GEORGE and GEORGE
[2021] FCWA 35
•3 MARCH 2021
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: GEORGE and GEORGE [2021] FCWA 35
CORAM: SUTHERLAND CJ
HEARD: 7, 9, 10 & 11 DECEMBER 2020
DELIVERED : 3 MARCH 2021
FILE NO/S: PTW 5635 of 2013
BETWEEN: MR GEORGE
Applicant
AND
MS GEORGE
Respondent
Catchwords:
CHILDREN - Where the parties participated in a Trial in 2018 following which only interim parenting orders could be made - Where following the 2018 Trial the court reversed the child's residence to live with the father in the context of the mother sabotaging reunification therapy - Where the purpose of this Trial was to make final parenting orders - Whether the father should have sole parental responsibility given the parties' poor communication and low capacity to co-parent - Whether the child should primarily live with the father, or live with the parties in an equal time arrangement - Case turns on its own facts.
Legislation:
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Ms Hossen |
| Respondent | : | Mrs Farmer |
Solicitors:
| Applicant | : | Horizon Legal |
| Respondent | : | Meillon & Bright Legal |
Case(s) referred to in decision(s):
George and George [2018] FCWA 223
George and George [2019] FCWA 251
George and George [2019] FCWA 58
George and George [2020] FCWA 114
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 George and George has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
INTRODUCTION
1Since November 2013, [Ms George] ("the mother") and [Mr George] ("the father") have been engaged in parenting proceedings concerning their only child, [Child A], now aged eight. In October 2014, the parents consented to final parenting orders that provided (among other things) for the parents to have equal shared parental responsibility for Child A, for Child A to live with the mother and spend time with the father. In November 2016, the mother unilaterally stopped Child A spending time with or communicating with the father on the basis that she alleged Child A had disclosed that the father had sexually abused her. It was in that context that the parenting proceedings recommenced.
2The first defended trial took place before me over six days in June 2018 (the “2018 Trial”) after which only interim parenting orders could be made.[1] I delivered my reasons on 8 November 2018 (the “2018 Reasons”).[2] In short, I found there was no cogent evidence that the father had sexually harmed Child A or posed a risk of harm to her. On the other hand, I found that Child A was at an unacceptable risk of psychological and emotional harm in the mother’s care, as a result of the mother’s closely held and incorrect belief that the father had sexually abused Child A; a belief that she had inculcated in Child A.
[1] Orders dated 8 November 2018.
[2] George and George [2018] FCWA 223.
3I made interim orders (the “November 2018 Orders”) that Child A live with the mother, but on the basis that the family immediately engage in reportable therapy with [Ms C], with the aim of reunifying Child A and the father. I was explicit in the 2018 Reasons that if the mother was unwilling to support the therapy process, then one of the options that was available to the Court was to change Child A’s residence to live with the father.[3] I also ordered (among other things) for: (1) the mother to engage in reportable therapy with [Ms D]; (2) the mother to undergo a psychiatric assessment with [Dr E]; and (3) the father to engage in reportable therapy with [Dr B].
[3] George and George [2018] FCWA 223, [124].
4In December 2018, the reunification effort with Ms C commenced. By the third session on 13 December 2018, it was clear that the reunification effort had failed. For reasons that I will detail later, I am satisfied the failure was due to the ongoing negative influence of the mother and/or the maternal grandfather on Child A, including the maternal grandfather saying in Child A’s presence or hearing that the small gifts she received from the father during the reunification sessions were “bait”. I am satisfied that such comment was designed to convey to Child A the message that her father remained a danger to her.
5In January 2019, both parents made interim applications to the court: (1) the mother sought certain modifications to the November 2018 Orders, including that she no longer be required to live with [her parents] and that she be permitted to attend upon a therapist of her choice (rather than Ms D); and (2) the father sought that Child A be placed in his sole care. Those applications were listed to a hearing before me on 4 February 2019. On that day I delivered ex tempore reasons,[4] and made interim orders for Child A to live with the father and for the father to have sole parental responsibility for her.
[4] George and George [2019] FCWA 58.
6Child A was then gradually reintroduced to spending time with the mother, including a period of supervised time commencing from April 2019. Since February 2020, Child A has been spending five nights per fortnight (unsupervised) in the mother’s care.
7This second defended trial (the “Trial”) concerns the final parenting arrangements to be made for Child A. To their credit, the parents were able to reach agreement about many issues, including (in summary):
a)Arrangements for Child A to spend time with the parents on special occasions, including Christmas, Easter and birthdays.[5]
b)Arrangements for handover.
c)For Child A to have telephone and videoconferencing communications with the parent with whom she is not living twice per week.[6]
d)That Child A should continue to attend upon Ms C for therapy as recommended by Ms C.[7]
e)The manner in which the parents are to communicate with each other about matters concerning Child A – that is, in writing, save that a telephone call is permitted in the case of emergencies and attendance upon a hospital or doctor.[8]
f)That the parents be at liberty to attend all of Child A’s school events and extra-curricular activities.
g)For the parents to sign a passport application upon request for the purposes of international travel.
h)That the parents keep each other informed of their contact details, and the names and addresses of Child A’s treating health professionals.
i)Injunctions designed to insulate Child A from the dispute between the parents (including that the parents not denigrate each other and their respective families in Child A’s presence or discuss the proceedings with her).
[5] However, arrangements for Mother’s Day and Father’s Day were not agreed.
[6] The mother’s initial position was that such communication should occur daily, but she conceded under cross-examination that twice per week was sufficient.
[7] The question of who should be responsible for paying the costs of that therapy was not agreed.
[8] The orders sought by the father simply mentioned text message and email as the modes of written communication, whereas the mother’s orders sought specified that the parents continue to use the Our Family Wizard application.
8The issues that remained in dispute between the parents included:
a)Whether the father should retain sole parental responsibility for Child A, or the parents should once again have equal shared parental responsibility for her.
b)The arrangements for Child A to spend time with the mother, noting that the father sought the time be reduced to three nights per fortnight and the mother sought the time be increased by two nights per fortnight.
c)The arrangements for school holiday time and holiday travel, noting the father’s position that the mother should not be able to travel with Child A for an extended holiday until Child A turns 12.
d)The arrangements for Mother’s Day and Father’s Day.
e)Whether the parents should be precluded from changing Child A’s enrolment at her primary school.
f)Whether both parents should be restrained from taking Child A to attend upon a psychologist or counsellor without written consent, or whether such injunction should only apply to the mother.
g)Whether both parents should be restrained from questioning, interviewing and recording Child A in relation to court-related matters or allegations.
9The father’s case at the Trial was that the mother and/or the maternal grandfather continue to undermine his relationship with Child A,[9] and that Child A is exposed to vastly different parenting styles between the two houses. Accordingly, whilst the father acknowledges there is a benefit to Child A in spending time with the mother, he proposed the time be reduced to lessen its impact on her. The father otherwise maintained that the parents are unable to properly communicate and co-parent, such that an order for equal shared parental responsibility would be unworkable.
[9] Including by saying negative things to Child A about the father and his family.
10The mother acknowledged under cross-examination that since the reversal of residence: (1) Child A has developed a warm and loving relationship with the father, his wife [Ms A] and Child A’s baby brother [Child B]; (2) Child A was excelling academically;[10] (3) Child A has improved her ability to self-regulate; and (4) Child A was a happy little girl. Notwithstanding the gains that Child A has made since living primarily in the father’s care, the mother proposed that Child A move to live with the parents in an equal-time arrangement. The mother gave her reasons for that proposal under cross-examination, including that she and Child A love and miss each other; that such arrangement would facilitate their relationship; and that she wanted Child A to have the best future and reach her full potential which could be achieved by the parents “pooling” their resources. The mother did not agree with the father that the parents were unable to communicate and reach agreement in relation to matters concerning Child A.
THE PARENTS’ PROPOSALS
[10] Although the mother framed her answer on the basis that Child A had always done well at school.
11The parents’ disputed proposals for the purposes of the Trial were as follows:
The father’s proposal
12In summary, the father sought orders[11] that he have sole parental responsibility for Child A, but on the basis that he notify the mother of any significant decision for Child A and consider the mother’s views about same; that Child A live with the father and spend time with the mother during school term from after school on Friday to 4.00pm Sunday each alternate weekend, and from after school on Thursday to before school on Friday in the intervening week. As noted earlier, the father’s proposal marked a reduction from the current spend-time-with arrangements, from five nights per fortnight to three.
[11] Father’s Amended Minute of Orders Sought – Consolidated Position of the parties filed 21 October 2020.
13In relation to the Term 1, 2 and 3 school holiday periods, the father proposed that Child A spend time with mother for two overnights in the first week, and one overnight in the second week. As for the long, summer school holidays, the father proposed a rolling two week pattern, whereby Child A would spend time with mother for two overnights in the first week, and one overnight in the second week. As noted earlier, the parents agreed that Child A would spend time with the parents on special occasions, such as Christmas, Easter and on birthdays. There was, however, no agreement about the arrangements for Mother’s Day and Father’s Day. The Father’s proposal was that Child A should see both parents on those days (with handover occurring at 2.00pm), whereas the mother proposed that Child A spend the entire weekend with the relevant parent (from 5.00pm on the Saturday preceding Mother’s Day or Father’s Day, through to commencement of school or 8.30am on the Monday).
14The father sought detailed orders in relation to interstate and international travel. In summary, the father’s position is that he should be able to travel with Child A for up to 14 consecutive days once per calendar year, subject to giving the mother notice. The father proposed that the mother not travel with Child A on the same basis until Child A turns 12 years of age (in four years’ time).
15The father proposed that the parents share equally in the cost of Child A’s ongoing therapy with Ms C. The father neither proposed any order in relation to the mother’s ongoing therapy, nor any order in relation to the parents participating in family therapy.[12]
[12] It was clear from the father’s cross-examination that he considered that the relationship between the parents was beyond repair.
16The father sought injunctions directed at precluding the mother from taking Child A to a psychologist or counsellor without his consent, or from interviewing and recording Child A in relation to court related matters or allegations. He also sought that the parents keep each other informed of the names and addresses of Child A’s medical providers, and stipulated that if Child A required non-urgent medical attention, the mother be required to take Child A to her usual GP.
17Finally, the father sought that a recovery order issue in the event the mother failed to return Child A to his care, following the making of final orders.
18I observe that the father’s Minute was silent as to the issue of whether Child A should change primary schools, to attend a school closer to where the father lives. That said, whether Child A should change schools was clearly a live issue at Trial, and to the extent that I order that the father should have sole parental responsibility for Child A, I expect he will exercise his choice of school for Child A accordingly.
The mother’s proposal
19For her part, the mother sought orders[13] that the parents have equal shared parental responsibility for Child A; and that Child A live with the parents in an equal shared care arrangement during school term, on a rolling two week pattern: in week 1, Child A would spend four nights in the father’s care, followed by a night in the mother’s care, followed by a further two nights in the father’s care; and in week 2, Child A would spend four nights in the mother’s care, followed by a night in the father’s care, followed by a further two nights in the mother’s care. The mother also sought that Child A spend equal time with the parents during school holiday periods.
[13] Mother’s Minute of Proposed Final Orders Sought filed 10 November 2020.
20The mother also sought orders in relation to travel and holidays with Child A. The mother proposed that the parents be at liberty to travel with Child A for 10 consecutive days subject to providing the other party with notice. However, under cross-examination the mother said that her proposal of 10 days was merely her preference and was not a “deal breaker”. I otherwise observe that the mother and father were largely in agreement as to the machinery provisions supporting travel, such as notice, provision of information, and the restrictions applicable to international travel.
21The mother sought an order that Child A continue to attend her current primary school until the completion of her primary schooling.
22The mother’s Minute was silent as to the costs of Child A’s ongoing therapy with Ms C.
23The mother otherwise sought an order that she undertake non‑reportable therapy with a therapist of her choosing.
24The mother also proposed that the parents participate in non‑reportable family therapy to improve their communication and capacity to co-parent Child A with either of two named therapists. The mother proposed that the parents share equally in the cost of family therapy.
25The mother sought a mutual injunction that both parents be restrained from taking Child A to any therapist, counsellor or psychologist without the written consent of the other party.
The ICL’s proposal
26The ICL filed a Minute on 18 November 2020. The ICL was not funded to participate in the Trial and ceased acting shortly before the Trial commenced. The orders proposed by the ICL were in very similar (albeit not identical) terms to the orders proposed by the father. For the sake of completeness, the key orders proposed by the ICL were as follows:
27The ICL proposed that the father should have sole parental responsibility for Child A, but on the basis that he provide the mother with notice of the significant decisions he intends to make, and take into account the mother’s views about such matters.
28The ICL otherwise proposed that Child A live with the father, and spend five nights per fortnight with the mother during school term, from after school on Friday until before school on Monday in week 1, and from afterschool on Thursday to 9am on Saturday in week 2. This proposal essentially reflected the current parenting arrangements for Child A, save that the time in week 2 commence on Thursday (as opposed to Wednesday) and conclude on Saturday morning.
29During school holidays, the ICL proposed that Child A spend time with the parents in a week-about arrangement, save that Child A would see the other parent for a mid-week visit. These mid-week visits would continue until Child A was 12 years old.
30In terms of travel and holidays, the ICL’s position was that both parents should be able to take Child A on a holiday of up to seven consecutive nights, increasing to 14 consecutive nights upon Child A turning 13 years old.
31The ICL otherwise proposed that Child A spend time with the parents on special occasions, such as Christmas, Easter, birthdays, Father’s Day and Mother’s Day.
32The ICL proposed that Child A continue to attend upon Ms C for therapy, on such frequency as recommended by Ms C, and with the costs to be shared by the parents equally.
33The ICL also proposed that the parents have liberty to enrol Child A in one extracurricular activity each season, upon giving 14 days’ notice to the other party.
34The ICL proposed an injunction restraining the parents from questioning, interviewing and recording Child A in relation to any court related matters or allegations, save and except for recording Child A in the normal process of birthday parties and special events. Finally, the ICL also joined with the father in proposing that the mother be restrained by injunction from taking Child A to see a psychologist or counsellor without the father’s written consent.
THE EVIDENCE
35Both parents were legally represented at the Trial.[14]
[14] I observe for the sake of completeness that the mother has been legally represented throughout the proceedings, including by experienced counsel at Trial. The father has represented himself from time-to-time during the proceedings, particularly after the Court ordered Child A to move to the father’s care in February 2019. The father did, however, engage lawyers in the lead up to Trial, and was also represented by experienced counsel at Trial.
36At the commencement of the Trial I asked the parents to specify the affidavit evidence they relied upon, noting in particular that the father indicated in his Papers for the Judge that he sought to rely on affidavits that pre-dated the 2018 Trial. I queried the utility of so doing, given the November 2018 Orders were not appealed, and therefore the findings in my 2018 Reasons stand.
37I was informed by the father’s counsel that he relied upon his trial affidavit[15] and the witness affidavits of Ms A[16] and Dr B[17] (the father’s therapist). The father also relied upon the witness statement of [Ms F] (Child A’s grade 3 teacher in 2020) that was confirmed by her in court on 9 December 2020.[18] The mother relied on her trial affidavit[19] and the witness affidavit of [Dr G][20] (the mother’s treating therapist). The parents also relied (to a greater or lesser extent) on the evidence of the independent professionals, as follows:
a)Ms C, Child A’s therapist, who provided four reports to the court dated 21 December 2018, 18 November 2019, 18 February 2020 and 5 December 2020[21] respectively;
b)[Ms H], the single expert witness, who filed three further reports after the 2018 Trial, dated 1 February 2019,[22] 29 June 2019[23] and 13 November 2019;[24] and
c)Dr E, the psychiatrist, whose written psychiatric assessment of the mother was dated 29 January 2019.
[15] Father’s trial affidavit filed 21 October 2020.
[16] Affidavit of Ms A filed 21 October 2020.
[17] Affidavit of Dr B filed 21 October 2020.
[18] Exhibit A10.
[19] Mother’s affidavit filed 6 November 2020.
[20] Affidavit of Dr G filed 1 December 2020.
[21] Exhibit R1.
[22] Affidavit of Ms H filed 20 February 2019.
[23] Affidavit of Ms H filed 1 July 2019.
[24] Affidavit of Ms H filed 15 November 2019.
38Although Dr E’s report and Ms C’s reports dated 21 December 2018, 18 November 2019 and 18 February 2020 were not formally tendered and exhibited at trial, the parents did not object to me having regard to those documents for the purposes of my decision,[25] noting each report had previously been received on the court file, considered in the course of the interim proceedings, and at times, referred to during the Trial, including during counsels’ cross‑examination of various witnesses.[26]
CREDIBILITY FINDINGS
The father and his witnesses
[25] I specifically raised this issue with the parents during closing submissions.
[26] I otherwise observe that the court had the benefit of a number of documents in the interim proceedings that were not ultimately tendered and exhibited at the Trial, including the reports of the mother’s previous therapists, Ms D and Mr I, and the reports of the persons who supervised the mother’s time with Child A in 2019.
39The father was cross-examined by the mother’s counsel. I considered that the father was open, frank, consistent, and balanced in giving his evidence. He readily made concessions against interest, including in relation to the work that he still had to do in therapy in coming to terms with the damage caused by the mother’s allegations of sexual abuse against him and these proceedings. The father was entirely transparent when giving his evidence: his distress at times was clearly evident. I called a halt towards the end of the first day of the father’s cross-examination, because I was concerned about his deteriorating presentation in the witness box: he was visibly upset and finding it increasingly difficult to answer questions and stay on topic. I also observed that the father found it difficult to listen to the evidence of the professional witnesses during the trial, particularly where those witnesses delved into the topic of the trauma the father has suffered as a result of the mother’s allegations and his participation in the proceedings more generally. For example, I observed that the father was visibly upset and removed himself from the courtroom during Ms H’s updating oral evidence on that topic.
40I was left in no doubt by the end of the father’s evidence, and having observed him in the courtroom throughout the trial: firstly, that he was an honest and truthful witness; and secondly, that he is a man who has been deeply and negatively impacted by the mother’s baseless allegations against him, and by the continuation of these proceedings. However, I was also left in no doubt that the father has done an outstanding job at insulating Child A from his experiences, to the extent that Child A believes that the father likes the mother. It was in that context that I considered the sustained and, at times, aggressive criticism of the father during cross-examination about the nature of some of his interactions and communications with the mother did little to discredit him, and rather, said much about the mother’s ongoing negative attitude towards him. I considered the father was candid in his evidence about not being immune from saying or doing the wrong thing from thing from time-to-time (including communicating with the mother in a less than constructive manner). But as the father put it, I am satisfied that he has had a “back catalogue of shit” from the mother to deal with.
41The father’s wife Ms A was not required for cross-examination, and therefore I accept her evidence in its entirety.
42The father’s therapist, Dr B, was cross-examined by the mother’s counsel. I considered Dr B to be professional and helpful in giving his evidence. Save for when I specifically identify otherwise in these Reasons, I accept his evidence. In particular, although Dr B expressed an opinion as to the time that Child A should spend with the mother, I was satisfied that I should give little weight to his view as: (1) it was clear that as the father’s therapist, Dr B had formed a strong alliance with the father (and it was certainly the father’s evidence that Dr B had been a significant support to him in offering a sounding board for these proceedings); (2) Dr B conceded that the court should give greater weight to the views of the appointed single expert witness about this issue; (3) Dr B has (appropriately) not had access to the vast majority of the relevant documents; and (4) Dr B has not met the mother or Child A, or observed them together.
43Child A’s school teacher, Ms F, was called as part of the father’s case and was cross-examined by the mother’s counsel. I considered that Ms F was professional and helpful in giving her evidence. Except for when I specifically identify otherwise in these Reasons, I accept her evidence.
The mother and her witness
44The mother was cross-examined by the father’s counsel. The mother made some concessions, including:
a)Accepting the Court’s earlier finding that “[Child A] was not at risk in [the father’s] care and there was no cogent evidence that he had sexually harmed her”;[27]
b)Accepting the Court’s earlier finding that the mother had “psychologically/emotionally harmed [Child A] by stopping her from having a relationship with her father and allowing [Child A] to believe her father had sexually harmed her”;[28]
c)Accepting that Child A is not at risk of sexual harm when she is in the father’s care;[29] and
d)Conceding in cross-examination that Child A has made considerable progress since moving to live with the father and Ms A in February 2019.
[27] Mother’s trial affidavit filed 6 November 2020, [123].
[28] Ibid, [124]
[29] Ibid, [104].
45However, overall I considered that the mother was very guarded in giving her evidence and at times, was simply not prepared to be open or frank about certain issues. At times, the mother’s initial responses to questions appeared to be somewhat rehearsed. However when the father’s counsel explored matters further, the mother’s answers variously became avoidant, contradictory and difficult to follow. (I observe that Dr E reported that the mother’s thought process, explanation around her views and beliefs were often difficult to follow, including her reasoning. That was also my strong impression of the mother from observing her at the Trial.) At other times, the mother attempted to avoid answering the questions put to her, by focussing on some inconsequential point or going off on a tangent. In contrast to the father’s transparency under cross‑examination, I also formed the strong impression that for much of her cross-examination, the mother endeavoured to reveal as little as possible about herself, including about her current attitude to, and views about, the father. For example, the mother was asked in cross-examination whether she believed that the orders I made on 4 February 2019 (for Child A to change residence to live with the father) were in Child A’s best interests. The mother responded in the following terms:
I – I’m actually in what I call a vortex, a – a place where I take step by step with what is in front of me – I’m not able to make that assessment. I respect the governance of her Honour and I’m here to follow her Honour’s orders. I truly believe that a settlement of this matter will actually allow me to look at things as a greater – a greater scheme.[30]
[30] Transcript of proceedings on 9 December 2020 commencing at 2.06pm, pages 2 and 3.
46The father’s counsel then changed tack, and had the mother concede that Child A had matured and her behaviour had improved since living with the father; that Child A had coped well with the reversal of residence; and that Child A was happy.[31] Having extracted those concessions, the father’s counsel once again asked the mother whether she believed that the orders made on 4 February 2019 were in Child A’s best interests. The following exchange then took place:
Father’s counsel: Yes or no?
The mother: I’m not here to dispute or appeal the – the judgment.
Father’s counsel: No. That’s not what I asked you. I asked you whether the orders made that [Child A] live with her father was in [Child A’s] best interest in your opinion?
The mother: In my opinion – in my opinion [Child A] missed her mother terribly and that is the view that I’m coming from.[32]
[31] Ibid, pages 3 and 4.
[32] Ibid, page 4.
47There was then an exchange between the father’s counsel and the mother as to whether she still believed that the father sexually abused Child A. The mother’s responses (which were repeated over and over again) were that she didn’t know if the disclosures made by Child A in late 2016 were true or untrue. The mother then explained that part of her approach is “completely extracting” herself from even considering the question that was being asked of her. The mother further said: “It’s not something I speak of or think of”.[33]
[33] Ibid, page 5.
48In relation to the earlier sexual abuse allegations, the mother went to great lengths to rationalise and explain her position in her trial affidavit. In respect of Child A’s disclosures in October 2016, the mother’s evidence was that, “I recognise that the disclosures made by [Child A] may have had an alternate hypothesis. I will never know. I was not there.”[34] However, the mother then went on to say, “[a]t the time, I heard the disclosures, and they were sinister”.[35] The mother also deposed that Child A is an “honest child”, and that she believed that Child A’s disclosures were true in the context of the father’s other alleged behaviours (that is, allegedly being sexually aroused by urine and faeces, and past behaviour on teen chat websites).[36] The mother then deposed that, “[i]t was not until Her Honour’s judgment, the intensive therapy I have been through and the time passing that I have considered that I will never know what happened and I must move forward accepting Her Honour’s (sic) Reasons for Decision”.[37] The mother also deposed that she did, “not at any stage encourage Child A to make disclosures about [the father]”[38] which I observe is clearly contrary to an express finding I made in my 2018 Reasons. That particular evidence was also somewhat inconsistent with the mother’s evidence later in her trial affidavit that she recognised, with the benefit of therapy, that the manner in which she spoke to Child A and asked her questions when she gave the disclosures was “problematic”.[39] In cross-examination: (1) the mother conceded that she had considered with the assistance of her therapists, various alternate hypotheses concerning the nature and source of Child A’s disclosures, but she had discounted them all; and (2) the mother also repeated her belief in Child A’s honesty: that the child would never lie to her.
[34] Mother’s trial affidavit filed 6 November 2020, [98].
[35] Ibid, [99].
[36] Ibid, [100].
[37] Ibid, [102].
[38] Ibid, [103].
[39] Ibid, [209].
49Overall, I consider that since Child A’s change of residence in early 2019, the mother has adopted a “head in the sand” approach in dealing with her entrenched and closely held belief that Child A’s disclosures in 2016 were the result of the father having done something inappropriate to Child A. Rather than grapple with that unfounded belief in therapy, the mother has instead focussed on learning strategies to compartmentalise it – to ignore and forget it – so that firstly, she is able to stomach Child A living with the father; and secondly, so that she can “put her best foot forward” in terms of the ongoing proceedings.
50Given the mother’s guarded responses and her confused and contradictory evidence, I was satisfied that I should be very circumspect in accepting the mother’s evidence, particularly in relation to:
a)her willingness or ability to co-operatively co-parent Child A with the father; and
b)the extent to which she has been successful in her endeavours in shielding Child A from her and the maternal grandfather’s negative views about the father, particularly where: firstly, I accepted the evidence of: (1) Ms C, that Child A wasn’t sure if the mother liked the father; and (2) the father and Ms A, that Child A has disclosed that the mother and the maternal grandfather continue to say negative things about the father and the paternal family; and secondly, unlike the 2018 Trial, for the purposes of this Trial, the mother chose not to call the maternal grandfather to give evidence.
51The mother’s therapist, Dr G, was very professional and helpful in giving her evidence, and save for if I specifically identify otherwise in these Reasons, I accept her evidence.
The independent, professional witnesses
52 Ms C was cross-examined by both parents’ counsel. I considered Ms C was very professional and helpful in giving her evidence, and save for if I specifically identify otherwise in these Reasons, I accept her evidence.
53 Ms H was not assisted by not having the opportunity to meet the family again shortly prior to the Trial (albeit helpfully, she did have access to various relevant updating documents). Ms H provided an updating oral report at the commencement of her evidence and then was cross-examined by both counsel. Ms H was required to make a number of concessions in relation to her oral report during her cross‑examination by the mother’s counsel, which I deal with later in these Reasons. I considered Ms H was professional and helpful in giving her evidence, and save for if I specifically identify otherwise in these Reasons, I accept her evidence.
FACTUAL BACKGROUND
54The father was born in [1980] in [Town A], [in the Eastern States]. His parents continue to live in the Eastern States. The father lives with Ms A, Child A and Child B in their home [in] [Suburb B]. The father and Ms A have been in a relationship since [2013]. Their son Child B was born [in 2020].
55The mother was born in [1974] in Western Australia. Whilst growing up, the mother, her parents and her only sister lived within a [omitted] Christian community. When the mother was approximately 14 years old, the family left the community. The mother has been estranged from her sister for many years. However, the mother maintained a very close relationship with her parents, including assisting in the care of her mother who suffered from [a terminal illness] and died in [late] 2018. The mother currently rents a property in the suburb of [Suburb C]. The mother remains very close to her father, who lives only a short distance from her.
56The parents met on New Year's Eve in 2008 and formed a relationship shortly afterwards. At the time, the father was 28 years old and the mother was 34 years old. In my 2018 Reasons, I found that the parents experienced significant difficulties in their relationship, including from their very different upbringings and perspectives on life. The parents became engaged in May 2010, started living together in June 2010 and were married [in late 2010].
57Child A was born in [2012]. Other than for a period of about one month following Child A's birth when the father took time off work, the mother was Child A's primary carer, and the father helped out with her care when he was not at work.
58The parents separated on a final basis in [late 2012]. Following separation, Child A lived with the mother and spent varying time with the father. The father instituted parenting proceedings in November 2013. In October 2014, the parents reached final agreement in relation to parenting arrangements and final orders were made by consent on 17 October 2014. The key orders provided for the parents to have equal shared parental responsibility for Child A; for Child A to live with the mother and spend time with the father on a gradually increasing basis. However, in November 2016 the mother unilaterally stopped Child A from spending any time with the father, on the basis that she alleged Child A made disclosures that the father had sexually abused her.
59Pursuant to s 69ZX(3) of the Family Law Act 1975 (Cth) (the “Act”), I am permitted to “adopt any recommendation, finding, decision or judgment” of any court. Accordingly, except for where I identify otherwise in these Reasons, I adopt the findings I made in the 2018 Reasons and in my subsequent interim decisions referred to in this judgment.
The 2018 Trial
60The first trial took place in June 2018 and I delivered my Reasons on 8 November 2018.[40] In summary:
[40] George and George [2018] FCWA 223.
a)The mother’s case during the 2018 Trial was that the father had sexually abused Child A and posed an ongoing and unacceptable risk of harm to her in this regard. The mother also alleged that: (1) the father lacked boundaries in his dealings with Child A and had engaged in inappropriate games with her; and (2) the father used pornography and alcohol inappropriately, and was violent. The father denied the mother’s allegations. I was not satisfied that there was any cogent evidence in support of the mother’s allegations. Instead, I was satisfied that the father did not pose an unacceptable risk of harm to Child A.[41]
[41] Ibid, [108]. See also [109], [110] and [111].
b)However, I was satisfied that the Child A had been psychologically / emotionally harmed by the mother, and that Child A was at an ongoing unacceptable risk of harm from her mother in this regard.[42] I was satisfied that the mother’s continual questioning of Child A, and the mother’s anxiety and hypervigilance about the father, had acted to develop and reinforce the false belief in Child A’s mind that her father had sexually harmed her in the past with the result that Child A then feared spending time with the father.[43]
[42] Ibid, [112].
[43] Ibid, [113].
c)I accepted Ms H’s evidence that the ramifications of Child A holding onto false beliefs that her father had sexually abused her could be as harmful as if the sexual abuse had actually occurred.[44] I found that Child A would be at risk of anxiety, depression, emotional dysregulation, educational and social issues, self-harm, body image issues, relationship problems, sexual issues and suicidal ideation and/or suicide if she maintained the false belief.[45]
[44] Ibid, [114].
[45] Ibid, [120].
d)I was not satisfied that I should give any weight to Child A’s expressed wish to remain living with her mother, because of her very young age at the time, and because I was satisfied that Child A’s views had been influenced by her false belief that she had been sexually harmed by the father.[46]
[46] Ibid, [115].
e)I found that Child A had a close and loving relationship with the maternal grandparents. I also found that Child A had no ongoing relationships with members of her extended paternal family.[47]
[47] Ibid, [117].
f)I was satisfied that both parents had taken every opportunity to participate in making major long-term decisions for Child A. However, I was also satisfied that the mother had blocked the father’s attempts to be actively involved in such decision making,[48] including by making unilateral decisions in relation to Child A’s kindergarten and school enrolments.[49] Similarly, whilst I was satisfied that both parents had taken every opportunity to spend time with and communicate with Child A, I was also satisfied that the mother's anxiety and hypervigilance about the father and her desire that he not have any further contact with Child A in the future significantly impacted on the father's ability to have an active, ongoing involvement in Child A's life.[50]
[48] Ibid, [118].
[49] Ibid, [143].
[50] Ibid, [119].
g)I was satisfied that if I made orders as sought by the mother (for Child A to continue to live with the mother and have no contact with the father), then it was highly likely that Child A would grow up continuing to falsely believe she had been sexually harmed by the father.[51] By contrast, the father and the ICL sought orders that Child A continue to live with the mother, but undergo a process of reunification with the father, involving intensive therapy for the parents and for Child A to overcome her false beliefs. I found that, if successful, such an arrangement may enable Child A to enjoy the benefits of healthy and functional relationships with both parents.[52] I also found that if the mother was not able to emotionally support Child A during the reunification process, then it would be extremely traumatising for Child A, and the therapy may not progress.[53]
h)I accepted Ms H's evidence that if the mother was simply not willing to support the therapy process, then I was left with some difficult options, one being to place Child A in the father’s care notwithstanding that Child A was primarily attached to the mother and was (at that time) afraid of the father. I accepted that a change in living arrangements would in and of itself be traumatising for Child A and she could well suffer some emotional, social and educational regression. I was also satisfied that in that scenario the mother may be at risk of suiciding, particularly if she was not provided with adequate supports and protections.[54]
i)Whilst I was satisfied that both parents have the capacity to adequately meet Child A’s physical and social needs, I had significant concerns about the mother’s capacity to meet Child A’s ongoing emotional and psychological needs. In particular, I accepted Ms H’s evidence that the mother was not aware of the emotional / psychological impact she was having on Child A. Her overt distrust of the father, continual questioning and recording of Child A, and anxiety and hypervigilance about Child A's contact with the father had all contributed to Child A's fear of the father.[55]
j)I accepted Ms H’s evidence that Child A expressed some fear and trepidation about seeing her father again, but did not display any overly anxious responses such as panic, anger, crying or behavioural regression. I also accepted Ms H’s evidence that there were no clinically significant indicators that Child A was suffering from post-traumatic stress disorder or any significant trauma.[56]
k)I was satisfied that the mother had failed to properly engage with therapeutic supports to address her anxiety and stress. Indeed, I found that the mother ceased attending upon a clinical psychologist after a subpoena to produce documents was issued to that professional.[57] I accepted the ICL’s submission that the mother’s failure to properly address her mental health issues, together with the mother’s evidence and demeanour during the trial itself, was extremely concerning. I found that the mother was not prepared to consider what action she would need to take to address her own mental health issues if the court ordered that Child A should recommence spending time with the father.[58] Having regard to: (1) Ms H’s evidence about the mother’s mental health issues; (2) the referrals in the mother’s subpoenaed medical files; and (3) the mother’s responses and demeanour in the witness box, I was satisfied that the mother should undergo a psychiatric assessment, and that supports should be put in place to protect Child A’s and the mother’s wellbeing until such assessment was completed,[59] including that they be required to live with the maternal grandparents.[60]
l)I agreed with the ICL’s submission that it was premature to make final parenting orders following the 2018 Trial. Instead, I was satisfied that making orders on an interim basis only would enable the court to monitor the progression of family therapy, including the mother’s compliance with the court’s orders.[61] I determined that Child A should continue to live with the mother on an interim basis (notwithstanding the mother had harmed Child A and continued to pose a significant, ongoing risk of psychologically harming Child A) having regard to Child A's primary attachment to the mother, her present fear of the father and Ms H's concerns that the mother is a risk of suiciding if Child A's living arrangements were immediately changed. However, I cautioned that if the mother proved unwilling and/or unable to genuinely encourage and support Child A in the family therapy / reunification process with her father, and continued to psychologically harm Child A, then Child A's best interests may well dictate that she should move to live primarily with the father.[62]
m)I was satisfied that Child A should immediately recommence therapy with Ms C, and that the parents should separately engage their own therapists – namely Dr B for the father, and Ms D for the mother.[63] I determined that Child A’s reintroduction to the father should be at the pace recommended by Ms C.[64]
Implementation of the November 2018 Orders
[51] Ibid, [120].
[52] Ibid, [121].
[53] Ibid, [122].
[54] Ibid, [124].
[55] Ibid, [125].
[56] Ibid, [126].
[57] Ibid, [127].
[58] Ibid, [128].
[59] Ibid, [130]. See also [139].
[60] Ibid, [139]. At the time the order was made that the mother and Child A live with the maternal grandparents, the court was unaware that the maternal grandmother had passed away in October 2018.
[61] Ibid, [133].
[62] Ibid, [137].
[63] Ibid, [138].
[64] Ibid, [142].
61At the time of delivering the 2018 Reasons and making the November 2018 Orders, the court was unaware that the maternal grandmother had died the previous month. The mother’s unchallenged evidence was that she was subsequently unable to comply with the order that she live with the [maternal] grandparents, because the maternal grandfather would not allow it.[65]
[65] Mother’s trial affidavit filed 6 November 2020, [129].
62The father complained that the mother dragged her heels in arranging an appointment with Ms D. The mother’s unchallenged evidence was that she wrote to Ms D on 21 November 2018 seeking an appointment, and that Ms D’s first available date was 22 January 2019.[66] There was some cross‑examination of Dr B about an email exchange[67] between him and Ms D, where he inquired as to the mother’s efforts to make an appointment. That email exchange was not tendered into evidence and there was no other cogent evidence upon which I could be satisfied that the mother deliberately delayed engaging with Ms D. The mother also arranged to see a different therapist, [Mr I], who had immediate availability.[68] There was no dispute that the father engaged in therapy with Dr B as ordered.
Ms C commences reunification therapy
[66] Ibid, [146] and [147].
[67] That email exchange was not tendered into evidence.
[68] Mother’s trial affidavit filed 6 November 2020, [145] – [152].
63The parents met separately with Ms C towards the end of November 2018.[69] Child A then had her first reunification session with the father on 3 December 2018. I am satisfied that the first session went very well and was a positive experience for Child A. Ms C observed that Child A appeared relaxed in her body language, made good eye contact with her father and that the connection between them established very quickly. During the session, the father gave Child A a book and a Kinder Surprise chocolate. Child A left the session in high spirits.[70]
[69] Ibid, [171].
[70] Report of Ms C dated 18 December 2018.
64The second reunification session took place the very next day (on 4 December 2018). I am satisfied that the contrast in Child A’s presentation was stark. Child A actively ignored the father and was rude and aggressive towards him. She refused to accept a cupcake from the father, even after Ms C described how yummy hers was. Ms C recorded that after the father left the second reunification session, Child A told her that the Kinder Surprise and cake were “a bait”. When Ms C asked her to explain what she meant by this, Child A responded “he wants the judge to think he’s really great and make me live with him” and went on to say that “there are 11 people in our team”. Child A went on to clarify that when referring to “team” she meant “the team to keep me living with Mum. Dad only has 6 people in his team”. Child A disclosed that she knew that because “someone” had told her, but would not disclose who. Child A also told Ms C that she does not have a dad.[71] I observe at this point that the mother subsequently admitted in her trial affidavit that the maternal grandfather did call the father’s gifts to Child A a “bait” following the first reunification session and that she wished he had not spoken in that way.[72]
[71] Report of Ms C dated 18 December 2018.
[72] Mother’s trial affidavit filed 6 November 2020, [194].
65I am satisfied that during the third reunification session on 13 December 2019, Child A was again rude and disrespectful to the father. Ms C considered that Child A was not anxious or distressed to be near her father, but rather her behaviour was “stagey”. After the father left the session, Ms C recorded that:
As soon as [the father] left my rooms, she reverted to her normal behaviour. She talked a lot about her Dad “trying to trick” her into living with him. She told me “I don’t want to. It’s my decision, and no one can change my decision.” I responded that he just wanted to say happy Christmas. [Child A] said “That’s why I come here- so he can get me. He’s probably not telling you the truth”. When I asked her how she knows this, she responded “I don’t know. I just do”. She was adamant that she “never ever” wants to see her father, and that she hates him. She told me “he’s not nice and friendly, that’s fake”. She reiterated several times that it was her decision.
[Child A] was adamant that she didn’t want her father’s present. I said she was welcome to leave it here, but what if I pack it up and ask Mum if she should take it. [Child A] was very keen on this idea. When [the mother] arrived, I told her that [the father] had come to say Merry Christmas, and had given [Child A] a gift. [Child A] mouthed at her mother “Can I keep it?” [The mother] nodded and picked up the gift, and they walked out hand in hand. As they left I overheard [Child A] say to her mother “Can I actually keep it?”[73]
[73] Report of Ms C dated 18 December 2018.
66In her report to the court dated 18 December 2018, Ms C concluded by saying that she was most concerned that Child A’s behaviour towards her father changed so dramatically in the space of less than 24 hours. Further, Ms C decided to not schedule any other sessions with Child A or the father at that juncture, as she was concerned they may further entrench Child A’s negative mindset towards her father.
67Apart from admitting the “bait” comment, the mother was silent in her trial affidavit about the circumstances that led to Child A regressing so significantly between the first and second reunification sessions, save that the mother did depose that: (1) she did not speak with Child A about her father following the first session;[74] and (2) after the three reunification sessions Child A’s behaviour regressed and she had some toileting accidents.[75] I am satisfied that the mother took no steps to ensure that Child A would be protected and insulated from the mother’s and the maternal grandfather’s negative views about the father. As I identify later in these reasons, notwithstanding that the mother disputes Ms H’s opinion that she sabotaged the reunification process,[76] I am satisfied that the mother effectively did so.
The mother attends upon Dr E for a psychiatric assessment
[74] Mother’s trial affidavit filed 6 November 2020, [174].
[75] Ibid, [178].
[76] Ibid, [192].
68The mother attended upon Dr E on 9 January 2019 and 24 January 2019, for the purposes of undergoing a psychiatric assessment. Dr E then prepared a report dated 29 January 2019.[77] Noting that neither party sought to challenge the Dr E’s report (including by calling Dr E for cross-examination), I accept the contents of his report and summarise the salient parts as follows:
[77] Dr E’s report was received on the Court file, and the parents did not object to me having regard to it for the purposes of this decision, notwithstanding that it was not taken as an exhibit.
a)Dr E considered that the mother appeared guarded and tense particularly in the early stages on the first interview. He noted her reluctance to engage in the interview process and rather carefully consider her responses to open-ended questions.[78] Dr E observed that the mother was mainly focussed on perceived wrong doing and her problematic relationship with the father.[79] Dr E noted that the second interview was similar to the first and it took considerable time to obtain the necessary information in order for him to assess the mother’s mental state.[80]
[78] Report of Dr E dated 29 January 2019, page 3.
[79] Ibid, page 3.
[80] Ibid, page 3.
b)In interview, the mother maintained the father had inappropriately interfered with Child A. Dr E reported that the mother had entertained the idea that circumstances of inappropriate behaviour were difficult to fully comprehend through the story telling of a four year old child. However, she did not doubt at all that there was significant evidence of inappropriate behaviour/abuse.[81] Dr E went on to say that the mother remained very categorical about her belief that her husband perpetuated inappropriate sexual behaviour with her daughter.[82]
[81] Ibid, page 3.
[82] Ibid, page 11.
c)Dr E considered that the mother’s thought process, explanation around her views and beliefs were often difficult to follow including her reasoning. The mother displayed a degree of flexibility in regards to this admitting that some of the disclosures were difficult to obtain but she strongly believed that there were some inappropriate acts on behalf of her ex‑husband, saying “In my heart I believe in it.
I am steadfast”.[83][83] Ibid, page 12.
d)Dr E reported the mother saying the following in describing her reaction to Child A’s alleged disclosures of sexual abuse on 31 October 2016:
I was in shock. I did an audio recording. I phoned my dad, I am close to him. He advised to call [Suburb D] Police Station. Her disclosures were so specific, she was 4 years old. Because of the extensive explanation in my heart I believe it, but I do everything to protect my daughter. In my heart I believe in it, I am steadfast. I will follow the Orders but I believe something has happened.[84]
[84] Ibid, pages 5 and 6.
e)Dr E opined that the mother did not appear to consider that her recording, including repetitive questioning of Child A, aged four years old at the time, was excessive and inappropriate.[85] He also noted that the mother maintains that Child A was/is highly pedantic and would be unlikely to provide incorrect information. However, Dr E observed that the mother is currently somewhat ambivalent and unsure of certain aspects of her daughter’s alleged explanation in terms of sexual abuse, and was prepared to believe that some aspects of the ‘explanations’ could be to some extent incorrect but remains adamant that the father had acted inappropriately with their child.[86]
[85] Ibid, page 6.
[86] Ibid, page 7.
f)Dr E reported that the mother said she is “forced” to see a psychologist in order to obtain support related to the child’s reunification with the father, and said “Now all this is business and I will accept Orders by the Court”.[87]
[87] Ibid, page 8.
g)Dr E opined that the mother had a tendency to portray herself as being a perfect mother, good partner and wife. He also opined that the mother is very rigid, conservative and had a tendency to see things in only a black and white spectrum. She still maintains strict religious beliefs and tends to act in that way. Dr E further said:
Although her personality traits do not amount to a personality disorder, [Ms George] experienced difficulty with flexibility and would struggle to adapt to a new situation particularly those that involve care of her daughter [Child A]. Unfortunately, she is over-protective, and over-involved in the relationship with her daughter.[88]
[88] Ibid, page 9.
h)Dr E opined that there was no evidence of clinical disorders or personality disorders, but that the mother had developed an over-valued ideation that the father had engaged in inappropriate behaviour with Child A.[89] He further opined that:
[89] Ibid, pages 10 and 11.
[The mother’s] strongly held belief that her ex-husband sexually abused their daughter is based on erroneous ideation (delusional-like ideas) forming an overvalued idea. An overvalued idea is an acceptable, comprehensible idea pursued by the person beyond the bounds of reason. It is usually associated with problematic or abnormal personality.
In [the mother’s] case she has developed abnormal belief that is neither delusional nor obsessional in nature, but which is preoccupying to the extent of dominating her life. It is overvalued in the sense that it causes disturbed functioning or suffering to the person herself/himself and others.[90]
i)Even though Dr E did not consider that the mother had a mental illness or “clear cut” personality disorder, he opined that the mother did have psychiatric symptomology that required involvement with a clinical psychologist on an ongoing basis which could monitor her coping with the child and the father’s reunification process. In spite of keeping a stoic front, Dr E considered that the mother is vulnerable and has high potential in developing a psychiatric condition.[91]
j)Dr E concluded his report, thus:
Even though we have explored the topic of alleged abuse from many different perspectives [the mother] remained categorical that ‘something must have happened’. She has remained very rigid and unable to see her faulty reasoning claiming ‘[Child A] is pedantic’. Her belief has caused considerable damage to the relationship between the child and the father. She is also lacking insight how her beliefs adversely affect and could harm her daughter.[92]
On the positive side [the mother] is currently keen to support the reunification process between the child and the father in spite of what she ‘believes in her heart’. She is happy to follow the Court Orders and support a relationship between the father and the child. … The relationship between the child and the father could be a very powerful catalyst to influence [the mother’s] thinking and behaviour and promote resolution of an enmeshed relationship with her daughter Child A.[93]
[90] Ibid, page 12.
[91] Ibid, page 14.
[92] Ibid, page 13.
[93] Ibid, pages 13 and 14.
69I am not satisfied that the mother was, in fact, keen to support the reunification process. As I have found earlier in these Reasons, I am satisfied that she effectively sabotaged the process.
The parents apply for interim orders, and Ms H files an updating report
70Following the failed reunification effort in December 2018, both parents filed interim parenting applications in January 2019. The mother applied to discharge the order requiring her to live with the maternal grandparents, and otherwise sought an order that she engage in reportable therapy with Mr I in lieu of Ms D. On the other hand, the father applied for an interim order that Child A live with him and that he have sole parental responsibility for her, and that Child A spend supervised time with the mother. The father also sought that the mother otherwise comply with the November 2018 Orders (including that she engage in therapy with Ms D).
71Prior to the hearing of the parents’ interim applications, Ms H filed an updating report dated 1 February 2019. The salient parts of Ms H’s report, which were not challenged under cross‑examination, were as follows:
a)Ms H opined that it was likely that the mother was interfering[94] with the family therapeutic process, given Ms C’s observations of Child A and the dramatic changes to Child A’s behavioural presentation and attitude towards the father within a 24-hour period.[95] Ms H went on to say that:
[94] I would add to this that I am satisfied that on the balance of probabilities the maternal grandfather also had a part to play in sabotaging the reunification effort.
[95] Affidavit of Ms H filed 20 February 2019, annexure “B”, [8].
At this stage it has become apparent through both the failed reunification therapy and [Dr E’s] psychiatric assessment that not only is [the mother] unable to support the reunification process but that she is actively sabotaging the reunification process through her enmeshed relationship with her daughter and her rigid and unjustified views that her daughter is at risk of harm with her father.[96]
b)Ms H went on to say that she considered that the mother lacked insight into the damage that she was causing to Child A and that she was unable to provide the emotional support to Child A that is required to reunify with the father.[97] Ms H considered that it was encouraging that Child A had warmed so quickly to the father in the initial therapy session, and was indicative of successful reunification outcomes without negative influence.[98] Ms H opined that the only way in which reunification could occur would be to place Child A in the full-time care of the father, and without any contact with the mother for one month, with supervised access starting once weekly after that until the mother has engaged in enough therapy to be able to emotionally support her daughter’s relationship with the father.[99]
c)Ms H expressed concern for Child A’s (and the mother’s) safety in the event that the court changed Child A’s residence.[100]
d)Ms H otherwise set out her recommendations for how a change of residence should be managed, including therapeutic support for Child A.[101] Ms H also recommended that the family participate in family therapy to focus on a successful reunification of Child A with the mother with a view to moving to shared care should the court and family therapist deem this suitable.[102]
The interim hearing on 4 February 2019
[96] Ibid, [13].
[97] Ibid, [15].
[98] Ibid, [17].
[99] Ibid, [20].
[100] Ibid, [25].
[101] Ibid, [26] – [34].
[102] Ibid, [34].
72I heard the parents’ respective interim applications on 4 February 2019, and delivered ex tempore reasons[103] that same day. I made interim orders that Child A should immediately move to live with the father, and that the father should have sole parental responsibility for her. I did so because I considered that in the period since the making of the November 2018 Orders, further significant concerns had arisen for both the mother’s wellbeing and for Child A’s safety and wellbeing. Those concerns arose from Dr E’s report (of 29 January 2019), Ms H’s report (of 1 February 2019) and Ms C’s report (of 18 December 2018).[104] As I found on 4 February 2019:
[103] George and George [2019] FCWA 58.
[104] Ibid, [45].
[47] The assessment by [Dr E] that the mother’s underlying personality is one of rigidity and inflexibility influenced by her upbringing and her strict religious beliefs, the mother’s overinvested, overprotective and over-involvement in her relationship with [Child A], the mother’s categorical belief that the father has sexually harmed [Child A] and the fact that such belief has caused considerable damage to the relationship between the child and the father, and the mother simply also lacking any insight into how her beliefs continue to adversely impact and harm [Child A], both in the short term and going into the future.
[48][Dr E’s] opinion that the mother is vulnerable and has a high potential to develop a psychiatric condition, the mother having no capacity at this point in time to genuinely and positively commit to the reunification process. I form this conclusion from not only [Dr E’s] report, [Ms H’s] report, and [Ms C’s] report, but also Mr I’s report.
[49]Instead the evidence from the [Ms C] report and from the father himself, and particularly of [Child A’s] behaviour in the second and third sessions, and her conversations with [Ms C] during the therapy sessions, strongly suggest that the mother has acted or exposed [Child A] to behaviour which was either intended to or has simply had the effect of sabotaging the entire reunification process.
[50]In my view, the mother continues to act in ways which are psychologically harming [Child A], including furthering [Child A’s] belief that the father poses a risk of harm to her, and involving [Child A] in the Family Court proceedings by having discussions about the court proceedings and the legal teams and the like. I am satisfied that continuing the reunification process under the current arrangements is inevitably going to lead to failure.
[51]I am satisfied that the mother’s ways of being will continue to sabotage the process and that in continuing to do so she and the other adults, primarily her father, in terms of the discussions that they have that [Child A] is exposed to, continues to be psychologically harmful. I also accept that given the release of the various reports today, and the mother’s greater realisation that she is on the precipice of losing the full-time care of [Child A], that the risk of harm to [Child A], and also to the mother, has significantly escalated.
[52]Whilst I accept that Mr I has had the opportunity to meet with the mother in six sessions since 14 December, and he maintains that he has done a risk assessment with the mother, and that there are a number of markers pointing away from her being at significant risk of harming herself or others – and I presume that that includes [Child A] – I also have regard to both [Dr E’s] evidence about the mother’s rigidity in relation to her view about [Child A’s] care arrangements, her view about the father continuing to pose a risk of harm to [Child A], and Dr [E’s] opinion about the mother’s level of vulnerability and risk of psychiatric disorder.
[53]I also have regard to [Ms H’s] evidence of her longstanding concerns about the mother posing a suicide risk. In my view, [Ms H] has had the benefit of involvement with this family over a long period of time in an independent role as a forensic psychologist assessing the family, rather than being in the role of a therapist and in a supportive role to one or other of the parties. She has produced reports on 30 June 2017, on 24 May 2018 and most recently over the last weekend.
[54]I accept [Ms H’s] evidence, not only from this report but from the May 2018 report, that if the mother had formed the view that she was at risk of losing the care of [Child A] then she was at a high risk of suicide. In such event, or if the mother attempted to harm herself and [Child A] was exposed to such event, it would obviously be devastating for [Child A]. I am also mindful of [Ms H’s] concerns that the mother’s emotional reaction or behaviour may well also lead to the circumstance where it’s physically harmful not only to mother but also to the child.
[55]In circumstances where neither the mother or her father appeared to realise the importance and the purpose of the orders that were put in place in November 2018 to provide some sort of practical day-to-day supports for [Child A] to ensure that she was protected from the mother’s emotional dysregulation through this family therapy process, I have reached the point today where I am satisfied that the risk of harm to [Child A] in remaining in her mother’s care is now so unacceptably high that she must be placed in her father’s care.
Child A changes residence to live with the father
73The orders that I made on 4 February 2019 provided that the father would collect Child A from school that same day. I accept the father’s evidence that when he presented at Child A’s school that afternoon, the maternal grandfather had already attended to collect Child A.[105] The Deputy Principal then asked the maternal grandfather to leave, which he eventually did. Child A was then brought into a room where the father was waiting (together with Ms A, Ms A’s sister and niece).
[105] Father’s trial affidavit filed 21 October 2020, [40]. There was no cross-examination of the mother about the maternal grandfather’s actions in this regard, and I am unable to make any finding as to what part the mother played (if any at all) in the maternal grandfather’s actions on that day.
74I accept the father’s and Ms A’s evidence that when Child A first saw the father, she let out a bark and crumpled to the floor in a ball. Child A then tucked herself into a ball facing the corner and started to grunt and kick out at anyone that approached her. At one point, Child A kicked the father when he approached her. After some time, the father was able to engage Child A and they all left the school and went for a meal at McDonalds.
75I accept the father’s and Ms A’s evidence that the first five weeks of Child A being in their care were “very challenging”[106] including: (1) Child A not believing that he was her real father; and (2) Child A’s behaviour regressing, including having toileting accidents.[107] I also accept the father’s evidence that upon coming to live with them: (1) Child A displayed what he termed “spoilt” behaviour such as expectations of gifts for no reason, including saying words to the effect “but I get a toy every time we go shopping”; and (2) Child A did not appear to know how to get dressed by herself, make her bed, use a knife and fork, eat with her mouth closed and pack away toys.[108]
[106] Father’s trial affidavit filed 21 October 2020, [34].
[107] Ibid, [35].
[108] Ibid, [98].
76I accept the father’s evidence that after about five weeks, Child A came to accept that he was her father, following a discussion about how children are made and the George family tree, and looking at family photos and Child A’s birth certificate. Child A told the father that “grandad also said you weren’t my real dad”,[109] and that Child A thought the maternal grandfather might be her dad.[110] Child A also told the father that “grandad said another thing about you which you won’t like”, but the father told her it didn’t matter.[111] I am not satisfied that Child A’s disclosures to the father of this nature were simply a case of Child A telling her father what she thought he wanted to hear.[112] Rather, I consider the most likely explanation is that Child A was repeating negative comments about the father which were made by the maternal grandfather, either directly to Child A or in her presence.
[109] Ibid, [78].
[110] Ibid, [72].
[111] Ibid, [79].
[112] This is notwithstanding that the father conceded it was theoretically possible that Child A might tell him things which were not true, but which she thought he wanted to hear.
77I accept the father’s evidence that it was initially difficult for him to have a calm conversation with Child A regarding her toileting accidents at home and at school, as Child A would become hysterical.[113] The father and Ms A used various strategies to help Child A address her toileting problems, including encouraging her to go to the toilet regularly – four times per day or more. Part of the strategy also involved having Child A taking responsibility for her soiled underwear, including soaking them.
[113] Father’s trial affidavit filed 21 October 2020, [85] and [86].
78I accept the father’s evidence that Child A’s toileting issues (including wetting the bed and soiling her underpants) abated following her acceptance that he was her father.[114] Since this time, I am satisfied that Child A has periodically suffered further toileting accidents. Although the mother maintained that Child A did not have any toileting accidents when in her care, I am not persuaded this is the case, particularly given the mother’s acknowledgement that Child A had previously suffered toileting accidents in her home, and that Child A’s further toileting accidents occurred not just in the father’s home, but also when Child A was at school and at after-school care.
[114] Ibid, [84].
79I accept the father’s evidence that his and Ms A’s discussions with Child A about her toileting issues have been gentle and child‑focussed, and that he and Ms A repeatedly reinforced with Child A that she was not in trouble, and would not be in trouble, for having a toileting accident. The father described that, over time, Child A was able to discuss toileting issues calmly.[115] It therefore follows that I reject the mother’s case that Child A is scared to talk to her father about toileting issues, and that is why she has, at times, hidden accidents from him (and others, including her school teacher). Instead, I am satisfied that the more likely explanation for Child A hiding her periodic toileting accidents is because she is ashamed and embarrassed about them. To the extent that each party may have alluded that Child A’s toileting accidents were “caused” by the other party’s actions or behaviour towards Child A, I am not persuaded on the available evidence that such is the case.
[115] Ibid, [89].
80I am satisfied that since Child A commenced living with them, the father and Ms A have addressed all of Child A’s behavioural issues in a positive and child-focussed way. I accept the father’s evidence that he and Ms A introduced a star chart for Child A to acknowledge the completion of chores, and established a movie night with popcorn on Fridays.[116] In order to deal with Child A’s expectation of a treat after every meal, the father and Ms A introduced a treat night on Wednesday and Saturday nights.[117] Over time, the father and Ms A reduced the number of nights that Child A was permitted to watch her tablet after 7pm, down from every night to four nights.[118] The father engaged Child A in playing cards (Uno), which he described assisted Child A in building resilience by learning how to lose graciously.[119] The father and Ms A exposed Child A to cooking and to different foods, in circumstances where she would initially only eat a very limited number of foods (that is, steamed broccoli, plain rice, chicken nuggets and sausage rolls).[120]
[116] Ibid, [100] and [101].
[117] Ibid, [102].
[118] Ibid, [104].
[119] Ibid, [106] and [107].
[120] Ibid, [111].
81I accept the father’s evidence that he and Ms A maintained their focus on “family activities and routine, with an increasing focus on emotional self-regulation, social awareness and encouraging Child A to be more independent and responsible”.[121]
Child A commences spending supervised time with the mother
[121] Ibid, [108].
82On 18 February 2019, I made further interim orders that provided a pathway for Child A to recommence communicating and spending time with the mother, including: (1) three telephone calls between Child A and the mother, supervised by Ms C; (2) two visits between Child A and the mother, supervised by Ms D; and (3) subject to Ms D not providing a countervailing report, then Child A spend time with the mother for a minimum of two hours per fortnight, supervised by a professional agency.
83Child A had her first supervised visit with the mother through Ms D in March 2019, and commenced spending regular, supervised time (via Communicare) in April 2019. It was not in dispute that Child A’s supervised time with the mother went well.
The mother’s card to Child A
84The father was cross-examined about his decision to remove the first half of a card the mother sent to Child A in early 2019, which read as follows:
Dear [Child A] My Love for you is bigger than all the planets in all the galaxies!
Amazingly, I squeezed lots of it into this card to get to you.
Just open it any time and the love will get to you.
I Love you [Child A] xx[122]
[122] Exhibit R4.
85I accept the father’s and Ms C’s evidence that she recommended to the father that he remove the first half of the card. Ms C explained in her cross-examination that in her opinion, the card was borderline inappropriate in light of the strong language used by the mother, and she was concerned that that it may “upset the apple cart” in terms of Child A settling in the father’s care, noting the very recent reversal of residence. Although the mother (through her counsel) appeared to be critical of the father for removing the first half of the card, I am satisfied that it was appropriate for him to do so in light of Ms C’s advice to him. If anything, the incident is simply another, albeit minor, example of the mother having little, if any, insight into how her emotions may adversely impact upon Child A.
Child A’s behaviour at school
86I accept the father’s evidence that on 25 June 2019 the school contacted him and advised that Child A had physically hurt two other students during the day. The father visited the school that afternoon to speak with Child A’s teacher, and was told that Child A was struggling to regulate her emotions, including incidents where Child A would react when something did not go her way or she became emotional to the point she would need to be sent from the classroom to calm down. The father and Child A’s teacher worked on a plan to encourage Child A to be more aware of identifying her emotions and remove herself, or accept direction from the teacher to remove herself, from those situations. At home, the father and Ms A focussed on helping Child A identify and appropriately respond when Child A began to feel overly emotional.[123] I am satisfied that over time, Child A’s resilience and ability to emotionally self-regulate improved considerably, particularly as a result of the father’s, Ms A’s and the school’s combined efforts.
Ms H prepares an updated report – June 2019
[123] Father’s trial affidavit filed 21 October 2020, [112] – [116].
87Ms H provided an updated report to the court dated 29 June 2019, the salient parts of which are as follows:
a)Ms H reported that Child A experienced significant emotional dysregulation and regression immediately after the change of residence in February 2019 and lasting for about the first five weeks.
b)Ms H observed that there had been a significant shift in the mother’s approach, and that the mother appeared to be highly motivated to be reunified with Child A and do what the court is asking to ensure that occurred.[124] This included attending upon Ms D for therapy on (by that time) five occasions, including two supervised sessions with Child A.
The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty and expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
160Both parents live in the southern suburbs of the Perth metropolitan area. I am not satisfied there are any significant practical difficulties or expenses that will substantially affect Child A’s right to maintain her relationship with, and her contact with, each of her parents on a regular basis.
The capacity of each of the parents and any other person to provide for the needs of the child, including emotional and intellectual needs.
161I accept Ms C’s evidence that when she first met Child A, the child was emotionally “very young” and was not overly empathetic. However, since Child A has moved to reside with the father, her emotional maturity, general behaviour and social skills have considerably improved. I am satisfied that since February 2019, the father (ably assisted by Ms A) has demonstrated to a very high level, the capacity to meet Child A’s needs, including her emotional and intellectual needs. I am satisfied that the father has generally followed the advice of the professionals and worked cooperatively with Child A’s school to address Child A’s behavioural issues, including but not limited to: (1) maintaining a positive and child focussed approach; (2) setting appropriate behavioural boundaries and rules for Child A; (3) maintaining family activities and routine, with a focus on assisting Child A to develop emotional self-regulation, social awareness, independence and responsibility; (4) assisting Child A to build resilience, for example, by learning to lose games graciously; and (5) helping Child A to identify and respond appropriately when she begins to feel overly emotional.
162I remain satisfied that the mother has the capacity to adequately meet Child A’s physical and social needs. However, I continue to have significant concerns about the mother’s capacity to meet Child A’s ongoing emotional and psychological needs, particularly given: (1) Dr G’s evidence, which I accept, that the mother has still not developed any insight into how her views about the father have negatively impacted on Child A; and (2) my findings as set out in paragraphs [145] to [148] of these Reasons.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
163I am satisfied that Child A is an intelligent and strong-willed young child who, notwithstanding episodes of regression, has demonstrated considerable resilience since she moved to live with the father in February 2019. Since this time Child A has made significant improvements in her behaviour, social development, empathy and consideration of other people.
164I am satisfied that the father has been traumatised by the mother’s baseless allegations against him and by the continuation of these proceedings. The father has been receiving professional support and assistance from Dr B, and intends to continue with his therapy. Notwithstanding the challenges the father has faced, I am also satisfied that he has done an outstanding job of parenting Child A since she came into his full-time care in February 2019.
165I accept Dr G’s evidence (who agreed with Dr E’s assessment in this regard), that the mother remains vulnerable and with a high potential for developing a psychiatric condition. The mother is likely to have also been traumatised by the removal of Child A from her care in February 2019. I accept the evidence of Dr G and Ms H that the mother requires ongoing therapeutic support. I also accept Dr G’s evidence that such therapeutic support should be non-reportable; otherwise the mother is highly likely to continue to engage at only a superficial level.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents.
166I am satisfied that both parents love Child A very much and want the best for their daughter. However, given their dislike and mistrust of each other, their communication difficulties and very different parenting styles and expectations for Child A, I am satisfied that the capacity of the parents to work cooperatively to make decisions about Child A, and to co-parent Child A, is low.
Any family violence involving the child or a member of the child’s family.
167I have already dealt with this consideration in my assessment of the primary considerations.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
168Both parents agree and I am satisfied that final parenting orders should now be made.
Any other fact or circumstance the court thinks is relevant.
169There are no other matters that I consider relevant.
CONCLUSIONS AND PROPOSED ORDERS
170The father sought that he continue to have sole parental responsibility for Child A (subject to a condition that he consult with and consider any views expressed by the mother before making a major long-term decision). On the other hand, the mother sought that the parents have equal shared parental responsibility for Child A.
171In this case, I consider that the presumption of equal shared parental responsibility is rebutted as not being in Child A’s best interests and that rather, it is in her best interests to make an order in the terms sought by the father for the following reasons: Firstly, equal shared parental responsibility requires the parents to consult with each other and jointly make decisions about long term issues concerning the child. In this case I am satisfied that is not possible, given my findings about the parents’ dislike of each other, communication and trust issues, and their very different parenting styles and expectations about Child A’s behaviour. Secondly, as will shortly become apparent from these Reasons, I am satisfied that Child A should continue to live primarily with the father, and that he will continue to make considered and appropriate decisions for Child A as and when matters arise.
172Given the orders I propose to make, the father in the exercise of his parental responsibility will be able to change Child A’s school enrolment from her current school to School A School. So that there is no doubt about the matter, I am satisfied that Child A attending School A is in the child’s bests interests and decline to make the order sought by the mother that Child A remain at her current school for the remainder of her primary education. School A is located in close proximity to Child A’s primary residence, and as such: (1) will reduce the burden of the commute on both Child A and the father’s household; and (2) facilitate Child A having greater contact outside of school with her classmates and participate in extracurricular activities which is currently difficult, given the travel time involved. A change in school will also give Child A the opportunity to start afresh with a new cohort who do not know about her history of behavioral and/or toileting issues. Although Child A has recently expressed some reticence at the thought of leaving her current school, I accept Ms C’s evidence that Child A did not exhibit any anxiety or distress when discussing the topic. I also accept Ms H’s evidence that Child A is a social child and strong willed, and will have no trouble making new friends. Child A already has some familiarity with School A, which will make the transition somewhat easier. I am also satisfied that, given the mother’s views about the change of school were thoroughly explored during the Trial, any expectation that the father should be required to “consult” with and consider the views of the mother about this issue is redundant.
173For the avoidance of any doubt, I also observe at this point that the order for sole parental responsibility does not preclude the mother from taking Child A to the child’s general medical practitioner, dentist or to a hospital emergency department to seek urgent treatment for Child A in the event of a medical or dental emergency when the child is in the mother’s care. However, in line with the orders agreed to by the parents in relation to information exchange, the mother should contact the father as soon as practicable in the case of emergency so that he can also make arrangements to attend.
174I am satisfied that it is in Child A’s best interests to live primarily with the father for the reasons identified by me earlier in these Reasons, which in summary are as follows:
a)Child A has close and loving relationships with the father, Ms A and Child B and she has warm relationships with other members of the extended paternal family. She feels safe and loved in the father’s household and enjoys being part of a large family group. Child A also continues to have close and loving relationships with the mother and the maternal grandfather. She feels safe and loved in the mother’s home, enjoys spending time with her, and likes not having to share her mother’s attention.
b)Child A is not at risk of harm in the father’s care. On the other hand, although the mother does not currently pose a risk of harm to Child A, the mother dislikes the father and does not shield Child A from her (and the maternal grandfather’s) negative views. The mother appears to have taken few, if any, steps in therapy since November 2018 to address: (1) her ingrained and firmly entrenched views that the father sexually harmed Child A; and (2) her lack of insight into how rigid and how unjustified her views were about the father, and the damage she had caused to Child A. Whilst the impact on Child A of the mother’s (and the maternal grandfather’s) negative influence has waned since February 2019, if in the future the mother makes further unfounded allegations against the father and/or increasingly exposes Child A to her (and the maternal grandfather’s) negative views, then the mother is again likely to pose a significant risk of emotional / psychological harm to Child A.
c)The father has demonstrated, to a very high level, his capacity to provide for Child A’s needs, including her emotional needs. Since coming into the father’s care, Child A’s emotional maturity, general behaviour and social skills have considerably improved. Although the mother has the capacity to adequately meet Child A’s physical and social needs, I continue to have significant concerns about the mother’s capacity to meet Child A’s ongoing emotional and psychological needs.
d)The parents have very different parenting styles and expectations about Child A’s behaviour. They have been unable to implement the same systems of behaviour management at each home or adopt a consistent approach in encouraging Child A to be more resilient and independent. In addition, the mother regards the father’s efforts to implement appropriate behavioural boundaries and routines with Child A, and appropriately encourage resilience and independence in Child A, as being emotionally harmful. I have significant concerns that if Child A does not have the benefit of living in one primary home for the majority of the time, then Child A will struggle to bridge the gulf between the parents’ parenting styles and expectations and is highly likely to experience further episodes of regression.
175In relation to spend-time-with arrangements, I am not persuaded that the orders sought by either the mother or the father are in Child A’s best interests. Rather, I am satisfied that the current spend-time-with arrangements should continue for the following reasons: Firstly, I accept Ms H’s evidence that the current arrangements should remain as they currently are for the sake of Child A’s stability. Secondly, I am not persuaded by the father’s reasons for seeking to reduce the mother’s time and refer to my findings in paragraphs [147], [158] and [174(b)] hereof. I am satisfied that Child A already misses her mother under the current five nights per fortnight arrangement. Any reduction in time, such as that proposed by the father, is likely to make that situation worse for Child A. Although the ICL proposed that the mother’s time with Child A in the intervening week start one day later, I am not persuaded that the adjustment is in Child A’s best interests. It would mean that Child A would not have the opportunity to spend a full weekend in her father’s household, including bringing an end to a favourite family activity; Friday night move night. Subject to the parents having liberty to make further submissions as to the proposed times, I am also satisfied that the existing spend-time-with orders should be further defined, to provide for precise handover times on non-school days.
176Save for Mother’s Day and Father’s Day, the parents agreed the arrangements for Child A to spend time with each party during special occasions. In relation to Mother’s Day and Father’s Day, I prefer the orders proposed by the father as they give Child A the opportunity to celebrate these occasions with not only her parents, but also the other very significant people in her life, in particular: Ms A, Child B and the maternal grandfather.
177Although the parents agreed the arrangements for them to communicate with each other, I considered that the proposed order in relation to notifications about emergencies (presumably involving Child A) was poorly drafted and likely to lead the parents into further disputes. For example, it was arguable that the proposed order required the each party to contact the other in the event of any emergency (such as a burst water pipe at home) or in the event that other family members, such as Child B or the maternal grandfather, had to attend at hospital. Subject to the parents having liberty to make further submissions, I propose to make an order that the parents telephone each other as soon as practicable in the event of a serious medical / dental emergency necessitating Child A’s attendance at a hospital or medical / dental practitioner for treatment.
178Although the parents agreed to various notice requirements in the event that either of them proposed to “travel or holiday” with Child A during their time with the child, I again considered that the proposed order was poorly drafted and likely to lead the parents into further disputes. For example, it was arguable that the proposed order required each party to notify the other in the event of any travel (such as a day trip to [Town F]). Subject to the parents having liberty to make further submissions, I propose that the general notice requirements apply only to travel locations that are more than 300 kilometres from Perth.
179The father also proposed that until such time as Child A turned 12 years old, only he be permitted to take Child A away for an extended holiday each year of up to 14 days. Thereafter, he proposed that both parents be able to take Child A away for such a holiday, provided that it took place in Australia and only occurred during the summer school holidays and not during any special occasions provided for in the orders. On the other hand, the mother proposed that both parents be able to take Child A away for holidays of up to 10 consecutive nights.
180I am not persuaded that either the father’s or the mother’s proposals were entirely in Child A’s best interests. I am satisfied that the father should be able to immediately take Child A on a holiday each year for up to 14 days. I am satisfied that as Child A will be travelling with her primary carer in any event, she is highly likely to cope with the short separation from her mother, particularly as the parents agree that reasonable communications between Child A and the non‑travelling parent will be facilitated during the period of the holiday. I am also satisfied that the mother should be able to immediately take Child A on a holiday each year for up to seven consecutive nights, increasing to 14 consecutive nights after Child A turns 12 years old. Child A has a close and loving relationship with her mother and wants the opportunity to continue to go on holidays with her mother and maternal grandfather (as she has done in the past). Although Child A is likely to miss the father, Ms A and Child B, I am satisfied that the period of seven days is manageable for Child A, particularly given the parents agree that reasonable communications between Child A and the non-travelling parent will be facilitated.
181I consider that the father’s proposals that the parents not travel with Child A during the special occasions days provided for in the orders and that the extended travel period be limited to the summer school holidays are reasonable.
182The parents agreed that Child A should continue to see Ms C, at such frequency as Ms C recommended from time to time. The parents were unable to agree how Ms C’s costs should be met: the father sought the parents equally share the costs, whereas the mother was silent on the issue. Having regard to each party’s financial circumstances, I am satisfied that the father should be solely responsible for meeting Child A’s costs of attending on Ms C, and that otherwise, each party should be responsible for the costs of their own attendances (if applicable) on Ms C in relation to Child A’s ongoing therapy.
183The mother sought that she be able to attend non-reportable therapy with a therapist of her own choosing. Particularly having regard to the evidence of Dr G, I am satisfied that such an order is appropriate. The mother also sought that both parents attend non‑reportable family therapy with a goal of improving their communications and capacity to co-parent. Having regard to my earlier findings at [156] and Ms H’s evidence under cross-examination,[227] I am not satisfied that family therapy is likely to assist the parents and decline to make such an order.
[227] As set out in paragraph [140(c)] of these Reasons.
184Save for the following matters, the parents agreed that they should be subject to a number of injunctions. Firstly, the father sought that the parents be restrained by injunction from questioning, interviewing and recording Child A in relation to any court related matters or allegations. Given the mother’s history of questioning and recording Child A a number of times, and the harmful consequences that followed, I am satisfied that an injunction to prevent this from occurring again is entirely appropriate. Secondly, the mother sought that both parents be restrained by injunction from taking Child A to a therapist, counsellor or psychologist without the prior consent of the other parent. On the other hand, the father sought that the mother only be so restrained. I am not satisfied that the father should be required to seek the mother’s consent before taking Child A to a therapist, counsellor or psychologist. However, I am satisfied that the mother should be so restrained. This is because: (1) Pursuant to these Reasons, the father will have sole parental responsibility for Child A. As such, the decision as to whether Child A should attend on such health providers falls on him; (2) While I am confident that the father is well able to make appropriate, child‑focussed decisions for Child A in this regard, I have much less confidence in the mother’s ability to do so, particularly having regard to her firmly held views about the father and her lack of insight into how her views about the father have negatively impacted on Child A. Thirdly, the father sought that in the event Child A required non-urgent medical attention when spending time with the mother, then the mother should take Child A to her regular general medical practice. I am satisfied that such an arrangement is appropriate, in ensuring consistency in the management of the child’s non-urgent medical issues.
185The father sought an order that in the event the mother did not return Child A to the father as required by the orders, then a recovery order immediately issue and that standard interim orders be made, including placing Child A on the Family Law Watch List maintained by the Australian Federal Police. I decline to make such orders pursuant to these Reasons. There was no cogent evidence before the court that the mother has failed to return Child A to the father’s care since February 2019, or that the mother has threatened to unilaterally remove the child from Australia. In the event that circumstances subsequently arise that necessitate the father making an urgent application for a recovery order, then he can do so.
186I propose to issue these reasons from chambers in order to give the parents an opportunity to consider them and my proposed orders. I propose to make the following orders:
1.All previous parenting orders in relation to the child [CHILD A] born [in] 2012 (“the child”) be discharged.
2.[MR GEORGE] (“the father”) have sole parental responsibility for the child.
3.Subject to his discretion as to timing and manner of doing so, the father shall:
a)advise [MS GEORGE] (“the mother”) of any significant decisions he proposes to make;
b)consider any views conveyed to him in writing in a courteous and timely manner by the mother;
c)advise the mother of the decision he has made and provide her with all relevant information in relation to the decision about any significant elective health issue inclusive of medical and dental professional treatment, the name and contact details of the medical professional proposing the treatment; and
d)give such authorities as may be necessary for third parties to provide information to the mother as referred to in this order.
4.Notwithstanding paragraph 2, the father shall do nothing to prevent the mother from:
a)obtaining information from the child’s school about her progress and development;
b)discussing proposed medical or dental procedures with the relevant professional; and
c) visiting the child in the event that she is in hospital.
5.The child live with the father.
6.The child spend time with the mother during the school terms and school holidays as follows:
a)each alternate weekend from after school Friday (or 3:00pm Friday in the event of a non-school day) until before school Monday, extended to before school Tuesday in the event that this time falls on a Monday public holiday (or 9:00am on Monday in the event that the Monday is not a public holiday but otherwise is a non-school day);
b)in each intervening week, from after school Wednesday (or 3:00pm Wednesday in the event of a non-school day) until before school Friday (or 9:00am Friday in the event of a non-school day).
7.Notwithstanding the effect of any other orders herein, unless otherwise agreed by the father and the mother in writing, the child spend time with the parents on the following special occasions:
a) by consent, as to Christmas:
i)from 9:00am on 24 December until 2:00pm on 25 December, with the mother on years ending with an even number, and with the father on years ending with an odd number;
ii)from 2:00pm on 25 December until 7:00pm on 26 December, with the father on years ending with an even number, and with the mother on years ending with an odd number;
b) by consent, as to Easter:
i)with the mother from the conclusion of school or 3:00pm on the Thursday before Good Friday until 5:00pm on Easter Saturday in 2021 and each alternate year thereafter;
ii)with the father from 5:00pm on Easter Saturday until 5:00pm on Easter Monday in 2021 and each alternate year thereafter;
iii)with the father from the conclusion of school or 3:00pm on the Thursday before Good Friday until 5:00pm on Easter Saturday in 2022 and each alternate year thereafter;
iv)with the mother from 5:00pm on Easter Saturday until 5pm on Easter Monday in 2022 and each alternate year thereafter;
c)by consent, on the child’s birthday the child spend time with the parent with whom she is not residing that night, if a school day, from the conclusion of school until 6:00pm; and if a non-school day, from 10:00am until 2:00pm;
d)by consent, if the child’s half sibling’s birthday falls on a day when the child is residing with the mother that night, then the child spend time with the father as follows:
i)if the birthday falls on a school day, then from the conclusion of school to the commencement of school the following day (or 8:30am if a non-school day);
ii)if the birthday falls on a non-school day, then from 9:00am until 5:00pm;
e)by consent, if the father’s birthday falls on a day the child is not residing with him that night, the child spend time with the father as follows:
i)if the father’s birthday falls on a school day, from the conclusion of school to the commencement of school the following day (or 8:30am if a non-school day);
ii)if the father’s birthday falls on a non-school day, then from 9:00am until 5:00pm;
f)by consent, if the mother’s birthday falls on a day the child is not residing with her that night, the child spend time with the mother as follows:
i)if the mother’s birthday falls on a school day, from the conclusion of school to the commencement of school the following day (or 8:30am if a non-school day);
ii)if the mother’s birthday falls on a non-school day, then from 9:00am until 5:00pm;
g) on Father’s Day each year:
i)with the father from 5:00pm on the Saturday preceding Father’s Day until 2:00pm on Father’s Day; and
ii)with the mother from 2:00pm on Father’s Day until the commencement of school Monday (or 8:30am if a non-school day);
h) on Mother’s Day each year:
i)with the mother from 5:00pm on the Saturday preceding Mother’s Day until 2:00pm on Mother’s Day; and
ii)with the father from 2:00pm on Mother’s Day until the commencement of school Monday (or 8:30am if a non-school day);
i)at such other times during special family events as the parents agree in writing, upon reasonable notice being given, and with agreement not to be unreasonably withheld.
8.By consent, the child have telephone and videoconferencing communications with the parent with whom she is not residing twice weekly between 6:00pm and 6:30pm and on the basis that the parent with whom the child is then residing facilitate the call to the other parent’s mobile telephone number.
9.By consent, the parents communicate via email or text message for all non-urgent matters relating to the child.
10.The parents communicate via telephone as soon as practicable in the event of a serious medical / dental emergency necessitating the child’s attendance at a hospital or medical / dental practitioner for treatment.
11.By consent, for the purposes of handover, when the child’s school is not the place of handover, the father will deliver the child at the mother’s residence at the commencement of the mother’s time and the mother will return the child to the father’s residence at the conclusion of her time.
12.In the event that either party seeks to travel on holiday with the child to a location that is more than 300 kilometres from Perth:
a)by consent, during the time the child would ordinarily live-with / spend-time-with the travelling party pursuant to these orders, then no less than 14 days prior to the date of intended departure, the travelling party provide to the non-travelling party written notice to include the following:
i)the dates and itinerary showing return flights (if applicable) and accommodation arrangements; and
ii)details of a reliable method for the non‑travelling party to contact the child and for the child to contact the non-travelling party, so as to allow reasonable communication.
b)the father be permitted to travel with the child for up to 14 consecutive days during the summer school holidays provided that the travel:
i)does not conflict with the mother’s time with the child pursuant to paragraph 7 of these orders; and
ii)occurs no more than once per calendar year; and
iii) the father gives the mother:
A.no less than 60 days prior, written notice of the intended destination and dates of travel;
B.no less than 28 days prior, a detailed itinerary showing return flights (or other means of travel) and accommodation arrangements and details of a reliable method for the non-travelling party to contact the child so as to allow reasonable communication.
iv)the child shall spend make up time with the mother in the same holiday period, as agreed by the parents.
c)the mother be permitted to travel with the child during the summer school holidays, until the child turns 12 years of age for up to seven consecutive days, and thereafter for up to 14 consecutive days, provided that the travel:
i)does not conflict with the father’s time with the child pursuant to paragraph 7 of these orders; and
ii)occurs no more than once per calendar year; and
iii) the mother gives the father:
A.no less than 60 days prior, written notice of the intended destination and dates of travel;
B.no less than 28 days prior, a detailed itinerary showing return flights (or other means of travel) and accommodation arrangements and details of a reliable method for the non-travelling party to contact the child so as to allow reasonable communication.
iv)the child shall spend make up time with the father in the same holiday period, as agreed by the parents.
13.By consent, in the event the travel pursuant to the preceding order is outside of the Commonwealth of Australia, then:
a)the parents be restrained by injunction from removing or facilitating the removal of the child from the Commonwealth of Australia unless pursuant to these orders or as otherwise ordered by the Court;
b)the destination of the travel must not be listed on as “exercise a high degree of caution”, “reconsider your need to travel”, “do not travel”, or “high threat of kidnapping”;
c)the destination of the travel must be listed as a Hague Convention country.
14.By consent, upon the request of either party, the other party is to sign the child’s passport application to ensure the child can receive a passport for the purpose of any international holiday, with the parent who is requesting the passport to pay the costs of any application fee.
15.The parents facilitate the child’s attendance upon [Ms C] (“the child’s therapist”), subject to her availability and as recommended by the child’s therapist until such time as the child’s therapist determines her services are no longer required, with the costs of the child’s attendance to be borne by the father, and with the costs of each party’s attendance on the child’s therapist (if applicable) to be borne by that party.
16.The mother, at her liberty and choosing, be able to attend non‑reportable therapy with a therapist of her choosing.
17.By consent, there be such other parenting arrangements as the parents may agree in writing from time to time.
18.By consent, the parents be at liberty to attend all:
a)school assemblies, concerts, sports days, carnivals, performances, parent-teacher evenings and any other school event concerning the child; and
b) the child’s extra-curricular activities.
19.By consent, on a without admission as to need basis, the parents be restrained by injunction and an injunction issue restraining each party from:
a)denigrating the other parent or any of the other parent’s family members to, or in the hearing of, the child; and
b)discussing these proceedings in the presence of the child.
20.The parents be restrained by injunction and an injunction issue restraining each party from questioning, interviewing and recording the child in relation to any court related matters or allegations.
21.The mother be restrained by injunction and an injunction issue restraining the mother from taking the child to any psychologist or counsellor without the written consent of the father.
22.By consent, each parent must keep the other parent informed:
a)of his/her residential address, email address and mobile telephone number at all times, and must forthwith advise the other parent of any change to those details and specifically provide to the other parent with no less than 30 days written notice of their intention to relocate their residence;
b)of the names and addresses of any treating medical or other allied health practitioner who may treat the child and authorise the general practitioner or any other medical professional or allied health professional including dentists, counsellors, psychologists and psychiatrists to communicate with and to give information they hold on record for the child;
c)at all times of all matters of importance relating to any of the child’s health, safety and welfare and in situations of significant illness, hospitalisation, accident or emergency, immediately notify the other parent of the situation including the child’s location and the names and contact details of the health professionals attending to the child.
23.In the event that the child needs non-urgent medical attention when spending time with the mother, the mother is to take the child to the child’s regular general medical practice.
24.By consent, the parents be at liberty to provide a copy of these orders to all or any of the following:
a)the principal or delegate of the principal of the school attended by the child;
b) the child’s therapist; and
c)any therapist, counsellor, psychologist or psychiatrist of the parents or the child.
25.The matter be removed from the Judge’s Defended List.
26.All 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 this order.
27.In relation to material tendered as an exhibit into evidence in these proceedings:
a)all parties must collect the exhibits tendered by them (“their exhibits”), from the Chambers of the Honourable Chief Judge Sutherland, at least 28 days, and no later than 42 days, from today’s date;
b)all parties must contact the Chambers of Honourable Chief Judge Sutherland to arrange the collection of their exhibits; and
c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.
28.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 26 and 27 above do not apply.
29.All outstanding proceedings be and are hereby dismissed.
This anonymised version of the judgment has been amended in places to correct spelling, grammar and formatting errors, and standardise references, without affecting the substance thereof.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KV
Associate
3 March 2021
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