ODIVILAS & WOOLAM

FEDERAL CIRCUIT COURT OF AUSTRALIA

ODIVILAS & WOOLAM

[2019] FCCA 3746

Catchwords:
FAMILY LAW – Parenting – best interests – enmeshment with the father – family violence – the need to protect children from harm moratorium of time with the father – supervised time with the father – bias alleged against expert.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Donnell & Dovey [2010] FamCAFC 15

Applicant:

MS ODIVILAS

Respondent:

MR WOOLAM

File Number:

BRC 5465 of 2012

Judgment of:

Judge Howard

Hearing dates:

28, 29 & 30 August 2019

Date of Last Submission:

21 October 2019

Delivered at:

Brisbane

Delivered on:

19 December 2019

REPRESENTATION

Counsel for the Applicant:

Mr Gates

Solicitors for the Applicant:

Legal Aid Queensland

Counsel for the Respondent:

Mr Garlick

Solicitors for the Respondent:

Derek Legal

Counsel for the Independent Children’s Lawyer:

Ms Frizelle

Solicitors for the Independent Children’s Lawyer:

Keyworth Harris & Lowe Family Lawyers

ORDERS

THE COURT ORDERS ON A FINAL BASIS:

That all previous parenting orders be discharged.
That the Applicant Mother shall have sole parental responsibility for the children X born in 2008 and Y born in 2011 (“the children”) in relation to major long term issues as that term is defined in Section 4 of the Family Law Act 1975 (Cth).
That the Applicant Mother shall, prior to making any decisions in the exercise of her sole parental responsibility, inform the Respondent Father in writing of the decision she proposes to make. The Applicant Mother will consider any views expressed by the Respondent Father and received by her in writing within 14 days of the sending of her proposal. The Applicant Mother shall then forthwith inform the Respondent Father of any decision made and provide reasons for her decision in writing.
That the children shall live with the Applicant Mother.
That the children shall spend time with the Respondent Father at all such times as may be agreed between the parents in writing but failing agreement as follows:-
(a)From the date of these Orders for a period of three (3) months the children shall spend no time with the Respondent Father. Further, from the date of these Orders for a period of three (3) months there shall be no communication between the children and the Respondent father.
(b)Commencing three (3) months after the date of these orders for two hours each week at A Counselling, Suburb B in the State of Queensland (“the Centre”) with such time to be supervised by an employee of the Centre with any fees charged by the Centre to be paid equally by the parties.
(c)Commencing nine (9) months after the date of these orders from 9:00am Saturday to 5:00pm Sunday each alternate weekend.
(d)Commencing at the beginning of school term, twelve (12) months after the date of these orders, during school terms from the conclusion of school Friday until commencement of school Monday in each alternate week and Wednesday in each other week from after school until 6:00pm.
(e)Commencing at the beginning of the school year, two years after the date of these orders, for one half of all school holidays being the first half in odd years and the second half in even years during such holidays the time pursuant to subparagraph (d) will be suspended.
(f)After the supervised time concludes, then on Mother’s Day, Father’s Day, Christmas, Easter and family birthdays as agreed in writing between the parents.
That for the purposes of Order 5 (b) herein the Respondent Father and the Applicant Mother shall within seven (7) days of the date of these orders contact the Centre for the purposes of undertaking an intake interview and complete all such documents as requested by that Centre to enable the Centre to supervise the children’s time with the Respondent Father in accordance with this order so that the children’s time with the Respondent Father can commence in accordance with these orders. In the event that the Centre is unable to provide its service the Respondent Father and Applicant Mother shall forthwith make alternative arrangements with either another centre or supervisor as agreed in writing and undertake the intake process for that Centre or supervisor and any fees charged by another centre or supervisor shall be paid equally by the parents.
That upon the children’s time spent with the Respondent Father ceasing to be supervised, all changeovers shall occur at the Centre, if not at the children’s schools, or at such other place as may be agreed by the parents in writing.
That pursuant to Section 65L (1) (b) of the Family Law Act 1975, a Family Consultant of the Federal Circuit Court of Australia at Brisbane is appointed to explain to the children X born in 2008 and Y born in 2011 the effect of these Orders.
That within forty-eight (48) hours of the date of these orders, the Respondent Father provide to the Applicant Mother all the child X’s school books, equipment, computers/laptops and uniforms with the Applicant Mother to collect these items from the Respondent Father’s home.
That the Respondent Father be restrained and an injunction be granted restraining the Respondent Father from taking the children to any medical/counselling or therapy appointments except in the event of a medical emergency when the Respondent Father may take the children to the Hospital. In the event of such emergency, the Respondent Father is to notify the Applicant Mother immediately and not later than while he is at the Hospital.
That the Respondent Father attend upon his General Practitioner to obtain a mental health plan or referral to such specialist/medical practitioner including Psychiatrist and/or allied health professional including a Psychologist to assist the Respondent Father with his anxiety surrounding the children living with the Applicant Mother.
That the Father attend upon such special/medical practitioner and/or allied health professional at all such times as advised by such health professional.
That the parents within twenty eight (28) days of the date of this Order contact the C Counselling on … or A Counselling on … for intake in the Parenting Orders Program or such other program as recommended by that organisation.
That the parents shall comply with any reasonable direction of the Program Coordinator and in particular:
(a)attend as requested for the purposes of assessment as to whether they are suitable for participation in the program;
(b)advise the Co-ordinator of their contact telephone number and advise the Coordinator of any change in that number;
(c)attend and participate in the program as requested including attending referrals to treating health professionals as recommended by the Program Co-ordinator.
That all extant applications are dismissed.
That the Independent Children’s Lawyer be discharged, with such discharge to take effect at 5:00pm on 17 January 2020.

IT IS NOTED:

(A)Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 5465 of 2012

MS ODIVILAS

Applicant

And

MR WOOLAM

Respondent

REASONS FOR JUDGMENT

Background

The Applicant mother was born in 1979. The mother is currently employed as a health care worker. The mother was born in the Country D.
The Respondent father is Mr Woolam. The father was born in 1972. The father is currently unemployed. The father receives a disability payment from Centrelink.
The mother has not re-partnered. The father re-partnered with Ms F. Ms F was born in the Country D. Ms F remains living in the father’s residence at Suburb G in Brisbane – but, according to the evidence of the father, the couple are no longer in a relationship. He did concede that the situation is complex.
The mother and the father commenced living together in 2004. They married in 2004. They separated on a final basis on 12 January 2012. The parties were divorced on 17 July 2013.
The parties have two children:-
a)X born in 2008; and
b)Y born in 2011.
The father has one older child – Mr H. Apparently Mr H is in his early 20s.
The mother told the family report writer (Ms J) that the marriage was characterised by a master servant role division – where the mother played the role of a servant. The mother told the family report writer that she was not opposed to this arrangement because it is what she was accustomed to in terms of her cultural upbringing in the Country D. I accept the mother’s evidence.
I also accept the mother’s version (as provided to the family report writer) that the marriage came under strain when the father commenced communicating with another woman on the Internet. This led to conflicts in the marriage and the father eventually ended the marriage.
The father’s view is that the marriage was negatively impacted by the over involvement of the mother’s sisters and conflict became increasingly common.
The father agrees that he did start communicating with Ms F over the Internet and eventually made a decision to leave the marriage and commence a relationship with Ms F.
When the parents separated on a final basis the father’s preference was for X to live with him and Y to live with the mother.
I note what the mother told the family report writer in the family report which is annexed to the affidavit of Ms F filed 20 March 2019. In particular, I note paragraph 10:-
“10. According to the Mother, the Father told her that she would not be taking X with her. Reportedly she went to leave the matrimonial home without X in line with the Father’s wishes, but X, who was only 3 or 4 years old at that time, became very distressed when she went to leave without him. She thereby left the matrimonial home taking both children with her. Some months then passed without the Father have any contact with the children.”
I accept that this provides an accurate history.
The parties both told the family report writer that the father favoured X over Y. The father stated that he has always had a much stronger bond with X than Y.
I accept the mother’s evidence that the father demonstrated a critical approach towards Y. I also accept the evidence of the mother that the father continues to adopt a critical approach towards the child Y.
Litigation was commenced and resulted in a final consent order on 27 February 2013 whereby the parties agreed to an equal shared care arrangement – on a week about basis – as well as half school holidays with each parent.
I accept the mother’s evidence (as noted by the family report writer) that the father made co-parenting very difficult as he constantly made false claims about her parenting ability in the care of the children. I also accept that the father did, at an early stage, begin to make allegations that the children were being physically abused by the maternal aunts.
The father told the family report writer that after the commencement of the week about shared care arrangement the mother failed to properly attend to the children’s medical and health needs. He maintained that they were constantly sick and unhealthy as a result of the mother’s neglect of those needs. The father maintains that view. He continues to criticise the mother’s parenting. He considers that the mother is negligent in relation to the health needs of the children. In July 2017 the father withheld X from going to live with the mother. The father cited (according to the family report writer) “a range of claims reportedly made by X”. Y continued doing week about whilst X ceased attending his mother’s residence altogether.
The matter came back to Court in May 2018 when an order was made reinstating the week about arrangement. That order was made on 14 May 2018. On 16 May 2018 the Department of Child Safety received a notification regarding similar issues and reports to those that had been made to the department in the past. Those complaints to the department, in summary, identified risks for the children in the mother’s household.
In August 2018 X travelled from his school (Suburb G) to his father’s residence. From that time X ceased attending the mother’s residence for the week about arrangement. In fact he stopped having any overnight time with his mother. Y continued with the week about regime.
I accept the mother’s evidence that X only spent two nights with her between 23 June 2017 and 1 December 2017.
The matter came back before the Court on 28 March 2019. An interim order was made with the consent of the parties. Some time was reinstated between X and the mother. No overnight time. Y continued in a week about shared care arrangement.
The trial was heard on 28, 29 and 30 August 2019. Written submissions from the Independent Children’s Lawyer were received on 17 September 2019. The Independent Children’s Lawyer, in broad terms, seeks the following orders:-
1.That the mother have sole parental responsibility for the children;
2.That the children live with the mother;
3.That from the date of the final orders the children spend no time with the father for a period of three months;
4.After the three month period where the children have no time with their father – there be in place a three month period with the children’s time with the father to be supervised at a contact centre for two hours each week;
5.Commencing nine months after the date of the final orders the children spend time with the father from 9:00am Saturday to 5:00pm Sunday each alternate weekend;
6.Twelve months after the date of the final orders alternate weekends from Friday to Monday (with school pickups) and time on Wednesday afternoon from school finish until 6:00pm in the alternative week; and
7.Orders in relation to holiday time and special days, including Mother’s Day, Father’s Day, Christmas, Easter and family birthdays.
The complete set of final orders sought by the Independent Children’s Lawyer are included on pages 26, 27 and 28 of the written submissions on behalf of the Independent Children’s Lawyer filed 17 September 2019.
The mother’s written submissions were filed on 14 October 2019. In paragraph 2.1 it states that:-
“2.1.The mother ultimately supports of the Minutes of Final Orders proposed by the Independent Children’s Lawyer.”
The respondent father filed written submissions on 8 October 2019. The father’s “preferred order” is stated to be “sought on the basis this Honourable Court finds that the mother presents as an unacceptable risk to the children”. In those circumstances the following is a summary of the orders sought by the father:-
a)That the father have sole parental responsibility in respect of the children;
b)That the children live with the father; and
c)That Y spend time with the mother each alternate weekend as well as holiday time etc.
d)Provided certain conditions are fulfilled by the mother (they are outlined in paragraphs 11 and 12 of the father’s proposed order) X shall spend time with the mother each Tuesday from 3:00pm until 6:00pm (with Y also to be present); X will also spend from 9:00am until 1:00pm each fortnight on a Saturday; as well as telephone time and other special days as enumerated in paragraph 5(b), commencing on page 3 of the father’s written submissions.
From page 6 of the fathers’ written submissions, he proposes an alternative order which is stated to be “sought on the basis this honourable Court does not find that the mother presents as an unacceptable risk to the children.” On that basis the following is a summary of the orders sought by the father:-
a)That the father have sole parental responsibility for X;
b)That the mother have sole parental responsibility for Y;
c)That X spend time with the mother (whilst Y is also in the mother’s care) each Tuesday from 3:00pm until 6:00pm and every second Saturday from 9:00am until 1:00pm as well as certain specified other times on special days as well as telephone time etc;
d)There is a provision for an increase in X’s time with the mother to alternate weekends provided certain conditions are fulfilled as outlined in paragraph 4(b) on page 7 of the father’s written submissions;
e)This increase to alternate weekends with the mother (from 5:00pm Friday to 5:00pm Sunday) is dependent upon the “written approval –…from the joint counsellor of the mother and X…”; and
f)Y is to spend time with the father every second weekend from 5:00pm Friday to 5:00pm Sunday – with X to be present. There is also, provision for special days holidays etc.
I have included above a broad summary of the orders sought by the father. The detailed orders sought by the father are contained in his written submissions filed 8 October 2019.

SECTION 60CA CHILD’S BEST INTERESTS PARAMOUNT CONSIDERATION IN MAKING A PARENTING ORDER

Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) states:
“60CA In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
In determining what is in a child’s best interests, the Court must have regard to section 60CC of the Act. The primary considerations are stated in section 60CC(2). That section states:-
“60CC(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
As noted, the Act requires that the Court give greater weight (as part of the primary considerations) to the “need to protect…children from physical or psychological harm (or) from being subjected to, or exposed to, abuse, neglect or family violence”.
The evidence discloses that the father has embarked upon a course of action to obtain evidence to support his view that the mother has been neglecting and abusing X. Exhibit 1 is the tender bundle prepared by the Independent Children’s Lawyer. At page 64 there is a note from the GP, Dr K dated 6 August 2013. The father sought a referral from the GP for X to attend the L Hospital. He told the GP that he was concerned about his about X’s well-being and he raised concerns with the GP that the mother was perpetrating abuse and violence against X.
The father obtained the referral from Dr K. However, the L Hospital refused to offer an appointment in respect of X. Dr M, General Paediatrician stated, in a letter dated 3 September 2013 addressed back to the General Practitioner (Dr K) (page 87, exhibit 1):-
“3^rd September 2013
Dr K
Dear Dr K
In regard to your referral for a formal medical report regarding X’s health and custody issues we are unable to offer X an appointment. The usual process for this matter would be referral to the appropriate authorities. Either police or Department of Child Safety if there are concerns regarding abuse or neglect of a child. The police or Department of Child Safety at times may contact the L Hospital Child Protection Unit if they feel a child needs to be assessed medically. We are unable to provide a service for medical reports with a history taken only from one parent and we are not able to assist with any investigation of parental disputes.
Yours Sincerely
Dr M
General Practitioner”

Of particular note is the comment by Dr M to the effect that the L Children’s Hospital would not assist in the case of a custody dispute “with a history taken only from one parent”. This did not deter the father.
It seems that the father continued in his pursuit to obtain evidence to support his view – namely, that the mother has been violent and abusive towards X. This view of the father’s supports his own contention that X should remain living primarily in the father’s care. At least since 2 November 2017 the father has involved X in therapy with three different psychologists. This conduct by the father proceeded without the knowledge or the consent of the mother. Between 2 November 2017 and 17 April 2018 the father took X to see Mr N, Clinical Psychologist. I note page 49 of exhibit 1. Mr N appears to practice from O Street, Suburb P with the business name, “Q Psychology”. X saw Mr N on seven occasions. The date of the last consultation with Mr N was 17 April 2018.
The very next month (May 2018) the father took X to see a “Provisional Psychologist” – also referred to as an “intern” – by the name of Ms R. Ms R was working for “S Counselling Services”. I note page 136 of exhibit 1 includes details provided by the father to Ms R. There is no input from the mother. Ms R notes:-
“Dad reported that X is struggling to concentrate at school, is unable to follow instructions, has extreme anxiety and anger related issues, and is traumatised.”
The father makes it clear to Ms R that, in the father’s opinion, X’s trouble and anxieties have been caused by the mother and the mother’s family.
The father proceeded to take X to see a practitioner at C Counselling Services for 26 consultations with another intern (psychologist) – Ms T. These 26 consultations were in addition to the two consultations with Ms R. Again, there was no input from the mother. The father had not invited the mother to attend the sessions. Indeed, the mother was not aware of the sessions.
At page 162 of exhibit 1 there is contained the transcript of an email sent by the father to Ms T. In that email the father states:-
“Hi Ms T.
My ex wife, Y and X mother has been very difficult to communicate with disruptive and has not followed the court orders by changing GPs, lied about the childrens conditions and many times failed to treat the childrens illnesses for the entire of the court orders. My son X has been physically, emotionally and psychologically abused by his mother and her family to the point he has been suffering with heightened anxiety which has effected his learning and development at the time.
Y has not been targeted by her mother and family like X was. It was offered to me that Y receive council ling to which i thought might be good for her but she has shown signs of concern like her brother X has shown. My ex wife will not agree to anything i try initiate for the kids nor will she try communicate even if its in our childs best interest. She has no intention of working with me for the benefit of the children. I see i have put you in a position you find it inappropriate to begin seasons. I can understand your position and withdraw the children X and Y from S Counselling.
Kind Regards
Mr Woolam”
The email from the father to S Counselling was dated 11 June 2018. It was in response to an email which the father had received from S Counselling (signed by Ms T) also dated 11 June 2018 – whereby Ms T had encouraged the father to consult the mother of the children to try to get her involved in the counselling. The email from Ms T specifically related to the child Y but the message was clear. Ms T was clearly of the opinion that it would be better if the mother of the child/children was consulted and was involved in the counselling. The father’s view on the matter is made clear in his email at page 162 of exhibit 1. In the father’s opinion – the mother is the source of the problems experienced by the children – in particular the problems experienced by X.
Notwithstanding the request by S Counselling that the father consult with the mother in relation to the psychological counselling for the children – S Counselling nonetheless proceeded to counsel the children even though S Counselling had not received confirmation that the mother had been consulted or informed that the counselling was taking place. As noted, there were 26 consultations with Ms T.
I note page 180 of exhibit 1 states that session number 26 (presumably with Ms T took place on 9 August 2019 at 4:00pm). It is apparent from page 181 of exhibit 1 that X had concluded that it was appropriate for him to attend upon Ms T and tell her about all the bad things that happen at his mother’s place. It is apparent to the Court that X is supported and encouraged to do this by his father. My conclusion in this regard is reinforced by exhibit 4 – the video recording produced by the father which shows X in his father’s house in a discussion with the father. I will return to that piece of evidence shortly. At page 181 of exhibit 1 Ms T’s notes state:-
“- In session with X (X) we discussed how he feels at the moment
- X (X) stated that he wants to tell intern about what happened at mum’s place while he was there last time: she made dinner very early and didn’t want to go out for dinner even though he didn’t want to eat what she cooked, therefore just had watermelon and was very hungry when going back to dad’s ·
- Next day when going to the movies, she was very rude to him the whole day, he asked her what’s wrong but she only said nothing in a rude tone of voice, then for him food from fast food restaurant.
- Reviewed assertiveness and how to talk about feeling and thoughts, also discussed how kids sometimes would prefer fast food, but homemade food might be healthier, therefore parents prefer kids to have homemade things.
-X (X) wanted to tell intern about his volcano project before leaving and briefly showed his power point presentation, seemed very excited about proud of himself
RISK ASSESSMENT (if relevant)
NEXT SESSION/FOLLOW UP”
Notwithstanding X’s list of complaints against his mother – X appears to have finished the session in good spirits.
The subpoenaed material (exhibit 1) appears to indicate that the father took X to S Counselling (without the mothers’ knowledge) from May 2018 until August 2019. During that period of time the father also obtained two separate referrals from his GP, or from the child’s GP, for X to attend the organisation known as CYMHS – the Child Youth Mental Health Service. The two referrals were obtained in October 2018 and January 2019, respectively. Again, the father failed to tell the mother that he had obtained referrals for X to attend CYMHS. The father maintained that he did not tell the mother about the CYMHS appointments – because the mother does not have the ability to communicate with him. CYMHS did not diagnose X as suffering from any psychological condition. The father confirmed this during cross-examination. CYMHS apparently concluded that the child was suffering from a tummy bug and not from irritable bowel or anxiety. X had attended CYMHS on 1 November 2018. Even though there were two referrals the child only went to CYMHS once. Not content with the CYMHS’ conclusion – the father continued on his relentless course.
On 1 March 2019 the father took X to a general practitioner named Dr U at the V Street Medical Centre. The reason for the visit on that occasion was stated as “anxiety”. The GP notes state that the social history was updated; a letter to Dr W (psychiatrist) was printed; the child was suffering from persistent anxiety; and the father was to research child psychologists and ring the GP back as Dr W was booked for the next 12 months; X was to see a counsellor; X was taking Panadol at night to help him sleep; the doctor advised that X should not take more than the recommended dose. These notes are contained page 186 of exhibit 1.
One week later, on 8 March 2019, the father took X back to Dr U to obtain a mental health care plan and a referral to a psychiatrist named Dr Z. The problem is noted as, “persistent anxiety 2^nd to parental conflict”.
On 25 March 2019 the father took the child back to the same practice (V Street Medical Centre). On this occasion the child saw Dr AA. X had been suffering from headaches and the doctor’s notes state (page 187 of the exhibit 1):-
“X has been under a lot of stress recently because of family issues. Been taking Panadol and Nurofen, with good effect… anxiety worse… has not seen a psychiatrist, yet.”
The notes indicate that Dr AA wrote a referral to another psychiatrist, named Dr BB. There is no explanation from the father as to what happened with the referral to Dr Z.
Under cross examination by Mr Gates, Counsel on behalf the mother, (page 66 transcript 28 August 2019 from line 39) – the father sought to give the impression that he was not in favour of X taking medication – in relation to anxiety, et cetera.
On page 115 of exhibit 1 it is apparent that the father was trying to obtain a doctor who would prescribe medication for X. The specific note taken by Ms T (directly from the father during the catch up at the beginning of the session on 15 January 2019) states:-
“They have been back to the GP because of the anxiety symptoms, he also checked whether it is a tummy bug again, which it isn’t, so wrote another referral to Suburb P CYMHS, with the goal to get recommendations/prescription for medication.”
The father’s goal could not have been clearer. The father was seeking medication for the child and the father was seeking medical support for his views in relation to the mother. As noted, the father had denied that he was searching for a practitioner to prescribe anxiety medication for X. At page 192 of the transcript I note the following evidence:-
“MS FRIZELLE: Now, I’m correct when I say that you spoke to the general practitioner regarding medication for X and that doctor said that there is nothing he can do about that. Do you accept that?
MR WOOLAM: Yes.
MS FRIZELLE: That’s what you said; yes?
MR WOOLAM:…That he wouldn’t entertain the idea and I didn’t really want to entertain it either. I just didn’t know what else to do.
MS FRIZELLE: Right?
MR WOOLAM: Yes.
MS FRIZELLE: Well, isn’t it the case that you keep searching for a practitioner who is going to prescribe anxiety medication – or anti-anxiety medication for X?
MR WOOLAM: No.
…..
MS FRIZELLE: Did you inform Ms T that you had taken X back to the GP to obtain another referral to CYMHS with the goal to get a recommendation and prescription for medication?
MR WOOLAM: No.”
I find the father has lied to the Court in relation this issue.
My conclusion that the father has lied to the Court in relation to this issue is confirmed by what the child X stated to Ms T. At page 133 of exhibit 1 there is a copy of typewritten notes made by Ms T during a session with X. The session took place (it seems) on 7 August 2018. I note the following:-
“-X stated that when he wasn’t born his mother was demanding a lot from his father, like buying cars other expensive things, when he was born she then took him to the Country D and wanted to withhold him from his father, this didn’t work and she needed to come back to Australia, then at some point his dad withheld them from mum for a while but had to give them back because of the Court orders, the same thing happened once again but now his dad can’t do anything else because of the Court orders.
-He stated that all this had caused so much trouble and anxiety in him, so that he needs to take some medication for it now.” (Emphasis added).
X’s discussion with Ms T is disturbing on many levels. It is more clear evidence that the father has seriously undermined the mother’s relationship with the child X. Further, it is especially noted that X told Ms T that “he needs to take some medication for it now”. He was referring to the “anxiety in him”. There is no doubt that the father has told X that X needs to take some medication for his anxiety. It was in fact put to the father (at pages 196 and 197 of the transcript) that he had told Ms T that X needed medication. The father denied that he had told Ms T that. Page 133 of the tender bundle in fact makes it clear that X told Ms T that he (X) needs to take some medication for his anxiety.
At page 115 of exhibit 1 there is another note from Ms T. The appointment date was 15 January 2019. At the beginning of the session it is noted that there was a “catch up with dad”. This is clearly a reference to the fact that at the commencement of each session with Ms T the father gives Ms T an update. It is therefore apparent that the father told Ms T, inter-alia:-
“Also worried about the food he is getting when it mum’s, as he felt really sick after eating spaghetti there last time.”
This comment by the father to the pro al psychologist (Ms T) is very disturbing. It is unclear whether this comment by the father was stated in the presence of X. In any event, it is apparent that X is of the view that his mother gives him “some bad food which made him very sick”. X reported this to Ms T on 7 August 2018 and the note is contained in the session notes at page 133 of exhibit 1.
It is apparent from what the father told Ms T that the father believes that the mother is serving food (spaghetti in this case) to X which is either negligently or deliberately not fit for the child to consume. Having watched exhibit 4 – I can only wonder how conversations have played out between the father and the child concerning the meals that the child has consumed the mother’s residence.
Needless to say, there is absolutely no evidence that the mother is serving inappropriate food to X.
The father produced the video recording (exhibit 4) with the intention of supporting his view that the mother is the cause of X’s upset and anxiety. I agree with the submission on behalf of the Independent Children’s Lawyer. The Court has been provided with a direct snapshot of X’s life inside the father’s household. The video is before the Court because it was produced under a subpoena served upon S Counselling. The evidence displayed in the video is extremely worrying. It causes the Court great concern. The father completely lacks insight. I note the comments by the family report writer (Ms J) upon viewing the video recording. Her comments are contained in paragraphs 36 and 37 of the updated family report which is dated 23 August 2019. It is annexed to Ms J’s affidavit filed 26 August 2019. In paragraphs 36 and 37 of her report, Ms J notes that:-
“36. The approximate five minute recording shows X sitting at a dining table crying while the Father provides a commentary about X’s mental state and expressing negative views about the Mother.
37. The current report extends the view that this recording demonstrates the following:
a) A gross lack of insight on the part of the Father as to impact of this recorded melodrama on the child X and the emotional harm that such recording might cause the boy;
b) A gross lack of insight on the part of the Father as to impact of this recorded melodrama on the child X and the harm that such recording might cause the boy with respect to further undermining the Mother-child relationship;
c) That the Father likely has psychological personality disorder issues which impact upon his capacity to parent responsibly;
d) That the Father does not demonstrate a capacity to support and encourage the Mother-child relationships and that indeed such actions serve to actively undermine those relationships;
e) That the Father’s actions of constructing such recording is completely inappropriate and demonstrates a gross mismanagement of the issues that the child might have.”
The mother told Ms J at the most recent family report interview of ongoing problems with X during his time with her. X complains that “it’s too boring” at the mother’s place. X complains about her cooking and repeatedly requests that he be taken to McDonald’s or Hungry Jacks. I note paragraph 23 of the most recent family report:-
“23. The mother while crying said that X told her he does not want to go her place because she does not have any money. She stated, ‘When he gets in the car he asks what are we doing today.’ She tells him what they will be doing for the day and “He says ‘Oh I thought we were going to Time Zone’ and says to take him back to his Dad’s.’”
The father has undermined X’s relationship with the mother to such an extent that X complains about everything in the mother’s household. For example (and this list is not exhaustive), X complains: it’s too boring; he doesn’t like the butter that his mother uses; he doesn’t like his mother’s cooking; he asks to be taken back to his father’s.
I accept the following evidence also from Ms J in her most recent report, namely:-
“61. Indications are that the primary issue in this matter pertains to the Father’s entrenched negative attitude toward the Mother and continual denigration of the Mother as a person and parent; as well as a skewed sense of superiority and grandiosity in terms of personal and parenting capacity on the paternal side. This is in the context of poor or no insight into entrenched cognitive paradigms on the paternal side that are held about the Mother and importantly, about self. The extended information lends to the reasonable interpretation that it is unlikely such paradigms will change. The outcome being that the long-standing issues will continue, as it has already been since the most recent orders were made.
62. Indications are that X is estranged from his mother to such extent that it is reasonable to say it will be unlikely, even with intensive counselling, that he will recover from the estrangement as long as he remains in the Father’s care.”
In terms of section 60CC(2)(b) and section 60CC(2A) of the Act – immediate steps must be taken to protect X from the psychological harm that he is suffering in the father’s household.
In paragraph 63 of her report, Ms J queried whether (on the information then provided) greater time between the mother and X would actually prove to be successful – because of the extent of the estrangement of the boy from his mother and the extent of the alignment of X with the father. In the written report, Ms J (in paragraph 64) put forward a view that an alternative weekend arrangement for X with the mother would be the most workable option. However, Ms J also gave oral evidence to the Court and was cross-examined by counsel for the Independent Children’s Lawyer (and the other counsel involved in the case). At one point during her evidence Ms J stated that the case involves complex issues. Ms J is correct in this regard. Ms J was in fact cross-examined by all three counsel at some length. In order to fully understand the complex issues which arise in this case it is important to review, note and consider all of Ms J’s oral testimony – in addition to her written reports. Upon a consideration of the oral testimony of Ms J, I have come to the conclusion that the overwhelming weight of the evidence leads the Court to conclude that the best interests of the children will be served by living primarily with the mother. In coming to that conclusion it is important to note the following evidence.
During cross-examination of Ms J by Ms Frizelle, Counsel for the Independent Children’s Lawyer, Ms J gave the following evidence. A summary of some of that evidence is as follows:-
a)Having observed the video (exhibit 4) Ms J’s opinion is that the father’s conduct amounts to alienating X from his mother;
b)The father’s conduct would influence the child and have a coaching effect upon the child;
c)The father’s conduct has damaged the child’s relationship with the mother;
d)The damage caused by the father’s conduct (in relation to the relationship between the child and the mother) would continue throughout his childhood and into adulthood – unless some sort of intervention is undertaken, such as reunification therapy between the child and the mother:
e)Exhibit 4 indicates behaviour by the father which prevents X from being himself;
f)The video (exhibit 4) along with other subpoenaed documents (viewed by Ms J) indicate an enmeshed relationship between X and the father;
g)Enmeshment describes an unhealthy relationship between a parent and a child where personal boundaries are not clear and when a parent is inappropriately overprotective due to their own insecurities and emotional issues;
h)The enmeshed relationship between the child and the father does not leave X free to have a relationship with his mother;
i)In the event that X’s relationship with his mother is allowed to continue in the way that it has over the past 18 months – two years – the relationship is likely to be non-existent and will lead to serious long-term effects for the child;
j)The long-term effects (particularly for X) include confusion in being able to establish and maintain relationships of his own; confusion and difficulties in establishing relationships in his adulthood; difficulty in thinking for himself as opposed to relying upon somebody else’s opinion or views; ongoing anxiety and depression, and general confusion at not being able to move through the world in a natural and generally non-fearful way so that he can enjoy relationships as opposed to feeling anxiety about particular people or agendas;
k)X has self-esteem issues (as does Y);
l)The self-esteem issues may be addressed through therapy.
m)The best option to assist X (and Y) in relation to their self-esteem is positive parenting;
n)Confirmation that the child Y was belittled and criticised and becomes embarrassed because of the way that her father is interacting with her – and especially in the presence of X;
o)Y feels that she has been criticised and “put upon” in the father’s household and Y feels more secure and confident in the mother’s household;
p)X’s alienation from his mother and X’s enmeshment with his father has had an adverse impact on the sibling relationship between X and Y.
q)The father’s conduct as evidenced in exhibit 4 (and elsewhere in the subpoenaed material) amounts to psychological or emotional abuse of X; and
r)X already suffers from chronic anxiety.

Ms J concluded that if the Court decided that it was in the best interests of the children to live primarily with the mother, then there should be a moratorium of the time the children spend with the father. Ms J thought a moratorium of “maybe two months”. But she went on to state, “I don’t even know if that would be long enough”. I note page 218 of the transcript lines 1 and 2.
Further, between lines 35 and 41 (transcript page 218), Ms J agreed with the suggestion from Counsel for the Independent Children’s Lawyer that it would be in X’s best interests to have a moratorium for, say, a few months and then some supervised time to see how things are going and how the child is reacting to the father.
Ms J was also cross-examined by Mr Gates, counsel on behalf the mother. The evidence provided by Ms J in answer to questioning by Mr Gates of counsel provides a clear and unambiguous foundation for the conclusion reached by the Court that the best interests of the children will be served by living primarily with the mother – and, further, with the addition that there must, in the best interests of the children, be a moratorium of the time between the children and the father. I note and accept the following evidence of Ms J.
From page 220 line 7 of the transcript I note the following evidence from Ms J:-
“MR GATES: …as I understand your evidence, we’ve got an alignment on the paternal side with the father. And if the father, as it seems to be the evidence, has his own underlying anxiety issues, there may be some projection of that onto X?
MS J: Yes.
MR GATES:   And so X is therefore adopting his father’s behaviour but also, at the same time, developing his own independent anxiety because of the process that’s occurring now?
MS J: Yes.
MR GATES:   And so in order to address X’s own anxiety and the infiltration of his father’s, if that’s what’s occurring, there would have to be some type of moratorium or time away, wouldn’t there, in order to get separate – separate himself from that?
MS J: Yes.
MR GATES:   Because, in effect, what he’s doing is – X, that is, is he’s adopting the narrative, in many ways, that his father would put to him as we see in the video?
MS J: Yes.
MR GATES:   It’s there?
MS J: Yes.
MR GATES: And already, do you say you could see, or you could expect to see effects on his development over the period of time this conflict has been ongoing?
MS J: Yes. Yes.
MR GATES: So his developmental progress would already have been affected?
MS J: Affected. Yes.
MR GATES: And going forward… – there are long-term risks involved if it’s not addressed?
MS J: Yes.
MR GATES: … – addressed in a significant way?
MS J: That’s right. Yes.
MR GATES: All right. And so I understand the term is attachment risks in terms of the way that X develops from this point forward?
MS J: Yes.
MR GATES: And I understood your evidence was on that basis – X might fail to form his own identity, himself?
MS J: Yes.
MR GATES: And would that include, like, his own emotional identity?
MS J: Yes. Yes.
MR GATES: And so emotional independence would be difficult for him to obtain?
MS J: Yes.
MR GATES: And I think your words were – and correct me if I’m wrong – prevents X from being himself?
MS J: Yes.
MR GATES: Okay. And so that’s the basis of – as my learned friend said – the enmeshment of the relationship with his father?
MS J: Yes.
MR GATES: And what you see at the moment, can you describe that or is it your opinion that they all are indistinct personal boundaries for X towards the father in terms of their relationship?
MS J: Yes. Yes.
MR GATES: Okay. And so long term, if this was to continue –…adjustment disorder is the word that, sort of, comes to mind for me?
MS J: Right.
MR GATES: if there’s not something done specifically for X. Is that a possible?
MS J: Yes. Borderline personality disorder and, you know, issues on the anxiety and depression spectrum. Anxiety and depression always go together.
MR GATES: Yes?
MS J: So a myriad of things.
MR GATES: Right. So serious long-term effects, then?
MS J: Yes.
MR GATES: All right. And so in terms of the medical issues that you’ve heard described, there has been evidence of constipation as well as anxiety as well, can you give an opinion as to whether those type of medical issues – constipation, upset stomach, etcetera – that could likely just be a result of his own anxiety, as opposed to an independent physical illness?
MS J: Well, absolutely. Mind and body are connected so, you know, if a person is highly anxious it commonly affects their digestive system. Not that I’m a doctor – a physical doctor – but we know that that’s what occurs.”
…..
MR GATES: …you commented about some of your discussions with Y, You already indicated that she is considering herself in terms of her body image, what she eats, what she looks like?
MS J: Yes.
MR GATES: And that’s because of the involvement with the father, in this case?
MS J: Well, it appears so. Yes. This obsession with how she looks and the bloating and the ---
MR GATES: Well, his interaction with her or in her presence has affected her self-esteem?
MS J: Yes. Yes.
MR GATES: I put to you then, Ms J, that isn’t the only option, if you consider the best interests of X, in particular, but certainly Y as well, you described it as him being in a toxic environment, yourself. He would have to be removed from that for a period of time in order to address these issues that are arising from it?
MS J: Well, it’s a drastic step but yes. I don’t see what else you can do but to remove yourself from the – you know if you remove yourself from that environment, that those things – you’re not exposed to them anymore.
MR GATES: And…addressing the issue that the father may have with his own anxiety and developing insight into how his behaviour is affecting his child. Whether that be, as you said, unintentional?
MS J: Yes
…..
MR GATES: And so have you had the advantage of reading the affidavit material that was provided by the parties in this case?
MS J: Yes. Yes.
MR GATES: And so when the father says things like… Paragraph 11. He describes himself at the moment as – he says:
‘Hence why I have no tolerance nor patience for the applicant at all and seek to have as little communication with her as possible.’
And from your own observations, do you think he is capable of communicating with the mother in a reasonable way, going forward, at this time?
MS J: Not at this time. No.
MR GATES: All right. Or what about facilitating the relationship that the children have with the mother whilst they’re in his care?
MS J: Up to this time, I would have to say no.
….
Mr GATES: All right. All right. So going back to those paragraphs of your report – 62, 63 and 64, in your opinion, if you could clarify – the only way, from what I’ve teased out here in addressing X’s issues and Y’s issues going forward are to either remove themselves from the environment that’s creating the anxiety and the self-image problems with Y and underlying medical issues…by…addressing the cause of the anxiety… that is, the father….
MR GATES: And so in those circumstances, I put to you that the best outcome in this case will be that the children do live with the mother, certainly in the short term, with a moratorium of time away from the father until such time as the father can address the issues that were discussed. Wouldn’t that be a possible way forward?
MS J: Yes.
MR GATES: and perhaps probably the most promising way to view things from the start?
MS J: Yes. Yes.
…..
MR GATES: Well, a moratorium of time in the short term with the mother having parental responsibility?
MS J: Yes.
MR GATES: But with the progressive reunification between the children and the father…
MS J: Yes.
…..
MR GATES: …What do you think in terms of the mother can do to assist this process herself personally, in terms of attending further counselling with the children and being involved in that process?
…..
MS J: I would say it would be helpful for the mother to have a counsellor, whether it be a psychologist or a counsellor, but somebody that works with children and parents, who is aware of what process is underway and being able to help any rough patches in that – help with any rough patches in that process. I’m – I’m a bit reluctant to – I’m always a bit reluctant to continue to advise for further counselling for children, because you – they – they just get over-counselled, you know, and really need a break from things. But if it’s – if the parents can take control of things and they’re the adults, they need to develop the insight and the skills in how to manage particular things and how to interact and how to approach any difficulties the child may be experiencing. It’s better coming from that direction as opposed to having these children continually being prodded with going to counsellors, you know, and it sort of puts you in – puts them in the special box all the time. So – so I would suggest that – that at least the mother has some supportive type of interventionist counsellor or even a social worker who has experience in these sorts of areas and – and who can help her with any troubled times. And I would probably say to her, you know, “It would be good if you attended, at least, on a fortnightly basis and – and maintained that contact so that you can just air any issues that might be arising and – and just talk about things that are going well as well.”
HIS HONOUR: Can I just check, Ms J. Whatever the outcome of the proceedings, would it be helpful to have the situation explained to the children by a family consultant, for instance?
MS J: Yes, your Honour. It would.
…..”
As noted, I accept the views and opinions stated by Ms J in the above evidence. It is abundantly clear to the Court that, having regard to the oral testimony of Ms J and, in particular, also having regard to exhibit 4 and the conclusions that I have reached and the findings I have made concerning the father’s lack of insight, that the orders proposed by the Independent Children’s Lawyer are the orders that are in the best interests of the children. In her earlier family report (annexed to an affidavit filed 20 March 2019), Ms J had suggested that “consideration be given” to X living with the father and Y living with the mother (paragraph 186(d)). Indeed, at the time of the addendum report (annexed to an affidavit filed 26 August 2019) Ms J stated that the indications are that X is estranged from his mother to such an extent that – Ms J thought the most workable option might be for X to spend alternative weekends with the mother. Having listened to the extensive oral testimony of Ms J and having had the chance of personally viewing exhibit 4 (in Court) – I infer that Ms J’s earlier written suggestions that X might live primarily with the father were proffered or reached with a sense of frustration on the part of the family report writer. At paragraph 61 of the most recent family report (as noted earlier) the family report writer highlighted that, “…The primary issue in this matter pertains to the father’s entrenched negative attitude toward the mother and continual denigration of the mother as a person and parent; as well as a skewed sense of superiority and grandiosity in terms of personal and parenting capacity on the paternal side….” Having regard to paragraph 61 of the second family report; having regard to the oral testimony of Ms J; and having regard to exhibit 4 leads the Court to conclude that the earlier written opinions suggested by Ms J for consideration by the Court – at paragraph 186(d) of the first report and paragraph 64 of the second report simply cannot stand. The overwhelming weight of the evidence is against a conclusion that X (and, for that matter, Y) should live primarily with the father.
Counsel on behalf of the father, Mr Garlick, provided a written submission filed on 8 October 2019. It is submitted on behalf of the father that Ms J, the family report writer, has displayed bias against the father. I reject that submission. There is nothing to suggest that the family report interviews were conducted inappropriately. Indeed, I have come to the conclusion that the interviews were conducted in a fair and reasonable manner. Mr Garlick did not expressly put to Ms J that she displayed bias. Mr Garlick did put to Ms J that:-
“MR GARLICK: …Our instructions are that when you met with the father – and I will call it the first and only time you met with him… That the children were only present for about two minutes at the end of the interview would you agree with that?
MS J: No.
MR GARLICK: How long would you say that they were there with the father?
MS J: Yes. Well, I had both X and Y in the interview room with the father at the same time. So a relatively lengthy observation. I – I made a lot of observations during that time of the father, you know, discussing this water bottle issue with Y and it was certainly – I don’t know. It would have – I think it was – would have – I think it was – would have been probably longer than 15 minutes.”
I accept Ms J’s evidence. If Mr Garlick’s instructions are (and I’m sure they are) that Ms J only observed the children with the father for two minutes – then those instructions are wrong. I accept Ms J’s evidence. Ms J described the observations as “relatively lengthy”.
Ms J’s interviews with the parents – both took place on the same day and at the same venue. At the commencement of the first family report (page II) under the heading, “NOTICE TO PERSONS RECEIVING COPIES OF THIS REPORT” It is stated that:-
“Information for this family report was obtained from the following sources:
1. In-person interviews conducted on 7 February 2019 with:
a. Ms Odivilas (mother)
b. Mr Woolam (father)
c. X & Y (children)
2. Observations of the children with the father and observations of the children with the mother on 7 February 2019.
3. Other sources of information:
a. Complete list of documents forwarded to the report writer as outlined in the ‘Brief to Report Writer’ Volumes I & II from the Independent Children’s Lawyer.”
There is no suggestion that one side was interviewed longer than the other. Neither parent was given any preference or advantage by Ms J.
Both the mother and father were treated in a similar and fair manner. Interestingly, the evidence from Ms J is that she observed the children with the father for probably longer than 15 minutes – and during that time she was able to make “a lot of observations”. For example, Ms J observed the father discussing the water bottle issue with the Y.
At paragraph 144 of the first family report Ms J reported:-
“144. Observations of the Father with Y and X jointly: During this observation, it was noted that the Father was very openly critical of Y in front of X. While criticising Y about things (e.g., breaking a water bottle which Y was denying) at the same time, the Father was saying how X has never done such things. So the Father created a competitive and perhaps favouritism environment in which X responded with a puffed up selfimportance, where X was laughing at his sister and the Father’s description of her, whilst Y was recoiling with self-consciousness and embarrassment. This manner of interaction was observed throughout most of the period of observations of the Father with Y and X.”
Observation of a parent with children, which lasts longer than 15 minutes can reveal much. This is what has occurred in the current case. Ms J observed the father with the two children for probably longer than 15 minutes. During that time the father was “very openly critical of Y in front of X”. There can be no criticism of the family report writer for making this observation. She is merely reporting what she observed.
There is no suggestion that the family report writer failed to afford procedural fairness to both sides. I have considered this issue further – later in these Reasons.
It is suggested on behalf the father that the family report writer had not sufficiently taken into account the allegations of family violence against the mother and against the mother’s family. That is to say, allegations that the mother and her sisters (in particular) had perpetrated family violence – particularly towards or against X. I note that Ms J had access to the records of the Department of Child Safety. At pages 21 and 22 of the first family report, Ms J (referencing the Department of Communities and Child Safety records) stated:-
“21. On 6 August 2013 the Department received information that X had a blister in his mouth allegedly caused by the Mother flicking him on the cheek and alleging the Mother rubbed chilli in X’s month for saying something bad. A Notification was not recorded because ‘the notifier did not indicate that the children have incurred significant harm of a detrimental effect to their physical, psychological and emotional wellbeing due to the actions of a parent or household member ... As far as X is concerned there is no information to evidence or suggest that either child have been significantly physically or emotionally harmed or at an unacceptable risk of suffering harm due to parental actions or inactions’.
22. There were no Notifications made to the Department from that time until June 2017. At that time it appears the Father was likely the Notifier and made various claims about the care of the children when in their mother’s care. On the Departments assessment there was no independent information to support the claims and that one of the concerns appeared ‘overstated’. The Department did not identify any significant risks and did not intervene further.”
Indeed, Ms J conducted an extensive review of the records of the Department of Communities and Child Safety. Practically all of the complaints made to the Department were complaints made by a notifier about the care of the children in the mother’s household. The Department itself indicated (as noted in paragraph 22 of Ms J’s first report) that the father was the likely notifier. The Department noted that the concerns appeared “overstated”. The Department did not identify any significant risks. This is significant. Ms J’s extensive review of the records of the Department are summarised in her first family report. Ms J was well aware of the allegations of family violence that were made by the father. The father raised the allegations with Ms J and Ms J discussed the allegations with the mother. Ms J also, in particular, had regard to the independent evidence – including the records of the Department of Child Safety.
Of particular relevance in considering this issue (the allegations of family violence allegedly perpetrated towards X) is the interview conducted by the family report writer with X. I note the following paragraphs from the first family report:-
“111. When asked if there was anything good about his mother, X said, ‘Oohh. Not much really. And when I was younger I had my own room and the only thing she gave me was a pillow and sheets on a cold winter night. “When asked who told him that, X said, “Don’t know’.
…
120. When asked what he would wish for if given three wishes, X said, ‘Um. I wish my mother would stop treating us bad’. When asked to be more specific, he said, ‘Um. All. Umm. Ah. Sorry. It’s a little hard-Like stop bullying my dad and stop hurting me. And like she keeps pinching my ears and pinching my lips. Like when I was five years old she got chilli and put it on my lip. And when I was young she got poo out of the toilet and she tried to put it in my mouth as well’. When asked who told him these things, X said, ‘Um. My dad. And I saw it too cause it happened to me’.
…
129. X told us that his dad does not like it when he calls his aunt’s, aunty and instead has to use the words ‘mum’s sisters’ or use their first names. He then said that when he was younger one of her sisters bit him. He then said that his aunty kept biting him inappropriately. When asked where he was bitten he said on his arms and his shoulders and his back and his bottom. The mother asked him why he did not tell her and he said he did and she said she could not remember him telling her.
…
130. When asked, X thought he might have been about 3 years old when his aunt reportedly bit him. He then said his aunty forced him to say things. When asked to give an example he said such as telling him to say sorry. The mother and X agreed that he was being taught about saying sorry if you do something wrong. There were things that she agreed were so. There were things that she corrected him on and discussed further with him and clarified things for him. In the end, X provided that if his mother changed the things that were problems, then he would likely stay with her overnight but probably not as long as Y stays.”

Concerning the allegation of biting – I note that X told the family report writer in February 2019 (at a time when X was 10 years old) that he thought he may have been bitten by his aunt when he was about three years old. At paragraph 124 the family report the child had told the family report writer:-
“124…’Um. We got two of my mother’s sisters. They always bite me and bully me and telling me what to say’.”
This was just after he had told the family report writer, “And I don’t feel safe with my mum”.
When pressed later in relation to the allegation of biting the child had told the family report writer (at paragraph 130) that he thought that he might have been about three years old when his aunt had bitten him.
X told the family report writer (paragraph 120) that when he was five years old the mother had got chilli and put it on his lip. I do not accept that this occurred. The mother gave evidence to the effect that – when the boy was naughty the mother had said to him – “if you do swear again, I will put chilli in your mouth, and I actually put soy sauce jar in front of him. It’s just I tricked him because he swears.”
I note the mother’s evidence at page 18 of the transcript lines 1 to 5. I accept the mother’s evidence that she did not put chilli in the child’s mouth. She placed a soy sauce jar in front of him and told him had he had to stop swearing.
As to the allegation that the child had been flicked in the mouth with a towel or pinched on the lips, I note the evidence of the mother (under cross examination by counsel for the father) at page 17 of the transcript (at approximately line 31) to the effect that any apparent injury to the child’s lip or the area of his lip is in fact a cold sore. I do not accept the child was flicked in the mouth with a towel or pinched on the lip, causing an injury.
I do not accept that the child was ever physically disciplined in an inappropriate way. It was put to the mother as follows at page 18, line 30:-
“MR GARLICK: Are you aware or do you accept that when X was going up a flight of about twelve stairs, that when he was on about the sixth stair, your sister turned around and kicked him in the stomach and he fell to the bottom and hurt his head, and when he made a complaint to you, he said that you saw what happened, you were there, and you said, ‘that’s just the way it is’?
MS ODIVILAS: I don’t believe that. It didn’t happen.”
I accept the mother’s evidence.
There is contained as exhibit 6 a video that was a video of a section 93A interview produced under subpoenaed from the Queensland Police Service. This video was observed by the Court during the course of the trial. The child makes a reference to being kicked in the stomach during this video. The police took no action. I infer that the police did not believe that it had occurred. Having observed the section 93A video – I can see why the police did not take any action.
I do not consider that it was inappropriate for the mother to have friends or family stay in her house (if in fact that ever occurred). This seems to be another complaint raised by the father against the mother.
The child X told the family report writer (at paragraph 120 of the first family report) that when he (X) was young the mother “got poo out of the toilet and she tried to put it in my mouth as well”. Ms J specifically asked the child who told him that:-
a.   “the mother treats them bad;
b.   The mother bullies the father;
c.    The mother bullies X;
d.   the mother keeps pinching X’s ears;
e.    The mother keeps pinching X’s lips;
f.     When X was five years old the mother got chilli and put it on his lip; and
g.   When X was young the mother got poo out of the toilet and tried to put it in his mouth.
Paragraph 120 of the family report indicates that when Ms J did ask X who had told him these things, he replied:-
“…Um. My dad. And I saw it to cause it happened to me”.
There is also an allegation from the father that X had told him that the mother had squeezed X’s testicles. This is referred to also at page 136 of exhibit 1 in the first session notes – an interview between Ms R and the father.
The mother denies physically harming the children. I accept the mother’s evidence. The mother denies that her sisters have physically harmed the children. I accept again, the mother’s evidence. To the extent that there may have been any pinching or smacking or anything like that in the past – I have come to the conclusion that it was minor and in no way physically harmed the children to an extent that it would be of concern to the Court.
The mother also denies that she sat on her bed and sharpened a knife while the children were present. The mother denies that she keeps the knife in her bedroom. The mother denies that she has a gun. The mother did not send people to do harm to the father. I accept all of this evidence from the mother. Also accept that the mother had never told X that the father would be going to jail.
In short, I have come to the conclusion that the children are not at risk of any harm in the household of the mother. The children are not at risk of physical harm and nor are they at risk of psychological harm in the mother’s household.
Furthermore, Ms J was well aware of all of the allegations made by the father and her conclusion that the children were not at risk from physical harm in the mother’s household is reasonable. Ms J has dealt with the issue appropriately. Ms J has dealt with the allegations of family violence appropriately. The manner in which Ms J has dealt with the father’s allegations of family violence, does not display bias on behalf of Ms J against the father. That submission made by the father is rejected by the Court.
Rather, it is, in my view, the father who keeps reminding X about issues (relatively minor issues) that that may have occurred many years previously. Ms J’s evidence is that X essentially provided a “ticket list” of complaints against his mother.
As to the cross examination of Ms J by Mr Garlick of counsel on behalf of the father – I note again that it was not put by Mr Garlick to Ms J that she had displayed bias or unfairness of any kind in the preparation of her report. Mr Garlick asked Ms J as to whether she had formed the view that the father “had the black hat on”? Ms J stated that she did not “think in those terms”. I accept Ms J’s evidence.
Mr Garlick cross-examined Ms J in relation to the manner in which Ms J dealt with X’s allegations of abuse against his mother and his mother’s family. At pages 244 to 253 of the transcript Ms J was questioned extensively in relation to this issue. What emerges from the evidence is as follows (by way of summary):-
a)That Ms J identified the primary issue (in relation to the allegations of violence against the child X) is the fact that the father continually speaks in the presence of X (and Y) about all of the mother’s shortcomings and reminds the children of allegations relating to violence perpetrated by the mother;
b)When X reported some of these issues to Ms J he was providing a “ticket list”. It was not as though “he was really reporting them”;
c)Ms J takes into account all of the information in the preparation of her family report – including independent information – not just the reports of the parties or the children;
d)The observations made by Ms J of X alone with the mother were very enlightening for the family report writer – in particular because of the mother’s soft and gentle manner with the child in the way that she spoke with him etc;
e)Ms J did not ignore the allegations of family violence;
f)Ms J paid close attention to the information from the Department of Child Safety and all the other information provided to her;
g)Ms J rejected the suggestion made by counsel on behalf of the father that X “could be suffering from battered child syndrome”;
h)The conclusion of the family report writer is that X has been suffering psychological abuse in the paternal household – abuse perpetrated against him by the father.
i)Ms J rejected the suggestion put to her that the mother “understands that she has done wrong and her sisters have done wrong and she doesn't know how to fix it”.
I also note that during the course of cross-examination by counsel for the father of Ms J an attempt was made to justify the creation by the father of the video which is contained in exhibit 4. In an extraordinary exchange contained at page 231 of the transcript on 29 August 2019, I note the following:-
“MR GARLICK: What’s your understanding of the video where X is at the dining room table with his singlet, wiping his eyes and being very upset while the father is narrating? What is your understanding of that video and how it came about?
MS J: How it came about.
MR GARLICK: Are you aware of the reason it was made, the purpose it was made?
MS J: No.
MR GARLICK: Okay. The evidence that has been before the court throughout this proceeding is that that video was produced to give to the counsellor, Ms T, to review so that she could see firsthand some of the strain and stress that X was experiencing and the father was narrating, explaining some of the concerns in front of X?
MS J: Mmm.
MR GARLCK: The video was only ever meant to go to Ms T so that she could have those understandings of what he has been trying to explain and unfortunately it seems that the video has worked against him in some respects when he has been trying to show the counsellor what he needed in relation to some help. So I just wanted to bring that to your attention. That was all?
MS J: Thank you.”
Implicit in the questioning of Ms J on this issue is a contention on the part of the father that his conduct in preparing such a video was justified. The contention which is to be inferred from that line of questioning is that it was perfectly appropriate for the father to prepare such a video because it was really only ever meant for the child’s counsellor, Ms T. This displays a further incredible lack of insight. The reason that the video was prepared, is not relevant. What is relevant and what is of great concern to the Court is the content of the video. It portrays the manner in which the father speaks in such a negative way about the mother in the presence of the presence of X.
I note the evidence of the paternal grandmother. It is apparent from the paternal grandmother’s affidavit that she does not like the mother. The paternal grandmother gave evidence that she witnessed the mother pinch X on many occasions in anger if he was not behaving or if he was crying. If any such pinching ever did occur, I find that it was very minor and it occurred a long time ago. It makes no difference to the Court’s conclusions in this case. Nothing in the evidence of the paternal grandmother, or indeed of the father’s current partner/friend (Ms F) impacts upon the conclusions that I have reached. It is also very apparent that there may well be animosity between Ms F (on the one hand) and the mother and her family on the other hand. Much of her evidence relates to what she has heard the child tell the father.
The opinion of the family report writer is clear. To the extent that there might ever have been any form of physical discipline used by the mother in relation to the child X (or indeed Y for that matter) that such occurred long time ago; that it was minor in compass and that the reason X keeps raising it is because the father keeps reminding him.
All of the above evidence from Ms J was provided under cross examination on 29 August 2019. I accept the evidence. I accept that she has appropriately and fairly dealt with the allegations of violence that were made. She has provided appropriate reasoning as to the risk issues that she has identified in this case. The primary risk issue being that identified by her in paragraph 61 of the second report – namely the father’s negative attitude towards the mother.
Counsel for the father has made various submissions in relation to the diagnosing of personality disorders. I want to make it abundantly clear – the decision of the Court does not in any way relate to any diagnosis or provisional diagnosis or attempted diagnosis of the father in relation to the existence of any possible personality disorders.
The evidence in the case is overwhelming. The father poses a significant risk of psychological harm to the children because of his extremely negative attitude towards the mother.

Section 60CC(3)(a)

Y expressed a clear wish to live primarily with the mother. I note paragraphs 138 and 139 of the first family report:-
“138. She said her father does not allow visitors in the home “cause it’s for family. And he’s not really happy about my mum he’s just really angry about her and when he’s talking about my mum he had a angry voice…And he talks about my cousins like ‘fat’, ‘gross’ (name calling). And he can swear. And when he does say that it makes me feel not right. Like it makes me feel sad cause I love my cousins. ‘Y said that the name calling of her cousins and aunts “has to stop. I don’t like it.” Y has not told her father that she does not like him talking badly about her cousins “because I’m too scared to.’
139. Y thinks her father treats her and X ‘both the same way but he kind of gives more to X than to me.’ She talked about computer/technology things that X receives and that she does not equally receive. When asked if they have to share, Y said, ‘Dad doesn’t tell X to share.’”
Of concern also to the Court are the observations made by the family report writer of the father with Y and X jointly. These are contained at paragraph 144 of the family report:-
“144. Observations of the Father with Y and X jointly: During this observation, it was noted that the Father was very openly critical of Y in front of X. While criticising Y about things (e.g., breaking a water bottle which Y was denying) at the same time, the Father was saying how X has never done such things. So the Father created a competitive and perhaps favouritism environment in which X responded with a puffed up self-importance, where X was laughing at his sister and the Father’s description of her, whilst Y was recoiling with self-consciousness and embarrassment. This manner of interaction was observed throughout most of the period of observations of the Father with Y and X.”
The manner in which the father conducted himself while being observed by the family report writer is appalling. One can only imagine what the father is like when he is not under the gaze of a family report writer. The father completely lacks insight in relation to his conduct.
It is quite clear that X has expressed wishes to remain living with his father. Given the opinions expressed by the family report writer and noting especially exhibit 4, the Court can have no confidence that it is in X’s best interests to remain living in his father’s household. It is contrary to the to the boy’s best interests. X may well have expressed very clear wishes. I note that he is now 11 years old. However, the father denigrates the mother in such a severe manner that X’s s stated wishes cannot be acted on by the Court.

Section 60CC(3)(b)

It is apparent that the view of the family report writer (which I accept) is that the father’s conduct in his own household and the manner in which he denigrates the mother in front of the children and the way in which he belittles Y (even during the family report interview) is such that the family report writer has come to the conclusion that the atmosphere in the father’s household is toxic. I’ve already made findings in relation to the nature of the relationship between the children and the father. Ms J’s view was that the father’s conduct has led to a complete alignment of X with the father – to the detriment of X’s relationship with his mother.
Y has a good relationship with her mother and her mother’s family. I infer from the evidence that Y would like to have a good relationship with the father – but the father continues to denigrate the mother to Y and the father denigrates the mother’s family to Y. He of course does this in X’s presence also. Also, the father belittles Y – including in front of X.
It is difficult to say what X’s relationship with his mother would have been like if the father had not acted in such a detrimental manner. It is highly likely that X would have a loving relationship with the mother like Y does. The mother grieves for the loss of her relationship with her son. This is understandable.

Section 60CC(3)(c)

Both parents have attempted to be involved in decision-making for the children and both parents have wanted to spend time with both of the children and communicate with the children. It must be said that the father seems much less inclined to spend time with Y than he does with X. The mother is very keen to spend time with and have a relationship with both of the children.

Subsection 60CC(3)(ca)

The parents have maintained the children – in terms of providing for their temporal needs. There’s not much more that can be said in relation to this subsection.

Subsection 60CC(3)(d)

When the moratorium of time between the father and X is instigated there will be some rough patches. Ms J mentioned this in her oral testimony. Ms J has recommended that the mother obtain a counsellor and continue to see that counsellor every fortnight to gain assistance. Further, Ms J has recommended that a family consultant explain the proposed orders to X and Y. This will occur.
The evidence of Ms J leads the Court to conclude that by the implementation of the moratorium of time, followed by supervised time for the father – the likely effect on the children will be an improvement in their relationship with the mother. These are the conclusions the Court has drawn from the available evidence. The children need to be withdrawn from the toxic environment which is the father’s household. This much is clear from the oral testimony of Ms J. I know that X has in the past taken himself from school to the father’s household. I strongly suspect that this occurred with the connivance of the father. That inference is open to the Court and the available evidence.
I also note Ms J’s evidence that there ought not be any ongoing counselling for the children. I accept her evidence. Ms J’s view is that the mother needs to obtain ongoing counselling and that she needs to gain the necessary skills to deal with the situation and to handle any rough patches that she encounters in relation to X (in particular) and X’s conduct once the moratorium is put in place.

Section 60CC(3)(f)

I have full confidence that the mother has the capacity to provide for the emotional and intellectual needs of the children. Indeed, I have confidence that the mother has the capacity to provide for all the needs of the children. I have no confidence that the father has the capacity to provide for the emotional needs of these children. Having observed the father in the witness box and listened to his testimony; having watched the father in the video which is exhibit 4; having had regard to the family reports; I have come to the conclusion that the father, at the present time, does not have the necessary capacity to provide for the emotional needs of these children. He has continually and unfairly denigrated the mother and the mother’s family. If he was allowed to continue upon his path there would be absolutely no chance of redeeming X’s relationship with the mother. Drastic steps are needed. This much was stated by Ms J and I accept her evidence. The father’s denigration and belittling of Y also confirms for the Court that he lacks the capacity to provide for the emotional needs of the child Y.
Subparagraph (g) and (h) of section 60CC are not relevant.

Section 60CC(3)(i)

Within the father’s limited capacities, he probably does think that he has accepted the responsibilities of parenthood. He completely lacks insight of course. He does not understand, it seems to the Court, how a responsible parent should conduct themselves. The mother has conducted herself in a responsible manner. The mother has been at a loss as to how to conduct herself in relation to X. The father’s influence on X has been so overwhelming that the mother, in order to keep the peace, has taken a path of least resistance. As noted, the mother grieves to a very great extent the diminution or loss of her relationship with X.

Section 60CC(3)(j) and (k) – Family Violence

I note the definition of family violence contained in section 4AB of the Family Law Act 1975. That section relevantly states:-
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
…
(d) repeated derogatory taunts; or
…
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
…
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
I have come to the conclusion that the father has engaged in family violence. The father has engaged in repeatedly taunting the mother and the mother's family. These taunts have been stated in front of the children. They may not have directly been made (since separation) to the mother. But they nonetheless amount to “repeated derogatory taunts” or putdowns or criticisms etc. They have been of such a nature that I do consider that it constitutes family violence. The children have been exposed to this. In addition, the father has directly belittled the child Y and criticised her openly on a repeated basis. This also, in my view, constitutes family violence. The child Y told the family report writer that she is “too scared” to tell the father that she that she does not like him repeatedly talking badly about the maternal family. Note paragraph 138 of the first family report. The father's taunting and belittling conduct has caused Y to be scared of him. The child is fearful of him. This conduct by the father constitutes family violence.
Further, I note section 4AB(2)(i) – the father’s continual and sustained denigration of the mother (and the maternal family) to the child X has had the effect of preventing X from keeping up his connection with his mother and his mother’s family. I have no doubt that the father’s conduct in this regard constitutes family violence within the definition contained in the Act. These are additional reasons as to why there needs to be a moratorium on the father’s time with the children – followed by a period of supervision of the father’s time with the children.
It will be apparent that, in relation to the allegations of family violence against the mother – that I have come to the conclusion that they are not made out. I accept the mother’s evidence. To the extent that it could be said that at some stage in the past the mother had physically disciplined the children. I do not consider that it comes within the definition of family violence. I consider that it was minor and I have also come to the conclusion that the mother poses no risk of harm to the children. The conclusion I have reached in relation to the mother is based upon my own assessment of the mother in the witness box, but also, in particular, having regard to the evidence of Ms J, the father’s evidence and the subpoenaed material. Ms J noted the mother’s interactions with both of the children. Ms J came to the conclusion that the mother does not pose a threat to the children. I accept Ms J’s evidence.

Section60CC(3)(l)

It is not immediately apparent, what type of order might be least likely to lead to the institution of further proceedings in relation to the children. But in order for there to be any chance that both these children have a relationship with both of their parents – the approach urged by the Independent Children’s Lawyer (and the mother) that there be a moratorium of time with the father is, in the conclusion of the Court, the approach which is in the best interests of the children. There also needs to be a period of supervised time for the father with the children following the moratorium.

Section 60CC(3)(m)

As noted earlier, I have concluded that Ms J did not display any bias in her role as family report writer. I note the decision of the Full Court of the Family Court of Australia in Donnell & Dovey [2010] FamCAFC 15. From the decision in Donnell & Dovey (supra) it is apparent that the following matters require consideration on this topic:-
1.Has there been differential treatment of the parties by the single expert (family report writer)?;
2.Can it be said that the methodology employed by the single expert leads to a perception of bias?; and
3.Has procedural fairness been afforded to both sides (the applicant mother and the respondent father) in the preparation of the family report?
There has been no differential treatment of the parties by the single expert in the present case. In paragraph 3 of the father’s affidavit filed 28 February 2019 in that paragraph. The father stated:-
“3. I admit that when we first got there I incorrectly heard my partner, Ms F say that “Ms CC” had gone in the room with Y. She had said “Ms J”, but I misheard her. When the Family Report Writer shortly thereafter came out to get X I asked if Ms CC was in the room and tried to explain why I had concerns. However, the Family Report writer instantly became quite rude and aggressive and accused me of making a scene in front of X and told me that my behaviour was inappropriate. I tried to explain to her, but she just spoke over me aggressively and told me to calm down. This obviously made me frustrated and I felt straight away that this process was not going to be unbiased at all. Ms F also witnessed this interaction.”
The reference to Ms F is the father’s former partner, Ms F. On the father’s own evidence – he “misheard” his partner. He thought that his partner had said that “Ms CC” (the maternal aunt) had gone into the interview room with Y. In fact the partner (Ms F) had said “Ms J” had gone into the room with Y. Ms J, is of course, Ms J, the family report writer. Ms J was asked about this during cross examination by Mr Garlick, counsel on behalf the father. I accept Ms J’s evidence that she had just finished interviewing the mother and walked into the reception area with the mother. Ms J says, and I accept, that the mother’s sister was in the waiting room. I accept Ms J’s evidence when she states that:
a)The father was “pretty steamed up” (page 228 line 14 the transcript 29 August 2019);
b)I infer that he was so upset that, in the words of Ms J, “he was sort of red in the face” (at transcript page 228 line 34);
c)The father was upset (transcript at page 228 line 40);
d)The father was the only person “experiencing this anger” page 228 line 43).
To start with, it cannot be said that it is the fault of the family report writer if the father “misheard” his own partner. It transpires that the maternal aunt did not go into the interview room at all. I accept the evidence of Ms J that the maternal aunt was in the waiting area.
I do not accept that the report writer was rude and aggressive. It is not the fault of the family report writer that the father cannot control his emotions. The father points out that the family report writer told him to “calm down”. That is exactly what he needed to do. The father needed to calm down. His behaviour was inappropriate – particularly in front of the child X. If Ms J had to speak in a firm way to the father – so be it. His behaviour was completely inappropriate. He was out of line. This does not mean that the family report writer displayed any bias. From her oral testimony it is apparent that Ms J has, on many occasions over the years, encountered parents or family members who become upset. Report writers have to manage the situation in a firm but fair way. I find that that is exactly what occurred in this case. I reject that this approach by Ms J displayed any bias. I do not accept there was any differential treatment of the parties by the single expert in this case.
Each parent received approximately the same amount of time on the same day at the same set of interviews. Furthermore, each parent was telephoned subsequently for the preparation of the addendum report. The family report writer observed both children with the mother and then again observed both children with the father. The methodology employed by the single expert was appropriate. It could not be said that a reasonable person looking at the situation objectively would conclude that the method or manner employed by the single expert in the preparation of the reports could lead to a perception of bias.
Procedural fairness was afforded to both sides in the present case. As noted, both parents were interviewed on the same day for a similar length of time and both were observed with the children, I infer, for a similar length of time also. Considering the very difficult situation that has arisen between X and the mother – it was appropriate for the family report writer to conduct a separate interview whereby she observed X and the mother.
For the reasons stated, I conclude that the family report writer well and truly took into account all of the allegations made by or on behalf of the father concerning family violence perpetrated by the mother or the maternal family against the children – in particular X. Ms J had access to all of the relevant material from the Department of Child Safety – Ms J read all of that material and provided a review and overview. Ms J had access to all of the affidavits from both sides, including trial affidavits. Ms J had access to other subpoenaed material. Ms J viewed exhibit 4, the video taken by the father of his own interaction with the child X. Ms J had all the relevant information.
I reject the argument that Ms J in any way displayed bias in the conduct of the interviews, in her methodology or in the preparation of either of the two family reports prepared by Ms J (i.e. the first family report and the addendum report).

Other matters

I note that an incident occurred when X was quite young. After separation the father was refusing to allow X to spend any meaningful time with the mother. The mother and her sister took the child from the father’s residence. The mother accepts that the approach taken was inappropriate. I infer that from her concession that such an incident would have been traumatic for a young child. The incident occurred some time ago and, having regard to the totality of the evidence in this case – that incident assumes relatively minor importance.

Section 61DA

The Court has come to the conclusion that there is evidence of family violence as outlined above. In those circumstances, the presumption of equal shared parental responsibility is rebutted.
It could not possibly occur in any event. The father’s opinion of the mother is so appalling that there is simply no way he could cooperate in a reasonable manner with the mother. There has to be an order for sole parental responsibility in favour of the mother. This much is clear from the evidence of Ms J.
Given that the mother will have sole parental responsibility – the mother will be able to decide which school or schools the children should attend.

Section 65DAA

At this point in time there is absolutely no possibility of equal time orders or orders for substantial and significant time between the children and the father. Orders for equal time or substantial and significant time are demonstrably not in the best interests of the children. The reasons in this regard are outlined in detail earlier herein. It is not in the best interests of the children and nor is it reasonably practicable. The father has utterly entrenched negative views of the mother this is at the heart of my conclusion in this regard.

Conclusion

Orders along the lines proposed by the Independent Children’s Lawyer are in the best interests of the children.

I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date: 19 December 2019

[2019] FCCA 3746

19 December 2019

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Consent

Expert Evidence

Injunction

Procedural Fairness