Greene & Mlakar (No 2)
[2024] FedCFamC1F 817
•25 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Greene & Mlakar (No 2) [2024] FedCFamC1F 817
File number(s): NCC 3755 of 2021 Judgment of: SMITH J Date of judgment: 25 November 2024 Catchwords: FAMILY LAW – CHILDREN – Oral decision – Interim orders – Parenting orders – Best interests of child – Where the father filed an application seeking supervised time – where the mother and ICL oppose that application – where the child has not seen the father since October 2021 – where the matter is listed for final hearing in March 2025 – where the principles of interim hearings apply – where it is in the child’s best interests for reintroduction to occur and prior to the final hearing – where the risks are ameliorated by professional supervision. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CA, 60CC, 64B, 65AA, 65D Cases cited: B & B (1993) FLC 92-357; [1993] FamCA 143
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Dasreef Pty Ltd & Hawchar (2011) 243 CLR 588; [2011] HCA 21
Deiter v Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Makita (Australia) Pty Ltd & Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
SS v AH [2010] FamCAFC 13
Stott & Holgar and Anor [2017] FamCAFC 152
Division: Division 1 First Instance Number of paragraphs: 77 Date of hearing: 21 November 2024 Place: Newcastle Solicitor-Advocate for the Applicant: Ms Haasnoot Solicitor for the Applicant: Umbrella Legal Solicitor for the Respondent: Ms Woods, Koulouris & Associates Pty Ltd Solicitor for the Independent Children's Lawyer: Ms Smith, Katie Smith Solicitor ORDERS
NCC 3755 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GREENE
Applicant
AND: MR MLAKAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
25 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The Final Orders in relation to the child X (“the child”) be reconsidered pursuant to s 65DAAA of the Family Law Act 1975 (Cth).
2.From the date of these Orders, the child spend time with Mr Mlakar (“the father”) for 2 hours per fortnight, on a day to be agreed, supervised by B Contact Service as follows:
(a)On the first two occasions the father will attend with his partner Ms C and his step-children;
(b)On the next two occasions the father will attend with the paternal grandfather;
(c)On the next two occasions the father will attend with at least one of the family members as mentioned in the two previous Orders; and
(d)Thereafter the father is at liberty to spend supervised time with the child either with, or without a member of his family.
3.The time with shall commence on the first Friday on which B Contact Service is able to facilitate time.
4.Ms Greene (“the mother”) is to do all things reasonably necessary to give effect to these orders.
5.To effect Order 1:
(a)Within 48 hours of these Orders, the father and the mother are to do all things and sign all documents to complete the intake process to engage with B Contact Service;
(b)The father and the mother will each be responsible for any fees or costs associated with the intake process;
(c)The father is responsible for the costs of the supervised visits; and
(d)The father and the mother are to comply with all reasonable directions of the Contact Service.
6.On a without admissions basis, the father and the mother are each restrained by injunction, pursuant to s 68B of the Family Law Act 1975 (Cth) from discussing these Orders and these parenting proceedings with the child or to physically chastise the child.
7.Within 48 hours of these Orders the mother is to take all reasonable steps to facilitate the child meeting with the Child Court Expert, and if the Independent Children’s Lawyer wishes to attend with the independent Children’s Lawyer, so these Orders can be explained to the child by the Child Court Expert.
8.Pursuant to ss 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
9.The parties have liberty to approach in chambers on short notice if any issues arise with the implementation of these Orders.
10.The father may file an Amended Response on or before 10 January 2025 and the mother may respond within a reasonable timeframe.
11.Reserve any costs application to Final Hearing.
12.The Final Defended Hearing commencing at 10.00 am on Monday, 17 March 2025, with a present estimate of eight (8) days in-person at the Newcastle Registry of the Federal Circuit and Family Court of Australia be confirmed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Greene & Mlakar has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SMITH J:
These are short-form oral reasons for decision pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”), in an interim application for parenting orders in relation to X (born 2013) age 11 (“the child”), in relation to an Application in a Proceeding for interim orders heard by me last Thursday.
The Application in a Proceeding was filed on 3 October 2024 by the respondent father, Mr Mlakar (born in 1979) (“the father”), seeking professionally supervised time with the child pending a final hearing in this matter.
The matter is listed for final hearing commencing on 17 March 2025.
The father has re-partnered with Ms C, and he seeks to involve her and other family members during the supervised time.
The applicant mother in the proceedings, Ms Greene (born in 1986) (“the mother”), is the respondent to the Application in a Proceeding. Post separation she was in a subsequent relationship with a Mr D, but that relationship ended in early 2024. She opposes the application.
The broader familial groupings are not necessary to consider given the limited issue before me.
An Independent Children's Lawyer (“ICL”) has been appointed to the matter. The mother and the ICL both oppose the application.
The application arises in circumstances where the father has not spent time with the child since he allegedly assaulted the child on 22 October 2021.
The mother, supported by the ICL in effect, says that the father is an unacceptable risk of psychological harm to the child of even professionally supervised time in the circumstances where a final hearing is forthcoming. The father's position is set out in the Child Impact Report at paragraph [27]:[1]
… The father denies these allegations and believes that the mother has encouraged [X] to make up this allegation so that the mother has cause to stop him spending any time with [X]. The father stated that he has in the past “smacked [X] on the bottom” but denies this was a regular occurrence…
[1] ICL 1, CIR at paragraph 27.
BACKGROUND
The parties commenced cohabitation in 2012 and separated on a final basis in 2017. They reached final consent orders in a prior set of proceedings (P)NCC86/2018 on 6 February 2018, with the child to live with the mother, the parents to share equal responsibility, and for the child to spend time with the father each Thursday from after school until before school Friday and each alternate weekend from after school Friday until 5.00 pm Sunday.
The mother initiated these proceedings on 15 November 2021, following the alleged assault on 22 October 2021. After that, all previous spend time with orders for the father were suspended and the ICL was appointed.
Orders were made on 16 February 2022 for the mother to have sole parental responsibility. A Child Impact Report was prepared by Ms E, the Child Court Expert (“CCE”), on 30 May 2022, and a Family Report by the same expert on 27 October 2022.
The matter was transferred to division 1 on 27 January 2023 and was listed for final hearing to commence on 2 April 2024.
On 20 February 2024, it was noted that the mother had separated from her new partner Mr D and no longer had the funds to continue paying for private legal representation. Her situation, by reason of that, had also significantly changed, and accordingly on 8 March 2024 an order was made vacating the final hearing dates.
Given the change in circumstances, an updating Family Report was ordered, which was prepared and released by the same Court Child Expert on 19 September 2024.
On 25 September 2024, the matter was listed for interim hearing for the application before me today. The matter was heard last week.
As I said, the matter has been listed for final hearing to commence on 17 March 2025.
THE APPLICATION
The father is seeking orders that he spend supervised time with the child for two hours per fortnight each Friday, with such time to be supervised by B Contact Service.
The mother opposes the father’s application and seeks that the application be dismissed, and that he spend no time with the child pending final hearing.
The ICL submits there should be no time.
I note, that as an alternate position, the mother says that if the court finds it is in the child's best interest to spend supervised time with the father, that the child should undertake family therapy and complete at least four sessions prior to the recommencement of time.
INTERIM HEARING
At the interim hearing, the father relied upon the following:
(1)Application in a Proceeding filed 4 October 2023;
(2)Affidavit filed 3 October 2024;
(3)Affidavit of Ms C filed 7 March 2024; and
(4)Outline of Case (Interim Hearing) filed 18 November 2024.
The mother relied upon the following
(1)Response to Application in a Proceeding filed 9 October 2024;
(2)Affidavit filed 9 October 2024;
(3)Affidavit of Ms F, the child's prior treating counsellor filed 2 April 2024; and
(4)Outline of Case Document (Interim Hearing) filed 20 November 2024.
The ICL provided the court book and relied upon:
(1)Child Impact Report dated 30 May 2022 (ICL 1);
(2)Family Report dated 27 October 2022 (ICL 2);
(3)Updating Family Report of 19 September 2024; and
(4)Outline of Case Document (Interim Hearing) filed 18 November 2024.
THE ISSUE
There is a significant issue raised by the CCE as to whether the child's current views that he is afraid of and does not wish to spend time with the father had been, whether intentionally or inadvertently, induced in him by the mother, either wholly or in part, noting that his views appear to have changed over the last two years.
THE EVIDENCE
I note, the contested evidence of the parties in their affidavits, and the principles that apply to weighing such evidence, and in particular, that I am not able to make any contested findings of fact. Having said that, I take the material into account.
I note that, nevertheless, that material is all substantially considered by the CCE and set out in the various reports.
Child Impact Report
I will start with the Child Impact Report of 30 May 2022. The issue is summarised at paragraph [5]:[2]
5. It is agreed that [X] has a close and loving relationship with both parents. Prior to the alleged assault that occurred in [late] 2021, [X] was spending time with both parents that was consistent with the previous consent orders, and it was reported to be going well. The mother acknowledges that [X] continues to ask about his father and seeks to re-establish time with him, however the mother is concerned about the disclosures from the child that he is physically disciplined when in the care of the father; an allegation denied by the father.
[2] ICL 1, CIR at paragraph 5.
A significant aspect of the history is set out at paragraph [13]:[3]
13. The parents reportedly separated in 2017 when [X] was aged 4. It was reported that the parents were effectively co-parenting [X] from this time, however both report that communication has always been strained and difficult. [X's] experience of the parental separation would be one of conflict, confusion and change, and it seems that things deteriorated between the parties quite significantly when they both re-partnered.
[3] Ibid at paragraph 13.
The child's interview was summarised at paragraphs [17] to [21]:[4]
17. [X] described his father as “an angry dad. He’ll at me when I'm in trouble and smack my bottom”. He stated that he does not understand why he gets hit and reported feeling unsafe as a result. He then spontaneously described having spoken to the police about the hitting and how he can no longer see his father until it is safe and until the father agrees to not hit him anymore. It should be noted that the CCE did not ask [X] any questions about the incident of […]/2021 being mindful that the matter is before the local court, however [X] spontaneously reported having spoken to the police in the context of a general question about what happens when he gets in trouble with the father.
18. When asked he how felt about spending time with the father, [X] stated that he missed his father and wanted to return to spending time with him “the same as it was before”, but then said that his father needed to work on ways to not hit him before he would feel safe in returning to spending time. He stated that he enjoyed [bike] riding and going on adventures with the father and he missed this.
19. [X] got quite teary at one point when saying how when his father hits him he feels scared and unsafe and reported that “the girls aren't hit or yelled at”, referring to his younger step sisters. He reported that this makes him feel “disrespected and like he doesn't care about me”. He stated that he wanted the Judge to know that when he is with the father he feels unsafe and scared when he is hit. When asked if there was anything about his family that he would change [X] said “nothing about mum, she's perfect. Dad I would make the hitting stop and he be more fair”.
20. [X] stated that when his father and step mother fight it is the same as at the mother's home, in that he hears yelling, but does not see any physical violence. He described a good relationship with [Ms C], his step mother, and a good relationship with her children. He reported that he thinks that [Ms C] had smacked him maybe once, but that he did not feel scared or unsafe when with her.
21. [X] stated that he has found his parents' separation difficult and stated that he wanted to be able to see them at the same time, but he understood that he can't. He reported that the mother and father don't get on and described hearing his mother hang up on the father when in the car on one occasion as an example of this.
[4] Ibid at paragraphs 17–21.
Both parents described the relationship as "toxic" with cross-allegations of family violence. The father said the mother was controlling and abusive in the context of his allegations that she has alcohol abuse problems, which she denies. The mother said the father was psychologically and emotionally abusive. I note, the discussion in the Child Impact Report at paragraph [23].
The Court Child Expert noted at [30], the harm to the child from the conflict between the parents apart from anything else:[5]
32. [X] made it very clear that he missed seeing his father and wanted to resume time with him, but wanted to feel safe and assured that he would no longer be subjected to hitting.
[5] Ibid at paragraph 32.
The Court Child Expert raised supervised time as an option at paragraph [35], which would have been a standard approach given the contested material set out in that report at that time.
Family Report
Coming to the Family Report of 27 October 2022, five months later. I note that it contains extensive information which overlaps the affidavits which were relevant to the final determination, but which need not be canvassed here.
The interview with the child is set out commencing at paragraph [75]. Significantly, the CCE reported that the child's views “varied significantly”:[6]
78. When asked about his family, [X's] interview varied significantly from the interview conducted in May. In May, [X] reported the following: “When asked he how felt about spending time with the father, [X] stated that he missed his father and wanted to return to spending time with him "the same as it was before", but then said that his father needed to work on ways to not hit him before he would feel safe in returning to spending time. He stated that he enjoyed [bike] riding and going on adventures with the father and he missed this”. However, during his interview for this family report, when [X] was asked about spending timer with the father he stated “I don't want to see him really, he always hits me. I don't feel like it. He's been hitting me for 4 or 5 years”. [X] went on to state that he would be happy to see the father if he were never to hit him. He stated that he had once told the father that it was illegal to hit him and then he got scared that he would get in trouble and ran to hide.
79. [X] stated that he had seen his father at his [school] parade and that he was with his granddad. [X] stated that when he saw that the father was there he became scared and increased his pace to move past him quickly and noticed that his granddad had put his hand out to reach for him and [X] said “I thought he was going to pull me to him and have dad smack me”. He then went on to say that he felt that he just wanted to “get away and for dad not to be here”. [X] then continued saying “I don't even want to be near him. He has been very bad to me. Never once has he not hit me, except on a Thursday, but on a weekend I'd get hit”. [X] was not able to expand into any detail of the hitting, outside of the incident [in late] 2021 where he said he was hit by the father for no reason. The CCE did not feel it appropriate to question [X] further on the details of the allegations given this is already before the Court and has been dealt with in Local Court.
80. In relation to physical discipline outside of the alleged assault [in late] 2021, [X] has consistently reported that the father has used smacking in the past when he has been in trouble. During his previous interview [X] expressed his concern and fear that he felt when the father smacked him and was again consistent in his family report interview about wanting this to stop before he would feel safe returning to the home of the father. Despite the father's denial that he had not smacked [X] for 12 months prior to [late] 2021, this is not [X's] memories or his lived experience. The reality is that [X] has been consistent with his reports of the use of smacking, and whether this is an acceptable disciplinary measure or not, is irrelevant to the clear traumatic effect the use of smacking has had on [X] and how he feels in the care of the father.
(Emphasis in original)
[6] ICL 2, FR at paragraphs 78–80.
Despite the child's concerns he was open to supervised time:[7]
85. When posed some ways that [X] may be able to see his father in a safe way, the CCE explained supervised visits to [X]. [X] readily agreed to this occurring and said that he would worry that the person watching may need to leave the room to go the toilet and he was worried he might be left alone with the father. [X's] anxiety in his interview for the family report seems to have escalated since his interview in May and his fears about the father and his worry that he will again be hurt by him, appear to be significantly impacting on [X's] desire to have a relationship with the father and his very clear sense of needing to feel safe. The CCE is concerned about this significant escalation in the anxiety that [X] is feeling towards the father, especially given that the mother is reporting that [X] is having weekly counselling sessions through Victims Services, which has been in place since early 2022.
86. Despite his anxiety and worry about being hurt by the father, [X] spoke in a way that indicated that he wanted to continue spending time with the father and [Ms C], and he spoke about the things they had previously enjoyed together. It is very clear that the ADVO proceedings and the current family law proceedings are having a detrimental effect on [X], and the impact on his development and emotional well-being is cause for concern.
87. The parents' assessment of the child's development is consistent with this assessment. [X] was observe to struggle to sit still, often lying on the lounge, fidgeting with a toy, or looking around the room. Despite this, he answered all that was asked of him and his behaviour could be consistent with anxiety and the uncertainty [X] would be feeling about his family.
88. [X's] perceptions of the litigation between his parents was not sought directly, but his indirect reference to the parents and the fears discussed pertaining to the father suggest that this litigation is causing [X] distress
89. [X's] views in regard to future parenting arrangements are very clear on that he wishes to remain living with the mother and would like to spend time with the father in a supervised way until he can be sure that the father will no longer smack him or cause him harm.
90. These views as expressed by [X] are developmentally appropriate and are consistent with a child who has experienced trauma. His anxiety, worry and fear are a concern and are consistent with what could be described as post traumatic symptoms. However, the CCE wishes to add that the current wishes of [X] need to be viewed with some level of caution, as he has not spent any time with the father for 12 months, and there are some concerns that his views about the father may have been influenced in some way, or at the very least effected by the amount of time that has passed since he has spent any time with the father.
(As per the original)
[7] Ibid at paragraphs 85–90.
The Court Child Expert noted the difficult factual contests, and I note what was said:[8]
97. If the mother's accounts of the father are true, then it is likely that [X] has been the subject of repeated physical harm that has been described to the mother through the ADVO process, as "corporal punishment". Further to this, it is also likely that the mother has been the subject of ongoing and pervasive acts of aggression and on the receiving end of verbal abuse perpetrated by the father. This is likely to detrimentally effect the mother's ability to facilitate a relationship between [X] and the father and will make continue to make changeovers an unpleasant and traumatic event.
98. Conversely if the father's accounts of the mother are true, then it is likely that [X] will also be exposed to unstable home environment with the mother, ongoing and explosive arguments between the mother and [Mr D] and degradation of the father. Given the observed changes in [X] from May 2022 to October 2022, it could be assessed that he has been exposed to derogative statements about the father aimed at aligning him with the mother, but his deterioration in anxiety symptoms could also be attributed to the trauma he has experienced and the subsequent destabilisation of his previous family and spend time routine.
[8] Ibid at paragraphs 97–98.
The CCE made recommendations:[9]
113. If the Court determines that the father does not pose a significant risk of harm to [X], it is recommended that [X] begin supervised time with the father as a matter of priority so that this relationship can be re-established in a safe and secure way that supports [X's] current wishes.
114. It would be expected that the period of supervised time should continue for a period of 3 months.
115. If time with the father progresses to unsupervised time, it is recommended that an Order be made that reduces the direct interaction between the parents, and that partners not be allowed to attend any changeover.
…
117. It is recommended that video or telephone communication occur between the father and [X] at least 1 x per week and that the mother facilitate these calls and afford [X] privacy during these calls. A night for this to occur should be put forward by the patties that offers the least impact on [X's] current extra curricula activities.
[9] Ibid at paragraphs 113–115, 117.
Updating Family Report
The Updating Family Report in September 2024 was ordered given the significant lapse of time since the prior report, and also the mother's significant change of circumstances which led to the vacation of the final hearing.
In the September 2024 Updating Family Report, the CCE noted certain concerns:[10]
42. The report writer has concerns about the presentation of [X] across all three assessments relating to the alleged assault by the father, particularly [X's] views of the father and spending time with him. During the CIR assessment in May 2022, […] after the alleged assault, [X] expressed missing his father and wanting to resume spending time with him “the same as it was before”, but then said that his father needed to work on ways to not hit him before he would feel safe in returning to spending time. He stated that he enjoyed [bike] riding and going on adventures with the father and he missed this”.
43. During the family report assessment conducted in October 2022 there was a noticeable shift in this view with [X] saying, “I don't want to see him really, he always hits me. I don't feel like it. He's been hitting me for 4 or 5 years”. [X] went on to state that he would be happy to see the father if he were to never to hit him. He stated that he had once told the father that it was illegal to hit him and then he got scared that he would get in trouble and ran to hide.
44. During this assessment, it appears that [X's] views have become more fixed, with [X] saying the only thing he could remember about the father was that “he’d try to push me to do things, and then smack and abuse me when I didn't do them”. He went on to say he feels worried and scared to be around the father as he feared the father only wants to spend time with him so he can “hit me”. The concerns of the report writer are that [X's] views have become increasingly fixed and his fear of the father appears heightened when compared to his initial interview. [X] had been attending counselling with [Ms F] between November 2021 and March 2023 and the report writer has concerns about the increasing levels of anxiety and fear described by [X], when it would be assumed these symptoms would decrease over time with this level of intervention, which has clearly not been the case.
(Emphasis in original)
[10] ICL 3, Updating FR at paragraphs 42–44.
I note, that the CCE also considered the notes of Ms F at [45] to [48].
Ms F provided an affidavit as a treating practitioner filed on 2 April 2024. She commenced seeing the child in November 2021, which was after the alleged assault, and she was seeing the child under the Victim Services Scheme. She saw him on 56 occasions, last seeing him more than 18 months ago in March 2023.
It was submitted for the mother, as I understand it, that Ms F was a treater unrelated to the proceedings and that the child’s issues with the father just emerged, but it is clear that Ms F commenced seeing the child after, and as a result of the alleged assault, and it was paid for by Victim Services. And while she may not have questioned the child directly, the context is relevant to the formation of her untested opinion.
Ms F set out the child's heightened responses to sightings of the father, I will note paragraph [7] and [8] of her affidavit, and she proffered the opinion at her paragraph [11] that the child, “has experienced trauma and the most likely source of that trauma was his father hitting him”. However, there is no evidence that Ms F has been made aware of any, much less all, of the other various factors which the Court Child Expert has considered. She has only spoken with the child in the context of treating him under the Victim Services Scheme, and presumably she has spoken to the mother.
Ms F expressed the opinion, based on last seeing the child in March 2023, that, at paragraph [18], “I hold concerns for [X's] emotional safety and welfare wellbeing should he have contact with his father”. That opinion, as expressed, goes no further than the issues of psychological risk acknowledged and weighed by the Court Child Expert.
I say all of this without any criticism of Ms F. The function of the treating medical practitioner is to accept what they are told and to counsel the person. However, that is a very, very different role to that of the forensic expert who speaks not only to one parent but to both parents, who has access to all the material, who does not necessarily accept unquestionably what they are told, but whose role in the forensic medical approach is to seek to determine the truth where there are contests of fact and where there may be secondary reasons for people saying things.
In those circumstances, we give significantly more weight to the opinion of the Court Child Expert, who has not only seen the child more recently, but who has had access to substantially more information, and critically, in my view, information from both parents and not only one parent.
I also note, that Ms F did not say that the child should not spend time with the father, but only that she held concerns for his emotional welfare and safety and wellbeing should he have contact with the father, and as I've said the Court Child Expert has also considered that.
In this context, I note the analytical issues that arise in expert reports, as set out in many cases such as Makita (Australia) Pty Ltd & Sprowles (2001) 52 NSWLR 705, in particular Heydon JA leading decision, and what was said in Dasreef Pty Ltd & Hawchar (2011) 243 CLR 588 by the High Court on the same subject of assumptions and reasons, and it is in that context that I give more weight to the opinion of the Court Child Expert.
In terms of the impact of the conflict on the child, I note what was said:[11]
64. This is a high conflict matter, with clear and concerning conflict that has only increased over time, with both parties now very fixed in their views. It is likely that the experiences of both parties both pre and post separation is impacting on their capacity to act in [X's] best interests.
[11] Ibid at paragraph 64.
The child's interview with the CCE was set out commencing at [65]. The child's views were sought and recorded:[12]
74. [X] was asked questions about possibly spending time with the father, to which he said, “if he changed maybe, but he’ll say he's changed and then do the same again. He said it before he wouldn't hit me again, but he did”. He then went on to say the father would force him to do activities that he did not want to do and “push me to my limits and I'd hurt myself”. [X] was not able to provide examples of what he meant by this.
75. [X] said when he thinks about the father he only ever thinks “bad things”. He said the father never allowed him to do the things he wanted him to do and “I was only allowed to draw at his house”. [X] was asked if he had any good memories of the father, to which he said, “the memories of him are fuzzy. I can only remember the bad things. I have no good memories”.
76. Given that [X] had been engaged in long term therapy, the report writer asked [X] to share his views on doing family therapy with the father. He had a limited understanding of what family therapy would involve, but understood it was therapy between an adult and a child. [X] stated he would agree to family therapy if the father “never smacked me again. But I feel he wouldn't stop, he'd do it again anyway”. The report writer asked [X] if he believed the father only wanted to see him so he could smack him, to which [X] said, “100%. He only wants to get me there to smack me, he doesn't love me”. [X] also said that even if the father promised not to smack him again, “he would only be like that for an hour or something and then go back to disrespecting me”.
77. The report writer asked [X] what the father would need to do so he would feel safe to either spend supervised time with him and/or engage in family therapy. [X] reiterated his view the father would need to not smack him anymore. With regards to supervised time, [X] said he believed that even with a person in the room the father would try to speak to him privately and then “still try to smack me”. [X] also said, “I worry that if I see him he will be angry at me for telling the cops what he did and then I'd be in trouble and be grounded for the rest of my life. I don't ever want to see him again”.
78. When asked about the last time he saw his father, [X] said, “I just remember all the things he did to me. He's not a good person. I would get all the smacking and the girls got smacked not once”. [X] then said he could remember one good thing about the father, saying how the father bought him “my own […] bike, but then he gave it away”.
79. At this point in the interview, it was clear [X] was getting upset so the interview was ceased and [X] was returned to the care of the mother with no concerns or distress noted when he rejoined the mother.
[12] Ibid at paragraphs 74–79.
The CCE noted her concerns about the agreement for the child to live with a mother, and for the mother to be allocated sole decision-making authority at [87], noting that she had “some doubts about whether the agreements reached are in the best interests of” the child.
The CCE also noted:[13]
[13] Ibid at paragraphs 91–92, 94–99.
91. … As a result, it is likely that [X] was greatly influenced by his primary caregivers, being the mother and [Mr D], and their actions and responses to [X] would have impacted [X's] emotional responses and views of the father at this time.
92. For an 11 year old who experiences significant anxiety or trauma reactions following an alleged assault by a parent when they were 8 years of age, [X] may hold deep rooted emotional and psychological effects after being withheld from the father for three years post the alleged incident. The mother and stepfather may have unintentionally or intentionally reinforced or exacerbated [X's] fear of the father, especially if they emphasised the danger posed by the father. Given the disclosures of the parties around conflict and confrontation, it would be difficult to imagine the mother or [Mr D] speaking to [X] in a way that would have assisted to alleviate these fears or provide [X] the opportunity to heal this relationship with the father.
…
94. There are incongruences in [X's] narrative, with him initially describing the father as a safe person in counselling, and expressed in his previous Court assessments a desire to spend time with the father, which were after the date of the alleged assault. Now, two years later [X] describes his father as extremely unsafe, believes the father is only wanting to spend time with [X] so he can hit him again, and is no longer wanting a relationship with the father. These incongruences require careful consideration in this matter.
95. The differences in [X's] presentation across time relating specifically to spending time and having a relationship with his father may have been influenced by several factors. One possibility is that [X's] initial feelings of safety were genuine but were later altered by external influences, such as the narratives or emotions of the mother and/or stepfather, who may have reinforced or heightened [X's] fears about the father. Additionally, the passage of time without contact may have allowed [X's] anxiety to grow unchecked, leading to a more rigid perception that the father is dangerous. This shift could also have stemmed from [X's] internal processing of the event overtime, as unresolved trauma can manifest in more extreme views or behaviours as he seeks psychological safety and control over his environment.
96. Consideration also needs to be given to [X's] presentation and reports not only to his counsellor but to this report writer shortly after the alleged assault occurred. A child initially identifying a parent as a safe person, along with expressing a desire to spend time with them after an alleged act of violence, is not assessed as typical post assault behaviour. Normally fear is at its peak shortly after an assault, as [X] would be more sensitive to the potential threats posed. The fact that [X] initially saw the father as safe after the assault and even expressed a wish to maintain his relationship with the father, but now identifies the father as unsafe and is refusing a relationship with him, is concerning.
97. With regards to [X's] inability to recall any positive experiences of the father in this assessment, despite in the CIR and initial Family Report [X] telling the report writer positive aspects to the father such as [bike] riding, also requires consideration. [X's] descriptions and perceptions of the father over time and the changes in his views of wanting to spend time with the father are indicative of a significant shift in his perception of the father. This change could be influenced by the mother's possible involvement in aligning behaviours, where [X's] perspective may have been shaped or reinforced by the mother's ongoing and repeated negative views or emotions about the father. Over time, without contact or opportunities to rebuild the father-child bond, [X] may have adopted a one-sided narrative which aligns with the mother that casts the father in a solely negative light, erasing earlier positive memo1ies. This has led to a rigid and fixed view of the father that is driven by both external influences and [X's] developmental need to feel aligned with the primary caregiver who is now solely responsible for his safety.
98. Given the history of the parties and the parental conflict [X] has been exposed to, it is likely that his desire for the conflict to stop has also influenced him choosing to reside solely with the mother and completely exclude the father. In situations of ongoing parental conflict, children often experience loyalty conflicts and pressure to align with the parent they feel most dependent on for emotional or physical security who has more influence over a child's day-to-day life. When a primary caregiver consistently presents the non-primary caregiver as dangerous or untrustworthy, children will often internalise this narrative. The need for stability, fear of losing the primary caregiver's approval, and a desire to avoid conflict can drive a child to adopt a fixed and negative view of the other parent, even if it contradicts past positive experiences with them. The crying when talking about the mother may be an expression of [X's] anxiety and fear about losing the relationship with the mother, as he has with the relationship with his father. The psychological alignment with one parent serves as a coping mechanism to manage the stress and emotional burden of being caught in the middle of parental conflict.
99. If [X] is not afforded the opportunity to address his concerns in a safe way with the father, it is likely that [X] will continue to exhibit heightened anxiety, hyper vigilance, and difficulty trusting others views when it comes to the father. This may also lead [X] to struggle with any intimate relationships he may have in the future. He will continue to have strong fears of reexperiencing harm by the father, remain engaged in avoidance behaviours, and struggle with emotional regulation. In social and academic settings [X] could display withdrawal, difficulty concentrating, or disruptive behaviours linked to underlying feelings of fear or insecurity. The anxiety and unresolved trauma may manifest as nightmares, physical symptoms, and an overall sense of unease in situations where he feels vulnerable.
The Court Child Expert thought family therapy was a thoughtful proposal, but had concerns about its efficacy, see paragraphs [102] to [103].
I note, the Court Child Expert's interim recommendations:[14]
116.If there are likely to be lengthy delays to a final heating and consideration is being given to [X] spending time with the father, an Interim Hearing may be of assistance in this matter. Consideration could be given on an interim basis, to [X] spending time with the father in a supervised setting to enable them time an opportunity to reestablish their relationship. Given [X’s] concerns, this supervised time could occur initially with the father and stepsiblings, who may assist [X] to reconnect with the paternal family. A gradual introduction of the paternal grandfather to this supervised time may also assist in this transition period, given that [X] has previously identified him as a good support and previously described to the report writer a close relationship. If this occurs, the supervised contact records would be useful.
…
117.It is strongly recommended that this matter be dealt with as early as possible. If consideration is given to an Interim Hearing, and the Court finds the father does not pose a risk of harm to [X], it would be recommended that [X] immediately begin supervised time with the father. This should occur for no less than two hours per week, and include the stepmother, stepsiblings and the paternal grandfather.
[14] Ibid at paragraphs 116–117.
The father's proposal was based on this.
LEGAL PRINCIPLES
I note, that the orders sought in effect by both parties and the ICL are parenting orders as defined by Pt VII, division 5. I note, s 64B, and the Court's powers under s 65D.
The paramount consideration of course is always the best interests of the child (see ss 60CA and 65AA). The general considerations when determining the best interests of the child a set out in s 60CC as currently in force.
It seems to me that the principles applicable to the determination of an interim hearing of parenting proceedings have not changed by reason of the recent amendments, except to the extent necessary by reason that the pathway to be followed is somewhat different, but the principles are set out in cases such as Banks & Banks [2015] FamCAFC 36 at paragraphs [48] to [50] remain, so that “it will be the issues that are joined that will dictate which s 60CC factors are relevant”.
Similarly, what was said in Goode & Goode [2006] FamCA 1346 at [66] about this being a “significantly curtailed” process, and considering the pathway at [81] to [82] remain, although, as I said, the pathway has changed.
Similarly, what was said in SS v AH [2010] FamCAFC 13 at [88] about “circumspection”, but still having to make a decision, as noted in Marvel & Marvel (2010) 43 Fam LR 348 at [120], and needing to undertake an assessment as noted in Eaby & Speelman (2015) FLC 93-654 at [18], so that it is not the case that “merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts”.
I also note, that what was said in SS v AH at [100] and Deiter v Deiter [2011] FamCAFC 82 at [61], and obviously the principles most recently articulated in Isles & Nelissen (2022) FLC 94-092. I also note what was said in B & B (1993) FLC 92-357 at 79,778 considering “a balance” of risk, and of course the decision in Stott & Holgar and Anor [2017] FamCAFC 152 particularly at [37], considering the fact that, “the object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is ‘of benefit to the child’”.
Parental responsibility
Parental responsibility is not currently before me, or sole decision-making authority not before me.
Child’s best interests - section 60CC
General considerations – section 60CC (2)
(a) Safety
The child's best interests require, first and foremost, taking care of safety. There's no issue, it seems to me, when the safeguards are considered, of physical safety, only psychological safety. However, when one looks at the totality of the matter, there are also significant psychological risks to the child of not being reintroduced to the father if the father's case is right. So, as is always the case in an interim, there is a balancing of competing risks.
(b) Views of child
I note, the change in views of the child, his age, and give them relatively limited weight in the context of the issues raised by the CCE's expert opinion.
(c) Needs of child & (d) Parental capacity
I note the issues of the needs of the child and parental capacity at the moment are not significant issues given the narrow orders being considered.
(e) Benefit of relationship
The question of benefit of a relationship is something for final hearing, but it seems to me that trying to maintain circumstances where, in a final hearing, the best orders can be made for the child means that a consideration of the potential benefit of relationship needs to be considered.
(2A) Family Violence
I have considered family violence, which of course is why the child has not spent time and why only supervised time is being considered.
Aboriginal or Torres Strait Islander culture - section 60CC(3)
The child is not an Indigenous child and has not been raised.
SUBMISSIONS
The father's submissions are as set in his case outline and supplemented by oral submissions.
The mother and the ICL focused on the psychological risks of the child for reintroduction and in particular, then a cessation which might occur in only a few months given the listed final hearing.
There is always a risk with interim hearings, and a case in which a party seeks a no time and no communication order, that the maintenance or reintroduction of a parent through supervision will ultimately cause difficulties, and that if the relationship is maintained or re-established, and at a final hearing an unacceptable risk is determined to exist, that the child will suffer as a consequence, by reason of a further termination. I understand that argument, and I don't think it is an unreasonable position.
However, I note that there will always be a risk that interim orders that are made will not be the ultimate orders that are made. And I note, of course, there's also a risk that, although the matter is listed for hearing in four months, that that may not go ahead, as we found earlier this year.
It is unfortunate, perhaps, that this issue has not been previously ventilated, but weighing all the available material, giving particular the way to the CCE's opinion and acknowledging the mother’s and ICL's concerns, which I consider reasonable, on balance, I nevertheless consider it will be in the child's overall and long-term best interests for reintroduction to commence now in the relative safety of a supervision setting, and that part of that benefit will be allowing the Court to have further potentially significant evidence at the final hearing about how that goes before making a potentially extremely significant ruling about the child's further relationship, or indeed lack of any relationship, with the father.
The CCE offered in her report to explain the orders, I note [123] in the updating Family Report, and I consider there is a significant benefit to the child in having the expert convey the orders to the child in a way which will minimise the harm to him and maximise the potential benefit to the child.
Accordingly, I will make orders largely in line with the father's proposal.
Those are my reasons.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 28 November 2024
0
7
1