FRANKLIN and FRANKLIN

[2022] FCWA 238

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: FRANKLIN and FRANKLIN [2022] FCWA 238

CORAM: BERRY J

HEARD: 1 SEPTEMBER 2022

DELIVERED : 10 NOVEMBER 2022

FILE NO/S: [REDACTED]

BETWEEN: MS FRANKLIN

Applicant

AND

MR FRANKLIN

Respondent

Catchwords:

PARENTING - Where both parties seek orders changing the child's living arrangements - Where it is in the best interests of the child that his living arrangements remain unchanged - Where the Court is asked to consider expediting the matter to trial - Expedition granted

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms Oakeley
Respondent	:	Mr Moser

Solicitors:

Applicant	:	Lavan
Respondent	:	Carlo Primerano & Associates

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

Banks & Banks (2015) FLC 93-637

Franklin and Franklin [2022] FCWA 24

Isles v Nelissen (2022) 367 FLR 338

Salah & Salah (2016) FLC 93-713

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 Franklin and Franklin has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the order pursuant to r 311 of the Family Court Rules 2021 (WA).

BERRY J:

Introduction

1Before the Court for determination is the Form 2 Application of the respondent father filed 26 July 2022 and the Form 2A Response of the applicant mother filed 18 August 2022. The Form 2 Application was listed for directions on 11 August 2022 and the matter was programmed for hearing on 1 September 2022, at which time judgment was reserved.

2The parties are engaged in a high-conflict dispute over the parenting orders which each party considers to be in the best interests of their son, [Child A], born [in] 2016.

3On 11 August 2022, when the father's application was programmed for hearing on 1 September 2022 and programming orders were made for that hearing, the mother had suspended the father's spend time arrangements with the child since 24 July 2022, which existed pursuant to paragraph 7 of the orders made 10 September 2020 and paragraph 1 of the orders made the 21 May 2021, by which the child spends time with the father each week from 10.00am on Sunday until the following Wednesday morning when the father takes the child to school.

4When this matter was argued on 1 September 2022, the mother had resumed complying with the existing spend time orders and had done so since the Court's orders of 11 August 2022 (which included an order that, until further order of the Court, the existing spend time orders remain in full force and effect).

5The position of the Independent Children's Lawyer (ICL) at the hearing was that, while the mother continued to comply with the existing spend time orders, no change in the child's living arrangements should occur. However, if the mother continued to suspend the father's time without an order of the Court, then there should be an interim change of primary living arrangements, from the mother to the father, pending trial.

6The father applied for a recovery order and, until further order, all previous live with and spend time orders be set-aside, the father have sole parental responsibility for the child, the child live with the father and spend time with mother under supervision on designated terms. The mother applied for orders including that she have sole parental responsibility for the child, all previous spend time orders be discharged and the child live with mother.

7For the reasons which follow, the Court intends to make procedural orders programming the matter for an expedited trial and otherwise dismissing each party's application. On 3 February 2022, the Court made orders and delivered reasons for decision, in which a prior application to expedite the trial, made by the mother and supported by the father, was refused.[1] For the reasons which follow, the Court is satisfied that circumstances have sufficiently changed since the delivery of that judgment to now justify the order for expedition.

Immediate background to the father's application up to the hearing on 1 September 2022

[1] [2022] FCWA 24 at [77] – [78], per Duncanson J.

8On Saturday 23 July 2022 at 7.21pm, the mother sent an email to the father and his solicitors in which she stated, among other things, that (underlining added):

due to continued disclosures, I will not be facilitating any spend time. An application to the Court is being prepared and a sealed copy will be served on all parties once accepted. To avoid any disruption to [Child A's] schooling, may I request you sign and return the attached letter of consent to the school principal [Ms M]. . . by 8:30am Monday 25 July (copying me into this correspondence)?

9The proposed letter of consent for signature by the father, directed to Ms M, indicated that the mother was responsible for drop-off and pick-up of the child at school from Monday to Wednesday mornings, effective Monday 25 July 2022, noting that "This is during the time the child usually spends with the father, [Mr Franklin] , and is agreed until further notice."

10The father responded to the mother's email on the same evening, Saturday, 23 July 2022 at 8:56pm, in following terms (produced verbatim):

[Ms Franklin]

I will NOT be signing your letter you have sent to me at 7:23pm Saturday 23rd july, the WA family court orders are clear of my time with [Child A] (10am Sunday morning until 8:45am Wednesday morning every week 42% custody)

[Ms Franklin] YOU ARE required to abide by the current WA family court orders, I will be attending [handover location] tomorrow morning at 10am inline with those family court orders to pick up [Child A], if you do not attend handover sunday 24th july you will be in breach of the current WA family court orders.

Please note if you withhold [Child A] from me or from school on my days an immediate form 4 recovery order will be lodged for full custody based on your relentless fabrications and ongoing grooming and coaching of [Child A]

[Mr Franklin]

11The father's solicitors wrote to the mother on 25 July 2022, requesting that she comply with the existing spend time orders and advising that the father would be attending [handover location] on Monday 25 July 2022 at 5.00pm for handover, in circumstances where the handover time was meant to occur on Sunday 24 July 2022 at 10.00am. The mother was put on notice that if she did not hand over the child at this time, then the father will make an urgent application to the Court seeking appropriate relief.

12Despite the underlined content of the mother's email to the father on 23 July 2022, the relevant terms of which are set out earlier in these reasons, the mother did not lodge or seek to lodge any application with the Court by 11 August 2022, despite not being served with the father's Form 2 Application and supporting affidavit until 10 August 2022 (when it was processed for filing, after being lodged with the Court on 26 July 2022).

Composition of the evidence

13The Court has considered the evidence relied upon by the parties, comprising affidavits from the father affirmed 26 July 2022 and 19 August 2022 and from the mother affirmed on 17 August 2022, as well as the other material referred to in these reasons.

Background facts

14The Court refers to and adopts the reasons given by Duncanson J on 3 February 2022, which sets out the relevant background, as follows:[2]

[2] Ibid, [1] – [11].

1.[Ms Franklin] the mother and [Mr Franklin] the father are unable to agree about the living arrangements for their son, [Child A] pending trial. [Child A] is five years of age.

2.The parties commenced a relationship in 2015. The parties separated finally in June 2020. [Child A] was born [in] 2016. The mother has a daughter from a previous relationship, [Child B] aged 14 years.

3.On 10 September 2020 orders were made for [Child A] to be returned to the care of the mother after she applied for a recovery order. It was further ordered that [Child A] spend time with the father each week from 10.00 am Sunday to 5.00 pm Tuesday.

4.The mother deposed that in November 2020 [Child A] made a statement that he had been sexually abused by his uncle,[Mr A].

5.On 30 November 2020 an order was made restraining the father from allowing [Child A] to have any contact with [Mr A].

6.The mother deposed that [Child A] made further disclosures and in April 2021 she informed the father that she would not facilitate time between [Child A] and him until the report of the single expert witness was produced.

7.On 21 May 2021 the Department for Communities provided a memorandum to the Court. The memorandum confirmed the "no action warranted" response provided to the Court on 6 January 2021 in relation to the notice of risk filed by the mother.

8.The memorandum stated that on 8 April 2021, the Department received a child protection referral with neglect and sexual abuse concerns for the children. The memorandum noted [Child A] had been taken to hospital by the mother, who alleged he had been "drugged" by the father. The memorandum noted it was the Department's assessment that the allegations were fabricated.

9.The father applied for a recovery order. The mother inspected documents produced by the Department of Communities. On 21 May 2021 orders were made by consent providing that the time [Child A] spends with the father pursuant to orders dated 10 September 2020, be reinstated and extended to the commencement of kindy at 8.30 am or [Day Care] at 9.00 am on Wednesday morning each week.

10.[Mr B], psychologist was appointed single expert witness. He provided a single expert report dated 19 August 2021. He provided answers to questions asked by the mother dated 1 October 2021.

11.The father deposed that the mother's allegations about the sexual abuse of [Child A] are fabricated. He described her allegations including those that he had drugged [Child A] as "sickening".

15For the purpose of contextualising the issues now presented to the Court for consideration, the following further paragraphs from the reasons given by Duncanson J on 3 February 2022 are set out below:

37. The Department of Communities and the Child Abuse Squad of WA Police viewed videos made of [Child A] by the mother in support of the alleged sexual abuse disclosures and they closed their investigation, and no charges were made.

…

47. After hearing the submissions of counsel for the parties, the ICL said her proposal was not changed. She described the parties' evidence as too conflictual and referred to various paragraphs of [Mr B's] report, including that where he described the parental relationship as remaining "incredibly toxic". The ICL referred to [Mr B's] statement [at 34] where he noted "[Child A] did not present with any obvious difficulties across the occasions I met with him or observed him with his parents".

48. The ICL referred to [Mr B's] report [at 35] where he stated:

35. I consider the conflict between the parents is adversely affecting the child by causing him confusion, anxiety, frustration and anger. My view is this has resulted in some aggressive acting out behaviour including at day care. At other times it has most likely resulted in regressive type behaviours including speaking in a baby voice or becoming quite clingy.

(as per the original)

49. The ICL referred to the last sentence of paragraph [67] of [Mr B's] report where he stated:

Given the considerable angst and ill feeling between the parents it is not a stretch that the parents would say negative things directly to the child or within earshot of the child about the other parent.

…

58. The parties each denied the allegations of the other.

59. [Mr B] was critical of the mother's "evidence gathering exercise" in relation to the allegation of [Mr A] sexually abusing [Child A]. [Mr B] referred to the emotional harm that has been caused to [Child A] (and [Child B]) because of the mother's propensity to video record. He reported the other main harm to [Child A] is the result of what the parents say to him about the other party.

…

71. The mother's counsel's submission that she engaged in "real reflection" suggests the mother accepts that she acted inappropriately gathering evidence to support her allegations. The Department of Communities found as set out above. It is to the mother's credit she has reflected upon this and deposed that she has taken steps to address the way she deals with [Child A's] ongoing allegations.

Expedition of the trial – relevant events since 3 February 2022

16The chronology of the following events is drawn from the evidence filed by the parties since 26 July 2022 and documents otherwise received into evidence pursuant to section 202K of the Family Court Act 1997.

17On 8 March 2022, [Dr D], consultant paediatrician, prepared a report following assessment of the child. This report was not in evidence but was referred to in the report of [Ms C] (see reference to her report dated 22 August 2022, below). Dr D wrote a further letter dated 5 August 2022, which is referred to below.

18By memorandum dated 18 August 2022, the Department of Communities (DOC) wrote to the Court recounting extensive previous contact with the child and the parents.[3] After referring to information provided to the Court on 6 January 2021 and 21 May 2021, DOC then provided particulars of contacts which occurred on 1 September 2021, 7 September 2021, 22 October 2021, 25 October 2021 and 10 December 2021. It is not clear to the Court whether all of these contacts, since 21 May 2021, were known to the Court on 3 February 2022, when its previous reasons were published.

[3] By the Court's direction, this memorandum was provided to the parties on 19 August 2022 and admitted into evidence.

19The memorandum then continued in the following terms (underlining added):

On 11 March 2022, the Department received a report of concern for [Child A] in relation to sexual abuse when in the care of [Mr Franklin]. The Department included the Child Abuse section of Western Australia Police in discussions around interviewing [Child A], who conducted a Specialist Child Interview where it was determined that [Child A's] interview provided no credible evidence to indicate sexual abuse had occurred. The Department determined that the concerns were similar to those reported previously and there were no disclosures from [Child A]. The Department closed the matter with no further action warranted.

On 12 May 2022, the Department received concerns reported by [Ms Franklin] relating to alleged physical and sexual abuse of [Child A] by [Mr Franklin]. As a result of these allegations, a Child Safety Investigation commenced to assess Physical and Sexual Abuse. This investigation remains ongoing, and no outcome or decisions have been finalised at this time.

The Department would note that there has been regular and ongoing contact with both parents within the context of the ongoing investigation. The Department currently does not hold significant safety concerns for [Child A] in the care of [Mr Franklin]; however, it has been suggested to [Mr Franklin] on several occasions that he consider safety planning measures (such as having another adult present during his contact) to provide a level of protection to him around the possibility of further allegations being made. However, this is not something which has been stipulated by the Department in relation to holding any concerns for [Child A] in the care of [Mr Franklin].

The Department will be able to provide additional feedback to the Court following completion of the Child Safety Investigation. The Department is unable to provide a timeframe however it is hoped this will be completed within four weeks and the report can be made aviilable to the Court upon its completion.

20On 4 May 2022, [Ms E], speech pathologist, of [Service B], provided an assessment for the child which had been obtained by the mother. The assessment recounts the results of an earlier assessment on 2 February 2022, in which the scores in all three assessment categories placed the child in the "borderline/at risk" range. Skills identified as requiring support were expressive language (in respect of both vocabulary and story-telling) and understanding (specifically, answering questions). Ms E observed that the child's speech was "consistently intelligible to the listener" and "broadly age-appropriate".

21In respect of assessment results for oral narrative, Ms E administered a retell of [a] story to assess oral narrative skills. Ms E notes that "the narrative task explores a child's ability to recall and retell information from a previously heard story in a logical sequence. It also assessed a child's use of vocabulary and sentence complexity." Ms E opines that the child "presented with moderate-significant difficulty in this area."

22In respect of assessment results for narrative comprehension assessment, Ms E concludes that the child achieved scores for literal and inferential questions following a story retell that were below the average range for a child of his age and that he would benefit from ongoing practice and scaffolding in this area.

23On 17 June 2022, Dr D, consultant paediatrician, completed a paediatrician report, which was referred to by the mother in her affidavit but was not otherwise in evidence, in respect of the child; according to the mother, Dr D recommended that the child would benefit from more understanding and consistency of care with both parents, consistent sleep routines and maintaining sleep hygiene, and reported to him that he covers his ears with the sound of firearms.

24On 30 June 2022 and 14 July 2022, the Court received correspondence in relevantly identical terms from the Department of Communities (DOC), in which the Court was notified that the child was currently subject to a Child Safety Investigation (CSI), and DOC was requesting a copy of the single expert witness report, to inform the assessment by DOC of the child protection concerns regarding the child, and to ensure consistent information is accessed across both the Court and DOC, in order to reach the best outcomes for the child.

25On 3 August 2022, [Ms F], Clinical Psychologist, of [Clinic A], wrote to [Ms G], Department of Communities, outlining a summary of her conversation with Ms G on 1 July 2022, after her client (the mother) provided her written consent for Ms F to do so. The letter summarises Ms F's views regarding the mother's mental health diagnoses and treatment, any assessment of or concerns for the mother's parenting capacity, any concerns for Child B's exposure to the child's disclosures, whether the mother's own reported sexual trauma history could influence the way in which she responds to the child's disclosures of abuse, and referring to Ms F's contact with DOC in December 2021 to express her concerns relating to the child continuing to make such disturbing disclosures to her mother, particularly of a new nature and related to a new perpetrator.

26On 5 August 2022, Dr D, consultant paediatrician, wrote to colleagues (named in the letter as "Clinical Psychologist" and "Speech Pathologist") referring to the multidisciplinary team [Developmental Disability] assessment for the child. Dr D writes, "I saw [Child A] in the company of his parents over a few occasions. [Child A] has complex presentation with dysjoint family dynamics, separation anxiety with mother, emotional dysregulation with challenging behaviours, speech and fine motor delay, [Neurodevelopmental Disorder] symptoms along with some [Developmental Disability] traits." The father denies meeting Dr D and deposes that he has never consented to him examining or assessing the child.

27On 5 August 2022, [Ms H], occupational therapist, provided a report in relation to the child commissioned by the mother, following assessment on 19 and 22 February 2022. The opening paragraph of the report, recounting background information, provides as follows (underlining added):

[Child A] lives with his mother, [Ms Franklin] and his older half-sister, [Child B] aged 14 years. His parents have been separated in [2020]. [Child A] is in the care of DCP and has current court orders in place. [Child A] was previously seeing his father from Sunday morning to Wednesday morning each week. This has recently changed owing to concerns for [Child A's] safety. [Ms Franklin] works as a manager and is a [medical professional] by profession. [Ms Franklin's] parents are involved and help out with. Presently, [Ms Franklin] and [Child A's] dad significant differences regarding [Child A's] development as well as styles of parenting.

28The two underlined sections are materially inaccurate.

29Ms H observes that the child presents with definite delays in his motor and visual motor skills. He also presents with processing and self-regulation difficulties which may present as inattention and distractibility which is being investigated further. He is awaiting multidisciplinary Developmental Disability assessment. Ms H opines that while the child's skill deficits are borderline for now, when they are coupled with his inattention and distractibility, the gap between him and his peers will continue to widen and eventually impact on all facets of his life. Ms H indicates that with intervention the child's development can be positively impacted and the need for intervention over time will diminish. Ms H notes that "[Child A] is a well-loved child and his mother and maternal grandparents are fully vested in [Child A's] development."

30On 9 August 2022, [Detective Sergeant J] of the Child Abuse Squad within WA Police, responded to the mother's request. He then stated:

Regarding [Child A's] disclosures concerning [Mr A], his disclosures relate mainly to physical abuse, such as being smacked. Regarding anything of a sexual nature [Child A] disclosed a potentially inappropriate incident however [Child A's] disclosure was not specific enough for investigators to investigate.

31On 11 August 2022, a further email was sent by Detective Sergeant J to the mother, in the following terms:

I have reviewed your email. I am not aware of any suggestion that you have lied, coached, fabricated or groomed [Child A]. Some of the questions to which you seek clarification lend themselves to speculation which is something I am not prepared to comment on. I will say that Police are no longer investigating this matter.

32On 11 August 2022, orders were made facilitating the provision of the single expert witness Report dated 20 August 2021 and Answers to Questions filed 4 October 2021 to DOC.

33On 22 August 2022, Ms C, Clinical Psychologist, further to the orders made on 11 August 2022, prepared a report pursuant to the orders made on 3 February 2022 for reportable family therapy. Ms C states that her role with the Franklin family has been entirely clinical and therapeutic. The child has attended 9 appointments between [early] April 2022 and [mid] August 2022, being brought to each appointment by each parent on an alternating basis.

34Ms C makes the following observations:

•the child has engaged positively in play-based therapy;

•she has observed the child with his parents and, based on observations, he has a close and loving relationship with each of them; he is frequently seen sitting on either parent's lap and reading or chatting; he has no evident difficulty separating from his parents at the beginning of sessions, indicating that he feels safe and settled in the therapeutic relationship and space;

•the child has made disclosures of physical and sexual abuse allegedly perpetrated by his father, during which he does not appear outwardly distressed; when he is accompanied to sessions by his father he seeks to whisper the disclosures; and after making the allegations he appears to avoid or become distressed by follow-up questions; he will either use the toilet, attempt to divert attention or intently state "no more talk, we play now";

•over the course of treatment, the child has made the following allegations of sexual and physical abuse perpetrated by his father:

(a)daddy wees in my mouth;

(b)daddy puts the car [lolly] in cream, then puts it in my bum and makes me eat it ... and it's yuck;

(c)daddy calls me a little bitch [the child changes his tone when saying "little bitch"];

(d)daddy calls me a knucklehead [the child motions to place his fist against his forehead];

(e)daddy tries to drown me in the bath [the child motions lying down in a bath]; and

(f)daddy puts his hand over my mouth [the child motions a cupped hand over his mouth];

•the content of the disclosures identified in the preceding dot points have been repeated by the child across several sessions; the content of these disclosures has not varied; the child has reported that the incidences of sexual abuse have occurred multiple times;

•during the child's most recent session [in mid] August 2022, he made the following new disclosures:

(a)daddy throws me into the wall;

(b)daddy ties me up with a rope in the car and carries me from the car;

(c)daddy sucks my plonky, daddy makes me suck his plonky, wee comes out; and

(d)daddy says, don't tell [Ms C];

•over the last four sessions the child has talked in increasingly violent and graphic ways of wanting to kill his father; these fantasies include shooting him, using a knife to kill him or burning him; the child reports his motivation for these acts is "coz of what he does to me";

•the child has a strong preference for his mother and sister over his father and he readily lists the things he enjoys about his mother and requires significant prompting when asked the same things about his father;

•on 19 August 2022, the child said, "I have to go back [to his father] ...I haven't talked enough about what he does to me"; when Ms C inquired further, the child stated, "mummy said";

•the child is aware of parental conflict and said that his parents "are fighting for me" and that if they were friends, he would be able to move back and forth between them; and

•Ms C recounts treatment the child is receiving from Ms E, Ms H and Dr D; she notes that she is not observing him across a range of settings nor has conducted any diagnostic assessment with him.

Outline of the mother's case

35The orders sought by the applicant are summarised in the introduction to these reasons.

36The mother's counsel submitted that the issues before the Court were very complex and the single expert witness, Mr B, made plain that the child's attachment and security lay with his mother. She submitted that any removal of the child from her primary care needed to be cautious, careful and conservative, given the high conflict in the proceedings.

37She submitted that any removal of the mother at this stage of the proceedings would be a "serious knee-jerk reaction".

38She referred extensively to the report from Ms C and submitted that the child had less than average communication skills, was unlikely to be able to express himself appropriately if abuse were occurring and had Developmental Disability and Neurodevelopmental Disorder symptoms. The mother does not accept the father's evidence that the child is fine at his home. The child has well-documented developmental delays and is reporting abuse allegations to third parties.

39In her affidavit filed in support of her response, the mother relevantly deposes as follows, in respect of events at or around 3 February 2022 and following:

•she has followed the advice of DOC for over 12 months and the child has continued to make disclosures to her about sexual and physical abuse and re-enacted sexual and physical acts, "[d]espite shutting [Child A] down, ignoring him and redirecting the conversation";

•on 21 January 2022, she met with clinical social worker, [Ms K] from Service B, where the child was waitlisted for services since about August 2021; she told the mother that shutting Child A down was doing more harm than good, emotionally and psychologically; she told the mother to listen to what he was saying, acknowledge his feelings and reassure him, holding his emotions in the moment to provide comfort without further questions; she told the mother that trauma can often result in speech and other developmental delays;

•on 21 July 2022, when she met with the DOC, they agreed with the suggested approach of Ms K, being that she should recognise the child's feelings, provide him reassurance and not ask further questions;

•she has followed the advice of DOC and Ms K, but the child continues to make disclosures;

•she is not encouraging the child to make disclosures and acknowledges that by continuing to report the disclosures, she risks the child been removed from her primary care;

•in December 2021, the child reported to [Ms L], after school care worker at [Day Care B], "Why does Daddy keep weeing in my mouth, I hate it" and variations of this statement, on three and possibly more occasions during the care session, and on each occasion, Ms L sought to redirect his play; the mother annexes an "incident report" signed by Ms L dated 13 December 2021;[4]

[4] It is not clear whether this incident was referred to or relied upon in the argument heard on 31 January 2022 by Duncanson J.

•the child made specific disclosures, which the mother articulates, on 16 March 2022, 20 March 2022, 6 April 2022, 15 April 2022, 20 April 2022, 21 April 2022, 11 May 2022, 12 May 2022, 14 May 2022, 18 May 2022, 23 May 2022, 29 May 2022, 8 June 2022, 15 June 2022, 16 June 2022, 19 June 2022, 6 July 2022, 13 July 2022, 16 July 2022, 20 July 2022; the mother says these are only "a few examples of the ongoing disclosures and corresponding acting out behaviours being made by [Child A]";

•on 14 August 2022, the child woke in the morning and began gagging and then vomited in the bathroom sink - he spewed up bile; on the way to handover at handover location he said words to the effect of "why do I have to keep going";

•on 3 August 2022, Ms C advised the mother to validate the child's feelings and listen without asking any further questions;

•the mother is personally finding it difficult to facilitate time between the father child in the circumstances;

•the mental health of Child B is suffering from exposure to the child's disclosures and she is accessing support through her own clinical psychologist;

•the mother gives detailed reasons why she suspended the father's time of the child;

•the mother annexes particular reports from health professionals, which are discussed earlier in these reasons;

•there is significant ongoing conflict between the parties and the mother gives updated examples of this conflict in March and April 2022; and

•the current shared care arrangement is not working and the child is not coping, due to risks concerning the child's disclosures and behaviours.

Outline of the respondent's case

40The orders sought by the respondent are summarised in the introduction to these reasons.

41The father's counsel submitted the mother is manipulating everyone around her.

42He submitted that the child should continue to see Ms C. He submitted that the mother is trained but not practising as a medical [professional]. The father had no involvement in the engagement of the occupational therapist Ms H and the first paragraph of her report is grossly inaccurate and such information could only be given to her by the mother. Nor did the father have any engagement with the paediatrician or the speech pathologist. He submitted that the mother was untruthful deposing that she was seeking legal advice as at 23 July 2022, given it was obvious from disclosed emails that she was seeking legal advice much earlier that month.

43The father's counsel referred to the incongruent demeanour and behaviour of the child in the context of his statements disclosing the purported abuse and the child not wanting to talk with experts about details of the disclosures (both as to Mr B and Ms C).

44The father's counsel referred to the child's difficulties with story-telling and narrative structure.

45The father's counsel referred to Isles v Nelissen at [85] – [86], a unanimous decision of five members of the appellate division of the Federal Circuit and Family Court of Australia, which relevantly provides as follows:[5]

•the assessment of risk is an evidence-based conclusion and is not discretionary;

•the finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not;

•only the overall judgment, expressed in the form of orders made in the children's best interests, entails an exercise of discretion;

•that discretionary judgment, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one consideration; and

•findings of "unacceptable risk of harm" cannot be measured by the civil standard of proof and the existence of a mere possibility of harm, which is not probable, may in the circumstances of a particular case be too high to tolerate.

[5] Isles v Nelissen (2022) 367 FLR 338 at [85] – [86].

46These principles will be taken into account in orders made by the Court.

47In his first affidavit filed in support of his application, the father relevantly deposes as follows:

•since 23 July 2022, the mother failed to comply with the existing spend time orders;

•the mother is coaching and grooming the child to say things in the presence of third parties and she continues to make up false allegations of the child saying things to her;

•since November 2020, all investigations by WA Police and DOC were unsubstantiated and closed, regarding the allegations made by the mother and 'disclosures' of the child;

•on 7 July 2022, the father was notified by DOC about further sexual abuse disclosures of the child reported by the mother to WA Police on 12 March 2022, and the child was further interviewed by WA Police;

•on 22 and 23 May 2022, the father received further telephone communications from DOC, reporting further allegations made by the mother about him sexually abusing the child;

•on 7 July 2022, the father met with DOC and was advised that no further action would be taken;

•25 July 2022, the father was advised by a case worker from DOC that the mother now alleged that he had tried to drown the child in the bath on the last weekend when the child was in his care;

•the father disputes all abuse allegations against him;

•the mother has not engaged in any "real reflection" about her conduct [presumably a reference to her counsel's submissions to Duncanson J, reflected in Her Honour's reasons];

•as long as the mother continues to have unsupervised care of the child, she will continue to groom, coach and use him to assist her in fabricating evidence of disclosures of sexual abuse or violence allegedly perpetrated by the father against him; and

•the child is safe, healthy, calm and relaxed when he is in the father's care.

48In his response affidavit filed in support of his application, the father relevantly deposes as follows:

•the mother used the words "fucking dumb ass", "knucklehead", "disrespectful" and "smart ass bitch" towards her daughter Child B while the father was living with them;

•the mother used a "[shoe horn]" to whip Child B as a weapon of discipline;

•by email communications in early to mid-July 2022, the mother copied her lawyers into communications with DOC, seeking to arrange an appointment;

•the mother's advice, purportedly received from a clinical social worker Ms K, at Service B, on 21 January 2022, was not disclosed to him, until he read about it in her most recent affidavit;

•the father has not met with Dr D;

•the father attended at [Hospital A] [Unit A] to oversee the child being forced to undergo a rape kit, [in December 2020], and this was one of the worst days of his life; and

•the father met with three of the child's class teachers, and the school principal, on 18 August 2022, and was advised that they had received copies of various medical and other reports provided to them by the mother, including a speech therapy report, a paediatric report, an occupational therapy report, a referral for a Developmental Disability and a [sleeping medication] prescription; all the teachers expressed that the child described in the reports did not represent or match up with the child in their experience as a student in their class.

Outline of ICL's case

49This has been stated in the introduction to these reasons.

Relevant statutory provisions and legal principles

50It is preferable for litigants to conduct their parenting disputes by reference to the express provisions of the Family Court Act 1997.[6] In these proceedings, each parent is alleging that the child spending time or living with the other parent poses an unacceptable risk of harm. In these circumstances the Court is required to consider at least the following provisions of the legislation:[7]

•Section 66G;

•Section 66C(2)(b); and

•"abuse", "neglect" and "family violence", defined in section 5(1), as to "abuse", and section 9A, as to "family violence".

[6] Ibid, [56] – [59].

[7] Ibid, [58] – [59].

51Given these are interim proceedings, the Court is unable to make findings of fact and any findings must be couched with great circumspection.[8] The task of the Court in this matter is especially complicated by the number of mental health professionals involved with the child, the number of reports available, the involvement of this child with the WA Police Child Abuse Unit and the DOC, and the conflicting evidence of each party. This complicated evidence needs to be tested and explored at trial in order for factual findings to be made.

Best interests of the child

[8] Salah & Salah (2016) FLC 93-713 at [36] – [39].

52The Court is only required to address those considerations, on an interim basis, which are determinative of the outcome.[9] Both counsel focused their submissions on the child being exposed to an unacceptable risk of harm in the care of the other parent. The mother also referred to the evidence of the single expert witness, and the evidence of Ms C, clinical psychologist, in respect of the child's attachment to, and preference for, the mother over the father.

(i) Primary considerations

[9] Banks & Banks (2015) FLC 93-637 at [48], [50], [52].

53Based upon the evidence presently considered by the Court, and taking into account the circumspection with which the Court must couch findings on an interim basis:

•there is a possibility that at trial the Court may find that either parent poses an unacceptable risk of harm to the child, such that the living arrangements for the child require significant alteration;

•the Court is unable to find, on the balance of probabilities, that the father has abused the child at all, including in the various ways which have been disclosed to third parties and to the mother;

•the Court is unable to find, on the balance of probabilities, that the mother is coaching and grooming, or otherwise influencing, the child to say things in the presence of third parties and that she continues to make up false allegations of the child saying things to her;

•there is a possibility that at trial the Court may be able to make findings, on the balance of probabilities, about the matters raised in the previous two dot points;

•the mother is more likely to pose an unacceptable risk of harm to the child than the father, for the following reasons:

A.the inherent unlikelihood of some of the disclosures made by the child actually occurring;

B.the mother's repeated presentation of the child to different health care professionals;

C.the mother's repeated presentation of the child to WA Police and the DOC;

D.the mother's apparent influence on the child in the child seemingly linking the extent of his disclosures of abuse to not seeing his father, and the making of new disclosures of abuse, disclosed to Ms C on 19 August 2022 (recounted earlier in these reasons);

E.the disconnect between the child's emotional affect and demeanour considered at the time he is making the disclosures of abuse, as observed by Ms C;

F.the physically affectionate relationship observed between the child and each parent, as observed by Ms C, in the context of the father and the matters raised in points (A), (D) and (E) above; and

G.any "real reflection" engaged in by the mother since February 2022, has not led to any reduction in the matters raised in (A) – (F) above.

(ii) Additional considerations

54Based upon the evidence presently considered by the Court:

•the child is likely to experience significant distress, especially on a short-term basis, if he is separated from the mother; and

•the Court attaches weight to, and does not depart from, the findings made on 3 February 2022, to the extent that such findings are not relevantly affected by the events which have occurred since that date, as discussed earlier in these reasons.

Parental responsibility

55The Court is not satisfied that the best interests of the child are served by making any interim order for parental responsibility and the Court finds that it would not be appropriate in the circumstances presented by this case, discussed earlier in these reasons, to do so.

Discussion and disposition

56The Court has taken into account the matters raised earlier in these reasons, including the relevant statutory provisions and legal principles.

57The Court is unable to presently find, on an interim basis, that either party poses an unacceptable risk of harm to the child. This assessment may change if the mother again suspends the father's spend time arrangements pending trial.

58The parties must comply with the existing spend-time orders pending trial and the trial will be expedited.

Proposed orders

59For these reasons, and subject to hearing from Counsel for each party and the ICL, the Court proposes to make the following orders:

1.The proceedings be expedited to trial, with an estimated hearing time of 8 days, if practicable and subject to the consent of the list judge, in March 2023 or the earliest available date thereafter, and further subject to the matter being ready following allocation of a readiness hearing before the Honourable Justice Berry.

2.The parties and the Independent Children's Lawyer do forthwith confer and if practicable agree on the appropriate directions to give effect to the preceding order (the trial directions), including but not limited to the terms of reference to be provided to the single expert witness, [Mr B], clinical psychologist, and obtaining particulars of [Mr B]'s availability to provide an updated report and be available for an expedited trial.

3.By not later than 4:00pm on 17 November 2022, the parties must file and serve a minute of such orders as may be agreed as part of the trial directions.

4.In the event the parties and the Independent Children's Lawyer cannot agree on the trial directions, then by not later than 4:00pm on 17 November 2022, each party must file and serve a minute of orders sought by that party which is not agreed as part of the trial directions.

5.The proceedings stand adjourned until 23 November 2022 at 9:30am for the Court to make trial directions and allocate a readiness hearing.

6.The Form 2 Application, filed 26 July 2022, and the Form 2A Response, filed 18 August 2022, be otherwise dismissed.

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

DC

Associate

10 NOVEMBER 2022