FRANKLIN and FRANKLIN

[2022] FCWA 24

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: FRANKLIN and FRANKLIN [2022] FCWA 24

CORAM: DUNCANSON J

HEARD: 31 JANUARY 2022

DELIVERED : 3 FEBRUARY 2022

FILE NO/S: [Redacted]

BETWEEN: MS FRANKLIN

Applicant

AND

MR FRANKLIN

Respondent

Catchwords:

CHILDREN - 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 - expedition refused

Legislation:

Family Court Act 1997 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	Mrs R Oakeley
Respondent	:	Mr H Moser
Independent Children's Lawyer	:	Ms J Brinkley

Solicitors:

Applicant	:	Butlers Lawyers & Notaries
Respondent	:	Carlo Primerano & Associates
Independent Children's Lawyer	:	Legal Aid WA

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

Nil

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 orders pursuant to r 311 Family Court Rules 2021 (WA).

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.

2The 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.

3On 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.

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

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

6The 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.

7On 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.

8The 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.

9The 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.

11The 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".

THE ORDERS SOUGHT

12The mother seeks to discharge all previous spend time orders. She seeks an order that Child A live with her and spend time with the father each week from 2.00 pm Sunday to the commencement of school, or 8.30 am on Tuesday. Although, in submissions she proposed that Child A's time with the father commence at 12.00 noon on Sundays.

13The mother proposes orders for handovers. She seeks an order that the parties enrol Child A into play therapy through [Service A] and enrol him into a protective behaviours course there.

14The mother proposes that the parties confer with a view to agreeing a person to be appointed as Child A's clinical psychologist and she seeks various orders associated therewith.

15The mother seeks an order that the proceedings be expedited to trial.

16The father seeks to set aside previous live with and spend time orders. The father seeks an order that until further order he have sole parental responsibility for Child A and that Child A live with him. The father seeks an order that Child A spend time with the mother under supervision at a professional contact centre for up to six hours every Saturday, or otherwise as agreed by the parties in writing.

17The father seeks an order that upon the Court noting the undertaking of the paternal grandparents to pay school fees and all associated educational costs, he be permitted to enrol Child A at [School A] for the entirety of his pre-primary, primary and secondary education.

18The father seeks an order that the injunction restraining him from allowing Child A to have any contact with Mr A be discharged.

19Child A is represented by an Independent Children’s Lawyer, Ms Brinkley. The ICL proposed that there be no change to the existing live with and spend time arrangements and that those issues together with Child A's schooling are issues for trial.

20The ICL proposed that Child A be engaged with [Ms C], clinical psychologist for reportable therapy including protective behaviours if considered appropriate by Ms C.

21The ICL proposed orders as to the form of therapy and the documents to be provided to Ms C.

22The ICL's proposed minute was signed by the mother but not the father.

The mother's position

23The mother deposed that since the spend time orders were extended in May 2021, Child A has not been coping and the father's attitude towards her has made the current arrangements difficult. The mother deposed Child A continues to make sexually graphic statements that are concerning and statements about gun violence and she sets out examples of those statements in her affidavit affirmed 8 December 2021.

24The mother deposed that Child A, her daughter Child B and herself are affected by Child A's ongoing disclosures and that they are exhausted, and Child A is continuously upset.

25The mother deposed that Child A's behaviour has deteriorated and he has been aggressive to other children and to Child B at home. The day care has described Child A's behaviour as challenging at times and reported to the mother that he was swearing at day care. Child A has hurt other students during the year.

26The mother deposed Child A is overly affectionate and clingy towards her and has regressed at school. Child A often speaks in a baby voice.

27The mother wants Child A to see a psychologist. She seeks a change in the spend time arrangements and deposed she does so because Child A is not coping, and the father threatens to withhold him as a way of punishing her.

28The mother deposed to difficulties at handovers.

29The mother deposed she had attempted to communicate with the father but found it to be difficult and that the father is focused on punishing her rather than considering the best interests of Child A. She deposed communication with the father is exhausting and she has attempted to compromise. She described difficulties in their communication about Child A's arrangements. She deposed she has been trying to co-parent, but the father's attitude makes it extremely difficult.

30The mother deposed that Child A and Child B are not coping with the current arrangements and it is in the best interests of the children to resolve parenting issues as soon as possible. She seeks expedition of the proceedings.

31In submissions, counsel for the mother emphasised the mother's position that the close to equal time arrangement is not working and she submitted this is evidenced by Child A's behaviour as described above. Counsel referred to Mr B's criticism of the mother and said she has engaged in "real reflection". Further since meeting with the Department for Communities on 28 January 2021 she has acted on the Department's advice when Child A has made statements regarding physical and sexual abuse.

The father's position

32The father deposed Child A's time with him is always positive and he never behaves in any of the concerning ways alleged by the mother. The father described enjoyable times together and deposed that Child A is never upset at his home and is always happy, relaxed and stable.

33The father seeks to enrol Child A at School A and his proposal is set out at [18 to 20] of his affidavit affirmed 24 January 2022.

34The father does not agree that Child A spending less time with him is in Child A's best interests. He referred to what he described as the disturbing claims made by the mother about Child A's actions and comments, and he referred to paragraph 77 of Mr B's report as follows:

24.At paragraph 77 of the report of the Single Expert Witness, [Mr B] dated 19 August 2021, [Mr B] states "… if this matter does proceed to trial and the Court finds that the mother has essentially coached the child to make these allegations, then I consider there would be strong grounds for the child to primarily reside with his father..."

(as per the original)

35The father described as disturbing the mother's fabricated allegations that he personally drugged Child A and the allegations concerning firearms. He referred to [83] of Mr B's report where Mr B stated it was "highly concerning" that the mother was found to have emotionally abused the children through essentially evidence collecting.

36The father deposed that the mother has fabricated all of the evidence regarding the alleged sexual abuse of Child A and has coached and groomed him to discuss sexualised concepts and to make statements which can be interpreted as disclosures.

37The 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.

38The father referred to the allegations that Child A had made disclosures about the father showing him a gun. He refuted those allegations and deposed the firearm was not in his possession when the alleged statements were said to have been made. His firearm had been handed over to the police [in] September 2020 and is currently held in a gun storage facility.

39The father deposed he genuinely believes there is an unacceptable risk of serious ongoing psychological harm to Child A in the mother's care and he referred to her grooming the child to discuss sexual acts and conduct.

40The father denied many of the mother's allegations and alleged she was the perpetrator of physical and mental abuse to him.

41The father described as a "sickening claim", the mother's allegation made on 9 April 2021 that he had drugged Child A. He described the entire content of the fabricated disclosure by the mother as deeply disturbing.

42The father seeks sole parental responsibility and an order that Child A live with him on an interim basis so that he will no longer be subjected to the mother's continuing emotional abuse.

43The father is not opposed to the trial in this matter being expedited.

44In submissions, counsel for the father submitted that credence should not be given to the mother's evidence unless established by third parties or independent evidence. He submitted Child A is not struggling, but the mother over emphasises anything which might be regarded as negative. In relation to the schooling issue, he said "let's not overcook this", by which I infer his position is that the mother exaggerated Child A's behaviour.

45Counsel submitted that Child A's behaviour is linked to the way the mother deals with him and has little to do with the conflict between the parties.

46Counsel referred to many instances of the mother's behaviour in relation to the alleged disclosures made by Child A and submitted the mother has coached Child A. It was submitted on behalf of the father that Child A is doing well with him, the allegations made against him are false and his concern is that Child A is exposed by the mother willingly in the conflict of the parties.

47After 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".

48The ICL referred to Mr B's report 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.

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

67. 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.

50The ICL submitted conflict very much exists and Child A needs support to help him manage it.

51The ICL considered it appropriate that Child A not be left in the unsupervised care of Mr A at this stage.

52The ICL considered a trial sooner or later would be very helpful but would depend on the Court's resources.

The child's best interests

53Mr B's report is of assistance to me. I am mindful however that Mr B's evidence as with all of the evidence in the matter has not yet been tested.

54These are interim proceedings only. I am unable to make any findings in fact and that cannot be done until the evidence has been tested at a final hearing.

55Child A's best interests is the paramount consideration. To determine what orders are in his best interests, I must consider the primary and additional considerations as set out in the Family Court Act 1997 (WA) to the extent that I consider them necessary and relevant. There is much contested evidence in these proceedings, and I can only therefore give limited consideration to these matters.

56It is probable that Child A has a meaningful relationship with both of his parents and that it is to his benefit that it continues.

57An important consideration is whether there is a need to protect Child A from harm in the care of either party. The mother alleged he is at risk of harm arising from the current arrangements with which he is not coping as is evidenced by his disclosures and behaviour. The father alleged Child A is at risk of psychological harm in the mother's care by reason of her fabricated allegations as set out above.

58The parties each denied the allegations of the other.

59Mr 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.

60The evidence of both parties suggests that Child A has been exposed to conflict between his parents. Mr A stated clearly that what needs to occur is that both parties desist immediately in speaking to Child A in negative ways about the other parent which causes him considerable confusion and upsetness.

61As to Child A's views, the mother referred to him being increasingly clingy such that handovers have become taxing. She deposed he becomes upset on Sundays and pleads to stay with her and not go with the father. The mother deposed Child A is anxious about separating from her and Child B and tells her he misses her when he returns. The father deposed Child A and he enjoy many activities together. He sleeps well and is never upset with the father who described him as always happy, relaxed and stable.

62Mr B reported that Child A said he liked spending time with both his mother and his father and subsequently said he liked his mother better. Mr B reported very little weight can be placed on Child A's view, not only because of his young age but because of the extent to which he has been exposed to conflict between the parents.

63As to the parties' provision for the children's needs, the mother expressed a number of concerns about aspects of the father's behaviour as set out above. Similarly, the father expressed concerns about the mother's behaviour and the risk he alleges she poses to Child A. Mr B was of the view that the mother demonstrated she had the capacity to provide for Child A's diverse needs and she is well bonded to him. Although the mother said words to the effect that she was able to encourage Child A's relationship with the father, that was not reflected in the amount of time she was willing to agree to Child A spending with him.

64Mr B reported that the father can provide adequately for Child A's diverse needs. Although he informed Mr B he did not say negative things to Child A about the mother, Mr B formed the view it was more likely he did do so about her at least in front of the child. Mr B expressed no concern as to the father's ability to act protectively of Child A, but it was important he was aware that saying anything negative to Child A about the mother could be harmful.

65The proposal of the mother is to reduce Child A's time with the father by one night a fortnight, from five nights to four. It is a modest reduction in time. The proposal of the father involves a separation of Child A from the mother and his half-sister, Child B. That proposal involves the immediate and sudden cessation of Child A's relationship with the mother, to whom Mr B reports he is closely bonded. Mr B reported in his view, Child A would struggle if spending extended periods of time away from the mother at this time which is likely to result in emotional distress and subsequent acting out behaviour together with other behavioural difficulties.

66The likely effect of this change in Child A's circumstances is an important consideration by reason of the likely detrimental effect upon him.

67As to any other fact or circumstance that the Court considers relevant, I am of the view that it is of the utmost importance that Child A commence his attendance upon a psychologist as soon as practicable. Similarly, the parties should each attend upon a psychologist to address their respective behaviour towards the other and to understand the impact of it upon Child A by reason of the conflict between the parties.

DISCUSSION AND CONCLUSION

68The mother's position is that Child A's difficulties are such that he is not coping with the current arrangements and therefore his time with the father should be reduced by one night a fortnight. I do not readily understand how the reduction of just one night, that is reducing Child A's time with the father from five nights to four nights, will alleviate his behavioural difficulties.

69The father's position is that Child A is at risk of harm by reason of the mother's fabricated allegations, and he should be removed from her care and live full-time with the father spending limited supervised time with the mother.

70It is likely to be detrimental to Child A's wellbeing if he is removed from the mother's care. Mr B reported Child A is bonded to the mother. I consider it likely that separation from her such that he is placed in the full-time care of the father is likely to cause him emotional distress and behavioural difficulties as reported by Mr B.

71The 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.

72Even at his young age, Child A is likely to be aware of the conflict between his parents. Exposure to this is likely to pose a significant risk to Child A at this time.

73I intend to order that each party engage with a psychologist in relation to the concerns raised by Mr B and I take into account that this will occur.

74Child A will be accustomed to the current spend time arrangements which are now predictable for him. I am not persuaded that it is to his benefit to change those arrangements particularly in circumstances where I cannot see that the change is likely to alleviate his behavioural difficulties. Mr B recommends that Child A live primarily with the mother but spend time with the father across a two‑week arrangement, in the first week with three consecutive nights, and in the second week, two consecutive nights. This is a shared arrangement and is not dissimilar to the current arrangement. Currently Child A spends from Sunday 10.00 am to Wednesday at 8.30 am or 9.00 am with the father. This arrangement is one which the ICL proposes should not be disturbed at this interim stage.

75Having considered the evidence in these interim proceedings, in the context of the primary and additional considerations I am of the view that the order in Child A's best interests as to his living arrangements, is that which is in place at this time.

76I will discharge the injunction contained in paragraph 1(b) of the orders dated 30 November 2020. However, to avoid further conflict and possibly further allegations I will make an order that any time Child A spends with Mr A be supervised by the father or other responsible adult.

Expedition

77On 26 July 2021 an order was made including these proceedings in the Defended List with an estimated hearing time of four days in relation to parenting issues. A readiness hearing is awaited. The mother sought expedition on the basis that she considers it in the best interests of Child A to resolve parenting issues as soon as possible. The father supported an order for expedition.

78I am not persuaded that it is appropriate to make an order that the hearing of the proceedings be expedited. The matter has been in the Defended List for some time. Although the proceedings raise issues which are serious and of great importance to the parties and the child, I am not persuaded they should be placed ahead of other matters of similar urgency and complexity.

THE PROPOSED ORDERS

79Subject to hearing from counsel and the ICL, I propose to make the following orders.

1Paragraph 7 of the orders dated 10 September 2020 and paragraph 1 of the orders dated 21 May 2021 remain in full force and effect.

2Paragraph 1(b) of the orders dated 30 November 2020 be discharged.

3The time the child [Child A] born [in] 2016 spends with [Mr A] be supervised by the father [Mr Franklin] or other responsible adult.

4The mother [Ms Franklin] and the father, shall each engage with a psychologist in relation to the concerns raised by the Single Expert Witness.

5The Independent Children's Lawyer be at liberty to provide a copy of the Single Expert Witness report filed on 20 August 2021 and the Single Expert Witness response to questions filed on 4 October 2021 to each party's psychologist.

6The parties shall take all steps necessary to engage the child with clinical psychologist [Ms C] for reportable therapy including a protective behaviours course if considered appropriate by [Ms C].

7The party taking the child to the appointment shall be responsible for the cost of the appointment, or any appointment attended by them at the request of the psychologist.

8The Independent Children's Lawyer be at liberty to provide the child's psychologist with relevant court documents including but not limited to a copy of the Single Expert Witness report filed on 20 August 2021 and the Single Expert Witness response to questions filed on 4 October 2021.

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

RM

Associate

3 FEBRUARY 2022

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

SI

Associate

25 JULY 2022