms Evans’ remarks that the Child had missed school, and often complained about stomach-aches. Thirdly, Ms Evans’ report that she struggled to get the Child to do things, for example, going to the doctor. Fourthly, from her observations, the Child struggled to adjust to the change in his living arrangements, and had frequently expressed wanting to spend more time with Mr Drake.
119 The supervisors had not observed Mr Drake making derogatory or demeaning remarks towards Ms Evans, nor had they heard the Child complain about his school, or express a desire to attend Suburb A Primary School. While Ms Evans had reported that the Child, at times, was reluctant to attend, the supervisors had not heard the Child make such remarks.
120 The supervisors did not have any major concerns in terms of Mr Drake’s interactions with the Child. They considered Mr Drake had improved his parenting over the visits, in part, assisted by the feedback and interventions provided. For example, on one occasion the Child poked his bottom, spread his cheeks, and spoke about bottoms, which worried Mr Drake. The supervisors explained that was age-appropriate and normal, from a developmental perspective. Mr Drake was recommended not to ask the Child so many questions, which he could find overwhelming and not to bring so much food, which again overwhelmed the Child with choices. Mr Drake was reminded on two supervised visits in 2018 not to speak about future arrangements, noting Mr Drake clearly found it difficult to manage the limited time.
121 Ms Evans asked the supervisors to ensure the Child was not given dairy or chocolate. The Child had a tantrum when Mr Drake said he was not allowed chocolate until he ate his sandwich. Mr Drake gave in, and gave the Child the chocolate. At a subsequent visit, Mr Drake brought a gingerbread man, which had smarties. When Mr Drake realised, he told the Child he had to remove the smarties and apologised. The Child snatched and ate one of the smarties, before Mr Drake put the other smarties in the bin. The Child cried and took some time to calm down. The supervisors recommended Mr Drake subtly remove the smarties, without making any comment to the Child.
122 On a number of visits, Mr Drake brought clothes for the Child, which Ms Evans refused to accept. Social Service A confirmed they did not consider clothes to be gifts and were happy for them to be provided. Ms Evans told the supervisors she would not allow any items Mr Drake bought for the Child to be taken home. Ms Evans considered Mr Drake buying clothes, undermined her parenting.
123 Mr Drake also frequently provided large amounts of food at visits. Mr Drake said he thought the Child could take the food home, to share with Ms Evans and Mr Y. It does not appear that was ever conveyed to Ms Evans, who again felt the food was excessive and sent the Child a message that she was not feeding him properly.
124 On two occasions, Mr Drake and Ms Evans passed one another in the carpark, seemingly when Mr Drake was early and Ms Evans did not follow the guidelines of the contact service. On one occasion, Ms Evans saw the Child, Mr Drake and the supervisor when she was [close by] and they came into her vicinity. Ms Evans found those occasions anxiety‑provoking.
125 Ms O said based only on her observations, the Child would benefit from spending more time with Mr Drake, including unsupervised visits for short periods of time. Ms O said Ms Evans was highly anxious about the Child spending time with Mr Drake, and there was a risk to the Child of becoming anxious, when exposed to his mother’s anxiety. Ms O predicted Ms Evans’ anxiety would likely increase, if the Child spent more time with Mr Drake and similarly, if that time was unsupervised.
126 Ms O considered each party would benefit from attending parenting courses, which Social Service A provide.
127 Ms O confirmed if the Court required ongoing supervised visits, they could only offer quarterly visits, otherwise they can provide supervised handovers on any day between Tuesday and Saturday and every second Sunday afternoon.
128 Ms O was balanced, considered and measured in her evidence.
MS S
129 The Child attended on Ms S on 27 June 2018, 11 July 2018, 8 August 2018, 29 August 2018 and 25 October 2018. She prepared a report at the request of the ICL.[14]
[14] Exhibit 7 report of Ms S dated 6 November 2019.
130 Ms S is a clinical psychologist. She has a Bachelor in Psychology, a Master in Clinical Psychology and primarily works with children.
131 Contrary to the correspondence from Ms Evans’ solicitors, the Child did not attend on Ms S on regular basis up until December 2018.[15] Ms Evans did not advise Mr Drake or the ICL that the Child had stopped attending on Ms S until May 2019.
[15] Correspondence from Ms Evans solicitors to the ICL dated 15 May 2019.
132 Ms Evans explained she struggled to take the Child to see Ms S due to the distance, cost and her work commitments. Ms S’s offices were around an hour away from Ms Evans’ home. Ms Evans was required to pay $150 for each session up front and then could obtain a rebate, for most of the sessions. Ms Evans commenced working in September 2018 from 7:30am until 5:30-6pm which made it difficult to get the Child to appointments. Any appointments after 6pm incurred an additional charge.
133 Ms S suggested it was not ideal, or developmentally appropriate, for the Child to be travelling long distances for late evening appointments. She acknowledged the out-of-pocket expense for each session was approximately $30, but the additional costs including fuel, and time, made the appointments financially onerous for Ms Evans. Ms S agreed the Child should stop attending sessions at that time, while maintaining her view that further therapeutic work was required.
134 Ms S reported the Child was initially reluctant to leave Ms Evans in sessions, but was becoming more comfortable being in the room on his own. She described the Child presenting as younger than his chronological age, with a slight delay in his speech. The Child was clingy and not wanting to separate from his mother, which matched Ms Evans’ reports. Ms S observed the Child demanded to be carried when the first session ended.
The Child’s living arrangements
239 The ICL submitted that the Child was a fortunate little boy. Mr Drake and Ms Evans dearly love the Child and each of them have tried their best, to provide for the Child’s needs.
240 Taking into account the primary and additional considerations, after careful reflection of the evidence, I am satisfied it is in the Child’s best interests to live with Ms Evans.
241 Ms Evans is now the Child’s primary attachment. The Child is doing well in his mother’s care, where he has made significant gains. He is now thriving and settled. To disrupt the Child’s attachment to his mother, given the instability in his life to date, would put the Child at risk, which is not in his best interests. I am satisfied that Ms Evans can provide for all of the Child’s needs, as demonstrated by the care she has provided to date.
242 After careful consideration of the evidence, I am not satisfied it is in the Child’s best interests to have any direct contact with Mr Drake, for a number of reasons. Mr Drake holds a poor view of Ms Evans and her capacity to parent. He has continued to criticise her parenting, and such criticisms are not warranted. As a result of his fixed and rigid view of Ms Evans, he is unable to promote the Child’s relationship with his mother. I am not satisfied that Mr Drake is able to meet the Child’s emotional needs and that the Child is at risk, if he is exposed to Mr Drake’s negative views, of both Ms Evans and Mr Y.
243 Ms Evans requires respite from the stress and anxiety of these proceedings, together with Mr Drake’s criticisms. The benefits to the Child having a relationship with Mr Drake, need to be weighed against the risk that contact has on Ms Evans, and her capacity to parent.
244 If the Child has contact with Mr Drake, Ms Evans’ capacity to parent the Child will be compromised. In circumstances where the Child derives significant emotional and physical support from Ms Evans, it is important that Ms Evans can be the best parent possible.
245 My observations of Ms Evans’ evidence confirmed her genuine distress about ongoing interactions with Mr Drake, and her fears about his ongoing contact with the Child. A negative impact on Ms Evans to continue to effectively parent the Child, cannot be in his best interests.
246 I do not consider Ms Evans’ stance to be vindictive. Instead, I found Ms Evans to be a vulnerable individual. She has experienced poor mental health. Her ability to continue to effectively manage her health, is not assisted by ongoing contact with Mr Drake and being exposed to his complaints about her parenting.
247 I carefully considered whether there would be benefit to the Child in spending supervised time with Mr Drake, on a quarterly basis. However, I have concluded that such an order is not in the Child’s best interests given my findings as to the impact that would have on Ms Evans, and by extension her capacity to care for the Child.
248 I am satisfied the orders proposed by the ICL, for Mr Drake to send cards and gifts to the Child are in his best interests. That will enable the Child to have indirect contact with Mr Drake. Ms Evans should screen the items, before they are provided to the Child. Such material may assist the Child’s interest in Mr Drake, where he was the Child’s primary carer in his early years. In the future, the Child may want to know more about Mr Drake.
249 The Child may choose to seek out Mr Drake in circumstances where he is old enough to make that decision, and feel safe in doing so. I am confident Ms Evans will support the Child should he wish to do so, where she is satisfied about the Child’s safety. Ms Evans will have the support of the Child’s counsellors, to assist her in managing these matters. It is appropriate Ms Evans make those decisions, given she will have sole parental responsibility for the Child.
250 I am not satisfied, given the Child’s age and maturity, that his future contact with Mr Drake should be dependent on his wishes. Any direct contact between Mr Drake and the Child will adversely impact on Ms Evans. In those circumstances, I cannot be satisfied such an order is in the Child’s best interests.
251 Given I do not propose to make orders for the Child to spend time with Mr Drake, I do not intend to make orders for Mr Drake to attend upon a psychologist. Subject to hearing from the parties, if Mr Drake intended to engage with a psychologist moving forward, I would consider it appropriate he have permission to provide the reports of Dr X, together with these Reasons.
252 I am satisfied the injunctions proposed by the ICL are appropriate and in the Child’s best interests. Given the evidence of Dr X and Ms S, I will order, on a without admission basis, that Ms Evans not advise the Child of the identity of his biological father, without first seeking advice from a psychologist. In any event, until such time as paternity testing is conducted, there remains a question about the Child’s father. I am prepared to make the order for the Child to attend a sporting activity, given Ms Evans’ consent and in light of the evidence of Dr X.
253 That is the extent to which I am satisfied that the arrangements are in the Child’s best interests. I understand Mr Drake will be bitterly disappointed with the outcome. The decision I must make is that which is in the Child’s best interests, as opposed to the individual needs of the parties.
PROPOSED ORDERS
Procedural
1All previous parenting orders be discharged.
Parental Responsibility
2The Applicant, [MS EVANS], have sole parental responsibility for [THE CHILD] born [in] 2013 (“[the Child]”).
Lives With
3[The Child] live with the Applicant.
Gifts / Cards
4The Respondent be permitted to send cards and or gifts to the Applicant’s residence for [the Child]:
(a)on [the Child’s] birthday;
(b)Christmas each year; and
(c)two other occasions each year.
5The Applicant be at liberty to read the cards and open the gifts to determine whether or not the said cards and gifts are child-focused and age appropriate.
[The Child]
6The Applicant forthwith do all such acts and things to engage [the Child] in the [Social Service A’s] program for his mental, emotional, and social wellbeing.
7The Applicant do all such acts and things to ensure that [the Child] is enrolled and attends one extra-curricular team sport activity each summer and winter season.
Therapy / Courses for Applicant
8The Applicant continue to engage with [Social Service A] for therapy in accordance with the recommendations of the therapist at [Social Service A].
9The Applicant forthwith enrol and complete the [Social Service A’s] parenting program.
Injunctions
10The Applicant be restrained by injunction and an injunction be hereby granted restraining her from:
(a)advising [the Child] that the Respondent is not his biological father; and
(b)advising [the Child] that [MR Z] is his biological father,
until such time as the Applicant has engaged a child psychologist for guidance in relation to how [the Child] should be best advised of the identity of his biological father.
11The parties be restrained by injunction and an injunction be hereby granted restraining the parties from denigrating each other and each other’s family to or in the presence or hearing of [the Child].
Ancillary
12The Applicant and Respondent keep each other advised of any changes to their residential address within 48 hours of any change.
13Subject to the institution of an appeal by any party or the Independent Children’s Lawyer, the Independent Children's Lawyer be discharged.
14All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from the date hereof.
15In relation to material tendered as an exhibit into evidence in these proceedings, on the expiration of 42 days from the date hereof, all material tendered as an exhibit into evidence, save and except for material produced pursuant to subpoena, be destroyed by the Court without notice to the parties.
16In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 14 and 15 above do not apply.
17The Application and Response be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
CD
Secretary
10 FEBRUARY 2021
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