ILBERT & LOVEL

[2019] FamCA 174

FAMILY COURT OF AUSTRALIA

ILBERT & LOVEL [2019] FamCA 174

FAMILY LAW – CHILDREN – with whom a child lives and spends time – Interim arrangements – Where the child is opposed to spending time with the father – Where the child has expressed this view to the family consultant – Weight to be given to expressed view of the child – Risk of harm to the child if forced to spend time in the father’s care – Where there is no apparent cause for the child’s entrenched position – The best interests of the child.

Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(3)

Deiter & Deiter [2011] FamCAFC 82
H v W (1995) FLC 92-598
Marvel v Marvel [2010] FamCAFC 101
R & R: Children’s Wishes (2000) FLC 93-000
SS & AH [2010] FamCAFC 13

APPLICANT: Ms Ilbert

RESPONDENT: Mr Lovel

INDEPENDENT CHILDREN’S LAWYER: Terrill & Associates

FILE NUMBER: DNC 253 of 2015

DATE DELIVERED: 25 March 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Darwin

JUDGMENT OF: Berman J

HEARING DATE: 8 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Farmer

SOLICITOR FOR THE APPLICANT: Withnalls Lawyers

COUNSEL FOR THE RESPONDENT: Ms Franz

SOLICITOR FOR THE RESPONDENT: Darwin Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Terrill

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Terrill & Associates

Orders

That until further order:-

1. That the parties have equal shared parental responsibility for X born in 2010 (“the child”).

2. That the child shall live with the mother.

3. That the child shall spend time with the father as follows:-

   (a)From 10.00 am to 2.00 pm each alternate Saturday commencing 30 March 2019;

   (b)From 10.00 am to 4.00 pm each alternate Saturday commencing 27 April 2019;

   (c)From 10.00 am Saturday to 4.00 pm Sunday and each alternate weekend thereafter commencing 25 May 2019.

4. That subject to the joint agreement of the parties they do all things necessary to engage in non-reportable family therapy with a suitably qualified medical professional as may be nominated by the Independent Children’s Lawyer, with the parents to share the cost of the said therapy and with the parents to use their best endeavours to implement any recommendations made by the family therapist as to the future arrangements for the child to spend time with each of them.

5. That by 4.00 pm on 24 May 2019 the applicant file and serve upon all other parties:-

   (a)An amended application setting out with precision the orders to be sought;

   (b)The affidavits of evidence in chief of all witness including the applicant relied upon (noting that the affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

6. That by 4.00 pm on 12 July 2019 the respondent file and serve upon all other parties:-

   (a)An amended response setting out with precision the orders to be sought;

   (b)The affidavits of evidence in chief of all witness including the applicant relied upon (noting that the affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

7. That by 4.00 pm on 19 July 2019 the Independent Children’s Lawyer file and serve upon all other parties any affidavit material relied upon.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ilbert & Lovel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 253 of 2015

Ms Ilbert

Applicant

And

Mr Lovel

Respondent

REASONS FOR JUDGMENT

Introduction

1. Following contested proceedings in the Federal Circuit Court which commenced in 2015, Ms Ilbert (“the mother”) and Mr Lovel (“the father”) consented to final parenting orders on 10 November 2017 with respect to X born in 2010 (“the child”).

2. The orders provided for the parties to have equal shared parental responsibility for the child, gradually increase her time with the father such that from 4 May 2018 the child would spend equal time with the parties living with each of them for alternating one week periods.

3. The orders comprehensively provided for the time the child will spend with the parties during school holidays and on special occasions and for the medical and health matters pertaining to the child.

4. The parties were also able to reach agreement which provided for the parties to take the child interstate or overseas subject to certain terms and conditions.

5. On 5 April 2018 the father filed an Application for Contravention alleging two breaches of orders 12, 16 and 17 relating to the mother having arranged non-urgent health appointments for the child without notice to the father.

6. The father filed a Notice of Discontinuance on 28 May 2018 in relation to the contravention application, but by Application in a Case filed 10 September 2018 the father sought a recovery order for the child and that the child be placed on an Airport Watch List.

7. The father alleged that on 7 September 2018 he received communication from the mother that the child had refused to go to school and as such would not be coming into the father’s care.

8. The child has not spent time with the father or engaged in any effective communication with him since that date.

9. The mother filed an Initiating Application on 13 September 2018 seeking orders that the parties have equal shared parental responsibility for the child who should live with the mother. The extent of time to be spent with the father was dependent upon the “receipt of the 11F Child Inclusive Family Dispute Conference or Family Report”.

10. The mother does not seek to interfere with orders 12 to 27 made 10 November 2017.

11. By way of interim orders, the mother sought that the child should spend supervised time with the father and attend for psychological therapy with the expenses to be shared equally between the parties.

12. The mother denies that she has in any way cajoled or forced the child to sever her relationship with the father.

13. She asserts that she does all that is reasonable to promote the child’s relationship with the father, but that the child’s recent behaviour is now so overtly opposed to seeing the father that without assistance the mother does not consider she would be able to motivate the child to spend time with him.

14. Her position is summarised by the following paragraphs in her Affidavit of 13 September 2018:-

    61.Since the Final Orders were made on 10 November 2017, [the child] has continued to show resistance to them. [The child] stopped calling [the father] “her dad” and commenced referring to [the father] as “her Father”. [The child] becomes upset when I refer to [the father] as “her dad” and tells me that I am not to call him that. [The child] has been difficult to encourage to go to school and continually said words to the effect of:

    (a)      “I don’t want to leave you mum”;

    (b)      “I’m scared of my Father”; and

    (c)      “I don’t want to spend time with my Father”.

    62.Throughout these periods I continued to reassure her saying words to the effect of “sweetheart, it’s important that you see your Father and spend time with him. You’ll have fun”. I talk about [her step-brother and sister] and about doing exciting things with them on the weekends.

15. The mother also records at [65] threats made by the child in March 2018 to the effect of :-

    (a)“I want to kill myself if I’m forced to spend time with my Father”;

    (b)“I will jump in front of car if I have to spend time with my Father”;

    (c)“I’ll run away and go to a safe house and get them to ring you Mum”.

16. On 9 November 2018 the parties agreed orders by consent until further order that orders 5, 6, 7, 8, 9, 10, 11 and 20 of the orders made on 10 November 2017 be suspended.

17. An Independent Children’s Lawyer (“ICL”) was also appointed and pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) H Group was requested to provide the Court with documents or information relating to any notifications regarding abuse allegations relating to the child and any details or investigations into abuse allegations and copies of any reports concerning those investigations.

18. The mother states that since the suspension of the court orders the child’s outlook has been more positive and the difficulties that the mother had experienced with the child attending or remaining at school have now largely dissipated.

19. The mother considers that there has been some lessening of the separation anxiety and the child on occasion has walked from her school to the mother’s current employment location.

20. The child now stays overnight with the maternal grandmother, sleeps independently in her own room and no longer complains of illness or pain.

21. It has been a feature of the proceedings that the child has engaged in numerous medical and other health assessments which have been the subject of criticism by health professionals and H Group.

22. The father contends that the mother may be displaying symptoms consistent with Munchhausen Syndrome by Proxy.

23. The extent of medical intervention is a significant focus in the proceedings. The mother’s assertion that the child now has no complaints in respect of illness or pain and therefore there has been a significant reduction in the need for the child to attend upon medical and other health professionals is a relevant consideration.

24. The mother does not concede that she has taken active steps to sever the child’s relationship with the father She acknowledges that it is in the child’s best interests to have a meaningful relationship with the father.

25. At [57] the mother candidly admits that she does not know what has caused “[the child’s] aversion to seeing or spending time with [the father]”. She goes further and states that the child loves the father but for reasons that are not at all understood the child remains steadfast in her refusal to engage with the father either by way of physical contact or non-personal communication.

26. The mother suggests that there may be advantage to the parties and the child meeting at a public place and hopefully the father may then arrange with the child that they could undertake an enjoyable activity such as fishing, horse riding or collecting fossils.

27. A further option is that the father could be reintroduced to the child after one of her play therapy sessions.

28. At the interim hearing counsel for the father tendered a minute of proposed orders seeking that the child live with him and for a period, subject to the recommendations of a family therapist nominated by the ICL to work with the family, the mother’s time would be suspended.

29. The mother opposes the orders sought by the father.

30. It is a fair assessment of the position adopted by the ICL that she was not able to offer significant assistance to the Court. She had not seen the child and whilst not supporting the child being placed in the primary care of the father, she considered that in the absence of any allegation that the father presented as a risk, the child should spend time with him.

31. No orders were sought nor proposals put by the ICL that might assist in re-establishing what is now a fractured relationship between the father and the child.

The family report

1. Consequent upon an order made on 20 November 2018 pursuant to s 62G(2) of the Act, Ms F (“family consultant”) prepared a Family Report dated 6 March 2019.

2. The family consultant acknowledged that the report had been prepared to assist the Court in respect of the future parenting arrangements for the child.

3. She brought to account two previous reports authored by Mr A, family consultant dated 16 May 2016 and 11 July 2017.

4. The parties separated in November 2014 and consistent with their affidavits, the parties confirmed to the family consultant that post-separation they were on amicable terms with each other and able to agree a shared parenting arrangement. There was a level of flexibility in that from time to time the child would spend more time with the father.

5. The parties’ relationship was adversely affected by the father commencing a relationship with Ms B. Ms B and her ex-husband were close friends of the parties.

6. The family consultant took into account that there had not been any reports of physical abuse or threatening behaviour as between the parties and noted that applications for domestic violence orders applied for by each of the parties were ultimately unsuccessful.

7. There has been some involvement by H Group in 2017 which identified both parents as responsible for emotional abuse in the first investigation and the mother as responsible for the abuse in the second investigation.

8. Consistent with the mother’s presentation to the Court, she confirmed that the child should spend every second weekend with the father subject to the child being prepared to do so.

9. The father’s proposal was consistent with the proposed orders sought by him.

10. The family consultant identified the following factors that weigh heavily upon the child’s development:-

    ·The impact on [the child] as a result of exposure to parental conflict and subsequent impact on [the child’s] relationship with each parent;

    ·The capacity of each parent to encourage and support [the child] having a relationship with the other;

    ·The capacity of the parents to build and maintain a cooperative co-parenting relationship;

    ·[The child’s] age and state of development, particularly in the context of her refusal to spend time with her father.

11. The family consultant made considerable effort to consider the father’s allegation that the mother was medically over servicing the child. The father considered that the history of medical intervention was highly suggestive of Munchhausen Syndrome by Proxy. The mother and the maternal grandmother strongly disagreed with the submission and countered by saying that the various medical examination and investigations were made necessary by the child’s presentation. Far from being consistent with the mother suffering a psychiatric condition, it is evidence of the child being the mother’s prime focus and her adopting a cautious approach. It was also highlighted that since the child has ceased to spend time with or communicate with the father her health needs have largely dissipated.

12. The family consultant conferred with Ms C, the child’s school Principal, and Ms D, the Deputy Principal (“the teachers”).

13. The teachers confirmed that the child had commenced 2019 well adjusted, able to be managed and without any behaviour consistent with a diagnosis of Autism Spectrum Disorder (“ASD”).

14. The teachers knew that the child no longer spent time with the father. At [93] they refer to the mother’s instruction in respect of any attempt by the father to communicate with the child whilst at school:-

    [The teachers] were aware that the child no longer has contact with her father. They described difficult and confronting behaviours by [the mother] in relation to [the child’s] contact with [the father], reporting that [the mother] instructed that they were not allowed to facilitate any contact between [the father] and [the child], nor to pass on gifts or messages to [the child] from [the father]. As well, they claimed that [the mother] said they were not to speak about [the father] to [the child] at all.

15. And then at [94] the following observations are made:-

    According to [the teachers], last year during the week when [the child] was in her father’s care, [the mother] frequently attended [the child’s] classroom to see her, which disrupted [the child]. [The mother] was requested to stop visiting [the child] during school time, and she was reported to have reacted defensively, saying that [the father] should not be permitted to attend the school during the time [the child] is in her care.

16. The family consultant also sought input from Ms E, the child’s school counsellor. Ms E’s comments are reported at [108]:-

    ‘it became clear that [the child] likes to look after and protect her mum’. [The school counsellor] reported that after an occasion when [the child] made a fuss at changeover, holding onto her mother and making animal noises, [the child] informed her that she felt sad leaving her mother because she loves her mother. Asked why she did not respond to her father in the same manner at changeover, [the child] said, ‘dad doesn’t need that because he has other people to take care of’.

17. The family consultant was pessimistic as to the ability of the parties to reconcile their differences. At [135] she records her opinion:-

    A strong reaction to betrayal commonly manifests in feelings of irreconcilable anger, resentment and deep mistrust. Suffice to say, it seems apparent that this parental relationship is characterised by such enmity, and unfortunately there appears little hope of resolution or progress beyond such a deeply polarised position which now seems to have been adopted by each parent towards the other.

18. In interview with the family consultant the child repeated her intention that she would spend no time with the father because “he threatens me, scares me, and he doesn’t take me to karate”. The child also reported to the family consultant that she would not call her father “dad” but rather would refer to him as “father”.

19. The child considered that the father was a bully and that he “bullies my mum and my grandma... I’m doing so much better not seeing him”.

20. The family consultant noted that the child had a strong attachment and engagement with the mother and the maternal grandmother. She did not observe any evidence of a relationship between the child and the father.

21. The family consultant attempted to observe the interaction between the father and the child. The observation did not occur given the child’s “vehement opposition” to seeing her father. The family consultant observed at [163] that:-

    Equally, it is apparent that she can become highly reactive, as was intimated by her responses to both the writer and her mother’s attempts to encourage her to have contact with her father. It was apparent that [the child] exercised her will and determination regarding spending time with her father, giving the impression that she levered substantial power over this matter.

22. Despite the aggressive stance of the child in opposing any contact or communication with the father, the family consultant did not blithely accept that the child’s presentation was necessarily consistent with a mature and considered position. At [170] she considered:-

    That [the child’s] behaviour and emotional state appears to be noticeably different in the mother’s household, might indicate a problematic relationship dynamic between [the child] and both her mother and grandmother. For a child to behave in such an extreme manner towards a caregiver, it would usually point towards a lack of appropriate boundaries and behavioural reinforcement by that caregiver; a caregiving style that is permissive and lacking in authority.

23. And at [171]:-

    This dynamic also raises consideration that the emotional boundaries between [the child] and her mother may have become blurred, whereby [the child] is highly attuned and sensitive to her mother’s emotional state, in turn experiencing emotions and feelings similar to those that her mother is feeling when she is in a state of heightened emotion. Such feelings may serve to create a burden of emotional and psychological responsibility on [the child], in turn causing episodic emotional dysregulation.

24. The family consultant considered that the child’s behaviour was consistent with “characteristic of behaviours in children whereby a parent is unjustifiably rejected”. She considered that the child had “weak rationalisations” for her opposition to the father and at [177] noted:-

    The writer noted that [the child] expressed extremely negative feelings about her father with little apparent ambivalence, and her strong claims such as how scared she felt of her father, appeared incongruent with her affect. As well, her behaviour was bordering on precocious and she seemed to have an inflated sense of her own omnipotence, such as saying she will kick her father in his face.

1. To reinforce the already complex interrelationship between the parties, the family consultant considered that the father was not without fault and found that he:-

   [W]as entirely disparaging of [the mother], and did not have a positive comment to say about her. It seems that he also adopted an inflexible approach towards the parenting arrangement, such as disagreeing about an extra day that would enable [the child] to attend a concert in Melbourne.

2. The difficulty for the family consultant was the unchallenged evidence that following separation the child enjoyed her time with the father and Ms B. The child’s dysregulated behaviours and odd conduct such as the child making animal noises when confronted with the father, was not behaviour that had been observed in class.

3. The concern of the family consultant is evident by her view that the child “has rejected her father without justification”. She considered that this was a worrying development and that the child has a distortion of history and of the relationship that had existed between the parties.

4. The risk to the child is not simply confined to the personal loss of not having a relationship with her father, but may well have a negative outcome in terms of her future relationships and ability to manage inter-personal conflict.

5. The family consultant considered that if the child’s behaviour towards her father did not change “in all likelihood she will suffer detrimental psychological repercussions such as those outlined above”.

6. The family consultant considered that if the Court determined that the mother was open to the child having a relationship with the father and if the Court determined that the father did not present as a risk, then one of the options would be “an abrupt and forced changeover of care for a short and intensely focused period of time, such as at the commencement of a school holiday”.

7. It is self-evident that the orders sought by the father are likely to have been influenced by at least one of the options put forward by the family consultant.

Interim parenting

1. In Marvel v Marvel [2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence as follows:-

   120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

2. In SS & AH [2010] FamCAFC 13 the Full Court considered the care that should be exercised in making findings in interim proceedings:

   88.… In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

3. In Deiter & Deiter [2011] FamCAFC 82 the Court considered the situation where contested facts related to an assessment of risk and said at [61]:-

   Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending upon the evidence that is before the Court.

Best interests of the child

1. Section 60CA requires that in deciding whether to make a particular parenting order the best interests of the child is the paramount consideration. In order to determine what is in the child’s best interests the Court must consider the provisions of s 60CC as to primary considerations contained in s 60CC(2) and the additional considerations in s 60CC(3).

2. I do not consider that there is any evidence that would suggest that the father poses a risk to the child. It may be that the conduct of the parties poses an emotional risk to the child, but I give significant weight to the mother’s concession that the child’s interests would be served by her having a relationship with the father given that during the period of cohabitation the father was an engaged parent and for a period following separation there was a beneficial emotional attachment between the child and the father.

3. It would seem uncontroversial that the child has expressed a strong wish that she does not wish to engage with her father or resume any form of relationship with him.

4. In considering the manner in which the child’s wishes are to be brought to account I have regard to the decision of the Full Court in H v W (1995) FLC 92-598 and R & R: Children’s Wishes (2000) FLC 93-000 at 87,070 – 87,072.

5. The position is summarised that whilst a Court must take a child’s wishes into account, it is not bound by them.

6. Indeed, it is always a question of weight to be given to the child’s wishes and however strongly expressed they may be either by word or action, a child’s wishes is not in and of itself determinative of outcome.

7. There are other factors pursuant to s 60CC that necessarily inform the Court as to what may be an outcome that will best serve the child’s interests.

8. I do not consider that on an interim basis the Court should order the child’s forced removal from the mother to be placed in the father’s sole care. Whatever merit may be inherent in the recommendations of the family consultant, such an order could only be considered following a testing of the evidence.

9. The family report speaks to the importance of the relationship between the child and her father and the potentially deleterious effect on the child if she does not resume a relationship with him. It is to be noted that the mother does not make any allegation that the father poses a risk to the child and it appears beyond her ability to understand or proffer any explanation as to why the child’s attitude has changed.

10. There is no reason why consistent with adverse behaviour by the father which could explain the strength of the child’s opposition to her father.

11. Whilst the father adopts a derisory attitude towards the mother, that in and of itself is not sufficient explanation for the child’s oppositional conduct.

12. At present the proceedings are unlikely to be heard and determined before 2020. Taking into account the child’s age and the concerns expressed by the parties with support from the family consultant, I consider that an order should be made restoring the child’s relationship with her father. It is likely that the child would be adversely affected for there to be an order made at this stage which forced her to live with the father. I do not propose to make such an order.

13. I consider that the father’s time with the child should be reinstated but on the basis of a graduated approach commencing with the child spending a few hours each alternate Saturday with the father, extending to a full day and then encompassing an overnight period.

14. I do not ignore that there may be a deleterious effect on the child of forced contact. I have regard to the assessment of the family consultant that in this case it is likely that the child’s opposition is brought about by a perception that she has “leverage” rather than there be a risk of psychological or emotional harm if she is required to see her father.

15. The risk to the child is the converse namely, that if she does not see her father she may well sustain deeply entrenched misconceived notions of her father which could impact on her emotional health.

16. There is no evidence that the child fears her father, but rather has adopted an overtly aggressive stance believing that it reinforces her decision to sever her relationship with him.

17. Nonetheless, if the Court has an opportunity to hear this matter at an earlier stage, the interests of the child will be better served. I will also make orders requiring the preparation of trial material to enhance the possibility of an expedited hearing.

18. I make orders as appear at the commencement of these reasons.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 25 March 2019.

Associate:  

Date:  25 March 2019