Lodge & Tiller

[2022] FedCFamC2F 471

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Lodge & Tiller [2022] FedCFamC2F 471

File number:	MLC 9308 of 2009
Judgment of:	JUDGE CARTER
Date of judgment:	28 March 2022
Catchwords:	FAMILY LAW – parenting – allegations of parental alienation – allegations of ongoing emotional harm – Department involvement – where the child has been exposed to the mother’s mental health concerns – child’s involvement in parental conflict – child’s wishes – where the mother seeks the child be placed in foster care – best interests of the child to remain in the father’s care – specific issues report to be prepared – orders made.
Legislation:	FamilyLaw Act 1975 (Cth) ss 62G, 69ZX
Division:	Division 2 Family Law
Number of paragraphs:	28
Date of hearing:	28 March 2022
Place:	Melbourne
Solicitor for the Applicant:	Ms Fridey
The Respondent:	In person
Counsel for the Independent Children's Lawyer:	Ms Mansfield
Solicitor for the Independent Children's Lawyer:	Southern Family Law

ORDERS

MLC 9308 of 2009

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR LODGE

Applicant

AND:

MS TILLER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE CARTER
DATE OF ORDER:	28 MARCH 2022

Amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 29 March and 5 April 2022.

THE COURT ORDERS THAT:

Specific Issues Report

1.Pursuant to section 62G of the Family Law Act 1975 (Cth), the child X, born 2008 is directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a Specific Issues Report, with such report to be released by 12 April 2022 10 May 2022.

2.Each party will do all things necessary to ensure the child attend upon the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Family Consultant that Section 62G(3B) applies.

3.The child shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.

4.Not later than 4.00 pm on 4 April 2022 the parties must provide their contact telephone numbers and email addresses to …@fcfcoa.gov.au.

5.Pursuant to Order 1 herein, the Family Consultant shall provide a written report to the Court by 12 April 2022 10 May 2022 and the report shall deal with the child’s views as to the following matters:

(a)living arrangements;

(b)spend time arrangements;

(c)relocation; and

(d)family therapy.

6.The Family Consultant shall be at liberty to inspect any material filed by the parties, and otherwise the following:

(a)the Mother’s affidavit filed 10 November 2021;

(b)the Mother’s affidavit filed 2 December 2021;

(c)the Mother’s affidavit filed 25 March 2022;

(d)the Father’s affidavit filed 23 September 2021;

(e)the Father’s affidavit filed 25 November 2021;

(f)the Father’s affidavit filed 22 March 2022;

(g)the Family Report dated 3 September 2021; and

(h)the s69ZW response dated 18 March 2022.;

(i)the mother’s medical certificate dated 30 March 2022; and

(j)the mother’s correspondence with C Services dated 30 March 2022.

Communication

7.X be at liberty to communicate with his sister, Y, or his Mother at his discretion and for this purpose the Father will forthwith provide the child with a mobile phone and provide this number to the Mother.

Trial aborted

8.The trial conducted on 8, 9 and 10 December 2021 be aborted.

Final Hearing

9.The proceedings are listed for final hearing for 3 days commencing 23 March May 2022 at 10.00am.

10.The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in the Family Law (Fees) Regulation 2012.

11.No later than 28 days prior to the trial date, the Applicant file and serve: 

(a)any Amended Initiating Application setting out with particularity the precise final orders sought; 

(b)an updated single consolidated trial affidavit; and

(c)other witness affidavits upon which they intend to rely.

12.No later than 28 days prior to the trial date, the Respondent file and serve: 

(a)any Amended Response setting out with particularity the precise final orders sought; 

(b)an updated single consolidated trial affidavit; and

(c)other witness affidavits upon which they intend to rely.

13.No later than 28 days prior to the trial date, the Respondent Mother file an affidavit from her treating psychologist.

14.No later than 14 days prior to the trial date, each of the parties be at liberty to electronically file and serve any affidavit in reply.

15.No later than 3 days prior to the trial date, all parties are to file and serve a case outline document in the approved form which shall not, without leave, exceed 5 pages in respect of parenting issues and 5 pages in respect of financial issues and shall include: 

(a)a list of the material relied upon; and

(b)a brief chronology listing significant events that are relevant to the issues to be determined by the Court.

16.No later than 2 days prior to the trial date, the Independent Children’s Lawyer is to electronically file a joint minute setting out precisely the issues that are agreed and those issues that require determination by the Court.

17.Lists of authorities which Counsel intend to cite to the Court during the presentation of any argument, together with copies of any unreported decisions to which it is intended that reference shall be made, should be filed and served not later than two days prior to the hearing. 

18.Each party will be permitted to rely on one consolidated trial affidavit and one affidavit in reply (if applicable) only. Reliance on earlier or additional affidavits will not be permitted. 

19.All documents required to be filed and all other documents sought to be relied upon (including any court books) must be filed or provided (as applicable) in electronic format to the Court and to each other party. 

20.The court book must contain the following:

(a)a copy of each party’s Court documents which are intended to be relied upon at the hearing in chronological order; and

(b)in the case of the applicant’s court book, a copy of each of the following documents (to be ordered chronologically under the following headings):

(i)all orders and judgments previously made in the matter;

(ii)copies of any child inclusive conference memorandum or other family consultant memorandum, any family report and child welfare report; and

(iii)copies of any other single expert report.

21.In the event that a party (including any Independent Children’s Lawyer) receives a copy of another party’s court book prior to filing their own court book, they should not include documents already contained in the other party’s court book.

AND THE COURT NOTES THAT:

A.Pursuant to sections 65DA(2) and 62B 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 and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Lodge & Tiller has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
REVISED FROM TRANSCRIPT

JUDGE CARTER

1. This is a dispute regarding the parties' child X, who is 13 years old. The parties have been engaged in litigation regarding X's care on and off since he was approximately 11 months old. There were proceedings in October 2009 to March 2011, further proceedings in June 2015 to around June 2016, a third round of proceedings in mid-2017 to early 2018 and this further round of proceedings that was commenced on 2 March 2021. Unsurprisingly, X is now described as being “in crisis” by the Family Consultant, who prepared a family report for the final hearing that was conducted in December last year. X, unfortunately, remains at the centre of his parents' relentless and bitter dispute over him.

2. The parties engaged in a final hearing that was conducted before me over several days in December 2021. At the conclusion of the evidence, I reserved my judgment.  Pending final orders being made, Child Protection was again involved with X arising out of reports that he had continued to be physically and verbally aggressive towards his mother and his sister Y, that he was exhibiting poor mental health and that he had engaged in sexual behaviours towards a pet. Since the hearing concluded before me – and following the further notifications to, and engagement of child protection - the parties' positions have now fundamentally changed. X is currently living with the father and spending no time with the mother. 

3. The mother now seeks that X be placed in foster care.  That is an order that I cannot make and could not countenance at any rate.  Clearly X needs to remain living with his father in the circumstances. The mother has indicated that she may wish to relocate with the child, ultimately to Tasmania, although she would prefer to remain in Victoria.That is subject to her being able to obtain better and larger housing for herself and the children.

4. The father now proposes that he be permitted to relocate to Queensland with X. It does appear for whatever reason, that currently X is very reluctant to have much to do with his mother. 

5. In light of the further engagement by Child Protection, the matter was listed before me, and an order was made for the Department of Families, Fairness and Housing (“the Department”) to prepare a further section 69ZW report, which has been recently received and read by each of the parties.

6. In that report, Child Protection raised serious concerns that they have about the relationship between X and his mother. Child Protection indicate that as a result of their repeated and ongoing involvement with the family, and arising out of their most recent involvement, that they have significant concerns about emotional harm that they have determined has been caused to X as a result of a number of matters, including what they say is his ongoing exposure to the mother's mental health concerns.  They have said that she scapegoats him, that she has emotionally rejected him and that she has frequently engaged the police when she asserts that X has been violent towards her or Y or has been otherwise difficult to manage.

7. I note that the mother has previously involved the police on several occasions regarding X's care, including in late 2020. At that time an intervention order was obtained for both the mother and Y's protection against X. 

8. At the hearing before me in December 2021, the mother maintained that she has at all times acted appropriately when she has engaged the police. The mother says that X's poor behaviour reflected perhaps undiagnosed behavioural issues or mental health challenges to X and his exposure to his father's poor parenting, rather than reflecting on any inability by her to appropriately manage X's outbursts or behaviours. She also maintained before me that X needs to understand and know that there are consequences for poor behaviour.

9. In the most recent section 69ZW response, the mother again is recorded as being adamant that X needs to be accountable for his behaviour. As I have already said, after evidence concluded before me but before judgment was delivered, the mother called the in late 2021, when X had a physical altercation with his sister and his mother. Child Protection were then involved. They have now conducted interviews with the mother, the father, X and his sister.

10. X strongly denied having engaged in any sexual behaviour with the dog, save that he admitted or acknowledged that when he was about eight or nine, he and his sister touched the dog's genitals at one point.  He was adamant that he did not want to see his mother.  He said she has told him that she does not want him living with her, and he is of the view that his mother has lied about him having been sexually inappropriate with the dog. 

11. At the time the mother was interviewed by the Department, she told the worker she did not want X to return to her home until he received assessment and treatment. She also told the Department that she did not want X to have contact with her or his sibling until he had engaged in family therapy. I note that the report writer described the mother as not being receptive to any suggested alternatives for contact with X, either for herself or Y.

12. When Y was interviewed, she reported that the mother had told her that X had OCD, mental health issues, that it is not safe for her to see X and that he is ‘sick’ with a disorder.  Y confirmed that X did call her names and that he hit and punched her. She further reported that she had seen X let the dog lick his genitals.  The report writer noted that Y reported that her mother was present and saw the incident, but I understand that the mother denied having seen any such incident.

13. Ultimately, the Department expressed significant concern about ongoing emotional harm experienced by X. They assessed X's best interests at that time to be met by him remaining in the sole care of his father and his wife. The Department assessed the father and his wife as acting protectively. They apparently presented appropriately at interview.

14. The section 69ZW report concluded:

    Child Protection are concerned that [Ms Tiller]'s rigid and problem saturated view of [X] will be internalised by [X], and impact the already tumultuous start to his adolescence.  It is essential for [X]'s adolescence and his healthy development into adulthood that he be provided with stability and safety in his living arrangements.

15. At the hearing before me today, I note that the mother strongly denied the allegations outlined in the section 69ZW report that suggest that she has in any way acted to cause X harm.  It is her case that she has at all times acted protectively and appropriately and that she is a dedicated and devoted parent to both of her children.  She strongly disputes the recommendations made by the section 69ZW report, which she says was conducted at a time when X was very angry with her, and she feels that what he said to the Department at that time does not reflect his true views. 

16. The mother described the 69ZW report to me today as deplorable and said it ought to be struck out. I note that she has also said in her material that the report writer has acted dishonestly and misled the Court.  She was very critical that the report writer has not contacted the various supporters and treaters that she has engaged over the years, who the mother said would have provided the report writer with a very different perspective on the mother and her parenting.

17. The mother's primary position is that X should be placed into foster care at this time until she has been allocated a three-bedroom house.  Alternatively, if there continues to be a protracted delay on her receiving or being allocated that sort of accommodation, she says it may be that she and the children relocate to Tasmania, where she could live in a house on a large farming property owned by her father.

18. Today, the mother also said that X needs urgent psychiatric assessment and family therapy. She said this is necessary to prevent the father from further alienating X from her and from his sister.  She said that she wants to be able to contact X at least weekly by text message, and she wants the restraint preventing her from taking him to medical and allied health professionals removed.  She is also very concerned that X and Y are not currently spending time together. The mother has proposed that there be some facilitated time at a children's contact centre or like service, but she had yet to make enquiries as to who could provide that sort of assistance, at what cost to the family and how quickly that could be accommodated.

19. My understanding is the mother was also of the view that it may be appropriate that there be a family report prepared. However, she said that ought be delayed until family therapy has been underway for about three to six months so that headway can be made with X, his feelings, and views and the basis for those views. She said that way when he is interviewed for a family report there will be some clarity around what is actually going on for him.  The mother said that X is currently unduly influenced by his father and subject to emotional abuse in the father's house. 

20. The father and the Independent Children's Lawyer oppose family therapy and said there is no utility in that at this time.  They said X has an awful lot going on in his life at the moment including significant instability in his housing and care arrangements, commencing play therapy, starting at a new school and a recent medical diagnosis. Counsel for the Independent Children's Lawyer and the father's representative oppose X being psychiatrically assessed for very similar reasons. 

21. It seems to me that there is a fundamentally different basis for the mother's position and that adopted by the father and the Independent Children's Lawyer, namely:

    (a)it is the mother's view that her behaviour has been appropriate at all times and that it is the father and X that need assessment, treatment and assistance; and

    (b)conversely, the father and the Independent Children's Lawyer and it would seem the Department have formed a view that it is, in fact, the mother's behaviours and attitudes that are problematic.

22. This is an interim hearing, and of course, I cannot get to the bottom of or make findings about this significant area of conflict at this stage.  It is a matter for trial. 

23. It does seem to me that at this stage I agree with the submissions made by counsel for the Independent Children's Lawyer and the father that it would be both premature and burdensome to require X to engage in family therapy or further assessments at this time.  However, I am of the view that I will need some admissible evidence and testable evidence as to X's views regarding the issues of relocation and the issues of live with and spend time with arrangements.

24. I am painfully aware that X has been interviewed and reinterviewed on a number of occasions, but the change that is being proposed, being a relocation, and on the father's case, there is very significant resistance now to X spending time with his mother.  It does seem that it would be appropriate, particularly given that he is 13 and heading on to 14, that I would have that proper information and up-to-date information about his actual views on these matters.  That would mean it would also be able to be tested.  A Family Consultant will be able to meet with him, and if the mother does not accept what is said or the basis for what is said, that can be challenged at a final hearing.

1. For that reason, I am going to order the preparation of a specific issues report pursuant to section 62G of the Family Law Act 1975 (Cth) (“the Act”), for which only X will need to be interviewed for the purposes of assessing his views and his reasons for those views. That will mean that the information can be properly before the Court and then can be tested at trial.

2. As outlined, the parties' positions have fundamentally altered from what was sought when the matter was before me as recently as December. In the circumstances, in my view, I regard the trial that has been conducted so far to be aborted. The parties can make any application they might wish pursuant to section 69ZX(3) of the Act for the admission of the transcript of the evidence thus far in the subsequent hearing.

3. In relation to the additional interim orders that I am being asked to make today, I agree with the submissions made by the father and counsel for the Independent Children's Lawyer. As I have said, at this stage it would be inappropriate that there be family therapy or further assessment, but it is in my view, appropriate that there be some way in which X is able to contact his mother or his sister at his discretion. 

4. For all of the foregoing reasons, I make the orders as are set out.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carter.

Associate:

Dated:       13 April 2022