GEORGE and GEORGE

[2020] FCWA 114

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: GEORGE and GEORGE [2020] FCWA 114

CORAM: SUTHERLAND CJ

HEARD: 16 JUNE 2020

DELIVERED : 2 JULY 2020

FILE NO/S: PTW 5635 of 2013

BETWEEN: MR GEORGE

Applicant

AND

MS GEORGE

Respondent

Catchwords:

PARENTING - Interim - Ongoing spend time with arrangements - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms Hossen on direct instruction
Respondent	:	Mrs Farmer
Independent Children's Lawyer	:	Ms Stokes

Solicitors:

Applicant	:	Self Represented Litigant
Respondent	:	Meillon & Bright Legal
Independent Children's Lawyer	:	Eagle Bay Legal

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

George and George [2018] FCWA 223

George and George [2019] FCWA 218

George and George [2019] FCWA 251

George and George [2019] FCWA 58

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 & 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

1These reasons assume that the reader is familiar with the previous decisions delivered by me in this matter on 8 November 2018[1] (the trial decision), 4 February 2019,[2] 11 October 2019,[3] and 29 November 2019[4] concerning the parties’ young daughter [Child A]. To provide some context to this decision, in the following two paragraphs, I again set out my summary of this case as contained in the November 2019 decision at [2] – [3]:

[1] George and George [2018] FCWA 223.

[2] George and George [2019] FCWA 58.

[3] George and George [2019] FCWA 218.

[4] George and George [2019] FCWA 251.

2In my trial decision (and as re-iterated in my decision delivered on 4 February 2019), I found that the parties’ only daughter, who was born [in] 2012, had been psychologically and emotionally harmed by the mother, and that the child remained at an ongoing risk of harm from her mother. I was satisfied that the mother’s continual questioning of the child, and the mother’s anxiety and hypervigilance about the father, had acted to develop and reinforce the false belief in the child’s mind that the father had sexually harmed her in the past resulting in the child fearing spending time with her father.[5] I accepted the evidence of the single expert that the ramifications of the child holding onto false beliefs that the father had sexually abused her can be as harmful as if the sexual abuse had actually occurred, including the child potentially suffering from long-standing psychological, social and emotional consequences.[6] I made a number of interim orders in November 2018 for the child to continue to live with the mother and for the child to commence a therapeutic reunification process with the father.

[5] George and George [2019] FCWA 58, [1].

[6] George and George [2019] FCWA 58, [2].

3In my decision delivered on 4 February 2019, I found that the live‑with and spend‑time‑with arrangements for the child should immediately change, such that she immediately move into the full-time care of her father. This was on the basis that, amongst other things:

a)I was satisfied on the basis of the evidence of the psychiatrist who undertook an assessment of the mother after the trial that: (1) her underlying personality was one of rigidity and inflexibility, influenced by her upbringing and her strict religious beliefs; (2) the mother was overinvested, overprotective and overly involved in her relationship with the child; (3) the mother’s categorical belief that the father had sexually harmed the child and the fact that such belief had caused considerable damage to the relationship between the child and the father; and (4) the mother lacked any insight into how her beliefs continued to impact on and harm the child, both in the short term and going into the future.[7]

b)I was satisfied that the mother was vulnerable and had a high potential to develop a psychiatric condition, the mother having no capacity at that point in time to genuinely and positively commit to the reunification process.[8]

c)I was satisfied that the mother was not supporting the reunification process between the father and the child and that the mother was either directly or indirectly interfering with the therapeutic process by either having discussions directly with the child or permitting the child to hear inappropriate discussions between herself and the maternal grandfather.[9]

d)I was satisfied that the mother continued to act in ways which were psychologically harming the child, including furthering the child’s belief that the father posed a risk of harm to her; and that continuing the reunification process under the (then) current arrangements was inevitably going to lead to failure.[10]

e)I was satisfied that having regard to the evidence of the mother’s then clinical psychologist, that she had barely “scratched the surface” in dealing with what the psychiatrist described as her overvalued belief that the father posed a risk to the child.[11]

f)I was satisfied that the mother demonstrated no insight into: (1) how rigid and how unjustified her views were about the father; and (2) the damage she had caused to the child.[12]

[7] George and George [2019] FCWA 58, [47].

[8] George and George [2019] FCWA 58, [48].

[9] George and George [2019] FCWA 58, [32] and [33].

[10] George and George [2019] FCWA 58, [50].

[11] George and George [2019] FCWA 58, [42].

[12] George and George [2019] FCWA 58, [34] and [35].

4On 24 July 2019, the parties consented to some orders in relation to the mother’s supervised time with Child A. I otherwise programed the matter to a further interim hearing in November 2019 in relation to the ongoing progression of the mother’s time with Child A.

5At the next interim hearing in November 2019, the parties were able to reach agreement in relation to a number of matters, including the discharge of previous orders requiring the mother’s time to be supervised. However, the parties were unable to reach agreement in relation to the progression of the mother’s time. In my decision published on 29 November 2019, I was not satisfied that the orders sought by the mother, which proposed a rapid progression to a week about arrangement, were in Child A’s best interests. Rather I was satisfied that the orders sought by the Independent Children’s Lawyer [(“ICL”)] (and consented to by the father) were in the child’s best interests, in that they allowed for Child A to continue to live primarily with the father and to steadily increase her time with the mother in a manner that would enable the parties and the child’s therapist to better monitor how Child A coped, and respond accordingly. In particular, I observed that:

a)The single expert’s view that the manner in which the mother managed her beliefs when the child was in her care was vitally important to the ongoing health, safety and wellbeing of the child, and to ensure that Child A did not experience another period of regression.

b)The single expert’s concerns that some of the mother’s expectations/hopes (for example, of being treated as an “Aunty” of the father’s and his wife’s new baby) were not reasonable (at this time) and were testament to the fixed ideologies she demonstrated throughout the course of the proceedings.

c)The single expert’s recognition that the father continued to hold concerns about the emotional welfare of the child in the mother’s care and had difficulty trusting the mother’s current presentation. The single expert considered that this was entirely understandable, given the nature of the Family Court proceedings, and accepted the father’s concerns and recommended that the family receive a great deal of support moving forwards to ensure no deterioration of the situation in the future.

d)The single expert’s view that in order for the child to continue to make gains in amongst increased time with her mother, it was imperative that the parents maintain as much stability, routine and consistent parenting approaches as possible.

e)Whilst the child’s therapist raised concerns about the potential for the child to experience some regression in her behaviours as she adjusted to having a new baby in the household, the therapist did not consider that the child would be negatively impacted by the baby’s arrival.

6On 11 December 2019, I made orders in relation to Child A’s time with the mother during the Christmas 2019 school holidays, the school terms and specified special occasion days. I also made an order at paragraph [9] that the proceedings otherwise be adjourned to 18 February 2020, including but not limited to:

a)Monitoring whether the parties have been able to reach agreement in relation to the mother’s ongoing time with the child during future school holidays;

b)If necessary, making directions for an interim hearing solely in relation to the mother’s ongoing time during school holidays; and

c)Consideration as to the making of further trial directions, if required.

7By the time of the directions hearing on 18 February 2020, the parties had reached agreement in relation to the trial directions to be made and for the mother’s time with Child A during the April 2020 school holidays. However, the parties were unable to reach agreement in relation to school holidays thereafter. I accordingly made further procedural orders in relation to the further interim hearing, which was listed before me on 16 June 2020.

8To their credit, in May 2020 the parties made further attempts (albeit largely unsuccessful) to resolve issues, including attending a late intervention dispute resolution conference with Legal Aid WA and a separate Pre‑Trial Conference at the court.

Interim orders sought by each party

9For the purposes of the June 2020 hearing, the ICL sought orders in the terms of her Minute filed on 15 June 2020. In summary, the ICL proposed that:

a)At paragraph [2] of the Minute, Child A spend time with the mother during the school term and school holiday periods: (i) each alternate weekend from after school Friday until before school Monday, extended to before school Tuesday in the event the time falls on a long weekend; and (ii) each alternate Wednesday from after school until before school Friday. In effect, the ICL sought the continuation of the school term arrangements during the school holiday periods, albeit with a consolidation of the time in “week 2” of the fortnightly cycle to enable it to occur in one block of two nights, rather than two separate blocks of one night.

b)At paragraph [3] of the Minute, Child A have telephone and/or video communications with the parent she is not living with, between 6pm and 7pm. At paragraphs [4] – [11] of the Minute, various orders in relation to handover, injunctions and the child’s ongoing attendance on her therapist. During her submissions the ICL indicated that she had included these additional orders as she understood that the matters were agreed to by the parties.

10The father’s position was that he agreed to the orders proposed by the ICL, except for paragraph [3], in relation to which he proposed that the communications be limited to two per week.

11The mother’s position was that she sought that her time with Child A, not only during school holidays but also in the school terms, immediately increase to a week‑about arrangement. In effect, the mother sought to re-agitate the same issue that was dealt with at the interim hearing in November 2019. The mother’s counsel conceded that the mother’s proposal for a week‑about arrangement during the school terms may be premature. I consider this to be so, particularly given the mother’s interim application in this regard was dismissed in November 2019 and trial directions were subsequently made in relation to the final hearing of the matter. In relation to school holidays, the mother’s position was that if the court was not minded to increase the time to a week‑about arrangement, then the mother did not support the consolidation of her time in week 2 and instead sought that the current arrangements continue. The mother otherwise agreed with paragraph [3] of the ICL’s Minute. The mother’s counsel had no specific instructions in relation to the remainder of the orders sought by the ICL, although counsel conceded that they appeared sensible.

Documents relied upon and key events since the last interim hearing

12For the purposes of the June 2020 hearing, the mother relied upon her affidavit filed 6 June 2020; the father relied upon the affidavits of himself, his wife [Ms A] and his psychologist ([Dr B]) all filed on 9 June 2020; and all parties relied to a greater or lesser extent on previous reports filed by [Ms C], the child’s therapist, including her most recent report dated 18 February 2020.

13Ms C indicated in her most recent report that Child A initially showed considerable regression when her time with the mother increased in late 2019 / early 2020, including Child A again experiencing toileting issues, being demanding, speaking constantly in a baby voice and exhibiting generally difficult behaviours. Child A told Ms C that her two homes were very different, and that Dad’s house was stricter. Ms C opined that as at mid-February 2020, Child A appeared to be managing the new arrangements well, but flagged that:

… with the arrival of her new sibling there will already be significant changes to her life, and would be concerned that she may regress again if any more change is made to her living arrangements … I would suggest that [Child A] would be less impacted by moving between two homes if the parents were to implement the same systems of behaviour management in each home, and if there was a consistent focus on encouraging [Child A] to be more independent and responsible for minor chores at both homes.

14The father and Ms A’s baby son, [Child B], was born [in mid] 2020. It was common ground that Child A was happy about the arrival of her new baby brother. The mother’s evidence was that Child A did not talk about Child B often when in her care. The father’s and/or Ms A’s evidence was that Child A enjoyed interacting with Child B, was loving and caring towards him and was embracing her role as Child B’s big sister.

15Child A has continued to attend at the same school, which is in close proximity to the mother’s home. However, it is a considerable distance from the father’s home, where Child A now primarily resides. Although the father seeks a final order that he be permitted to enrol Child A in a school in close proximity to his home, he now does not seek to change Child A’s school on an interim basis. Nevertheless, I am satisfied that there are significant practical difficulties with the current arrangements. The father’s evidence was that Child A spends between 30 and 60 minutes traveling to and from school each day and that since Child B’s birth, Ms A’s ability to assist with the school run is limited.

16In Term 1 2020, Child A was home schooled for a short period due to COVID-19 restrictions. She resumed her normal schooling routine at the commencement of Term 2. In or about May 2020, the father ascertained that Child A had been hiding that she had again been experiencing toileting accidents at school. The father has sought to address these issues with each of Child A, the mother and with Child A’s school (with varying degrees of success).

17Both parties acknowledged ongoing difficulties with their communications about Child A. Effective communications between the parties appeared to be very limited. The mother maintained that she was committed to improving the parties’ communications. On the other hand, the father maintained that at times, the mother appeared to simply ignore the father’s communications or engaged in “point scoring”, for example: in relation to Child A using “baby talk” and in relation to Child A’s recent toileting issues at school.[13] The father also maintained that when the mother wanted something from him, then her communications verged on harassment.

[13] See the mother’s email dated 25 May 2020 in relation to Child A’s toileting issues and the mother’s emails dated 29 November 2019 in relation to Child A using “baby talk”.

18It was unclear from the evidence when Child A last met with Ms C. However, the tenor of the ICL’s submissions was that the appointments have been detrimentally impacted by the COVID‑19 pandemic and that there was some uncertainty as to when appointments could re-commence.

19The mother attended two further appointments with her therapist, [Ms D], in late November 2019 and in March 2020 and was waitlisted to attend additional appointments. Unfortunately, sometime after March 2020, Ms D went on extended leave for an undetermined period of time. There is considerable uncertainty as to when the mother’s therapy can recommence.

20The mother maintained that her sessions with Ms D have assisted her to address her thinking and beliefs about the father; that she “does not say [the father] is a sexual predator” and that she does not believe that Child A “is at sexual risk in [the father’s] care.”[14] On the other hand, the father remained sceptical that the mother has significantly addressed her thinking and beliefs about him or that she was genuinely committed to establishing and maintaining a co‑operative, co-parenting relationship with him. For example, he raised concerns about the mother attempting to undermine Child A’s relationships with him and other paternal family members, including: (1) Child A complaining about being “a slave in this house” when asked to assist with simple household chores in the father’s home; and (2) referring to Child B as her “stepbrother” because he is not her “real brother”.

Discussion and conclusions

[14] Mother’s affidavit filed 4 June 2020, [75].

21On 4 February 2019, I made an interim order that the father have sole parental responsibility for Child A. Parental responsibility was not in issue for the purposes of the June 2020 interim hearing. I am accordingly required to make a determination in the best interests of the child. I will now consider only those primary and additional considerations that are relevant in this case. In doing so, I accept the submissions of the father’s counsel and the ICL that in many respects, very little has changed since the interim hearing in November 2019.

22It was not in dispute and I accept that Child A will benefit from having a meaningful relationship with her parents. The mother continues to present to the professionals involved in this matter as being highly child focused, no longer overtly displaying resentment towards the father and expressing a strong desire to move to a co-operative, co‑parenting relationship with the father. The father continues to be sceptical of the mother’s presentation. Whilst I accept that the mother is highly motivated to increase the amount of time that Child A is in her care, in my view, there continues to be little cogent evidence from which I can conclude that the mother has taken any significant steps in therapy to address: (1) her ingrained and firmly entrenched views about the father; 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.

23There was some evidence indicating that the parties had each recently attempted to explore with Child A, her views about ongoing time with her mother. However, as was the case in November 2019, I am not satisfied that I should give any significant weight to Child A’s views, having regard to her young age and likely stage of development.

24I continue to be satisfied that Child A has close and loving relationships with each of her parents. I am also satisfied that Child A has close and loving relationships with her extended paternal and maternal family members. I accept the ICL’s submission that it is important that Child A is given opportunities to form a close and loving sibling bond with Child B. I am satisfied that this process may not be assisted if Child A was to spend large blocks of time away from the father’s household.

25I am satisfied that each of the parties has taken every opportunity to participate in making decisions regarding Child A and has taken every opportunity to spend time with and communicate with the child. However, I also continue to be satisfied that the capacity of the parties to co-operatively co-parent Child A and/or jointly make decisions about Child A is low, particularly having regard to their ongoing communication difficulties.

26Child A has continued to periodically experience some regression in her toileting and/or general behaviour since November 2019. The mother’s counsel appeared to maintain that any such regression was not due to Child A spending increased time with the mother; and was instead primarily due to Child B’s birth and the consequential changes to Child A’s routine in the father’s household. I am not persuaded on the available evidence that this is the case. In her February 2020 report, Ms C considered that Child A would be less impacted by moving between the parties’ homes if they could implement the same systems of behaviour management in each home, and if there was a consistent focus on encouraging Child A to be more independent and responsible for minor chores at both homes. However, the ongoing inability of the parties to effectively communicate with each other regarding Child A gives me little, if any, confidence that they can do so.

27In conclusion, having regard to my findings in these reasons, I am satisfied that on an interim basis, it is in Child A’s best interests to make orders for school holidays as sought by the ICL and the father. Such an arrangement will enable Child A to maintain regular and frequent contact with her mother, whilst minimising the potential negative impacts of being subjected to different routines and behaviour management practices in both homes. This is particularly so in circumstances where:

a)There continues to be little cogent evidence from which I can conclude that the mother has taken any significant steps in her therapy with Ms D;

b)The capacity of the parties to co-operatively co‑parent Child A and/or jointly make decisions about Child A is low, particularly having regard to their ongoing communication difficulties;

c)Child A has continued to periodically experience some regression in her toileting and/or general behaviour and there was some uncertainty as to when Child A’s appointments with her therapist could re‑commence.

28The mother sought that the time in "week 2" remain as it, as it would enable Child A to spend time with her on a more frequent basis. However, I am satisfied that the ICL’s proposal to consolidate the mother’s time in week 2 into one block of two nights is to be preferred, and would be of benefit to Child A in reducing her travel time.

29There are no current orders for Child A to have telephone / video communications with the parent with whom she is not residing. I am satisfied that it would be in Child A’s best interests for her to have regular communications. However, I am not satisfied that the ICL’s proposal for the communications to occur daily are necessary for Child A to maintain her close relationships with her parents, or practicable, particularly given the impact it would have on the father’s household. I am satisfied that the order proposed by the father in this regard is appropriate.

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

KV

Associate

2 JULY 2020