LAMOTT & LAMOTT

[2019] FCCA 3087

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAMOTT & LAMOTT [2019] FCCA 3087

Catchwords:
FAMILY LAW – Interim parenting – spend time or change of residence – where mother has failed comprehensively to comply with court orders – where mother has sought to undermine operation of orders for child to spend time with father – where mother has enlisted the child’s elder sibling to collaborate in undermining conduct – where s.11F report and family report are each supportive of spend time – where family report identifies that if mother continues to undermine child’s relationship with father, change of residence may be warranted – where expert evidence identifies the harm being done to child by denial of bond with father – where risk of further harm is demonstrably likely – applicable principles – orders made – assistance by Child Dispute Services facilitates handover and mitigates trauma to child.

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AB, 11F, 60, 60B, 60CA, 60CC, 65D, 70Q

Cases cited:

Banks & Banks [2015] FamCAFC 36
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Cowling & Cowling (1998) 22 Fam LR 776
Deiter & Deiter [2011] FamCAFC 82
Goode v Goode (2006) 36 Fam LR 422
Harridge & Harridge [2010] FamCA 445
Marvel & Marvel [2010] FamCAFC 101
M v M (1988) 166 CLR 69
Slater & Light [2013] FamCAFC 4
SS & AH [2010] FamCAFC 13
Stott & Holgar [2017] FamCAFC 152

Applicant: MR LAMOTT

Respondent: MS LAMOTT

File Number: MLC 1577 of 2018

Judgment of: Judge A Kelly

Hearing dates: 21, 23 October 2019

Date of Last Submission: 23 October 2019

Delivered at: Melbourne

Delivered on: 30 October 2019

REPRESENTATION

Counsel for the Applicant: Ms O'Connell

Solicitors for the Applicant: Baird & McGregor

Counsel for the Respondent: Mr Radich

Solicitors for the Respondent: Marcou & Associates Pty Ltd

Counsel for the Independent Children's Lawyer: Ms Conlan

Solicitors for the Independent Children's Lawyer: Carew Counsel Pty Ltd

ORDERS

1. Paragraphs (2) and (3) of the interim order made, by consent, on 26 June 2019 be discharged.

2. Paragraphs (4) to (21) of the interim order made, by consent, on 26 June 2019 remain operative and in full force and effect.

3. By 9:30am on Wednesday, 23 October 2019 the respondent mother, Ms Lamott, deliver the child, X, born … 2013 (the Child) to the Child Minding Service, Melbourne Registry, Federal Circuit Court of Australia.

4. By 9:30am on Wednesday, 23 October 2019 the respondent mother, deliver to the Independent Children’s Lawyer copies of the child’s two most recent school reports.

5. Direct that on or before 10:00am on Wednesday, 23 October 2019, the Independent Children’s Lawyer communicate in writing to the applicant father the name and address of the school at which the child presently enrolled (the School) and as soon as is reasonably practicable thereafter, copies of the Child’s school reports.

6. Until further order the Child spend time and communicate with the father as follows:

   (a)from 10:00am on Wednesday, 23 October 2019 until 9.00am on Wednesday, 6 November 2019;

   (b)during school terms from 3:30pm after school on Fridays until 9:00am before school on Mondays on each alternative weekend commencing from after school on Friday, 8 November 2019.

7. The respondent mother do all things as may be reasonably required of her to facilitate the Child’s spend time with the applicant father pursuant to paragraph (6) of this order

8. The respondent mother be restrained whether by herself, her servants, her agents or howsoever otherwise from hindering or obstructing the Child or the applicant father or either of them in spending time pursuant to paragraph 6(a) or 6(b) of this Order, including without limitation by being in attendance at or near the school at the time that the Child is to commence spending time with the father from 3:30pm after school on Fridays until 9:00am before school on Mondays on each alternative weekend commencing from after school on Friday, 8 November 2019.

9. Changeover occur at the Child’s school provided that where the parties agree in writing, such changeover may occur inside the foyer of McDonald’s Restaurant at C Street, Suburb D.

10. For the purposes of communication in relation to the observance and operation of any part of this Order, the parties are to use the App MyMob.

11. The proceeding is adjourned for further mention at 10:00am on Wednesday, 23 October 2019.

12. Liberty is reserved to apply on short notice.

13. Pursuant to sections 68Q and 68P of the Family Law Act1975 (Cth), the court declares that to the extent that any of these orders conflict with any extant family violence intervention order, such family violence intervention order is invalid but only to the extent of such conflict.

14. Pursuant to section 62B and 65 DA of the Family Law Act1975 (Cth), the particulars of the obligations that this Orders creates and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist the parties adjust to and comply with this Order are set out in the fact sheet attached hereto and those particulars are included in this Order.

NOTATION

A.The respondent mother with provide a school uniform for the Child’s use on Wednesday, 6 November 2019.

B.Prior to the mention of the proceeding on 29 November 2019, the parties are expected to have addressed the parenting orders which they submit to be appropriate to progress: (1) the Child’s spend time with the father including over the 2019/2020 Christmas holidays, school term and term holidays in 2020 and any other matters they consider necessary and appropriate in the circumstances; (2) the Child’s enrolment in school for 2020; (3) an order extending the airport watchlist order; (4) arrangements for the Child to consult a treating psychologist other than the psychologist who is treating the respondent mother.

C.At the mention of the proceeding on 29 November 2019, the court will give further consideration to the availability of a further s 11F report before a proposed mention of the proceeding on Monday, 17 February 2020.

IT IS NOTED that publication of this judgment under the pseudonym Lamott & Lamott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1577 of 2018

MR LAMOTT

Applicant

And

MS LAMOTT

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment explain parenting orders that were made on 21 October 2019 following an interim hearing in the course of a duty list.

2. By application in a case filed on 30 September 2019, the applicant father sought orders on an urgent basis for the child, X, born on … 2013 (the Child) to live with him with effect from 15 December 2019 or the end of the current school year.  Orders were sought that, until further order, the mother spend no time with and have no communication with the Child.  Ancillary orders were sought including that the matter return to court on 20 January 2020 and that an updated family report be obtained.  The father also sought an injunction to restrain the mother from attending within 100 m of his residence, the Child’s school, any sporting or other venue where the Child might be in attendance.  The orders sought in the course of submissions were modified from those set out above.

3. The procedural history of the matter has been unsatisfactory. In February 2018, the father filed an Initiating Application seeking orders for equal shared parental responsibility, for the Child to live with the mother and spend time with him mid-week and on alternative weekends. Further orders were sought in relation to special occasions and communication. Interim relief was sought including for the making of an airport watchlist order and an order pursuant to s 11F of the Family Law Act 1975 (Cth) (Act). 

4. By her Response, the mother sought orders for sole parental responsibility, for the Child to live with her and to spend time and communicate with the applicant “as deemed appropriate” by the court.  Thus the Response conceded that spend time may be deemed appropriate.  In amplification of the mother’s concession that the Child may spend time with her father, the Response also sought interim relief that if the Child suffered any serious injury illness or accident whilst in his care, that he should notify her.  The mother also sought that she be subject to reciprocal obligations in the event the Child suffered any illness or injury.  The mother further sought non-denigration orders and that the father attend for psychiatric assessment.

5. At the first directions hearing on 27 February 2018, an order was made fixing the matter for trial with directions to regulate preparation for trial.  A notation to that order provided that the father should have liberty to apply on reasonable notice regarding spend time arrangements.  A consent order made on that date provided that the parties would forthwith do all things required to enrolled at a contact service and that the Child should spend time with her father of at least two hours per fortnight or as otherwise agreed.  Contact time did not occur.

6. On 17 July 2018, the matter was listed for mention and an order was made for an urgent s 11F conference. An oral report was then given. The parties attended that Child inclusive conference, together with the mother’s elder child A born … 2007. The report of the family consultant is addressed in further detail below.

7. On 24 July 2018, following the provision of an oral report by the family consultant, an order was made for the appointment of an Independent Children’s Lawyer (ICL) to represent both the Child and her elder sibling. 

8. Further orders made on that date included that each of the parties be assessed by a psychologist appointed by the ICL and for the Child to be assessed by a paediatric specialist. Of some importance is that the parties agreed in consent orders that the Child no longer attend upon the same psychologist as was providing treatment of the mother. It was also agreed that the s 11F memorandum to be prepared by the family consultant be provided to the parties treating professionals and any contact service for the purposes of supervised time. Orders were made for the preparation of a family report.

9. On 3 April 2019, the ICL was requested to arrange mediation by the family dispute resolution service following receipt of the family report, the content of which is addressed below.

10. The matter had been listed for final hearing on 26 June 2019.  However, by the ICL’s outline of case, it was submitted to be premature to make final orders as the father was not spending any time with the Child and the family report recommendations was that there should be an opportunity for the Child’s relationship with her father to commence.  To those ends, the parties agreed in orders discharging the orders originally made for the Child to be enrolled in a contact centre and to spend two hours per fortnight with her father at that centre.  Instead, orders were made to facilitate private supervision between the Child and her father with the assistance of the ICL, and for the father to pay all fees associated with such supervision.  The parties further agreed that they would follow all reasonable directions of the private supervisor so as to allow the Child to spend time privately with the father for at least two hours per fortnight with such time to commence as soon as possible.  Ancillary orders were made which it is convenient to address in further detail below.

11. Despite all of those orders, the Child has spent no time with her father since January 2018.  As explained below, an available inference, which I am prepared to draw on the evidence, is that the mother has actively conducted herself so as to alienate the Child from her father.  Further, the evidence supports an inference that the mother has also engaged the Child’s elder sibling to collaborate in such alienation.  The prospect of the present application was anticipated by the family report.

12. It is in the foregoing circumstances that the father has brought an application in a case seeking urgent relief.  His application received substantial support from counsel for the ICL whose submissions were commendable in the objective consideration that was given as to what orders were truly in the Child’s best interests.  Those submissions were to be considered in the context that counsel for the mother (who has had a longstanding involvement in the case), accepted that there has been a significant failure by the mother to obey or facilitate the operation of the parenting orders that have been made, largely by consent.

13. Against that background, I turn to consider the applicable principles, the evidence upon which the application was made and why orders have been made providing for the Child to spend time with her father. 

Applicable principles

1. Part VII of the Act concerns the subject, Children. It is arranged in 16 Divisions comprising ss 60 – 70Q. Section 65D provides that the court may make such parenting order as it thinks proper. In Bondelmonte v Bondelmonte,[1] the Court said of s 65D:

   A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.

   [1] (2017) 259 CLR 662, [8].

2. The objects of Part VII are stated in s 60B(1). They include to ensure that the best interests of children are met by protecting them from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence: s 60B(1)(b). The principles underlying those objects recognise the manifold rights of children with respect to their parents: s 60B(2). It must also be recognised that the principles in s 60B(2) are expressed as being subject to an exception: “except where it is or would be contrary to the child’s best interests”. 

3. In determining the best interests of a child, two primary considerations must be taken into account. By s 60CC(2), the court must consider:

   a)the benefit to the children of having a meaningful relationship with both of their parents; and

   b)the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

   See ss 4(1) (abuse); 4AB(1) (family violence); 60B(1)(c), 60CC(1) (determining child’s best interests); 60CC(2) (primary considerations).  Additional considerations are prescribed by sub-s.60CC(3)(a)-(m).

4. The court is required to give greater weight to protecting children from physical or psychological harm and from being subjected, or exposed, to abuse, neglect or family violence.[2]  Where the circumstances require, the need for protection from harm as addressed by par 60CC(2)(b) may well assume prominence over allowing for a meaningful relationship with both parents as addressed in par 60CC(2)(a).  This conclusion is reinforced by the exception provided for in par 60B(2).

   [2]By operation of amendments to the Act effected by sub-s 60CC(2A) which require the court to do so in respect of proceedings instituted after 7 June 2012.

5. When deciding what parenting orders ought to be made in proceedings under Part VII of the Act, the best interests of the children are the paramount consideration: s 60CA. Accordingly, the principles contained in s 60B(2), which express rights of children in relation to their parents, may yield to the paramount consideration expressed in s 60CA that in deciding whether to make a particular parenting order, a court must have regard to the best interests of the child. Approached another way, where it would be contrary to the child’s best interests to make orders which accord priority to the principles in s 60B(2) (as by facilitating the child’s right to spend time on a particular basis with both of their parents or other people significant to their care), the mandate, which is expressed as the paramount consideration to pay regard to the best interests of the child, may support orders appropriate to promoting and protecting the child’s best interests including, orders that may protect a child from harm.

Interim orders

1. The principles in Goode v Goode,[3] apply to the determination of an interim application for parenting orders.[4] There, the Full Court drew attention to the amendments to Part VII of the Act,[5] the objects of Part VII and the mandatory requirement expressed in s 60CC that the Court must have regard, as the paramount consideration, to the best interests of the child in deciding parenting orders.[6] 

   [3] (2006) 36 Fam LR 422.

   [4] (2006) 36 Fam LR 422, [66]-[82].

   [5]             The relevant amendments to Part VII took effect from 1 July 2006.

   [6] (2006) 36 Fam LR 422, [7]-[10].

2. The Full Court recognised that interim proceedings were interlocutory in nature and confirmed some statements in Cowling & Cowling,[7] accepting that the procedure in making interim parenting orders would continue to be an abridged process such that the scope of enquiry was, of necessity, to be significantly curtailed from that which obtained at a trial.  Yet the Full Court recognised that that principle was constrained by the requirement “that the court must have regard to the best interests of the child as paramount in deciding what interim orders to make”.[8]  In holding that Cowling’s case must be reconsidered in light of the amendments to the Act, the Full Court held:[9]

   In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child. (emphasis added)

   [7] (1998) 22 Fam LR 776.

   [8] (2006) 36 Fam LR 422, [69].

   [9] (2006) 36 Fam LR 422, [72].

3. Goode’s case holds that the Act evinces a legislative intent that generally favours the substantial involvement of both parents in the lives of children, both as to parental responsibility and as to time spent with children. However, the general legislative intention in favour of substantial parental involvement cannot be read as being divorced from the mandate to observe the paramount consideration of the child’s best interests, the prescription to give greater weight to the need to protect children from harm, from abuse and family violence, or the exception to s 60B(2) that the child’s rights to parental involvement may yield as to what would otherwise be in their best interests or reasonably practicable.

4. The following principles stated in Goode’s case[10] are applicable when following the legislative pathway:

   In an interim case that would involve the following:

   (a)         identifying the competing proposals of the parties;

   (b)     identifying the issues in dispute in the interim hearing;

   (c)      identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   [10] (2006) 36 Fam LR 422, [82].

   (e)-(j)     . . . ;

   (k)even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the court considers after affording procedural fairness to the parties it to be in the best interests of the child.

1. Relevantly, for the purposes of the present application, Goode’s case confirms that the abridged conduct of interim applications for parenting orders remains qualified by the need to protect children from harm or from being subjected to or exposed to abuse or family violence.

2. Goode’s case holds[11] that in making interim decisions, the legislative pathway must be followed notwithstanding that the court will often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.

   [11] (2006) 36 Fam LR 422, [81].

3. In the context of the present application for interim parenting orders, the court must have regard to the considerations in ss 60CC(2)-(3), and, where the exception in s 60B(2) is engaged, that the rights of the child in relation to their parents should yield to the paramount consideration of what orders are in the child’s best interests: s 60CA.

4. It must also be recognised that the capacity to evaluate and weigh the material on an interim hearing is constrained by those considerations and for that reason the conclusions expressed at an interim hearing are necessarily couched in qualified terms.[12] 

   [12]           Marvel & Marvel [2010] FamCAFC 101, [120]; SS & AH [2010] FamCAFC 13, [88].

5. The court is nonetheless not required to ignore a contention or evidence merely because it is untested.[13] To the contrary, having regard to the imperative requirements of s 60CC(2A), the court must give greater weight to the risk to a child of exposure to abuse, neglect or family violence and for those reasons must assess the risk of such harm. This assessment requires a predictive evaluation of the likelihood of the occurrence of harmful events and then consideration of the severity of the impact caused by those events, neither of which can be postponed.[14] However, because there will be little uncontested evidence at an interim hearing, only limited consideration of the factors identified in s 60CC may occur and such consideration as is required at an interim hearing is in large measure defined by the manner in which the parties join issues.[15]

   [13]           SS & AH [2010] FamCAFC 13, [100].

   [14]           Deiter & Deiter [2011] FamCAFC 82, [61].

   [15]           Banks & Banks [2015] FamCAFC 36, [47]-[50].

6. The court well recognises that, while they should be considered, an exhaustive discussion of the factors in s 60CC is not required. Indeed, to do so may risk that sight is lost of the forest for the trees, including where the available evidence leads inexorably to a particular conclusion. Instead, the paramount consideration is to have regard to a child’s best interests. The fact that I have not traversed each of the considerations identified by s 60CC or every aspect of the parties’ evidence does not mean that they have not been considered. It largely reflects that I have examined the issues that were emphasised by the parties’ submissions. Put another way, while I have regarded the parties’ submissions as identifying the relevant considerations, I have not disregarded the considerations addressed by s 60CC unless they are plainly irrelevant.

Consideration

1. The present application came before me in a Duty List.  The parties’ submissions and those of the ICL did not closely follow the progressive or staged analysis that is identified in the authorities addressed above.  Adopting the principle that the consideration which is required at an interim hearing is largely defined by the manner in which the parties have joined issues,[16] I decided upon the orders that ought be made in the Child’s best interests having regard to their submissions.

   [16]           Banks & Banks [2015] FamCAFC 36, [47]-[50].

2. As concerned the parties competing proposals, I have set out at [3] above the nature of the relief that was sought by the father. As it was necessary for the matter to be stood down for some hours, counsel for the father was directed to provide to counsel for the mother and the ICL respectively a minute identifying the precise relief being sought. This was done.

3. The relief as sought by the father (being, in substance, as contained in many of the orders that have been made), was opposed by the mother whose position was couched in ambulatory terms as invoking the need to secure another s 11F report and for supervised spend time. Beyond the identification of those issues, the need for caution was emphasised by the mother, it being suggested that supervision was still appropriate so that the mother would be more comfortable with the interim parenting arrangements. It was submitted that the very notion of a change of residence, even on an interim basis, would entail trauma to the Child and was too dramatic a step in all the circumstances. Submissions were made against the making of orders grounded upon the ‘upheaval’ that they would involve. To have said as much, with respect, was to recognise that trauma, upset and upheaval of the very kind identified in those submissions was both a regrettable and near inevitable consequence of interim orders which entailed a change of residence. They did not address, however, the necessity for such orders having regard to the best interests of the Child and, in particular, the need to protect the Child from harm.

4. The central issue that arose in the interim application involved the question of whether the Child should spend time with the father unsupervised.  The mother’s stated position was that she did not oppose the Child spending time.  Rather, although she said that she had done everything to facilitate that time, the Child was resistant to doing so.

5. For the purposes of identifying agreed or contested facts and relevant s 60CC considerations, it is convenient to address the evidence. Since the matter proceeded as an interim hearing, the matters addressed below do not represent ultimate findings of fact and are conditioned upon being tested and evaluated at trial.

Notice of risk

1. As noted above, each of the parties has filed a notice of risk. 

2. In response to those notices, the Department of Health and Human Services (DHHS) provided a report dated 13 July 2018 which was given pursuant to s 67ZW of the Act. The report recorded that there had been no previous reports to Child Protection in relation to either of the children.

3. The main issue examined by DHHS at that time concerned the extent to which the father applied physical discipline to the children.  The events which were examined by DHHS appeared to arise in 2014.  It appears that such discipline had been applied to the elder child more than the Child who is the subject of this proceeding.  Insofar as physical discipline was concerned, other evidence indicated that both parents had applied discipline of this kind on occasions.

4. In any event, DHHS noted the existence of a current intervention order and that it had closed the file. 

Section 11F report

1. As noted above, in an effort to assist the parties with their parenting dispute an order was made for a family consultant to prepare a report pursuant to s 11F of the Act. On 24 July 2018, the parties together with the Child and her elder sister (who is not a child of the relationship) attended upon the family consultant.

2. The family consultant prepared a report which recorded that the only issue on which the parties were agreed was that the Child should live with the mother.  At that point, the issues in dispute were identified as being the Child’s spend time with her father and allegations of risk to the Child whilst in the care of the father.  The consultant noted that following the parties’ separation in December 2017 there had been cross intervention orders granted on an interim basis with those applications being listed for a contested hearing in November 2018. 

3. The family consultant also noted both parties made allegations of verbal abuse by the other.  The father admitted to having, whilst intoxicated, pushed the mother during a dispute in 2014.  There were otherwise no recent issues of family violence noted.

4. The mother raised, and the father denied allegations of misuse of alcohol or illicit substances.  Again, the father admits to having used alcohol excessively on one occasion in 2014 and, on that occasion, to having taken an overdose of Panadol.  He denies, however, the respondent mother’s allegations that he had been cutting his arms, that police were present or that he was transported to hospital for observation.  For the applicant father’s part, he identified the mother as inciting a great deal of the trouble that he has had to address.  As concerned the mother’s allegation to locating syringes, the father explained that these were for the use of the paternal grandmother in medicating her dog.

5. The consultant recorded that the father had a diagnosis of anxiety and depression for which he was prescribed antidepressant medication and that, since April 2018 he has been attending upon a psychologist for treatment.  The consultant also observed that the father appeared to minimise his acts and threats of self-harm and as showing little insight into the impact of this conduct upon the children, instead attributing blame to the mother for his poor emotional and mental well-being.  While the mother raised allegations that the father suffered schizophrenia or a bipolar disorder, the father met this concern by agreeing to being assessed for any such conditions. Furthermore, the family consultant observed that there appeared to be no notable psychiatric issues of this kind.

6. Equally, the mother reported a diagnosis of anxiety and adjustment disorder and that she had also consulted a psychologist for treatment since February 2018.  In particular, the mother described to the family consultant her “feelings of anxiety and anger associated with the possibility of (the Child) spending time with her father”. 

7. The consultant referred to the report of DHHS, which she had considered. 

8. The final risk factor that was noted by the family consultant was the risk of overseas abduction by reason that the mother stated her intention to relocate with the children to Country E and variously proposed that, while the father might travel to Country E to spend time with the children, the mother was opposed to him doing so.

9. As concerned the co-parenting relationship, the family consultant noted the fractured nature of that relationship and that the parties’ mental health appeared to impact on their ability to remain child focused or to work toward achieving co-parenting arrangements.  Regrettably, both parents appeared to show minimal insight in relation to the children’s needs, the effects of alleged family violence or mental health.  The mother reiterated that she did not support the Child spending time with her father and that any spend time arrangements would be guided by the Child’s views, as to this the consultant again observed that the mother “appeared to show minimal insight into [the Child’s] age and understanding”.  The consultant also identified that the father appeared to be more focused upon his new relationship (which began in … 2018) and the impending birth of a child due in … 2019.

10. The consultant found the Child presented with low attention and an inability to focus on a topic or activity for longer than a few seconds.  The interview was constrained by the Child’s limited attention span and apparent speech difficulties.  The Child reported that she liked seeing a psychologist and enjoyed going to kindergarten. 

11. Concerningly, the Child initially denied that she had a father and later expressed the view that she did not want to see her father. She spoke about her mother and sister as being ‘her family’.[17] 

    [17]           Family report dated 4 June 2019, [101]-[1-2].

12. By extension, the Child’s older sibling, aged 12 years, expressed concern with her sister spending time with the father.  While the elder sibling presented as mature for her age, the responses in the course of interview were largely repetitive of those which had been given by the mother.

13. The family consultant referred to a letter dated 18 May 2018 from Community Plus which recommended that the Child continue engaging in her therapeutic intervention with the aim of working toward building her confidence so as to engage in contact “when she feels safe and ready” to do so. No information was provided during the s 11F consultation to indicate that such therapeutic intervention had commenced.

14. The family consultant gave interim recommendations including that the Child should live with the mother (as was agreed), for the appointment of an ICL with the need for further information to be obtained from a number of sources and for the parents to engage in post separation programs.  Recommendations were also made for a full paediatric assessment to be undertaken of the Child; for the Child and the mother to see separate psychologists; the father to continue to see his psychologist; for an independent psychological assessment of the father (in light of the allegations of mental health, family violence and substance abuse); the retention of an airport watchlist order and a family report.

Family report

1. The family report gave extensive consideration to appropriate parenting recommendations which included the immediate provision of private supervised time; the determination of parental responsibility; directions permitting the Child’s elder sibling to attend supervised time; for the Child to live with the mother subject to the express condition that “in the event of ongoing non-compliance with the instructions of the Court, X’s residence is changed to live with Mr Lamott.”  As noted above, in preparation for the trial fixed for June 2019, the parties exceeded to the ICL’s submission that there should be a further opportunity for the Child’s relationship with the father to commence.

2. I have examined the family report in detail.  However, having regard to the parties submissions and the matters which I have focused upon, I confine my discussion of the report to the matters addressed below.

3. At the outset, I record that the family report was comprehensive in its consideration of the matter.  When addressing the parties’ current arrangements, the author identified that the mother had another child, A born … 2007 who was not the biological child of the father and that the father had re-partnered and had now fathered a daughter, B, born … 2019.  The family report writer had regard to the father’s four-bedroom residence in Town F.

4. The mother was noted to be guarded when discussing her current accommodation arrangements but that she disclosed she was in the process of moving.  Otherwise, the mother refused to discuss the topic.

5. In assessing the family background, the author noted that the parties had met online in … 2010 at a time when the mother and her elder daughter were living in Country E and the father living in Australia.  The parties’ first physical meeting occurred in … 2011 and they were married in Country E in … 2012.  It was reported that the pregnancy which resulted in the birth of the Child was unplanned and that when the mother migrated to Australia, the Child was born on … 2013.  Contextually, the older child had remained in Country E for some time.

6. The family report writer noted that the parties’ relationship was characterised by family violence and high conflict negotiations with each party attributing blame to the other for their verbal abuse.  Allegations of alcohol abuse and suicidal ideation on the part of the father were reported by the mother.  The father had first separated from the mother in 2014 and although the parties reunified, the mother apparently stated her desire to return to Country E with the children on frequent occasions.  The final breakdown in communication and the relationship occurred in January 2018.

7. In addressing the history of the dispute and the parties’ proposals, the family report writer noted that the father sought equal, shared parental responsibility whilst the mother wanted sole parental responsibility and expressed her desire to return to Country E with both children.

8. In assessing risk factors the family report writer had regard to: family violence and abuse; child safety and well-being; alcohol and substance abuse and mental health issues, many of which I have addressed above.  However, it was recorded that the father agreed he had used self-harm as a maladaptive coping strategy to manage his emotions during the parties’ relationship. 

9. In addressing the issues in dispute, the parties and the author identified as prominent issues the question of the Child’s spend time with her father and her alignment with her mother.  The family report writer provided detailed description of the results of her dialogue with both parents the Child and her elder sibling.  The author found the father to present willingly and as a cooperative interviewee and noted his desire to re-establish the relationship with his daughter.  The father was reported to have prioritised his engagement with a professional psychologist and the use of a mental health plan which he has implemented.

10. Concerning the interview, the mother also presented ‘willingly’ and adhered to her desire for sole parental responsibility and that she wished to return to Country E.  The mother expressed frustration and particular anger that the non-biological child had been placed on the airport watchlist.  Nonetheless, the mother stated her understanding of the significance of growing up with a father as she had done herself.  Despite that statement it was reported that “she perceives X’s best interests are upheld by a decision to sever all ties with Mr Lamott.”

11. The family report writer found the Child to present willingly and in a polite and cooperative manner and as being emotionally immature with a limited ability to engage an interview.  She reported that she lived with her mother and sister and that they had packed up their house into boxes and she was excited that they were moving.  As noted above, the Child identified her mother and sister as being ‘her family’ and while she initially denied that she had a father, she later expressed the view that she did not want to see her father.[18] 

    [18]           Family report dated 4 June 2019, [101]-[1-2].

12. The elder sibling, A, reported to having no relationship with her biological father and that, while she referred to Mr Lamott throughout the interview as her father, stated that the relationship did not mean much to her anymore.  She reported to the parties fighting on a daily basis and to her perception that each parent had contributed equally to the conflict.  A expressed no desire to spend any time with the father, reporting that it was not in X’s best interests for her to do so either.  She regarded the parties’ separation as being positive for her.

13. The family report writer was unable to observe interactions between the father and Child as the Child was highly resistant to this occurring.

14. In the evaluation, the author considered X to be highly influenced by those with whom she was spending time and that her views of the father appeared to be informed by ‘others’.  Objectively, as the Child has spent no time with her father the family report writer must be taken to be referring in all probability to her mother and/or elder sibling.  I am fortified in that view by the family report writer’s statement that “when interacting with X that she is highly influenced by her mother’s views and opinions of the father… She verbalises her view or perception that Mr Lamott is no longer important in her life and that she is at risk in his care.”  In this context the author considered it to be of concern that the burden of the decision not to progress supervised time with the father had effectively been transferred by the mother to the Child and stated:

    There are multiple reasons that children resist visitation, and only in very specific circumstances does this behaviour qualify as alienation, highlighting that some of these reasons include resistance embedded in normal developmental processes…, resistance embedded primarily in the high conflict marriage and separation…, resistance in response to a parent’s parenting style…. and resistance arising from the child concerned about an emotionally fragile resident/primary parent.

1. The family report writer considered that professional supervised time should have commenced and observed, that the mother presented as being positional that she would not uphold court orders to facilitate time.  The mother was considered to be inflexible and entrenched in her position with an inability to separate her views of the father or any willingness to promote the Child’s relationship with her father.

2. Concerning family violence alcohol abuse and mental health, the family report writer gave detailed consideration to these matters and made recommendations that these needed to be addressed by the father.  However, the author considered that there was insufficient independent information to indicate that either Child had been exposed to excessive physical discipline (the elder child was clear that both parents engaged in such conduct).

3. The family report writer considered that the mother wished to exclude the father from the Child’s life including by returning to Country E and that she wished to sever the Child’s contact with her father.  The author opined that the Child had a father who loved her and who was willing to accept the responsibilities of parenting including a willingness to accept responsibility for his behaviour and by addressing it appropriately.

4. In particular, the author identified extensive expert opinion which recognised the negative impact upon a child of being disconnected from a parent with loss of identity, issues of abandonment, low self-worth and increased risk of vulnerability.  These were referred to as being “but few of the risk factors” and as being reasons which undermined support for the mother’s parenting proposal.

5. The family report writer endorsed the father’s willingness to accept the Child’s relationship with her mother as a protective factor and as indicating his willingness to foster the Child is maternal relationship.  The author’s opinion was that the Child would benefit from re-establishing her relationship with the father with a view to fostering the bond that they had developed early in life.  The recommendation made was for the immediate commencement of supervised spend time by a private contact service so as to assist a reunification process. 

6. Importantly, the family report writer stated her professional opinion that “in the event the mother is unwilling to uphold the recommendations of the court… that a change of residence is considered into the future.”  The family report writer further considered that if the mother’s non- compliance continued, “X will never have a relationship with the father while [she] is living in Ms Lamott’s care and a change of residence would be required to ensure this could occur.”

7. The family report writer also recommended that the father undertake a men’s behavioural change program and that he attend upon a psychologist at minimal monthly intervals while providing the mother with evidence of his mental health stability and in his engagement in such treatment.  Ancillary recommendations included that the parties undertake a parenting program (which offered information about discipline without smacking) and for the father to be restrained from consuming alcohol during the time the Child was in his care.

8. On the basis of those detailed recommendations and the submissions of the ICL, consent orders were agreed to by the parties when the matter was listed for final hearing on 26 June 2019.

The parties’ evidence

1. In addition to the report provided by the s 11F family consultant and the family report writer, the parties also relied upon their affidavits sworn 30 September 2019 and 14 October 2019 respectively. I have examined those affidavits in detail.

2. It is unnecessary to rehearse the detail of those affidavits in part because they take the form of submissions which I have considered together with the oral submissions which were made in the course of the hearing by their counsel.  Nonetheless, some observations are required.

3. The father’s affidavit sworn 26 September 2019 identified the several ways in which he had taken steps proactively to implement and obey each of the consent orders. The father’s affidavit was structured in large part by reference to the Child’s best interests and s 60CC considerations. The mother’s responding affidavit affirmed 14 October replied to the father’s affidavit seriatim.  She maintained that she was not alienating the Child from her father but acting protectively for her interests.

4. Exhibited to the father’s affidavit was an observational report dated 4 September 2019 that had been prepared by the professional supervisor, Family Contact Service.  The report identified that during July and August 2019, four attempts had been made, unsuccessfully, to establish contact between the Child and father.  While I do not rehearse the entirety of that detailed report the following matters may be noted:

   a)at the initial handover on the first attempt at spend time, the contact supervisor located the mother in the car park where she was specifically asked by the mother to explain to the Child the process which would occur on that day.  The contact supervisor did so.  However, after the Child had nodded her apparent understanding to the purpose of the visit “the moment X was ready to hop out of the car, the mother moved closer and stood beside me and said ‘Do you want to see your dad now?’ whereupon the Child retreated into the car.  Further attempts to persuade the Child to establish contact were unsuccessful with the mother stating that she would not encourage the Child to do something she did not want to do;

   b)later, during the first attempt at supervised spend time, the contact supervisor asked the Child if she would like to spend time with her dad to which she is reported to have responded: ‘No I am not seeing him ever again’ and started to cry.  When asked if she simply wanted to just say hello to her dad, the Child instead looked at her mother.  Concerningly, when it was suggested that A might accompany the Child in meeting with her father she replied: “I’m not allowed to go anywhere unless my mother said so.”  The supervisor concluded that the children had clearly made up their minds and would not participate in contact with the father;

   c)at the second attempt at spend time, following the supervisors initial greeting, the Child volunteered “I don’t want to see my dad.”  When the supervisor requested that the mother distance herself from the process, she declined to do so, and cut off further attempts to establish contact.  At one time, the mother asked, perhaps rhetorically, “What are you going to do when X starts screaming?”  This occurred in the presence of the Child;

   d)as predicted, when the father made an attempt to approach the vehicle to speak to the Child she did start screaming.  Somewhat extraordinarily, instead of comforting her younger sibling, A, began filming the incident;

   e)at the third attempted at spend time, the contact supervisor took the initiative of making contact with the Child’s school where it was observed that the teaching staff had provided enormous encouragement.  However, within seconds of leaving through the front door of the school, A was observed to whisper to the Child whereupon she screamed at the supervisor “I don’t want you here”, saying so on several occasions.  Some teachers who had observed this from inside the school came outside.  When they encourage the Child to go with the supervisor, the Child stated “I don’t want her here, she let me go with my father and I don’t want to see my father.”  At one point A intervened stating that: if the Child did not want to go, and started having a tantrum, then she did not have to do so;

   f)the contact supervisor expressed the opinion that the Child had been coached to behave in the way that she had conducted herself and noted that a similar opinion had been expressed to her by one of the teachers;

   g)at the fourth attempt at spend time, which took place at the school, the supervisor tried to encourage the children to participate in the contact time.  The contact supervisor reported that when the children had come to school that morning they had stated to a teacher they already knew they were not going to the visit.

5. The mother’s affidavit, like that of the father’s, largely took the form of submissions.  However, the mother exhibited two reports from her treating psychologist.  The first, dated 10 July 2019, addressed a mental health plan for the Child and recounted the Child’s statements of her dealings with the professional contact supervisor.  While the brief report reiterated the Child’s statement that she had refused to see her father and did not want to see him, the psychologist assessed the Child as scoring in the mild range for stress and severe range for depression.  The second report, dated 8 October 2019 was perhaps more remarkable for the statement by the psychologist that she regarded the father’s application and the orders being sought as reflecting, not the best interests of the Child, but “What appears to be her father’s wish list for Christmas 2019.”

6. A submission made by counsel for the ICL recorded that the psychologist (whom I prefer not to name), was treating both the mother and the Child and that as a result of communications with the psychologist, the ICL had formed the view that that treating practitioner appeared to be particularly aligned to the views of the mother. 

7. It was common ground that, while the father had been essentially obedient to each of the consent orders made on 26 June 2019, the mother had not done so.  In particular, it seems clear that no arrangements have been made for the Child to see a psychologist, other than the mother’s own psychologist, for treatment.  The mother has been resistant to authorising the Child’s psychologist to contact and communicate with the ICL.  Arrangements for the Child to engage with a paediatrician were not made until 17 October 2019.  The mother has not provided the authorities or otherwise facilitated the father receiving information from the Child’s treating health practitioners.  It is not known whether the mother is following recommendations of the Child’s treating practitioners and the father cannot know what those recommendations are.  The mother has not facilitated that the ICL be provided with school reports and thereby denied that the father should be provided with copies of those reports (redacted to the extent necessary).  Contrary to the non-denigration order that was made by consent, it appears that the mother has actively coached the Child against the resumption of spend time with her father.  The mother has not facilitated the establishment or use of the app MyMob.  The comprehensive failure to obey court orders was acknowledged by counsel for the mother albeit in qualified terms. Moreover, these orders have not been complied with, despite the fact that the Order was made by consent on 26 June 2019.

Consideration

1. In making interim decisions, the legislative pathway must be followed notwithstanding that the court will often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.[19] 

   [19]           Goode’s case, (2006) Fam LR 422, [81].

2. Underlying the central issues in this application is whether the Child is at risk of harm if she is to spend time with the father and further, whether she is at risk of harm if the mother continues to act in the way she has up until this point.  It is immediately apparent that the issue of risk can and must be considered from both of those perspectives.  However, the assessment of the need to protect a child from risk is not confined to a determination of the occurrence, or risk of the occurrence, of events which may constitute abuse, neglect or family violence.  Instead, that assessment must be undertaken within the broader context of the ultimate determination of what is in a Child’s best interests when making a parenting order.[20]  

   [20]           M v M (1988) 166 CLR 69, 76-77; Slater & Light [2013] FamCAFC 4, [34].

3. As the authorities hold, an assessment of the magnitude of risk is appropriately evaluated against a standard of ‘unacceptable risk’ upon a civil standard of proof.[21]  In this regard, and as was persuasively submitted by counsel for the ICL, there is a very real and immediate need in this case to protect the Child from the risk that there will be significant damage to her bond with her father should the present impasse be permitted to continue.  As counsel submitted “half of the Child’s DNA lives with the father” and, by reference to the family report above, it was demonstrated that this harm would soon manifest and deepen by her disconnection from her father with loss of identity, a sense of abandonment, low self-worth and vulnerability (to repeat but a few of the well-recognised risk factors arising from such conduct). 

   [21]cfM v M (1988) 166 CLR 69, 78; Slater [2013] FamCAFC 4, [35]-[37]; Stott & Holgar [2017] FamCAFC 152, [34]-[38]; Harridge & Harridge [2010] FamCA 445, [73].

4. I am not satisfied that the father poses any risk to the Child that is of such a magnitude that she ought not spend time unsupervised with him.  The ICL’s submissions, supported this conclusion.  To the contrary, it was essentially common ground that the father has complied in all respects with the manifold obligations to which he has been subject as a result of the orders that have been made.  He has undertaken the requisite programs and consults a psychologist for such treatment as is required.  The father has been substantially, if not wholly, compliant with its requirements and the orders that have been made.

5. Counsel for the ICL also made the insightful submission that the conduct of the Child’s eldest sibling served to reinforce the extreme extent to which she was being engaged by the mother to collaborate actively to damage the Child’s bond with her father and, more immediately, to destroy her sense of identity with her father, and otherwise to exacerbate the types of harm referred to in the foregoing paragraph of these reasons.  These matters were said to explain the stress under which the Child was placed.  Having regard to the evidence, counsel for the ICL strongly supported the making of orders in the terms that were pronounced.

6. In my opinion, neither the DHHS report, the s 11F report nor the family report support a conclusion that the father poses a risk of such significance that the Child should only spend time with him on the basis that there is supervision. To the contrary, the whole of that evidence, coupled with the report of the contact supervisor, supports a conclusion that, objectively, the Child is at an immediate and real risk of harm while, and for so long as, the mother and the Child’s elder sibling continue to conduct themselves in a manner which is clearly designed to prevent the Child from spending time with her father. The orders prepared by counsel for the applicant were appropriately designed to address and prevent or at least minimise the ongoing risk of harm to the Child.

7. Although the mother has raised many issues surrounding the alleged risk posed by the father, to my mind too much focus has been taken away from the question of whether the mother herself posed a risk to the Child. It is notable that the mother expressed to the s 11F reporter her feelings of anxiety and anger associated with even the possibility of the Child spending time with her father.

Conclusion

1. It is to be hoped that the orders which have been made will be of some assistance in restoring the Child’s relationship with her father.  It is a right that is afforded by the Parliament and one which should be respected by the parties.  As recorded in the notations to the order, a number of further matters need to be addressed.  Those matters should be addressed when the matter is next listed for mention after the Child and her father have had an opportunity to spend the time together which has been denied to them since January 2018.  By way of postscript, when the matter returned before me on 23 October 2019, I was informed that the mother had complied with the order for the Child to be delivered to Child Dispute Services, Melbourne Registry.  Further orders were made on that date to restrain the mother from attending upon the Child at the point of handover and to require that she immediately leave the court.  It is not unimportant to record the court’s gratitude for the significant support which the personnel at Child Dispute Services provide, on a daily basis, to facilitate a restoration of time between the children and parents whom its staff are asked to assist. 

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date:  30 October 2019