Pieters & Westmore (No 3)
[2023] FedCFamC2F 1028
•15 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pieters & Westmore (No 3) [2023] FedCFamC2F 1028
File number: DGC 2398 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 15 August 2023 Catchwords: FAMILY LAW – final parenting orders – 7 day hearing after listed for 3 days – substantial history of litigation – multiple expert reports in evidence – parent withholding for over one year – whether parent is engaging in resist/refuse pattern – where allegations of abuse made and not pursued – whether one or both parents support a relationship with the other parent – period of no time with withholding parent Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 60CF, 60CG, 61DA, 65DAA, 65DAC
Cases cited: Adamson & Adamson (2014) FLC 93-622
Bondelmonte & Bondelmonte & Anor [2017] HCA 8
Fox v Percy (2003) 214 CLR 118
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Pieters & Westmore (No 2) [2023] FedCFamC2F 701
Division: Division 2 Family Law Number of paragraphs: 519 Date of hearing: 5, 6, 7, 9, 14, 15, 16 June 2023 Place: Melbourne Counsel for the Applicant: Ms J. Elleray Solicitor for the Applicant: Pentana Stanton Lawyers Senior Counsel for the Respondent: Ms E. Mallett SC Solicitor for the Respondent: Resolve Conflict Lawyers Counsel for the Independent Children's Lawyer: Ms V. Morkos Solicitor for the Independent Children's Lawyer: Taft Lawyers ORDERS
DGC 2398 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PIETERS
Applicant
AND: MS WESTMORE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
15 AUGUST 2023
Amended pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
THE COURT ORDERS THAT:
1.Mr Pieters (‘the Father’) have sole parental responsibility for X born in 2013 (‘X’).
2.Prior to the Father making any long term decision about X’s welfare, save in emergency, he do all acts and things to consult the Mother by text message in a timely manner and, if her reply is made in a timely manner, take that into account in making his decision and then inform her of his decision by text message as soon as practical.
3.X live with the Father and he is authorised to re-enrol her at H School.
4.Ms Westmore (‘the Mother’) do all acts and things to deliver X to the Father at 10:00 am on Wednesday 16 August 2023 inside the foyer of the Suburb J McDonalds on the corner of K Street and L Street in Suburb J.
5.After complying with the above order to deliver X to the Father’s care, the Mother not spend any time or communicate with X until Friday 20 October 2023.
6.X’s engagement with a psychologist
7.The Father engage X with Ms M psychologist and/or such other psychologist as nominated by the Independent Children’s Lawyer (‘the Psychologist’) to assist with the transition of X back into the Father’s care.
8.The Father provide to X’s therapist the following:
(a)These orders;
(b)The reasons for these orders delivered this day (‘the reasons’);
(c)The Family Report of Ms C dated 9 April 2021;
(d)The report of Dr G dated 3 October 2022;
(e)Any other reports or documents referred to in the reasons and requested by the Psychologist.
9.The Mother be and is restrained from arranging or facilitating any therapy for X with any therapist, psychologist, counsellor or medical practitioner.
10.The Mother be and is restrained from spending time with X other than in accordance with these orders and/or facilitating or allowing any other person to spend time with X other than in accordance with these orders AND in the event X comes to be in the care of any person other than in accordance with these orders, the Mother do all acts and things to forthwith notify the Father of the whereabouts of herself and of X AND cause and ensure X is returned to her Father’s care.
11.In the event that either the Mother or the Father attend, by telephone, electronically or in person upon Child Protection or any similar organisation, or the Police including SOCIT to report or discuss any aspect of X’s care or welfare, and/or any therapist for themselves, at the first report, contact or session, the Mother and the Father provide such person or organisation with a copy of these orders, and if requested provide a copy of these reasons.
12.That, commencing Friday 20 October 2023, X spend time with the Mother as follows:
During school term: the ordinary weekend
(a)During school term, commencing Friday 20 October 2023, and on each alternate weekend thereafter, from Friday afternoon from the end of the school day or at the Mother’s election in writing no less than seven (7) days beforehand at 6:00 pm that day, until the following Sunday evening at 6:00pm (‘the ordinary weekend’); and
(b)On the ordinary weekend, in the event the Friday is a non-school day, from the end of the school day on the preceding Thursday and in the event that Monday is a non-school day, until the following Monday at 6:00 pm; and
During school term: the longer weekend
(c)During school term, and not before Friday 20 October 2023, in the event that;
(i)The Mother has suitable secure accommodation, rented or purchased, for herself and X, within a radius of 30 kilometres and no more than 30 minutes travel by motorcar from H School (‘the accommodation’) and keeps the Father advised of the accommodation; and
(ii)The Mother has informed the Father of the details of the address and provided a photograph of the exterior of the accommodation from the street and such documents, either rental agreement or licence or contract of sale, showing the nature of the tenure, no less than 14 days beforehand; and
(iii)The Mother has informed the Father of her intention to do so no less than 14 days beforehand (‘the notice of the longer weekend’); then
(iv)Commencing 14 days after the notice of the longer weekend, X spend time with the Mother each alternate weekend from Friday afternoon from after the end of the school day until the following Monday morning before school (‘the longer weekend’); and
(v)Commencing on the next Wednesday after the longer weekend, from Wednesday afternoon from after the end of the school day, and in the event that Wednesday is a non-school day from 9:00 am, until the following Friday before school, and in the event that Friday is a non-school day until 9:00 am.
13.The time the child spends with the Mother shall be suspended during the school term and long summer school holidays and shall resume after each of the said holidays in the same cycle as if the holiday periods had not intervened.
Long summer holidays
14.Commencing from the gazetted Victorian summer school holidays in 2023 (i.e. December 2023/January 2024) and each long summer school holiday thereafter, the child spend half of such period with each parent, as agreed between the parents in writing, text message or email, and failing agreement, on a week-about basis (i.e. for seven (7) consecutive nights), as follows:
(a)in 2023/24 and each alternate year thereafter with the Father, to commence from the conclusion of the last day of the school year in 2023 for seven (7) consecutive nights ending at 3:30pm and each alternate week thereafter until the conclusion of the summer holiday;
(b)in 2024/2025 and each alternate year thereafter with the Mother, to commence from the conclusion of the last day of the school year in 2024) for seven (7) consecutive nights ending at 3:30pm and each alternate week thereafter until the conclusion of the summer holiday; and
(c)the parent who has the last week prior to the commencement of the new school year shall have their time conclude at the commencement of the new school year notwithstanding that such time may not amount to seven nights.
School term holidays
15.Commencing from the first gazetted Victorian school term holiday in 2024 and each school term holiday thereafter the child spend half of such period with each parent as agreed between the parents in writing, and failing agreement:
(a)with the mother:
(i)the first half in even numbered years from the conclusion of the last day of school term until 3:30pm on the day calculated to be halfway through the said holiday;
(ii)the second half in odd numbered years from 3:30pm on the day calculated to be halfway through the said holiday until the commencement of the next school term; and
(b)if the total number of nights are not even then the parent who is exercising the first half shall have the additional night.
Christmas Day
16.Notwithstanding any period the X spends time with each parent pursuant to the Long Summer Holiday provisions of these orders X spend time with each parent for Christmas and Boxing Days, as follows:
(a)in 2023 and each alternate year thereafter:
(i)with the Father from 3:00pm on 24 December until 3.00pm on 25 December;
(ii)with the Mother from 3:00pm on 25 December until 3.00pm on 26 December; and
(b)in 2024 and each alternate year thereafter:
(i)with the Mother from 3:00pm on 24 December until 3.00pm on 25 December; and
(ii)with the Father from 3:00pm on 25 December until 3.00pm on 26 December;
Mother’s Day/Father’s Day
17.Notwithstanding any period X spends time with each parent pursuant to these orders, X spend time with each parent on Mother’s Day and Father’s Day, as follows:
(a)With the Father from 5:00pm on Father’s Day Eve until before school the following Monday, and if the Monday is a non-school day until 9:00 am; and
(b)With the Mother from 5:00pm on Mother’s Day Eve until before school the following Monday, and if the Monday is a non-school day until 9:00 am.
Not at school changeovers
18.For purposes of changeover, when not occurring at the child’s school, changeover take place at McDonald’s on the corner of K Street and L Street in Suburb J.
Phone calls
19.Unless a Sunday is a changeover day, the Mother and the Father facilitate a telephone call to the other parent when the child is in their care on Sundays, with such call to be made by the parent who does not have the child in their care to the other parent’s mobile at 7:00pm and for such purpose:
(a)the communication shall not exceed beyond 7.30pm
(b)the parent receiving the other parent’s call must ensure that:
(i)the child is available;
(ii)their mobile telephone is turned on with sufficient charge and reception to receive the call; and
(c)the child be given privacy when communicating with the other parent.
20.The Mother and Father shall be authorised pursuant to this Order and if required they shall do all acts and things and sign all documents and authorities necessary, to allow each of them to:
(a)receive information and have access to the X’s medical and dental records and any registered medical/health professional(s) upon whom X may attend from time to time when in their care;
(b)receive from any school attended by the X, all notices, reports, photographs, invitations (including but not limited to parent teacher interviews, fetes, concerts, open days and special events) and other documentation provided to parents by schools and the expenses, if any, of such items received shall be borne by the receiving parent.
(c)attend upon X’s school upon any invitation issued on behalf of her school for any function including but not limited to parent-teacher interviews or otherwise for the bona fide purpose of enquiry as to the child’s welfare, including educational progress.
(d)attend any extra-curricular or sporting activity X may be involved in through the school.
Provision of information
21.The Mother and Father shall:
(a)inform each other by either telephone, text message or email of any serious injury or illness suffered or sustained by X while in their care as soon as practicable following the onset of the said injury or illness and provide each other with the particulars of:
(i)any treatment or medication required or received by the X; and
(ii)the name and address of any treating medical/health professional involved with X;
(b)inform each other by either telephone, text message or email of any health professional that has been involved with the child while the child has been in their care and be authorised pursuant to this Order to receive from any health professional involved with the child information, advice or directions concerning the X’s health and to discuss all matters concerning the child’s health with the health professional.
(c)comply with any medications or specialist advice that is provided in writing to either or any of them;
(d)ensure compliance with any prescriptions or prescribed medications provided for X and ensure that it is provided to the other parent including at changeovers as may be required.
(e)inform each other of a change to their residential address or contact details and inform the other parent at least 14 days before any change.
22.The Mother and Father be at liberty to contact each other by telephone as follows:
(a)at a time as may be agreed to in writing by way of text message by one parent proposing a telephone call and the other advising their agreement; or
(b)in case of an emergency concerning the child or the parent when the child is in that parent’s care.
Other restraints
23.The Mother and Father be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the child or each other in the presence or hearing of the child, and from permitting any other person from doing so;
(b)physically chastising, disciplining or verbally abusing the child;
(c)discussing these proceedings with or in the presence or hearing of the child and from permitting any other person from doing so save that the Father be and is permitted to discuss these orders with X, including in the counselling for X with the psychologist;
(d)exposing the child to any form of violence, threats or intimidation and from permitting any other person from doing so; and
(e)removing the child from the child’s school without:
(i)the written consent of the other parent; or
(ii)an order of the Court.
Discharge of ICL
24.The Independent Children’s Lawyer be discharged 29 days after these orders.
Obligations these orders create
25.Pursuant to Sections 62B and 65DA 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 and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
Table of contents
INTRODUCTION
[1]
BACKGROUND
[3]
Start of these proceedings
[8]
Live with time suspended
[9]
The SJR interim hearing, the review and the urgent listing for final hearing
[10]
THE FATHER’S CASE
[14]
THE MOTHER’S CASE
[26]
THE ICL’S CASE
[41]
Documents relied upon
[42]
Exhibits tendered
[45]
The witnesses
[46]
The multitude of reports
[47]
APPLICABLE LAW
[49]
Standard of proof
[49]
Credit and reliability of the parties’ evidence
[50]
APPLICABLE LEGAL PRINCIPLES
[55]
ISSUES IN DISPUTE
[56]
SIGNIFICANT EVENTS
[57]
The parents’ early relationship
[59]
The parties’ criminal history
[61]
Baby X lives with Mr Pieters when Ms Westmore goes to prison
[65]
X has no time with her father for 6 months, twice
[67]
First proceedings in this Court
[71]
First independent observations and Mr Pieters’s first court-ordered time
[76]
Dr P’s 2016 Psychiatric Reports
[80]
28 February 2017 interviews; Ms F’s first family report dated 23 March 2017
[83]
The March 2017 Orders
[85]
The second family report of Ms F, 2 November 2017
[86]
The December 2017 Final Orders and afterward
[89]
Communication in 2017 and 2018
[90]
Grandson Q placed with Ms Westmore in 2018
[91]
Final Orders 5 months old when Ms Westmore moves to City R with X
[93]
Further deception offending by Ms Westmore soon after December 2017 orders
[100]
The 2018 litigation, Mr Pieters withholds X and the June 2018 bruising
[109]
26 July 2018 interim orders: X lives with father and alternate weekends with mother
[121]
Mother takes X to another professional the day after the orders
[123]
The September 2018 interim report: clear lessons unheeded
[127]
Ms Westmore next sentenced to prison
[133]
The next family report, Ms E, 31 January 2019
[134]
Primary School counselling starts
[145]
Ms Westmore goes to prison again
[150]
Counselling at school continues
[153]
Dual litigation: Intervention Orders and Family Law Act proceedings
[156]
Court orders phone calls from prison
[163]
School counselling continues: X happy at home
[172]
Mother released from prison in 2019
[174]
The (next) December 2019 interim report: ‘10 out of 10!’
[177]
The December 2019 Interim Orders: X lives with father and time with mother
[180]
February 2020: X’s time with her mother increased to shared care
[182]
The (next) September 2020 Family Report
[184]
Next Child Protection and police report: September 2020 abuse allegations
[189]
Final hearing vacated and another report ordered
[193]
The (next) “addendum” family report: 9 April 2021
[195]
The April 2021 Final Orders: X lives with her father and shared care with her mother
[200]
Events of 2022
[203]
When did Ms Westmore’s focus move on to her life in City S?
[203]
The engagement of Ms Westmore and Mr T
[209]
X doesn’t return from the July 2022 school holidays
[212]
The first police welfare check
[218]
The second police welfare check
[219]
The report to child protection
[222]
The visit with X to the police station
[231]
X’s mother visits her school in mid-2022
[242]
The mid-2022 intervention order application
[250]
X’s first attendance on Dr G, the psychologist
[258]
The alignment of Dr G and Dr U
[268]
X enrolled in new school in City S
[276]
Mother’s position and Court Orders of 10 August 2022
[280]
SEPTEMBER 2022; THE SINGLE EXPERT SHORT FORM REPORT
[283]
Child Protection speak to X after the family report interviews
[302]
Ms Westmore’s unequivocal restatement of assaults on X
[305]
The 2022 interim proceedings, decision and aftermath
[308]
Summary of recited events
[324]
RELIABILITY OF WITNESSES
[338]
Mr Pieters’s evidence
[339]
Ms U and the rule in Jones v Dunkel
[347]
Mr T and the rule in Jones v Dunkel
[356]
Ms Westmore’s evidence; examples of unreliability
[356]
When X first made allegations, mid-2022?
[360]
Who owns the house in City S
[361]
The Suburb J property
[368]
Ms Westmore’s occupation
[375]
When the relationship with Mr T started
[384]
Communicating when under cross-examination
[396]
Where the contact for Dr G came from
[400]
Ms Westmore’s surname
[404]
The Evidence of Ms Westmore’s sister, Ms U
[414]
Conclusion as to resist/refuse dynamic
[427]
SECTION 60CC FACTORS
[437]
Need to protect children from physical or psychological harm
[438]
Benefit of a meaningful relationship with both parents
[442]
Any views expressed by the child
[445]
Nature of relationship with each of the child’s parents and other persons
[449]
Extent to which the child’s parents have taken or failed to take opportunities
[452]
Extent to which parents have fulfilled or failed to fulfil obligations to maintain X
[454]
Likely effect of any changes
[455]
Practical difficulty and expense
[459]
Capacity to provide for the child’s needs including emotional and intellectual
[461]
Maturity, sex and lifestyle of child
[463]
Attitude to the child and to the responsibilities of parenthood
[465]
Family violence
[471]
Is it preferable for orders least likely to lead to further proceedings?
[473]
PARENTAL RESPONSIBILITY
[480]
CONCLUSION
[488]
Which parent will best promote X’s relationship with both parents?
[489]
Withholding X in 2022: reasonable, or exclusionary, behaviour?
[492]
A history of exclusionary behaviour
[498]
X’s expressed views? Resist/refuse dynamic?
[500]
Who will best provide stability for X?
[503]
A hiatus in X seeing Ms Westmore? Then only supervised?
[507]
Why those special day arrangements?
[515]
Changeover
[519]
INTRODUCTION
The question I must determine is with which of her parents, X aged 10, should live. Should she live with her mother, with whom she has been living since her mother did not return her to her father’s care following school holidays in the middle of 2022? Or should she live with her father, with whom she had been living pursuant to final orders made by consent in 2021 until that arrangement was interrupted by her mother in the middle 2022? I must determine that question on the basis of X’s best interests being the paramount consideration, and by applying Part VII of the Family Law Act 1975 (Cth), (‘the Act’).
The matter comes before me in circumstances where X has not lived with or spent time with her father since the end of the second school term in 2022 when her mother did not return X to his care. X’s mother says that at the time, and on the information available to her, she had good reason not to return X to her father in the middle of 2022 as the then recent court orders provided.
BACKGROUND
X’s parents now live about three hours’ drive apart. Final orders had been made by consent in April 2021 that provided for then almost 8 year old X to live with her father and spend substantial and significant time with her mother for five nights, over seven days, each fortnight during school term and shared school holidays. Before the 2021 final orders, both lived sufficiently close to X’s school, for a shared care arrangement to be practical. At about the same time that Ms Westmore did not return X to her father, as required by court orders, she commenced living full-time in the regional city of City S, and without consulting Mr Pieters, enrolled X at a new school in City S. X has not spent time with her father since. The then applicable court orders provided for X to live with her father but spend time with her mother each alternate weekend from Friday after school until Monday before school and in the other week, from after school Wednesday until before school on Friday, plus half school holidays and special days.
Ms Westmore said she failed to return X to her father because X told her she was scared of her father and he had assaulted her back in 2020 (i.e. before the 2021 orders). Soon after failing to return X, Ms Westmore reported the assault to Police and to Child Protection and Ms Westmore retained a psychologist, Dr G, to speak to X, via FaceTime. It is clear enough that Dr G supported Ms Westmore retaining X in her care instead of returning her to her father.
X’s mother, Ms Westmore, is aged 43 and works as a “professional”. She asserts that she lives with a Mr T, a businessman, in City S (I refer to that general area as ‘City S’ for the purpose of these reasons). She says Mr T is also her current employer and that of her older adult daughter, Ms W. Mr T was not on affidavit or a witness. Ms W has two children, Y and Q.
X’s father is Mr Pieters, aged 60, and he still lives where he has lived for most of X’s life, that is reasonably close to X’s school. Mr Pieters lives alone but has a long-term companion or partner, Ms FF, who was significantly involved in X’s life. Mr Pieters also has an older daughter from a previous relationship, Ms Z.
In this case, ordinary matters that are usually noncontroversial, such as a party’s name, occupation, professional qualification or where they live, are not necessarily what they appear to be and some care has to be taken with a description of such matters.
Start of these proceedings
After X was not returned, Mr Pieters issued proceedings seeking a recovery order. Ms Westmore filed responding material that alleged a risk of harm based on statements by X that Mr Pieters had emotionally and physically abused her and that X had a strong fear of him. The responding material included evidence from a psychologist, Dr G, that Ms Westmore had retained to consult with X and that evidence corroborated Ms Westmore’s allegations of abuse and fear of her father.
Live with time suspended
The matter came before a Senior Judicial Registrar (‘the SJR’) in August 2022, soon after Mr Pieters had issued proceedings. The SJR, I infer because of the concerning allegations, suspended the existing 2021 final orders and ordered a short form family report from a jointly retained or single expert report writer who was also a psychologist. That report writer, a psychologist, Dr G, released a report in October 2022 that concluded that Ms Westmore was excluding Mr Pieters from X’s life and recommended that X be returned forthwith to Mr Pieters’ care and, after a hiatus or period of no contact or time with her mother, see her mother in a supervised setting and that X cease therapy with Dr G.
The SJR interim hearing, the review and the urgent listing for final hearing
The matter returned before the SJR, now with the benefit of the short form family report of the single expert psychologist, Dr B. An interim hearing was heard over three days, 15 and 17 November 2022, and 1 December 2022. The SJR reserved her decision on 1 December 2022, which she delivered on 31 March 2023. That decision ordered that X return to live with her father, Mr Pieters. Ms Westmore sought a review of that decision, as she was entitled to, and a stay of the SJR’s orders pending that review. The SJR’s orders were stayed. The review was listed before another judge and heard over two days, on 19 and 29 May 2023. On the second day, that Judge raised with the parties whether X’s interests would be better advanced with, and whether the parties would prefer, a final hearing on an urgent basis rather than continuing the review of the SJR’s decision. That review was on the papers, and I infer, the reviewing Judge and the parties thought that the matter needed the focus and testing of evidence that a final hearing would provide. In that circumstance the reviewing Judge vacated the review hearing and ordered a final hearing, expected to be of two days, perhaps three, to commence urgently on 5 June 2023. The parties agreed with that course. The matter came on before me and was heard over seven days, being 5, 6, 7, 9, 14, 15 and 16 June 2023.
Because of the urgency of the need for the final hearing the other Judge made directions that limited the material the parties could rely upon to material already filed in the urgent interim proceedings and the application for a review of the SJR decision.
It must not be overlooked that this seven day trial was seven days of submissions and cross-examination. Evidence in chief was by affidavit and the parties proceeded on the basis that it had been read before the start of the hearing. It had been. Absent evidence in chief by affidavit, the giving of evidence in chief orally in the witness box would have taken many, many days. The ICL and the Father relied upon the multitude of previous interim and full family reports prepared about X’s living arrangements. Only the writer of the October 2022 short form family report was required for cross examination.
Many matters that could have been explored were sensibly not explored. I am grateful to counsel and solicitors for their skill and discipline in containing the matter to seven days. Less efficient practitioners may have led the matter to run for a significantly longer timeframe.
THE FATHER’S CASE
The Father sought orders to the effect that he have sole parental responsibility for X, that X live with him and that after a hiatus period of at least three months, X spend time with Ms Westmore supervised and at her expense. The effect of that was that X would immediately returned to live with him and he would re-enrol her at her previous school.
Mr Pieters’ case did not deny that X had told Dr G that he had put his hands around her throat and/or that he had physically abused her, that she was scared of him and that she did not wish to live with him or spend any time with him. His case was that X said those things because of the influence of X’s mother, Ms Westmore, and that he had never done any of the things to X that were alleged. His case was that, absent Ms Westmore’s influence, he had a close and loving relationship with X.
Mr Pieters relied upon his own affidavits and the short form family report prepared by the jointly retained Dr B. There was no affidavit from the Father’s long-term partner, Ms FF, and she accompanied him each day during the hearing at the Court. Ms FF had been involved in X’s life for some time prior to these proceedings. Ms FF had been involved in some of the many previous reports and there was no criticism or suggestion that Ms FF was in any way an inappropriate person to be involved in X’s life.
Mr Pieters’s case was that Ms Westmore was again engaging in “exclusionary behaviour” to the effect or with the intention that he would not be involved in X’s life. He pointed to two significant periods of time in 2016-2017 when he had not been allowed by Ms Westmore to see or spend time with X, notwithstanding that he had cared appropriately for X when Ms Westmore was imprisoned.
Mr Pieters also pointed to Ms Westmore unilaterally changing X’s residence from the Melbourne area to the City R area in 2018, notwithstanding the then recent final orders that provided for a substantial and significant time shared care arrangement and that the move to City R made those arrangements impossible.
Mr Pieters pointed to the circumstance that Ms Westmore had been thrice imprisoned for offences, with two of those periods of imprisonment being during X’s life. The consequence of that, along with her attempts to exclude him from X’s life, he said, was that Ms Westmore’s evidence was unreliable and that she was a dishonest person who could not be trusted. His case was that Ms Westmore’s assertions that she regarded it as important for X to have her two parents in her life could not be trusted. His case was that Ms Westmore’s failure to return X after the second term school holidays in 2022 and the change of X’s school was to suit her own personal needs or life and was in breach of the applicable and then recent final orders and she was likely to breach orders again.
His case was that Ms Westmore had used X’s statements about fear of him to create a situation where the then existing final orders were suspended with him spending no time with X. But when Ms Westmore came to the witness box her position changed to being “unsure” of whether the events described by X had ever occurred.
Mr Pieters’s case was that Ms Westmore had “alienated” X from him, when he had previously had a trusting and loving relationship with her. Mr Pieters alleged that Ms Westmore’s alienation of him is a form of psychological and emotional abuse and that Ms Westmore has no insight into those circumstances.
Mr Pieters also alleged that Ms Westmore’s daughter from a previous relationship, Ms W, has been involved in criminal behaviour from a very young age including violence and abuse of illicit substances. He says Ms Westmore had been unable to protect X from exposure to serious violence between Ms W and her boyfriend/s in Ms Westmore’s home.
Mr Pieters alleges that X’s views and wishes should be given limited weight in all the circumstances and that Ms Westmore’s care of X presents an unacceptable risk to X emotionally and psychologically.
The last retained family report writer, Dr G, a psychologist, regarded Ms Westmore as engaging in “exclusionary behaviour” and said that X was in a “resist/refuse” dynamic, recommended that X be returned to her father’s care and that after a hiatus of no time, that X spend only infrequent supervised time with her mother. Mr Pieters adopted those recommendations as his case.
In final address counsel for Mr Pieters relied upon the observations of the High Court of Australia in the case of Bondelmonte & Bondelmonte & Anor [2017] HCA 8 (Bondelmonte), an appeal from an interim decision that required the father to return two boys, aged 15 and almost 17, to Australia from overseas despite the children’s views to the contrary. Counsel submitted, that the High Court made it clear, that even in a case of older children and very clear views, children’s wishes did not have a decisive status but will be one consideration to be taken into account in the overall assessment of the children’s best interests. The decision in Bondelmonte was relied upon including where the High Court had pointed to section 60CC(3)(i) of the Act,[1] the attitude to the responsibility of parenting, as needing to be taken into account as well as children’s wishes were referred to. Mr Pieters submitted that X’s best interests were not in accord with her wishes as expressed.
[1] At [39].
THE MOTHER’S CASE
There was considerable discordance between Ms Westmore’s case as put in final address by her senior counsel and as apparent from her affidavits and outline of case. The detail and tenor of Ms Westmore’s affidavit filed 16 May 2023, that was consistent with her first affidavit filed on 9 August 2022 (shortly after the mother had failed to return X to her father) was that X had made allegations of serious physical and emotional abuse by Mr Pieters and in terms that carried the implication that the serious physical abuse had occurred. The physical abuse described included;
·that Mr Pieters had really hurt her;
·that Mr Pieters really hurt her when he learned she had told her mother of his physical abuse;
·that in 2020 Mr Pieters had put his hands around her throat and applied considerable pressure; and
·that since 2020 Mr Pieters has continued to be physically abusive by slapping her face, pushing her into walls and pinching her legs and when she was on the phone to her mother.
The emotional abuse described included:
·making disparaging remarks about X that X reminds him of her mother
·threatening her that she was not to speak to 3rd parties about what happened in his house
·not tolerating any mention or discussion of her mother in Mr Pieters’ household
Mr Pieters denied all allegations.
Ms Westmore’s outline of case filed after hours on 1 June 2023, summarised her position, as it was then, as follows:
The Mother submits that the disclosures made by [X] are evidence of [X] being at significant risk of harm in her father's care, both as a result of psychologically abusive behaviours in terms of negative commentary and attitude towards the mother interference in [X]’s relationship with her mother and punishments, both physical and verbal toward [X] with respect to anything positive connected to her mother.
In final address Ms Westmore’s case became was that for a long time X had desperately wanted to live with her mother. But that her father regarded X’s mother as “irredeemable” and incapable of the truth, without moral worth, a drain on any relationship she has and has constantly allowed X to be at risk and has constantly put herself and her own needs before X and has sought only to remove X from him. Further, it is asserted that Mr Pieters’ view is that Ms Westmore has never followed orders, shows no respect for parental responsibility, will inevitably commit further crimes, should be condemned as a parent because of her daughter Ms W’s teenage years and that the parenting of this is representative and predictive of how the mother will parent and ruin X. It was alleged that everything Mr Pieters looks at about the mother is tainted by utter loathing and contempt for her[2]. It was submitted that her father suppressed X talking about her mother and was angry with X from time to time because of X’s affection for her mother and that these circumstances demonstrated X’s overwhelming need to live with her mother.
[2] It was submitted that the cross examination of the mother by the father's counsel demonstrated this conviction.
Despite the emphatic descriptions of abuse of X by Mr Pieters in affidavit evidence and outline of case, in a lengthy cross-examination Mr Pieters was not questioned or challenged about his denial of any abuse. In final address, when pressed as to whether Ms Westmore’s case was that I should find that the events X described had occurred, it was conceded that such a finding could not be made. That submission was qualified by the assertion that there was an historical nature to the alleged events, “so we can’t ever know”. But there was no submission that there was an unacceptable risk, or any risk, of Mr Pieters physically abusing X.
In closing the Mother’s case was that “the problem” was that X had a greater affinity with her mother than her father and that she had been cared for by Mr Pieters, who found that greater affinity with her mother “incredibly difficult”. It was submitted that although Ms Westmore had said in cross examination that she was unsure about whether the physical elements of the abuse that X had talked of had actually occurred that she was not unsure about the emotional elements of the abuse, that was, that her mother is not only a taboo subject in Mr Pieters’ household, but one that makes him angry and distressed and that is something that is beginning to damage X.
Ms Westmore’s case, in final address, included that Mr Pieters had said, in 2018, to Ms Westmore’s sister Ms U, words to the effect that he would much rather that X was dead than have her going back to mother, but that he did not mean or intend that, and that was a statement about his hatred of X’s mother.
Ms Westmore’s case was that she actually and genuinely supported X’s relationship with her father and that after some re-introductory counselling X should spend alternate weekends with him but remain living with her in City S.
Ms Westmore did not press that what X had said about Mr Pieters’ assault was true or had occurred, rather she said she was now not sure about the accuracy of the things X had said, but that the fact that she had said them showed how desperate X was to live with her mother. She asserted that X had longed to live with her mother but she had not been listened to.
Her case was that Mr Pieters, regarding Ms Westmore as irredeemable, had not recognised how important X’s mother was to her and had in the past engaged in the same type of “exclusionary” behaviour of preventing X from seeing her parent as he alleged against Ms Westmore, and that had caused real distress to X.
It was Ms Westmore’s case that, the observations, opinions and recommendations of the 2020 single expert, Dr G, should not be accepted because:
·Nine months had elapsed since Dr G’s report impacted significantly on the weight to be given to her assessment;
·That the “stray” paragraph that had made its way into the report demonstrated a practice of cutting and pasting that should reduce my confidence in the report;
·The assertion that “multiple examples of exclusion demonstrated by the mother” were not made out and failed to take into account significant examples of what could be described as exclusion behaviour demonstrated by the father;
·That the example of “exclusion” behaviour of X, while living with the mother, referring to the mother’s previous partner as “Dad” and not recognising Mr Pieters as “Dad” had been assessed at the time by another report writer as not necessarily anything sinister but simply a function of the family makeup at the time;
·That Dr G did not know of, and had not taken account of, the nature of the courteous communication by text message between the parents that included “considerate touches” in the considerable period in the lead up to the May 2018 move to City R and the significant personal event of the death of her father and the need to get support from her sister Ms U that hence her characterisation of that as a unilateral relocation and being “exclusion behaviour” was inaccurate; and
·Dr G’s understanding of the collateral information was inaccurate and failed to take into account other[3] significant times when Mr Pieters had engaged in what could also be described as exclusionary behaviour, including:
(1)The withholding of X from returning to her mother, contrary to court orders, on the basis of physical abuse including bruises to X’s legs that were merely childhood rough-and-tumble, over several weeks in July 2018;
(2)The withholding or failing to cooperate with X having telephone communication with her mother on every weekly occasion when she was imprisoned for the second time in 2019; and
(3)The withholding of X from seeing her mother and letting X speak to her on the telephone after she was released from prison (when she hadn’t seen her mother) from September 2019 until court orders in December 2019, when X was in fact desperate to see her mother.
[3] Dr G had only been aware of and taken into account that Mr Pieters had not supported time for X with her mother while in prison in 2019.
Ms Westmore’s case, in final submission, addressed the two then competing orders. Mr Pieters’ that sought for X to live with him and after a hiatus to have only supervised time with X, compared with Ms Westmore’s, that sought X to live with her and spend time with her father in a three staged process. First, on four occasions with a suitably qualified professional with experience in therapeutic interventions in family law. Then second, unless the therapeutic practitioner advises the parties that any progress would be unsafe, the time with the father progresses to 3 months of activity based time of no less than three hours per occasion as agreed between the parties. Then third, the time move to be alternative weekend, I infer during school term, from 7:00 pm Friday to 7:00 pm Sunday with special days and half of all school holidays.
It was put that at X’s age she had commenced to rebel against her father and that as she progressed to be a teenager this would get worse. It was put that for the parenting of a teenager, Ms Westmore was able to offer the necessary ability to set boundaries, accept they were going to be broken, reset the boundaries, work with the child on learning how to set boundaries herself and love the teenager even when they hate you. Implicit in the submission was that Mr Pieters lacked those essential abilities as a parent.
In the context of those two competing sets of orders is was said that there were three reasons why X should live with her mother and rebuild the time with her father. First, the orders pressed by the mother were the only ones that provided a pattern into the future that allows both parents to have a proper role. Second, Mr Pieters’ relationship with X is considerably fractured at this point, and rather than be forced back together, which would merely be a “seeding” of the problems for the next iteration of this family’s problems, there needed to be therapeutic work done with the father to help him acknowledge his need to be willing to support X’s relationship with her mother and “heal” their father-daughter relationship. Third, that the only hope for X was that if X was to live in her mother’s primary care, but spending good, appropriate time with her father.
THE ICL’S CASE
X was represented by an Independent Children’s Lawyer (‘ICL’). The ICL’s case supported Mr Pieters’ case and adopted the opinions and recommendations of the last report writer, Dr G, and relied on the many reports before that.
Documents relied upon
The Father relied upon the following documents:
·Child Inclusive Conference Memorandum by Ms AA dated 22 July 2016;
·Child Inclusive Conference Memorandum by Ms BB dated 4 September 2018;
·Family Report by Ms E dated 31 January 2019;
·Child Inclusive Conference Memorandum by Ms AA dated 9 September 2020;
·Family Report by Ms AA dated 9 September 2020;
·Family Report by Ms C dated 9 April 2021;
·Affidavit of the Father filed 28 July 2022;
·Child Inclusive Conference Memorandum by
·DFFH Section 67Z Response dated 14 October 2022;
·Affidavit of the Father filed 8 November 2022;
·Application in a Proceeding filed 3 April 2023;
·Affidavit of the Father filed 3 April 2023;
·DFFH s 69ZW Report dated 11 May 2023; and
·Outline of Case filed 2 June 2023.
The Mother relied upon the following documents:
·Affidavit of the Mother filed 9 August 2022;
·Affidavit Ms U dated 5 August 2022;
·Further Amended Response filed 16 May 2023;
·Further Affidavit of the Mother filed 16 May 2023;
·Affidavit of Dr G filed 16 May 2023; and
·Outline of Case filed 1 June 2023.
The Independent Children’s Lawyer relied upon the following documents:
·Affidavit of Dr B (containing Child Inclusive Conference Memorandum) filed 8 November 2022;
·Family Report by Ms C dated 9 April 2021;
·DFFH S 67Z Response dated 14 October 2022;
·DFFH s 69ZW Report dated 11 May 2023;
·Various subpoena material exhibited; and
·Outline of case filed 16 June 2023.
Exhibits tendered
Exhibits tendered during the Final Hearing are as follows:
·ICL1: DFFH s 67Z Report dated 14 October 2022 exhibited 5 June 2023;
·ICL2: DFFH s 69ZW report dated 11 May 2023 exhibited 5 June 2023;
·C1: Trial plan exhibited 5 June 2023;
·ICL3: Mother’s criminal history, pages 1 – 9 of Victoria Police subpoena bundle exhibited 5 June 2023;
·F1: Application for Intervention Order by Father against Mother and Family Violence Interim Order dated mid-2018 exhibited 5 June 2023;
·ICL4: Independent Children’s Lawyers tender bundle (144 pages) exhibited 5 June 2023;
·F2: Text messages Father cross-examined upon, pages 4, 25, 29, 31, 37, 41 to top of 44 of 61 pages) exhibited 6 June 2023;
·F3: Text messages Father cross-examined upon, paged 1-5, 21-25, 52-54, 62-67 of 67 pages) exhibited 6 June 2023;
·F4: Intervention Order against Mother, protecting child and Father which expired 4 July 2022 exhibited 6 June 2023;
·ICL5: Dr P (‘Dr P’) report dated 12 December 2016 exhibited 6 June 2023;
·M1: H School principal’s notes from 2019 contained within H School subpoena material, pages 47-51 of 190 exhibited 6 June 2023;
·M2: Changed NSW Birth Certificate of Mother exhibited 7 June 2023;
·M3: Police report of Mother dated September 2022 exhibited 7 June 2023;
·M4: 2014 police records regarding assault on Ms W exhibited 7 June 2023;
·M5: 2007 newspaper article of Mother’s Court sentence exhibited 7 June 2023;
·F5: Bruising on child taken by Ms FF (converted from moving/live photographs to videos) taken July 2018 exhibited 7 June 2023;
·M6: Police report of Mother dated late 2018 regarding Ms W assaulting Mother (not disputed) exhibited 7 June 2023;
·M7: H School letter dated May 2019 and notes, pages 85-89 of 190 exhibited 7 June 2023;
·M8: Mother cross-examined on Court narrative of Mother dated 11 November 2022 exhibited 9 June 2023;
·M9: Police report containing text of Mother’s online Intervention Order application dated July 2022 (same as pages 133-134 of ICL1) exhibited 9 June 2023;
·M10: Victoria Police subpoena late 2022, pages 1-6 of 10 police records Mother’s cross-examined on exhibited 9 June 2023;
·M11: Child’s enrolment form for V School exhibited 9 June 2023;
·M12: H School subpoena material, 25 February 2022 incident pages 98 of 190 exhibited 9 June 2023;
·M13: Real estate agent email chain October 2022 exhibited 9 June 2023;
·M14: Mother’s Notice of Risk dated 9 August 2022 exhibited 9 June 2023;
·ICL6: Chronology;
·ICL7: City S property transfer, certificate of title, mortgage and real estate website advertisement;
·ICL8: Subpoena notes 23 March 2019 H School enrolment form, pages 133-135 of 190
·ICL9: Subpoena notes 23 March 2019 H School enrolment form, pages 176-190 of 190;
·ICL10: Mother’s completed ICL Questionnaire;
·M15: Pages of F2 from 1-37 of 61 pages, not already in F2;
·M16: Dr CC letter of 28 July 2018 contained in annexure E;
·M17: Paragraphs 40 and 41 Mother’s affidavit filed 24 September 2020;
·M18: M18 real estate website record of DD Street, City S;
·F6: Text messages between Father and Ms U Christmas 2015 – May 2016;
·F7: Text message between Father and Ms U January 2017;
·F8: Text message between Father and Ms U May 2017;
·F9: Text message between Father and Ms U 2017 re “psychopath”;
·F10: Text message between Father and Ms U 2017 re “psychopath” (#2);
·ICL11: Email between Mother and Dr G July 2022;
·ICL12: Text message between Dr G and Mr T;
·F11: Emails between Dr G’s administration and Dr’s G and EE cc’d to Mother’s lawyer dated 6 September 2022.
The witnesses
Mr Pieters was the only witness in his case. He was extensively cross-examined. Ms Westmore, her sister (Ms U) and the psychologist who had recently seen X, Dr G, were witnesses in Ms Westmore’s case. Ms Westmore was extensively cross-examined and Dr G was cross-examined. Dr B, the most recent family report writer, was also cross-examined.
The multitude of reports
The parties relied upon, or acquiesced in the other parties relying upon, the many interim and full family reports of the past proceedings. The writers of those many interim and full family reports prepared before the 2021 final orders were not required for cross examination. In these proceedings the parties retained another expert, Dr B to prepare what was described as a short form family report and Dr B was extensively cross-examined.
Dr B had been provided with the multitude of previous reports and had relied on them and drawn inferences from them. Dr B’s conclusions were controversial. Hence, at final hearing, whether the parties intended it or not, and absent an agreed summary of the reports, the multitude of reports were relevant and in part informed these reasons.
APPLICABLE LAW
Standard of proof
In these reasons, statements of fact are findings of fact. Findings are made on the balance of probability. I apply section 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) which states as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
Credit and reliability of the parties’ evidence
Fox v Percy (2003) 214 CLR 118 (‘Fox v Percy’) is a High Court case concerning the skid marks of a Kombi van on the correct side of the road. When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality observed:
[31]…in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
(Citations omitted)
The context to that observation is that in Fox v Percy, the evidence of the rider of the horse was found to be a more reliable witness than the driver of the Kombi Van that had collided with horses and riders, the issue being upon which side of the road the collision happened. The High Court had to interfere with the first instance decision because by determining, by reason of the apparent reliability of witnesses, on which side of the road the collision occurred, the decision was wrong because the skid marks of the Kombi van incontrovertibly demonstrated that the Kombi van had been on its correct side of the road, not the horses.
I have endeavoured to rely on objectively established facts and the apparent logic of events where possible in this case.
I am also guided by the observations of the Full Court in Adamson & Adamson (2014) FLC 93-622:
[89]In Carlson & Fluvium [2012] FamCA 32 (“Carlson”) at [165] to [169] Kent J made the following observations concerning the making of adverse credit findings against a parent in a parenting case:
[165]As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
…
[169]Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.
[90]We agree with those observations. It follows from them that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to.
I acknowledge the wisdom of those observations. In this case what the parties say about their own attitude to X having a relationship with her other parent is important. But both parents have participated in and read many interim and full family reports over the years and are intelligent adults. From those circumstances I infer that both parents are well aware of the importance of whether or not each is perceived as supporting the other parent’s relationship with X. So in this case I place greater weight on what each parent has done rather than what they say or have said (including to experts) about how they feel or what they intend.
APPLICABLE LEGAL PRINCIPLES
In deciding what particular parenting orders to make about X, I must regard her best interests as the paramount consideration. I must consider the matters described in the Act as primary considerations and additional considerations. I apply and take into account the whole of Part VII of the Act. I apply section 4AB (definition of family violence), sections 60CA, 60CC, 60CF, 60CG and 61DA, and take into account the obligations of section 65DAC. Those provisions are as follows:
4AB Definition of family violence etc.
(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):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(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.
…
60CAChild's best interests paramount consideration in making a parenting order
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.
…
60CCHow a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(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.
(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).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
…
60CF Informing court of relevant family violence orders
(1)If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that party must inform the court of the family violence order.
(2)If a person who is not a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that person may inform the court of the family violence order.
(3)Failure to inform the court of the family violence order does not affect the validity of any order made by the court.
60CG Court to consider risk of family violence
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a)is consistent with any family violence order; and
(b)does not expose a person to an unacceptable risk of family violence.
(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
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61DAPresumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
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65DAACourt to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
…
65DACEffect of parenting order that provides for shared parental responsibility
(1)This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
(3)The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
ISSUES IN DISPUTE
The evidence, including expert evidence, the parties’ submissions, the parents’ demeanour when giving evidence and the applicable law demonstrate that the issues that determine what X’s best interests are:
·Which parent will best promote X’s relationship with both parents? This involves the extent that either parent understands the importance of X’s relationship with the other, the extent to which X’s interests are put before a parent’s ambitions or interests and the extent to which each will follow court orders.
·When Ms Westmore withheld X against court orders in the middle of 2022, was she acting reasonably or was this “exclusionary behaviour”? This question involves whether Mr Pieters did harm X in September 2020 or any other time, whether X is fearful of Mr Pieters and what Ms Westmore believed about this and why.
·Has either parent, or both, demonstrated a history of “exclusionary behaviour” by withholding X from the other?
·What are X’s expressed views, how have they come about and what weight should be given to them? This question involves whether they arise because of a “resist/refuse” dynamic and/or the influence of Ms Westmore.
·Which parent will best provide stability in X’s life and education? This question goes to the best interests of the child.
·Is counselling for X necessary before she spends time with or lives with Mr Pieters?
·If X is to live with Mr Pieters, should there be a hiatus in Ms Westmore’s time with X and, if so, should that time be only supervised thereafter?
SIGNIFICANT EVENTS
The parent’s cases relied upon the events of the past and how each parents’ perception of them had shaped their attitude to the other parent, and to what was in X’s best interests. For X’s parents the past is highly relevant and “not even past”. The many reports provide detailed snapshots of events, parental attitudes and X’s relationship with each of her parents at significant times.
These events partly inform the reliability of the evidence of witnesses and assist in my assessment of the reliability of witnesses.
The parents’ early relationship
X’s parents commenced a relationship in 2012 and began living together soon afterward. Mr Pieters’ daughter, Ms Z, then about 16, lived with him at that time. Ms Westmore’s daughter, Ms W, then aged about 11, had always lived with Ms Westmore. While X’s parents lived together those step-siblings lived with them. X was born in 2013 and her parents relationship ended sometime in 2013 or 2014. X was then either a little baby, months old, or a toddler. The parents disagree about the nature of their relationship over that time. But it is not disputed that both parents were involved in X’s life at this time.
Mr Pieters, Ms Westmore and X have a long and unfortunate history of litigation about where she should live. To a significant extent, the history of X’s life is the history of litigation between her parents and of her mother’s interaction with the courts of the criminal jurisdiction and resultant time in gaol. Each parent holds the other primarily responsible for the litigation about where X should live. The 2021 final orders referred to above were not the first final orders in X’s life.
The parties’ criminal history
It was not suggested that when X’s parents commenced to live together Mr Pieters had any significant criminal history. He was “cautioned” in around 2016 about possession of a weapon, and at some point was dealt with for breach of an intervention order, as I understand it without conviction.
When X’s parents commenced to live together Ms Westmore had a substantial criminal history. At age 18, Ms Westmore had been found guilty of a number of charges and, without conviction, was placed on a community-based order and ordered to pay compensation. In her early 20s Ms Westmore was fined without conviction for offences. In 2007, then in her mid-20s and on her fourth court appearance, Ms Westmore was sentenced to an aggregate of two years imprisonment on charges and ordered to pay compensation, but that sentence was wholly suspended for three years. Ms Westmore’s daughter, Ms W, was then about seven years old.
In early 2009, in her late 20s, Ms Westmore was before a court for the sixth time and was sentenced on charges of offending. She was sentenced to imprisonment. These convictions “breached” the 2007 County Court two-year suspended sentence. Ms Westmore appealed and was released on appeal bail. In mid-2009 the County Court allowed Ms Westmore’s appeal and dealt with the breach of the suspended sentence at the same time. Ms Westmore was sentenced to imprisonment with a non-parole period. Ms Westmore was released from prison in 2010 and commenced her relationship with Mr Pieters a couple of years later.
Child Protection was first involved with this family in late 2013 when X was six or seven months old and her parents were still living together.[4] According to Mr Pieters, his daughter Ms Z, then 17, had moved out and after moving out, she had told him of behaviour by Ms Westmore that, if true, would amount to sexual assault or at least sexually coercive behaviour by Ms Westmore on Ms Z, a minor. Child Protection looked at the matter and determined that neither X nor Ms W were at risk. Nothing turned on that allegation in these proceedings but the allegation and consequent Child Protection investigation cannot have promoted trust between X’s parents when their relationship ended.
[4] Exhibit ICL 4, section 69ZW report dated 15 May 2023, page 118 of 144.
Baby X lives with Mr Pieters when Ms Westmore goes to prison
X’s living arrangements from when she was a few months old are shrouded in the mists of her parents’ many disputes. When X was approximately 18 months old her living arrangements were seriously interrupted when Ms Westmore commenced serving a sentence of imprisonment for offences. X commenced to live full-time with her father. Mr Pieters took X to the prison to visit Ms Westmore on four occasions. Ms Westmore was released from prison in 2015. Ms Westmore went to stay with Mr Pieters and X after her release and left a week later, taking X with her and making allegations of violence against Mr Pieters, obtained a family violence intervention order against him for the protection of herself and X. X was then 18 months old and had spent the previous six months living in the sole care of her father.
At about this time Child Protection were notified. The section 69ZW report of 11 May 2023[5] summarised Child Protection’s involvement as this being a case where “professional supports” raised no concerns for the care provided by Ms Westmore and there being no need for further protective intervention in the context of the matter being before this Court as it then was.
[5] At ICL 4 page 116.
X has no time with her father for 6 months, twice
It is common ground that for the next six months, until late 2015, X lived with her mother and, because of Ms Westmore’s insistence, did not spend any time with her father. Mr Pieters regards this six-months as the first period of exclusion of him from X’s life.
In 2015, when X was not quite 2½ years old, X continued to live with her mother but commenced some with her father. That period of spending time with her father ceased three months later, in early 2016, again at Ms Westmore’s insistence. X did not see her father again for six months, until she was about three years old. Mr Pieters regards this six-month period as the second period of exclusion of him from X’s life.
At this time, although just three, X had been without her mother for a while as her mother was in prison, and without her father for two periods when her mother withheld her from her father.
I accept that these were significant periods of time when Ms Westmore prevented X spending time with Mr Pieters.
First proceedings in this Court
During the second six month period when X did not see her father, in 2016, Mr Pieters commenced proceedings seeking that X live with him. At about this time, while X was living with her mother and not seeing her father, Child Protection received a report that X was exposed to family violence between the mother’s daughter, Ms W, and Ms W’s then boyfriend. The report of risk of harm was regarded as substantiated.
Soon after the Father commenced proceedings there was a report to Child Protection and to the police alleging that Mr Pieters had threatened to kill X, back in the previous year, and that at that time had possession of a gun. Police investigated, found a gun at Mr Pieters’s home and cautioned him regarding that possession.
The antagonism between the parents is demonstrated by the Notices of Risk filed in 2016 by each party. In his Notice of Risk filed at the commencement of the proceedings in March 2016, Mr Pieters alleged X was at risk of child abuse and family violence in her mother’s home. He alleged X’s then teenage sister, Ms W, was, “on drugs and one of her contacts has threatened to harm [X],” Ms Westmore has “physically and verbally abused the child [Ms W]” in front of X, and Ms Westmore had been “incarcerated for numerous criminal convictions” and had herself “claimed to be suffering from a mental illness.”[6] In her Notice of Risk, filed with her response a month later, Ms Westmore alleged X “has been exposed to physical and verbal abuse” to her mother by Mr Pieters, alleged several incidents of abuse and also said “the violent behaviour of [Mr Pieters] may further traumatise [X] psychologically.”
[6] Ms F’s first Family Report (at page 149 of exhibit ICL4) dated 23 March 2017, following 28 Feb 2017 interviews at [11] to [12].
In her response filed 19 May 2016 Ms Westmore sought that Mr Pieters’s time with X be for two hours once each month at a contact supervision centre and that other time could not be specified until after a report had been prepared.
By this time each parent had intervention orders against the other. Mr Pieters complained that Ms Westmore had breached hers and she appeared on a breach of an intervention order in the Magistrates’ Court in mid-2016, that is during the second six month “no time” period and while Ms Westmore was on parole. The matter was adjourned for 12 months and, I infer, on a good behaviour bond. The matter was struck out when the matter returned a year later. The then pending and diametrically opposed parenting applications in the Court, the competing allegations, the mutual intervention orders, the breach of intervention order and the prosecution of it demonstrates the nature of the parents’ relationship at that time. It is self-evident the parents had a very poor relationship.
First independent observations and Mr Pieters’ first court-ordered time
The Court ordered a child inclusive conference memorandum be prepared by a family consultant. Ms AA saw the family and prepared a memorandum on 22 July 2016[7] that was in evidence before me and the author was not required for cross examination.
[7] ICL 4 page 145-149, added to ICL 4 at TP 706.
That child inclusive conference memorandum made following observations:
… [Ms Westmore] said the most serious incident was when [Mr Pieters] threatened her and [X] with what she believed at the time to be a real gun (since confirmed as being a gun that fires blanks). [Ms Westmore] alleges [Mr Pieters] threatened that if she ever left him she would never see [X] again.
…
[Mr Pieters] alleged the mother has on a number of occasions threatened to kill herself and to kill the children if she was not able to continue to have them in her care.
…
…On two occasions the mother has withheld time for [X] with the father for extended periods of time, between [late] 2015 and from January" to present date, 22 July 2016. Prior to these periods of not seeing her father [X] was in the sole care of her father for a period while [Ms Westmore] was incarcerated. [Mr Pieters] continued to facilitate time for [X] with her mother throughout her incarceration, taking [X] to contact visits at the prison usually on a fortnightly basis. This required him to drive four hours each way and stay overnight with friends to enable this to take place. In this regard it is evident [Mr Pieters] is willing to support [X]’s relationship with her mother.
…
… [X] was asked if Daddy’s name was [Mr Pieters] or [Mr GG] and she confirmed his name was [Mr Pieters]. [X] said she does not remember Daddy [Mr Pieters]. If it is accurate that [X] is being encouraged to believe [Mr Pieters] is not her father this is of very serious concern.
Notable in undertaking an observation of [X] with her father was that in marked contrast on seeing any other adults into the room, when she would typically have a nervous response, she immediately approached him with her arms held out. The look on [X]’s face could perhaps be described as incredulous as she clearly wish to go to [Mr Pieters] but appeared perplexed that he was in the room. [X] walked slowly towards [Mr Pieters] and went straight into his arms to be hugged. There was physical affection demonstrated at various points during the observation and [X] displayed no anxiety or fear whatsoever with her father. [X] and her father played happily and appropriately together…
[Emphasis added]
The report recommended four hours of time between Mr Pieters and X each week for four occasions and then two separate periods overnight twice in each week. On that day in July 2016, and I infer informed by that memorandum, the Court made Interim Orders that X live with her mother and spend time with her father on two overnight occasions each week, overnight from 12:00 pm Friday to 2:00 pm Saturday and from 12:00 noon Wednesday to 9:00 am Thursday. The times facilitated X’s attendance at childcare. X saw her father on four days of each week. However, it required court proceedings and an expert report for Mr Pieters’s relationship with X to be recognised.
While that time continued, two further expert reports were prepared. A psychiatric report about both parents was prepared by Dr P[8] on 12 December 2016 and a family report was prepared by an experienced family consultant, Ms F[9] following interviews on 28 February 2017. Both of those reports were put in evidence before me and neither report writer was required for cross examination.
[8] Exhibit ICL5.
[9] Included at page 91 of 183 of exhibit ICL4.
Dr P’s 2016 Psychiatric Reports
Dr P interviewed and assessed Mr Pieters and Ms Westmore in October 2016, about three months after Mr Pieters’s time with X had recommenced pursuant to the July 2016 orders. In his report, Dr P took a history and made observations including the following:
[Ms Westmore] is a 36 year-old woman. Her early development is marked by considerable adversity...Such a background of instability and parental attachment difficulties often predisposes to interpersonal and personality problems in later life.
…
[Ms Westmore] has twice been convicted [of offences]. Whilst I did not obtain specific details of the crime, she presented as ashamed... [Ms Westmore] didn’t present as mentally ill in this assessment. Her offending history suggests she has character flaws possibly consistent with personality psychopathology. Whether these character flaws interfere with her parenting capacity is unclear, but it does represent an area of concern.
…
Whilst there remain concerns regarding [Ms Westmore]'s developmental history and related criminal history, and therefore personality traits, she presented as mentally well and stable in this assessment with no overt signs signalling concern. … [Mr Pieters] presented as a genuine and affable man. I could not identify any mental problems in [Mr Pieters]. …
Dr P’s report is the only psychiatric evidence I have relating to each of the parents. Dr P was not required for cross examination.
Dr P’s psychiatric report was made available to Ms F, psychologist, who prepared her first family report following her interviews with the parents on 28 February 2017.
28 February 2017 interviews; Ms F’s first family report dated 23 March 2017
The day before the Ms F’s interviews, Ms Westmore filed an amended response where she pressed for orders that the parents have equal shared parental responsibility for X, that X live with her and that X spend time with her father on a fortnightly basis for two nights on an alternative weekend and in the other week for two nights from Wednesday after kindergarten until the Friday morning before kindergarten.
In the first family report of Ms F, the parties and the Court have a snapshot of X’s relationships and the parties expressed attitudes to each other. In that family report Ms F made the following observations:
31. …[Ms Westmore] considers that the current weekly routine, ‘…works. It’s really good’; that [X] is coping with it - ‘She loves going. She likes [Ms F]’...
…
35. In interview [Ms Westmore] was entirely positive about [X]’s relationship with her father: describing it as ‘good’. As previously mentioned, she considers [X] ‘enjoys’ spending time with her father. That being the case [Ms Westmore] was asked to explain why there had been 2 long intervals when [X] did not spend time with her father; from [late] 2015, and subsequently, from January 2016 to 22 July 2016, when the matter came before the Federal Circuit Court.
36. [Ms Westmore], in response, about the 6-month interval in 2015, reiterated her views at paragraph 73 (a) and (b) of her affidavit, filed 27 February 2017. Essentially, she stopped [X] seeing her father in 2015 because of safety concerns after she had obtained the intervention order against [Mr Pieters] in early 2015.
37. It must be said, however, that it was more difficult for [Ms Westmore] to justify the second cessation of contact in 2016. Referring to this period, in the same affidavit [Ms Westmore] states that in ‘hindsight’ the situation was ‘regrettable’. In interview [Ms Westmore] acknowledged, ‘…it was very bad’ to deny [X] time with her father’. [Ms Westmore] did not seek professional advice at the time; such as advice about the possible damaging impact on [X] of not spending time with her father.
…
44. As she did with [Dr P], [Ms Westmore] recalled her own difficulties during her childhood. She was asked by the psychologist if she had made “suicide/homicide threats”, as reported to [Dr P] by [Mr Pieters], and discussed at paragraph 9 in [Dr P’s] opinion and recommendations. [Ms Westmore] denied she had made any such threats.
…
46. [Ms Westmore] recognises the profound impact of this emotional abuse on herself. It is for this reason, she said, she will never talk badly to [X] or [Ms W] about their respective fathers…
…
51. Speaking about her criminal charges, [Ms Westmore] recalled she had got on very well with her employers. However she then stole from them. It seems, from her account, [Ms Westmore] has no real understanding about the reasons for her offending behaviour. Notably, while speaking about the offences and the impact of her behaviour on herself and her family, [Ms Westmore] indicated, on the psychologist’s suggestion, her interest in obtaining psychiatric assistance. She sought referrals from the psychologist.
52. Turning to the dispute about future care arrangements for [X], [Ms Westmore]’s understanding is that [Mr Pieters] wants [X] to live primarily with him. She seemed shocked about his position: saying, ‘No matter how many miles we’ve gained’, reiterating that the handovers are cordial, and not bad as [Mr Pieters] asserts, he still wants [X] to live with him.
…
54. And, although she has, in fact, denied [X] time with [Mr Pieters] for two 6‑month periods, [Ms Westmore] now proposes a 4, then a 5-night routine, for [X] with her father. This is a significant departure from the proposals in her response of 19 May 2016; namely, of 2 hours once a month supervised at a contact centre.
…
56. In summary it seems [Ms Westmore] has learnt to survive from an early age; since the time of her parents’ separation. While there may be some aspects of manipulation to her character, nonetheless her childhood traumas have impacted on her emotionally and psychologically; to the extent that she has made some life choices that have basically rebounded on her. So that ultimately she finds herself in circumstances where she is punished; in effect, setting herself up to be punished.
57. While [Ms Westmore] presents with a somewhat tough, albeit self- protective exterior, she has an underlying emotional fragility. At various times in her life she has possibly felt under siege, frightened, threatened, with feelings of low self-esteem and low self-worth: all entirely explicable, given her account of her childhood and youth. It seems that, emotionally, she seeks approval..
58. In terms of her role as a parent, there is no indication that she would deliberately place [X] at risk. [Ms Westmore] is devoted to the child’s care, speaks of a close relationship between [X] and her older daughter, [Ms W], and there is no reason to disbelieve her account. Indeed, the two half-sisters’ strong relationship was confirmed by 3 year old [X] herself. And, despite [Ms W]’s difficult history and current circumstances, [Ms Westmore] remains supportive of her older daughter.
59. There are intense emotional and psychological issues for [Ms Westmore] to address - with professional assistance as she moves into her middle years - to ensure that she does not repeat the history and errors of her youth and early adult years as best she can, and indeed, learn from them.
60. The psychologist has suggested to [Ms Westmore] that she attend upon a psychiatrist to help her understand the causes of her behaviour; to address and start with the question, “Why do I place myself in this position. Why do I set myself up” to be punished.
…
74. It is apparent that [Mr Pieters] relies heavily on 3-year-old [X]’s accounts to him. [Ms Westmore], as stated above, maintains, given [X]’s young age, she is not capable of being an accurate historian…
…
85. Asked about his proposals for [X]’s time with her mother, [Mr Pieters] said, ‘I’ll leave that up to the court’. The psychologist put it to [Mr Pieters], that given his serious concerns about [Ms Westmore] and her household, why should [X] spend any time at all with her mother? [Mr Pieters], in response, considers [X] ‘absolutely’ should see [Ms Westmore]; ‘…to keep her bond’, with her mother.
86. …Asked how [X] might cope with reduced time with her mother, [Mr Pieters] replied, ‘How do you think it impacted on [X] when she was taken from me’: adding that, ‘She did it to [X].
…
91. [Mr Pieters] impressed as being singularly focused on the aberrations of the mother and does not move beyond that view. He presents as a concrete thinker; in the sense that he tends to focus on facts as he interprets them and relies on his literal definitions. He adores his young daughter, but tends to believe what [X] allegedly tells him; particularly, if it is a criticism of her mother or her household. He has, however, no actual context for what the child reports to him and no direct communication with her mother, to verify what [X] tells him.
…
96. [Ms FF], like [Mr Pieters], essentially believes what [X] allegedly reports to them about her mother’s household. She acknowledged they might ask [X], ‘Did you see [Ms W]? Is [Ms W] home?’ Then [X] will clam-up, and say, ‘I don’t know; I can’t tell you’. [Ms FF] agreed she was suggesting the child has been told by her mother not to give her father information.
…
102. …It was apparent that [X] has a close, familiar relationship with her mother. [Ms Westmore] was supportive and affectionate with [X].
…
106. During the play session [X] was separately interviewed by the psychologist. [X] was, however, keen to return to the playroom to play with ‘…daddy and [Ms FF].
…
117. Indeed, [X]’s comments in interview indicate she is not, and indicate expected confusion over her family constellation for a 3 year old. This is quite understandable given her young age, and the changes in her young life, with the introduction of [Ms FF] and [Mr GG] and his 2 children into her family constellation.
118. In later feedback to [Ms Westmore] by the psychologist about [X] referring to [Mr GG] as ‘daddy’, [Ms Westmore] was quite shocked. She reported that she emphasises to [X] the different family relationships and that [Mr Pieters] is her father; that ‘[Mr GG] is [Mr GG]’ and ‘[Mr Pieters] is dad’. [Ms Westmore] could not explain why [X] still calls [Mr GG] ‘daddy’; other than [X] simply copying [Mr GG’s] 2 children.
…
146. [Mr Pieters] asserts that 3, nearly 4-year-old [X], is a reliable historian of events that she reports to him. [Ms Westmore] disagrees.
…
152. Arising from these interviews there is no information that [X] is anything but a well-cared for, well-looked after child. She is a bright, happy, chirpy, sociable little girl who appears to enjoy her family life and her kindergarten friends.
153. [X] is developing well. She presented as exuberant and excited to spend time with all 4 adults who attended the interviews; her mother, her father, her maternal grandmother, and [Ms FF]. [X] enjoyed playing with all of them, including her father, mother and [Ms FF] together.
154. Notably, the child displayed no distress or hesitance in the company of her mother, her father and [Ms FF]. She separated well from her mother and then from her father. [X] loves all her family; ‘nanny, mummy, [Ms W], [Mr GG], [Ms FF], [Mr Pieters].
…
157. [Ms Westmore] is entirely positive about [X]’s relationship with her father, and, for that matter, with [Ms FF]. …
158. [Mr Pieters] is less positive about [X]’s relationship with her mother and less inclined to support regular time for [X] with her mother. While he makes the point that [Ms Westmore] took [X] away from him in those 2 intervals of 6 months, his comments seem to be made more out of anger, rather than being child-focused. It is hoped that he would not deny [X] time with her mother.
…
160. The concern is that, given [Mr Pieters]’ opinion of [Ms Westmore], it is not entirely clear that he will support [X]’s relationship with her mother, or for that matter, other members of her household; [Ms Westmore]'s partner, his 2 children and indeed [Ms Westmore]'s older daughter, [Ms W].
…
163. In the particular circumstances of this case it is recommended that [X] continue to live with [Ms Westmore] and spend time with her father…
[Emphasis added]
The March 2017 Orders
Ms Westmore now lives in City S and has a new life there. I am unable to find that will be a long-standing and permanent arrangement. Ms Westmore hopes it will be.
There is another real practical difficulty and expense of X spending time with and communicating with her parents, and maintaining personal relations and direct contact with them on a regular basis. That is, managing the reintroduction of X to Mr Pieters’s life in the face of X’s likely initial distress in moving to live with him. That practical difficulty of X’s distress, in my view, will be exacerbated if X is only to have supervised time with Ms Westmore thereafter or in the medium term.
Capacity to provide for the child’s needs including emotional and intellectual
Both parents have the capacity to provide for X’s material needs, including arranging her education. In late 2019, failing to understand X’s need to spend time with her mother, Mr Pieters did not have the capacity to provide for X’s emotional needs of maintaining her connection with her mother. There is no evidence that, since the Orders of late December 2019, Mr Pieters has done other than ensure that X has spent time with her mother on each and every occasion as provided in applicable orders, first of late December 2019, then of February 2020 and lastly the Final Orders of 12 April 2021. Hence for 2 ½ years, until the interruption of arrangements in the middle of 2022, Mr Pieters has demonstrated a capacity to provide for X’s emotional needs of maintaining regular time in connection with her mother.
Ms Westmore has not demonstrated that she has the capacity to provide for X’s emotional need of maintaining regular connection with her father. Ms Westmore has demonstrated that she does not have the capacity to promote X’s emotional need of maintaining a relationship in connection with her father, by:
·advancing the September 2020 allegations, that at least contributed to the vacation of the pending final hearing date at that time;
·the resurrection of those allegations in the unqualified and emphatic terms that they were pursued in court documents until being questioned in the witness box;
·the mid-2018 unilateral move to City R in the face of the only months old December 2017 final orders;
·the unilateral withholding of X in the middle of 2022; and
·the unilateral relocation to City S at more or less the same time.
Maturity, sex and lifestyle of child
X is 10 years old. Dr G assessed her general functioning as appearing to be developmentally appropriate and that she did not present with a psychological disorder. Those observations did not appear to be in dispute. Ms Westmore argued that X will soon enough move into her teenage years, and that should be regarded as significant because, unless she was living with her mother as she wanted, she was likely to rebel. I do not accept that argument. The evidence is that X has always been at least reasonably compliant with the expectations of whichever household she resided in, and rather than being rebellious she had been compliant to the point of not feeling able to express where she wanted to live for fear of disappointing a parent.
X’s maturity at this point neither advances nor detracts from either party’s case.
Attitude to the child and to the responsibilities of parenthood
The responsibilities of parenthood are many and multifaceted. For X’s parents one significant responsibility of parenthood is the manner in which they manage, or deal with, X’s relationship with the other parent. On at least one significant time in the past, the time in late 2019 after the mother was released from prison on the second occasion, Mr Pieters demonstrated an incapacity to understand the importance of X’s connection and relationship with her mother. Mr Pieters’s withholding in July 2018 over a period of 2½ weeks after noticing the bruising is a significant event, but not as serious as the late 2019 events.
However I am satisfied that, whilst not perfect, Mr Pieters has complied with the applicable spend time orders since late 2019 and by that compliance substantially supported X’s relationship with her mother. I do not accept Ms Westmore’s contention that Mr Pieters actively seeks to undermine her relationship with X. I am satisfied that Ms Westmore has, opportunistically, seized on events of the past to assist her justification of the unilateral withholding of X in the middle of 2022.
I acknowledge that Ms Westmore consented to final orders on 12 April 2021 that provided X was to live with her father. On the face of it, that could be said to indicate support of X’s relationship with her father. However, in the circumstances that Ms Westmore’s focus in life had already moved on to City S by the time of that consent, and the events of and since the middle of 2022 and the manner in which Ms Westmore has pursued and then distanced herself from allegations of Mr Pieters physically abusing X, I am satisfied that Ms Westmore did not genuinely support those orders and/or X’s relationship with her father.
X was never told by her mother that both her parents had agreed that her living with her father was settled and to be final. Had that occurred, I am satisfied it would have had a powerful impact on X and, if the Final Orders and X’s relationship with her father had been supported, that would likely have avoided much grief. Somehow, rather than understanding that both her parents had agreed to the living arrangements in place since late December 2019, X wrongly understood that her much loved mother had not been present in her life in the past because her father had not been nice to her mother. Her Mother had been absent because of criminal offences committed by her mother that had nothing to do with her father.
I am satisfied Ms Westmore has demonstrated a less-than-adequate attitude to the responsibility of parenthood in failing to recognise and protect X’s relationship with her other parent.
Another significant responsibility of parenthood is to cooperate with and promote existing court orders that had settled a controversy about where a child was to live. I am satisfied that Ms Westmore did not genuinely support the 12 April 2021 Court Orders. I am satisfied that Ms Westmore has demonstrated a much less than adequate attitude to that aspect of the responsibility of parenthood. That is a responsibility of parenthood even where that is personally not what a parent would prefer and/or is something a parent dislikes.
Family violence
Sections 60CC(3)(j) and 60CG, recited earlier, command me to consider this all too frequent event that is damaging to parents, more often women and children. Mr Pieters had alleged that Ms Westmore had early on after the end of their relationship made serious threats against him but did not agitate them in these proceedings.
Because of the unreliability of Ms Westmore’s evidence and the unreliability of the evidence of her sister Ms U, I am not satisfied that Ms Westmore has been subjected to family violence, as Ms Westmore has alleged. Because of the circumstances discussed above I am not satisfied that X has been subjected to any family violence or inappropriate discipline by Mr Pieters.
Is it preferable for orders least likely to lead to further proceedings?
I am satisfied that it’s in X’s best interests that her living arrangements be finally settled as at least the Court and Mr Pieters intended by the 12 April 2021 orders. This case demonstrates the capacity for ongoing stress, opportunistic interpretation of events and the influence of a parent on a child while a final decision has not been made.
Two examples are sufficient to demonstrate this circumstance. First: The day after the Interim Orders of July 2018 were made providing X would live with both her parents, Ms Westmore took X to a GP for the purpose of obtaining a report about X being fearful of her father. When X’s relationship was observed relatively soon afterward, in the child inclusive response of September 2018, no fear of her father was observed and she was observed to be “clearly bonded to her father” and “equally demonstrative with each parent”.
Second: A report to Child Protection was made in September 2020 that asserted that Mr Pieters “had grabbed [X] by the throat” and that X “was often hysterical and extremely upset when returning to [Mr Pieters]’ care”. The previous December X had told the family consultant who wrote the 12 December 2019 child inclusive conference memorandum that, “… her preferred living arrangement would be spending five nights each week with [Mr Pieters], with her mother collecting her from school every Friday and returning to [Mr Pieters] on Sunday”. When telling the family consultant that her father would be surprised about how she felt as she had not been able to express herself to him the family consultant observed, “[X] was clear she did not think [Mr Pieters] would be angry or that she would be punished”.
When assessed in the family report of Ms C, seven months after the September 2020 Child Protection notification, X told Ms C that she wanted to live with her mother “most of the time”. However, when observed together, father and daughter appeared to enjoy each other’s company and X was spontaneously physically affectionate towards her father. Ms C wrote that “there were no safety concerns raised for [X] in the presence of her father during this brief observation session”.
In the first example, X makes a report of extreme fear of her father at a time when an interim decision has gone against what Ms Westmore wanted, but when independently observed a few weeks later, the observation is entirely contrary to the earlier report of fear. In the second example, X makes a report of extreme fear of her father at a time when a long-awaited final hearing is about to occur and the final hearing is deferred, but when child and parent are independently observed six months later, the observation is entirely contrary to the earlier report of fear.
In both cases X is subjected to further stress and interviews while a final hearing and final decision is pending. I am concerned, and I infer, that there is a real risk were only interim orders to be made that events or further allegations that are then unable to be substantiated would be made and X may be subjected to the unnecessary stress of further interviews and uncertainty about her living arrangements.
In these circumstances I am satisfied that final orders should be made. X’s living arrangements must be settled. No party before me sought interim orders in any event.
PARENTAL RESPONSIBILITY
In this case Mr Pieters seeks an order that he have sole parental responsibility for long-term decisions relating to X. Ms Westmore seeks an order for equal shared parental responsibility. As provided in section 61DA of the Act, recited earlier, I must apply a presumption that is in the best interests of X for her parents to have equal shared parental responsibility for X. However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in the abuse of the child and the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child to have equal shared parental responsibility.
Taken merely at face value, what X has said to Dr G and to Child Protection suggests there are reasonable grounds to believe that Mr Pieters has engaged in abuse of X. However, in this case no party presses for such a finding. Looking at the weight to be given to the evidence of X’s statements, I am not satisfied there are reasonable grounds to believe that Mr Pieters has abused X.
Further, and in any event, I consider the nature of the allegations made, the burden of ongoing investigations about the welfare of X that she has endured and the complete lack of trust between the parents relevant to the question of allocation of parental responsibility for long‑term decisions. I am satisfied that there is very little prospect of the parents being able to consult each other in regard to major long-term issues concerning X and to make a genuine effort to come to a joint decision. The parents were described to me in final address as “fundamentally incompatible” and it was asserted that this was not going to change. I accept that submission.
In this case it is necessary that one parent have sole parental responsibility, or what could also be called “the final say”. However, that does not mean the other parent should not be consulted and have the ability to have his or her say about those issues.
In this case there is a deceptive element to Ms Westmore’s personality and that would undermine the prospect of joint decisions as contemplated by section 65DAC. Mr Pieters can be accurately described as representing as solid and reliable, loving, proud of X and someone who models reliability and consistency for X. He was described by Ms F, the family consultant and writer of the two reports in 2017 as:
77. In summary, it is evident that [Mr Pieters] will always be available to provide support for [X]. He is a decent man who has [X]’s best interests at the forefront of his role as a father.
78. [Ms Westmore] might be mindful that [X]’s relationship with [Mr Pieters] is a meaningful relationship. [Ms Westmore] is fortunate to have [Mr Pieters] in [X]’s life as a consistent, reliable, committed and devoted parent, upon whom she can rely.
Mr Pieters has not always been wise. Withholding or not supporting time between X and her mother after Ms Westmore was released from prison in 2019 and understanding, based on what X had told him, that X was fearful of her mother, was a serious lapse in judgement. Notwithstanding his antipathy and distrust of Ms Westmore, I am satisfied that since the interim orders of December 2019 until the blow-up in the middle of 2022, a period of roughly 2½ years, Mr Pieters has ensured that X has spent the time provided in the applicable court orders with her mother.
In this case shared parental responsibility or equal shared parental responsibility is not viable and is likely to bring the parents into further conflict and impact on X’s welfare.
In all the circumstances, Mr Pieters should have sole parental responsibility for long-term decisions relating to X. Prior to making any long-term decision, save in emergency, he should consult Ms Westmore, take into account her reply if made in a timely manner, and then inform her of his decision soon as practical.
CONCLUSION
I turn now to conclusions about the issues in the case that will determine X’s best interests as recited earlier in these reasons, taking into account the evidence and findings and the application of law to those findings discussed above.
Which parent will best promote X’s relationship with both parents?
I am satisfied that Mr Pieters will best promote X’s relationship with both parents. I acknowledge the statements of senior counsel for Ms Westmore that it is Ms Westmore’s orders that contemplate both parents in X’s life. I acknowledge that in earlier family reports Ms Westmore has made statements to the effect that she understands the importance to X of both parents in X’s life. I am not satisfied that Ms Westmore genuinely understands or believes that both of X’s parents should be involved in her life. I am satisfied that, where there is a conflict between Ms Westmore’s immediate interests (such as her move to City R in 2018 and to City S in 2022,) and X’s need for stability and having both parents involved in her life, that Ms Westmore has, and is likely to in the future, put her own ambitions and interests before X’s needs and best interests. That is whether she realises she is doing it or not.
Part and parcel of promoting a relationship with the other parent is the ability to follow and comply with applicable court orders. Because of his demonstrated history since December 2019, I am satisfied Mr Pieters will follow court orders. There is real question over whether Ms Westmore can be relied upon to follow court orders.
Ms Westmore has raised or promoted the assertion of X’s fear of her father on more than one occasion when examined or assessed by independent experts. Time and time again, that fear has been found to be without substance. That demonstrates that Ms Westmore struggles to promote X’s relationship with both parents.
Withholding X in 2022: reasonable, or exclusionary, behaviour?
It was not ultimately alleged in final submissions that Mr Pieters had harmed or assaulted X approximate to the September 2020 allegations or at any other time. Mr Pieters has denied that he ever has. I am unable to find that Mr Pieters has ever harmed or assaulted X as has been alleged from time to time. Ms Westmore has, on a number of occasions over X’s lifetime, alleged or promoted the assertion that X has a very significant fear of her father arising from his treatment of her. Expert observations of X’s relationships reasonably proximate to the allegations have demonstrated the allegations are without substance. That is a significant matter to be taken into account.
Further, and I am satisfied for the first time since mid-2022, during his cross-examination Mr Pieters heard that Ms Westmore’s case was that, notwithstanding all that had been alleged, it was now only alleged that X had said it, not that it occurred, and that X had in fact missed Mr Pieters over the last 12 months. It was also put, as part of Ms Westmore’s case, that “[X] loves her Dad.”[130]
[130] Transcript page 167.
I need to consider that Ms Westmore may have only moved to this position for tactical reasons. That is, to support her case that she was the parent most likely to support relationship with both parents, and that she does not actually believe that or has not actually observed that affection in the last 12 months. The genuineness of that position, albeit put through her senior counsel, was not contradicted when Ms Westmore was cross-examined and is consistent with the observations of the relationship between X and her father by the various experts over the years. It was Mr Pieters’s contention that X would have missed him over the last 12 months. Both parents in the final hearing asserted, and I accept, that X would have missed Mr Pieters over the last 12 months and continues to love him as her father.
I do not accept that Mr Pieters should have been, or could have been, alert to the fact that Ms Westmore’s case was that X had missed him over the last 12 months and “loves him”, from the circumstance that Ms Westmore had proposed that there be limited supervised time between X and Mr Pieters. Mr Pieters had refused that time, but refused it in the context of expecting a court decision in his favour in the immediate future.
I do not accept Ms Westmore’s narrative about what X said to her, alleged to be in or about mid-2022, is reliable. Whatever was said between mother and daughter, and the nature of the relationship between mother and daughter, has contributed and led to X’s statements, initially to the police in July 2022, and then the different and more florid statements to Dr G and to Child Protection.
I am satisfied Ms Westmore’s withholding of X in the middle of 2022 was what can be loosely described as “exclusionary behaviour”. I find this by taking into account the section 60CC factors and looking carefully at those events, and all of those discussed in detail above as “significant events.” I also consider that Ms Westmore was well aware of the expert observations of Ms C’s family report subsequent, and reasonably proximate, to the September 2020 allegations, and then consented to final orders while represented. I also consider, on Ms Westmore’s narrative, X’s 2022 allegations relate to or at least copy those same September 2020 allegations. I also accept Dr G’s observations of X’s presentation to her.
A history of exclusionary behaviour
As described earlier, I am satisfied that in late 2019 Mr Pieters was engaged in exclusionary behaviour by preventing any time or contact between X and her mother after she was released from prison. At that time he simply did not understand X’s need for time with, and connection to, her mother. Mr Pieters admitted as much in cross-examination, albeit with the qualification that it had occurred, “both ways”,[131] meaning both he and Ms Westmore had done so. Mr Pieters’ demeanour at that point demonstrated embarrassment when forced to acknowledge the reality of what he had done back in 2019, and from that embarrassment I infer a degree of regret that what he had failed to comprehend and consequently had done to X. At that time I infer that Mr Pieters may have been struggling to deal with the difficult circumstance that Ms Westmore had been again released from prison and that when released previously in X’s life, she had promptly excluded him from X’s life for two long periods.
[131] Transcript page 157.
However, for the reasons set out above I am satisfied that Ms Westmore has engaged in exclusionary behaviour to a significantly greater degree than Mr Pieters. She withheld X from seeing her father for two different six-month periods when X was a toddler, when she moved X’s primary residence to City R (only five months after the 2017 Final Orders) and from the middle of 2022 until now. She only acknowledged under the pressure of a final hearing, almost 12 months later, that X “missed” her father and “loves her Dad”. I take into account the courteous nature of the text message communication between the parents up until the point of the unilateral relocation to City R. But I am satisfied Ms Westmore has engaged in exclusionary behaviour and it is likely, or at least that there is a real and significant risk, that exclusionary behaviour will continue and/or occur again in the future.
X’s expressed views? Resist/refuse dynamic?
As discussed above in these reasons, I am satisfied that X is caught in the dynamic described by Dr G as a resist/refuse pattern. I am satisfied that X’s presentation to Dr G was as she described. I am satisfied that, despite the events of the last 12 months, X has missed her father and loves him.
She has told Dr G, Child Protection and Dr G that she does not want to see her father. I am satisfied that X’s expressed views should be given little weight. That is because of the dynamics of her relationship with her mother, her mother’s attitudes to her maintaining a relationship with her father, and because X is caught in, or subject to, the dynamic or situation described by Dr G as a resist/refuse pattern. I am unable to make a finding that X has been directly “coached”, but I am satisfied that directly or indirectly X has been influenced by her mother to assert that she does not wish to see her father.
In all the circumstances I can only give X’s wishes little weight, but they do inform me that it is likely, if X is to live with her father, that on the initial changeover that X will be distressed and that distress is likely to continue for some time.
Who will best provide stability for X?
Mr Pieters has demonstrated that, no matter the interruption to X’s living arrangements, he is consistently available to care for X and that he has done so in a good and caring manner. I am satisfied that X was thriving at her school when living with Mr Pieters, notwithstanding that she preferred to spend more time with her mother.
I am satisfied that Mr Pieters, and to the extent she is involved Ms F, are available to and will provide stability in X’s living arrangements and her education.
I accept that it is Ms Westmore’s hope and determination that her current life with Mr T in City S will provide stability in X’s living arrangements and education. I am not able to find that Ms Westmore will provide that hoped-for stability. I do not know anything about Mr T save that Ms Westmore regards him highly. On the evidence, Ms Westmore has not chosen life partners well. She told Dr G that she had a history of poor relationships and she described them as “abusive and devaluing.”[132]
[132] Dr G’s report at [35].
I am satisfied that it is in X’s best interests to return to living with her father.
A hiatus in X seeing Ms Westmore? Then only supervised?
These orders are, in some respects, the least worst outcome for X.
Mr Pieters asserts that Ms Westmore cannot be relied upon to comply with court orders, and with the support of Dr G’s recommendations, moves to restrict X’s contact with her mother to only ever supervised contact after a significant hiatus of no contact.
I acknowledge the force of submissions of counsel for Mr Pieters that there is a real risk that Ms Westmore will make further allegations and/or fail to comply with court orders and will doom this family and X to more uncertainty and the stress and expense and grief of further litigation and instability for X. I acknowledge that Dr G, whose expertise and observations I accept, has recommended the drastic course sought by Mr Pieters. I acknowledge Mr Pieters has sought that drastic course in desperation, seeking a relationship with X and stability in her life. He genuinely believes there is a real risk that, if Ms Westmore is to have regular time and involvement in X’s life in an unsupervised capacity, she will fail to abide court orders when the opportunity presents, subvert the orders and influence X to reject her father. If that happened, the consequences for X would be devastating.
Were that to occur, in the inevitable next round of litigation, there is no doubt that, subject to the evidence and applications, an option that would loom large for serious consideration would be the type of orders that Mr Pieters now seeks and that have been recommended by Dr G.
That drastic course of restricting her time with her mother would be devastating for X. X’s welfare will be best advanced with both of her parents in her life and without the burden and restriction of supervision on Ms Westmore’s time, but provided the orders and Mr Pieters’ relationship with X are not subverted by Ms Westmore’s personality and relationship with X. Ms Westmore has now expended considerable financial and personal resources in this litigation and she will not be successful. She has given it a try. Ms Westmore is intelligent, resilient and determined. She is genuinely devoted to X.
This is the first time, despite years of litigation and multiple hearings, that the parties have exposed themselves to the rigours of the witness box and the risks of pressing for a judge to make a final hearing decision about where X will live. Ms Westmore’s demeanour in the courtroom and when giving evidence is not one of arrogance and contemptuous disregard for court orders. Part of Ms Westmore’s personality is the need for external approval, as observed in an earlier family report. Those matters contend to make me more optimistic than Mr Pieters and the ICL about whether Ms Westmore will follow court orders in the future.
I must balance the real risk that Ms Westmore may subvert the orders and X’s relationship with her father if she has regular and unsupervised time with X, against the distress, trouble and grief for X if her relationship with her mother is reduced to only supervised time. Both options would have devastating consequences for X. Balancing those risks and their consequences, I am satisfied that orders for X to have regular and substantial and significant time are in her best interests. Hence, Ms Westmore will have the opportunity to have regular alternate weekend and school holiday time with X.
Ms Westmore, through her senior counsel, told me that if she was not successful in her application for X to live with her, she would do what she could to spend the maximum time available with X. I accept that statement, despite other aspects of her evidence being unreliable. Hence I will make orders that if (and only if) she can arrange secure accommodation within a reasonable travel distance from X’s school, the substantial and significant time that had been operating after the consent orders of 12 February 2020 and confirmed in the final orders of 12 April 2021 will resume. In the event Ms Westmore does not have such a nearby home and/or does not provide evidence of its existence to Mr Pieters, the maximum time available is determined by the practicality of travel between X’s school and City S. That can only be each alternate weekend from after school on a Friday until Sunday evening, with changeover at the usual McDonald’s. Ms Westmore proposed to do the travel between City S and where Mr Pieters lives. In either case, X should be able to spend half of all school holidays with each parent on a week about basis as the 12 April 2021 orders had provided.
Why those special day arrangements?
I am not satisfied that these parents can communicate well enough to facilitate sharing of X’s birthday and each parent’s birthdays. Those days will fall where they fall. X may get to celebrate her birthday on two different days, one with each parent. I have some circumspection about the sharing of every Christmas Day. However, the 12 April 2021 orders included these provisions and there was no complaint or evidence about them, and sharing part of Christmas Day with X was clearly important for these parents. I have reversed the first half/second half order as it is clear that X was with Ms Westmore for all of the last Christmas day and the orders provided she was with her at that time the previous Christmas.
I have not re-ordered the provisions of the 12 April 2021 orders that conflict with Mr Pieters having sole parental responsibility, but otherwise have reinstated the various provisions of those orders as they assisted the parents until the interruption in the middle of 2022.
The careful detail of school holiday and special day provisions of the 12 April 2021 orders have much to commend those provisions as practical. I do not have any evidence or submission that there was ever a problem with those provisions and for those reasons I will reinstate them.
However, I accept that it will take some time for X to settle back into her father’s care. I accept that Ms Westmore will be profoundly disappointed with this decision and these orders. I am not satisfied that Ms Westmore will be able to protect X from her profound disappointment. Without the drastic measure of a break in time with X, there is a very real and substantial risk that the resist/refuse pattern will continue or resume. This order weighs heavily on me, but I am satisfied that it is, unfortunately, necessary to facilitate the best interests of X. For those reasons, a period of no time will be necessary for X to settle back in her father’s care. That period should be two months. To assist X in this period of settling back in the care of her father, and settling when reintroduced to her mother after the hiatus, I am satisfied that the counselling recommended by Dr G and sought by Mr Pieters is in X’s best interest. I will make orders to give effect to that.
Changeover
Mr Pieters has proposed the initial changeover occur at a McDonald’s restaurant, the same one as where non-school changeovers occurred pursuant to the 12 April 2021 orders. The evidence of Mr Pieters was that the orders of 12 April 2021 had been working well when X was in his care and I accept that evidence. I will make that order for changeover as he pressed. There is a heavy burden on Ms Westmore to support X in this difficult time to make that initial changeover as least distressing to X as possible. X needs stability and both her parents in her life. I will make orders to give effect to my decision.
I certify that the preceding five hundred and nineteen (519) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 15 August 2023
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