Pointer & Cheadle
[2022] FedCFamC2F 79
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pointer & Cheadle [2022] FedCFamC2F 79
File number(s): SYC 7391 of 2013 Judgment of: JUDGE TAGLIERI Date of judgment: 2 February 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of Judicial Registrar’s decision – interim parenting – order made that mother to have supervised time with child for 3 hours per fortnight – desirable to moderate respective risk – application for review allowed – mother’s time with child to increase once treatment undertaken. Legislation: Family Law Act 1975 (Cth), ss.60CC(2A), 60CC(3)
Federal Circuit an2d Family Court of Australia Act 2021, ss.8, 51(1), 51(2)(b), 132, 51(2)(b), 254
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth), s.8
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Rules 2021 (Cth), r.5
Federal Circuit and Family Court (Family Law) Rules 2021 (Cth), Part 14.3, Schedule 4 Clause 2, rr.5.01, 14.05(2), 14.07Cases cited: Deiter & Deiter [2011] FAMCAFC 82
Goode & Goode [2006] FamCA 1346
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Marvel & Marvel [2010] FamCAFC 101
Matenson & Matenson (2018) FLC 93-848
Moose and Moose [2008] FamCAFC 108
MRR & GR [2010] HCA 4
Rice and Asplund (1979) 6 Fam LR 570Division: Division 2 Family Law Number of paragraphs: 119 Date of hearing: 15 December 2021 Place: Hobart Counsel for the Applicant: Mr Battley Solicitor for the Applicant: Team Legal Group Counsel for the Respondent: Ms Bryan Solicitor for the Respondent: Sayer Jones Counsel for the Independent Children’s Lawyer: Ms Escobar Solicitor for the Independent Children’s Lawyer: Clayhills Escobar Solicitors ORDERS
SYC 7391 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR POINTER
Applicant
AND: MS CHEADLE
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
3 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The orders of 29 September 2021 be discharged.
2.Orders 5, 6, 8, 9, 10 and 11 of the final orders made 26 March 2020 be discharged.
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
3.The mother MS CHEADLE (“the mother”) is to complete six, 1 hour appointments of psychological treatment with a clinical psychologist nominated by the Independent Children’s Lawyer (“the mother’s treating psychologist”) and for this purpose:
(a)The Independent Children’s Lawyer, is to provide to the mother’s treating psychologist the following:
(i)These reasons for judgment;
(ii)The Child Inclusive Conference Memorandum dated 8 July 2021; and
(iii)A copy of these orders.
(b)Treatment is to be directed to:
(i)The prior findings of McClelland DCJ that the mother has traits of anxiety and/or worry which are influencing the child’s relationship with the father MR POINTER (“the father”);;
(ii)The mother’s parenting style and improving it; and
(iii)Adapting to and accepting the father’s involvement in parenting the child.
4.Within 14 days of completing the six treatment appointments referred to in Order 3, the mother must file and serve a report from the treating psychologist on the Independent Children’s Lawyer and the father, which report must identify:
(a)The dates of treatment;
(b)A summary of the mother’s progress; and
(c)If treatment has not been received, a statement about why it has not.
AND THE COURT NOTES THAT for the purposes of ensuring the mother complies with this order, the treating psychologist is requested to prepare the report promptly and preferably no later than 7 days from completion of the six treatment appointments referred to in order 3.
5.On compliance with Orders 3 and 4 and commencing on the second Friday following filing and service of the report, the child X born in 2012 (“the child”) spend time with the mother as follows:
(a)From 2.50 pm Friday to 2.50 pm Monday, each alternate week; and
(b)In the opposite week to that referred to in Order 5a, on Thursday from 2.50 pm to 6.30 pm.
6.If the mother does not comply with Orders 3 and 4 and until she does so, the child spend time with the mother each alternate Saturday from 10:00am until 1:00pm, supervised by TT Family Centre or such other supervision service as may be agreed to between the parties and the Independent Children’s Lawyer, with the costs of such supervision to be borne equally by the child's parents.
7.If the mother’s time with the child commences pursuant to Order 5, the mother must continue to attend once per month upon the treating psychologist according to his/her recommendations, but such treatment should continue for at least 12 months.
8.This Order acts as an authority for the treating psychologist to inform the Independent Children’s Lawyer of the dates of the mother’s attendances for treatment and provide a brief summary of the nature of the treatment provided and her progress at 3 month intervals.
9.In the event that the mother’s time with the child commences pursuant to Order 5, it is suspended upon her failure to attend two consecutive monthly appointments and the mother’s time will revert to that provided in Order 6 above.
10.In the event that the mother’s time with the child commences pursuant to Order 5, all changeovers will take place at the child’s school or, if not a school day, in the carpark at KFC Suburb UU, being VV Street, Suburb UU.
11.The mother enrol in and complete a parenting separately course recommended by the Independent Children’s Lawyer to promote parallel parenting and inform and educate the mother as to effective parenting style and techniques.
12.A single psychiatric court expert be engaged by the parties to assess and report as to each parent’s mental health and capacity to parent, the Terms of Reference for which are to be prepared by the Independent Children’s Lawyer, agreed by the parties and submitted for approval by the Court within 14 days of the date of these Orders.
13.The matter is referred to the National Assessment Team for consideration of transfer to Division 1 AND IT IS NOTED THAT the parties will be contacted directly by the National Assessment Team confirming the transfer/relisting of proceedings and the next listing date.
AND THE COURT NOTES THAT:
A.It is the expectation of the Court that, whether the matter is transferred to Division 1 or remains in Division 2, the Terms of Reference submitted pursuant to Order 12 will be approved by the docket judge following the decision to be made about transfer of the proceedings pursuant to Order 13.
B.For the avoidance of doubt, Orders 12 to 17 of the Orders made by Deputy Chief Justice McClelland on 26 March 2020 remain in full force and effect.
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 Pointer & Cheadle has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
INTRODUCTION AND BACKGROUND
This judgment relates to an Application for Review regarding orders made by a Senior Judicial Registrar at the conclusion of an interim parenting hearing on 29 September 2021 (“the interim hearing”). The interim hearing and orders concerned X born in 2012 (“the child”).
The interim hearing proceeded on a background of extensive and drawn out prior parenting proceedings between the child's father Mr Pointer (“the father”) and mother Ms Cheadle (“the mother”), which culminated in a defended hearing before his Honour Deputy Chief Justice McClelland over a number of days in 2019.
McClelland DCJ delivered his judgment on 26 March 2020 and made final orders concerning the child (“the final orders”). In substance the final orders provided that:
(a)the child live with the father;
(b)the father have sole parental responsibility for the child; and
(c)the child spend time with the mother in accordance with and subject to various conditions set out in subparagraph 9(a) to 9(e) of the orders, such conditions relating to the mother engaging in mental health treatments.
The rationale for imposing the conditions on the mother for the purposes of her having time with the child was the ultimate finding summarised by McClelland DCJ at [10] of his reasons, being that:
There remains an unacceptable emotional risk to [the child] if the mother does not take steps to address her extreme level of anxiety, pattern of dysregulated behaviour and instances of unacceptable interaction with [the child].”
The ultimate finding was premised on evidence and findings about:
(a)the mother's anxiety, which appear at [168] to [180] of the reasons for judgment; and
(b)the impact of that anxiety, being to disrupt the child's time with the father, appearing at [181] to [205] of the reasons for judgment.
The mother appealed the judgment of the McClelland DCJ, and the Full Court dismissed the appeal in its judgment delivered on 10 November 2020.
On 10 June 2021, the mother filed a fresh Initiating Application in which she sought orders that the child live with her and that she have sole parental responsibility for the child (“the current proceedings”). The mother also sought interim orders suspending the effect of the final orders, and injunctive orders for the protection of the child against the father.
The father filed a Response in the current proceedings on 21 June 2021, which seeks maintain the final orders. Despite this, on 24 June 2021 when the proceedings came before a Registrar, he consented to an order in the following terms:[1]
[1] Order 10 made 24 June 2021.
10.The Child shall spend time with the mother in accordance with Order 6 of the Orders made by the Honourable Deputy Chief Justice McClelland on 26 March 2020 reproduced below:
a.During school terms, each alternate week from after school on Friday to the commencement of school the following Wednesday;
b.From 9.00am on Mother’s Day until before school on Monday each year if the child is not otherwise with the mother;
c.During the school holiday periods at the end of Terms 1, 2 and 3 each year, from after school on the last day of term until 5.00pm on the Friday in Week 1 of the holidays;
d.During the school holiday period at the end of Term 4 each year:
i.In even numbered years, from 9.00am on 24 December until 5.00 pm on 29 December and from 9.00am on 18 January until 5.00pm on 23 January; and
ii.In odd numbered years, from 9.00am on 28 December until 5.00pm on 2 January and from 9.00am on 18 January until 5.00pm on 23 January; and
e.At such other times as agreed in writing between the parents.
The effect of the consent order was that the mother's time with the child was to be in accordance with paragraph 6 of the final orders of McClelland DCJ.
Various court events took place between June 2021 and the date of the interim hearing on 29 September 2021. These included the parties and the child participating in interviews for preparation of a Child Inclusive Conference memorandum and the father bringing a recovery application as he alleged that the mother had withheld the child contrary to the terms of the consent order.
The interim orders made by the Senior Judicial Registrar on 29 September 2021 were:
1. Order 10 of the Orders made by this Court on 24 June 2021 be discharged.
2.Pending further Order, [the child] spend time with her Mother each alternate Saturday from 10:00am until 1:00pm, supervised by TT Family Centre or such other supervision service as may be agreed to between the parties and the Independent Children’s Lawyer, with the costs of such supervision to be borne equally by [the child]'s parents.
After the interim orders were made, the mother filed an Application for Review on 19 October 2021 and I conducted a hearing in respect of it on 15 December 2021 (“the review hearing”).
During the review hearing, which was conducted by Microsoft Teams, there was a technical difficulty as it was discovered that counsel for the mother was not connected to the Microsoft Teams conference for a period of about 15 minutes, being part of the time during which the father’s counsel made submissions. It was necessary to afford procedural fairness to the mother in respect of that part of the hearing and accordingly I reserved my judgment, subject to giving leave to counsel for the mother to file and serve a short written submission responding to the submissions made on behalf of the father during his absence. This was facilitated by the Court obtaining a transcript of the hearing for that 15 minute period and circulating it to the parties. The written submission on behalf of the mother was received on 22 December 2021 and has been considered.
THE APPLICATION FOR REVIEW
Relevant Legislation
By virtue of section 8 of the Federal Circuit and Family Court of Australia Act 2021 (“the FCFCOA Act”), the Federal Circuit Court of Australia continues as the Federal Circuit and Family Court of Australia (Division 2) from 1 September 2021. Proceedings commenced in the Federal Circuit Court of Australia prior to 1 September 2021 are taken to be proceedings in Federal Circuit and Family Court of Australia (Division 2) from the same date.[2] Further, such proceedings, including these, are to be conducted under the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth).[3] Division 2 of the Federal Circuit and Family Court of Australia has original jurisdiction in respect of proceedings instituted under the Family Law Act 1975 (Cth) (“the Act”)[4].
[2] Section 8, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 Rule 5, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Rules 2021 (Cth).
[3] Federal Circuit and Family Court of Australia Practice Direction – Transitional arrangements, paragraphs 1 – 2; Federal Circuit and Family Court of Australia (Division 2 )(Family Law) Rules 2021.
[4] Section 132, Federal Circuit and Family Court of Australia Act 2021.
The powers delegated to Senior Judicial Registrars and Judicial Registrars for Division 2 of the Federal Circuit and Family Court are provided for in section 254 of the FCFCOA Act and in Schedule 4, Clause 2 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) (“the New Rules”), by adoption.[5]
[5] By virtue of Rule 5.01 of the Federal Circuit and Family Court of Australia (Division 2 )(Family Law) Rules 2021.
Part 14.3 of Chapter 14 of the New Rules provides for Applications for Review from the decision of a Judicial Registrar or Senior Judicial Registrar. In this instance, the application was made within the required timeframe of 21 days.[6] The procedure for the review is governed by Rule 14.07 and I exercise the same power the Senior Judicial Registrar exercised on the interim hearing. I am to determine the interim parenting proceedings de novo.
EVIDENCE AND MATERIALS RELIED UPON UNOPPOSED
[6] Rule 14.05(2).
By the mother
The mother relied on the following documents:
(a)Initiating Application filed 10 June 2021;
(b)Notice of Risk filed 10 June 2021;
(c)Affidavit of the mother filed 10 June 2021;
(d)Affidavit of the mother filed 16 September 2021;
(e)Affidavit of the mother filed 27 September 2021;
(f)Affidavit of the mother filed 16 November 2021;
(g)Affidavit of the mother filed 8 December 2021;
(h)Orders made by the Registrar Maitland on 24 June 2021;
(i)Child Inclusive Conference Memorandum to Court dated 8 July 2021;
(j)Case Outline of the Independent Children’s Lawyer filed on 28 September 2021;
(k)Case Outline of the father filed on 28 September 2021;
(l)Case Outline of the mother filed on 28 September 2021;
(m)Orders made by Senior Judicial Registrar Jenkinson on 29 September 2021;
(n)Reasons for Judgment of Senior Judicial Registrar Jenkinson delivered 29 September 2021;
(o)Application for Review filed 19 October 2021; and
(p)Amended Submissions of the mother filed 13 December 2021.
By the father
The father relied on the following documents:
(a)Final parenting orders made by Deputy Chief Justice McClelland made 26 March 2020;
(b)Reasons for Judgment of Deputy Chief Justice McClelland delivered 26 March 2020;
(c)Orders of the Full Court of the Family Court of Australia made 10 November 2020;
(d)Reasons for Judgment of the Full Court of the Family Court of Australia delivered 10 November 2020;
(e)Amended Response filed 16 September 2021;
(f)Application in a Proceeding filed 16 September 2021;
(g)Affidavit of the father filed 16 September 2021.
(h)Amended Notice of Child Abuse, Family Violence or Risk filed 16 September 2021;
(i)Affidavit of the father filed 14 December 2021; and
(j)Case Outline filed 14 December 2021.
The Independent Children’s Lawyer Ms Escobar (“the ICL”) had represented the child in previous proceedings. She was reappointed in the current proceedings and participated in the interim hearing and the review hearing. The ICL’s Case Outline filed 14 December 2021 has been considered along with her oral submissions.
COMPETING CONTENTIONS ON THE REVIEW
In her Case Outline filed 28 September 2021, the mother articulated the issues in dispute to be those set out at paragraphs 1 to 5, being:
1. Whether the child is at risk whilst living with the father
2. Whether the child has been violently treated by the father.
3. Whether the father has sufficient or any parental insight.
4. Whether the father values the mother-daughter relationship.
5. Whether the father should attend:
(a) an anger management course; and
(b) a parenting program the Department of Communities and Justice recommended.
In the mother’s Amended Submissions filed 13 December 2021, the issues are not framed in the same terms, but instead contentions were made as to the error on the Senior Judicial Registrar’s part. As this is a hearing de novo, I need not find specific error. Instead, I am required to determine the ultimate issue as to what is in the child’s best interests on an interim basis pending final hearing. Ultimately, the mother sought orders on an interim basis similar to those sought on a final basis. She argued in effect that the father’s care of the child was abusive or neglectful and constituted family violence. This, she contended, meant that there was unacceptable risk of physical and emotional harm to the child should she remain living with the father.
The father's case outline did not set out any specific issues as such, but it is apparent from his case outline generally and the submissions by his counsel during the hearing that he endorsed the orders that were made by the Senior Judicial Registrar. Coupled with his endorsement of those orders is the contention that the mother continues to pose an unacceptable risk of emotional harm to the child for similar reasons to those found by McClelland DCJ.
The ICL contended that the orders made by the Senior Judicial Registrar should continue in force and effect and therefore the mother's Application for Review should be dismissed. At the centre of the ICL's contentions was the proposition that the mother's pattern of behaviour both before the final judgment of McClelland DCJ and since, demonstrates that she continues to present an unacceptable risk of emotional harm to the child thereby disrupting and eroding the child’s relationship with the father.
Connected to the contentions referred to above, the ICL submitted that the mother simply lacked insight in relation to her behaviours and had disproportionate and unrealistic expectations or views concerning the father's care of the child.
SOME MATTERS OF COMMON GROUND
For the Application for Review of the interim orders, no party’s arguments specifically focussed on Rice and Asplund[7] principles. There appeared to be acquiescence that the Court should determine the review on merits, because there had been episodes of conflict between the father and the child in 2020 and 2021. The father and ICL did not expressly articulate a summary dismissal contention.
[7] (1979) 6 Fam LR 570.
Despite the above, the parties either adopted or relied upon the findings and conclusions of McClelland DCJ. The mother’s counsel specifically submitted that no issue was taken with those, but contended that there had been new events involving physical harm to the child.
EVIDENCE ABOUT RISKS OF PHYSICAL AND/OR EMOTIONAL HARM TO THE CHILD
The parties’ affidavits refer extensively to a multitude of events and communications about the child between May 2020, soon after the final orders were made by McClelland DCJ, and the date of the interim hearing.
The affidavit evidence collectively conveys considerable difficulty with interactions between the parties and with the child not spending time with the father in accordance with the final orders, although the evidence and reasons advanced for this by each differ.
Despite the father disputing a number of aspects of the mother’s evidence in support of the Initiating Application filed 10 June 2021, on 24 June 2021 he consented to orders that the child spend five days/nights per fortnight with the mother. The father provides an explanation for the circumstances in which he consented. At [13] of his affidavit filed the 16 September 2021, he states:
[The mother] has now filed an Initiating Application to effectively re-open the proceedings. The final orders included provision at order 6 for [the child]’s fortnightly time with her mother to increase to 5 nights provided [the mother] complied with and continued to comply with certain requirements set out in order 9. I say that [the child] has not complied with that order, nor has she complied with Orders 10 or 11. When her application came before the Court on 24 June 2021, I was self represented, and I felt pressured to consider and consent to increased time for [the mother] with [the child]. I did so on a trial basis given the passage of time and in the hope that it might reduce conflict and put an end to further litigation, which would benefit [the child]. At the Court appearance I felt worried and vulnerable because I was informed that a breach of ADVO had been reported. I later discovered on 13 July 2021 from Police that there was no breach they were aware of. Unfortunately, the increased time has not worked and instead, the concerns and findings pronounced by His Honour at Trial being concerns also held by me, have materialised and intensified.
The mother's evidence in summary is that she became more concerned about the child’s physical safely and welfare due to various events reported to her. These incidents and events related to alleged interactions between the child and the father including:
·The father hurting the child by squeezing her cheeks in May 2020;[8]
[8] Affidavit of the mother filed 10 June 2021 at [22].
·The father twisting the child’s leg, causing her to limp in May 2020;[9]
·The child being grabbed by the father off her bike and thrown onto the grass, causing her knees to be scratched and injuring her elbow in October 2020;[10]
·In January 2021, the mother observed palm sized bruises on the child's thighs and the child is reported to have told the mother that they were caused by the father hitting her;[11]
·In April 2021, the child had a very hoarse voice from crying and told the mother that the father hurt her again and showed the mother a big bruise on her waist;[12]
·When the mother took the child to Dr SS about the bruising to the waist, the child told the doctor that she did not “feel safe” at her father's home;[13]
·In April 2021 the father had locked the child up in the laundry and that the child had felt scared;[14]
·In May 2021 the child had been locked inside the house following an argument between the father and his partner, and that the child was upset and distressed;[15]
·Police and ambulance attended the father's home when the child had been seen holding an axe outside the house;[16]
·In late June 2021, the child reported the father does “bad things” to her;[17] and
·On 18 November 2021 the mother received 30 messages from the child, expressing distress. The child spoke by phone to the mother, who then collected her as she had run away from the father’s home when the father and step-mother were arguing. She was crying as this was after the father had thrown fertilizer at her.[18]
[9] Affidavit of the mother filed 10 June 2021 at [22].
[10] Affidavit of the mother filed 10 June 2021 at [23]; Notice of Child Abuse, Family Violence or Risk at page 11 and 12.
[11] Affidavit of the mother filed 10 June 2021 at [24] and [25] ; Notice of Child Abuse, Family Violence or Risk at page 11.
[12] Affidavit of the mother filed 10 June 2021 at [26] and [27].
[13] Affidavit of the mother filed 10 June 2021 at [28].
[14] Affidavit of the mother filed 10 June 2021 at [29].
[15] Affidavit of the mother filed 10 June 2021 at [14]; Affidavit of the mother filed 27 September 2021 at [23].
[16] Affidavit of the mother filed 10 June 2021 at [15]; Affidavit of the mother filed 27 September 2021 at [11].
[17] Affidavit of the mother filed 16 September 2021 at [57].
[18] Affidavit of the mother filed 8 December 2021 at [3] to [23].
The mother’s evidence is that she has complied with the requirements of Order 9 of the final orders and that she does not suffer anxiety or mental illness, accordingly clinical psychologists opine she does not require treatment.[19]
[19] Affidavit of the mother filed 16 November 2021 at [21] and Annexure B.
The effect of the mother’s affidavit evidence is that the child has missed school when in the father’s care and no longer is participating in language and music classes, but does not have a psychological condition. Instead, the child needs protection from her father and the mother has been told this.[20]
[20] Affidavit of the mother filed 16 September 2021 at [24].
The father’s evidence in support of the claim that the mother continues to pose an unacceptable risk to the emotional wellbeing of the child is based on largely similar reasoning to that found by McClelland DCJ. In summary his evidence is that:
·The mother continues to repeatedly interfere with his relationship with the child and does not encourage the child to return to his care or withholds her, being in breach of the orders of McClelland DCJ.[21] This has required him to make applications to recover the child on 27 April 2020, 1 October 2020 and 16 September 2021;
[21] Affidavit of the father filed 16 September 2021 at [20] to [50].
·The mother involves the child in the parenting disputes, particularly transferring her own unrealistic fears for the child’s safety in his care onto the child; [22]
·The mother involves the child in the parenting disputes by influencing the child to negotiate with him to stay longer with the mother or return to the mother’s care before she is due;[23]
·In late April 2021, there was an incident when the child would not take a shower and had a meltdown when he attempted to have her take one. He tried to restrain her as he feared she would injure herself on glass. She stumbled and fell on to the track of a sliding door, causing bruising.[24]
·He consented to the ADVO on a no-admissions basis and because he would not ever harm the child in any event;[25]
·He did not throw the child off her bike onto the grass, but removed her from it to avoid a dangerous situation;[26]
·The mother has secretly been communicating with the child and giving her instructions while in the father’s care via a secreted mobile phone she provided, telling her to avoid the phone being found.[27] Some of the text messages exchanged and communication via the phone between the mother and the child are annexed to the father’s affidavit and limited ones annexed to the mother’s affidavit.[28]
·On 18 November 2021, he threw fertiliser in frustration towards the child when sprinkling it on the garden because she would not put her shoes on or clean her teeth. Some fertilizer pellets hit the child but most pellets missed as he was approximately 7 metres away. He apologised and the child returned inside and was slamming doors, so he picked her up to stop her hurting herself;[29]
·The mother collected the child by arrangement with her using the secret phone following the 18 November 2021 incident and did not inform the father, leaving him to search for the missing child, call police and only become aware of the child’s whereabouts from police, despite many phone calls he made to the mother;[30]
·He has arranged for the child to have psychological treatment from Ms WW, due to difficulties the child has in following instruction and regulating her emotions. She has been diagnosed with anxiety, anti-social disorder and oppositional defiance disorder;[31] and
·When the child did not attend school in term 4, it was due to a cold/flu illness and taking precautions due to Covid-19 restrictions.[32]
[22] Affidavit of the father filed 16 September 2021 at [16] and [17(d)].
[23] Affidavit of the father filed 16 September 2021 at [30] to [31], [34] and [50].
[24] Affidavit of the father filed 16 September 2021 at [63(a)] and [70].
[25] Affidavit of the father filed 16 September 2021 at [68].
[26] Affidavit of the father filed 14 December 2021 at [59].
[27] Affidavit of the father filed 16 September 2021 at [51]; affidavit of the father filed 14 December 2021 at [25].
[28] Affidavit of the father filed 21 June 2021 at [12] – [13]; affidavit of the father filed 16 September 2021 at [51] to [53]; affidavit of the father filed 14 December 2021 at [59] and Annexure -04; affidavit of the mother filed 8 December 2021 at [3] and Annexure A.
[29] Affidavit of the father filed 14 December 2021 at [11].
[30] Affidavit of the father filed 14 December 2021 at [12] to [26].
[31] Affidavit of the father filed 16 September 2021 at [62]; Report of Ms WWMs WW dated 1 September 2021 as annexed to the affidavit of the father filed 16 September 2021 at Annexure -07.
[32] Affidavit of the father filed 16 September 2021 at [123]; affidavit of the father filed 14 December 2021 at [63(f)] and [63(g)].
Each of the parties variously referred to the involvement of NSW Police, NSW Department of Communities and Justice, E Hospital, Child Protection and Child and Youth Mental Health authorities in connection with the events referenced in their evidence. Documents from those entities were annexed to affidavit material relied upon.
The contents of various documents emphasised in submissions have been considered. They portray varying accounts from the parties and the child about what occurred, but importantly they corroborate allegations that:
(a)The child has expressed that her father gets angry and she fears being hurt at such times;[33] and
(b)On occasions there have been objective signs of physical injury to the child’s body, seemingly consistent with physical handling of the child during some incidents the father admits occurred but the characterisation of which he disputes.[34]
[33] Police facts for Provisional ADVO based on interview of child as annexed to the affidavit of the mother filed 16 September 2021 as Annexure E.
[34] Records of Y Child Protection Service as at affidavit of the mother filed 16 September 2021 at Annexure H; records of New South Wales Police as at affidavit of the mother filed 16 September 2021 at Annexure E.
The contents of other documents indicate that the father has at times admitted to becoming frustrated or increasingly frustrated when the child has meltdowns or tantrums.[35]
[35] Discharge summary Y Local Health District dated 2 May 2021 as annexed to the affidavit of the mother filed 16 September 2021 at Annexure F; Records of Y Child Protection Service as annexed to the affidavit of the mother filed 16 September 2021 at Annexure H.
The parties each referred to the views of Ms XX, the Family Consultant who prepared the Child Inclusive Conference Memorandum of 8 July 2021 (“the Family Consultant”). I consider the views of the Family Consultant to be extremely important and useful in determining what interim orders should be made. The views she expressed and what information she collected is addressed below to the extent it is material. It represents the most current child expert opinion and refers to the events in 2021 relied upon in the parties’ evidence.
The mother does not directly respond to the allegation that she provided the mobile phone to the child secretly, or that it was being used to monitor what occurs in the father’s household or give instruction to the child. In fact, the only evidence she provides about the phone is in her affidavit of 8 December 2021.[36]
[36] Affidavit of the mother filed 8 December 2021 at [3] onwards and Annexure A.
In submissions at the hearing, counsel for the mother did not dispute the reference to the phone being a “secret phone” nor the authenticity of the text messages which the father annexed to his affidavit.[37]
EVIDENCE OF RELEVANT CONSIDERATIONS AND PRELIMINARY FINDINGS
[37] Affidavit of the father filed 14 December 2021 at Annexure -04.
Primary Considerations
The contest between the parties distilled into essentially two competing propositions, accepting the findings of McClelland DCJ and his reasons. For the mother, that the father poses an unacceptable risk of physical and in turn psychological harm to the child, due to events since the making of the final orders. For the father, that the mother continues to constitute an unacceptable risk of emotional/psychological harm to the child and her conduct demonstrates lack of insight into her behaviours which diminish the child’s relationship with the father. Accordingly, the mother’s time with the child should be limited and supervised time only, according to the orders made on 29 September 2021.
It is desirable and particularly material to the above contest, in the context of the judgment of 26 March 2020 which was upheld on appeal by the Full Court, to focus on the period shortly before and after the consent orders of 24 June 2021 were made. This being for the reasons referred to at [23] above and two further reasons, being:
·That the affidavit material relied upon tends to convey increasing conflict around changeovers and difficulties with the child spending time according to the consent orders, correlating with the mother’s time with the child increasing in late 2020 and onwards; and
·Because in May 2021 the allegations against the father by the mother were again escalated to involve external agencies.
Although not directly addressed, it was implicit in what the parties argued that it was necessary to limit the other party’s time with the child in order to prioritise the need to protect the child from physical or psychological harm over promotion of a meaningful relationship between the child and each parent.[38]
[38] Section 60CC(2A) of the Act.
Other considerations
Neither party contended or gave evidence by affidavit that the child did not have a meaningful relationship with the other parent. It is evident from various parts of the affidavit material which is not directly challenged by the opposing party, that both the mother and father have a meaningful relationship with the child. For example, each of the parents are interested in the child's education and schooling, interact to various degrees with the school, and engage in social, recreational/hobby like and domestic activities with the child when she has been in their care.
It is also not in dispute, based on the affidavits relied upon, that the child has a meaningful and loving relationship with her stepmother and also her stepbrother, ZZ.
As the final parenting orders were made in March 2020 after long and protracted disputation, the considerations in sections 60CC(3)(c) and 60CC(3)(ca) are of some relevance, as the evidence of both parties is that the child did not spend time with each of the parties according to the consent orders made on 24 June 2021 after they were made.
The father says this is because the mother has interfered with his ability to do so, by not encouraging the changeovers and adversely influencing the child’s views of the father.[39] The mother, on the other hand, contends that the father has failed to avail himself of opportunities to have time with the child and that the child refuses to go with the father, being scared or fearful of him.[40]
[39] Affidavit of the father filed 16 September 2021 at [180].
[40] Affidavit of the mother filed 16 September 2021 at [10] to [12]; affidavit of the mother filed 27 September 2021 at [34].
Despite the conflicting evidence referred to at [46], the fact of non-compliance led to the father making a recovery application on 16 September 2021. In her affidavit filed 16 September 2021, responding to the evidence of the father in support of the recovery application, the mother makes some concessions about this. In particular, she states that she did not return the child to the father on 13 May 2021.[41]
[41] Affidavit of the mother filed 16 September 2021 at [6].
It is also apparent from the court record that the mother had also retained the child following delivery of the final judgment and only returned the child to the father once a recovery order was made by her Honour Justice Rees on 12 May 2020.
It is notable that despite the order of Justice Rees, a further recovery application was made by the father in October 2020. In her affidavit filed 2 October 2020, the mother admits that the child did not spend time with the father as required by the final orders, but says it was because the child refused to do so.
The foregoing establishes that the mother has not always comply with final orders of the Court, in that she retained the child on occasions or only returned the child once a recovery application was made.
The mother’s non-compliance with the consent orders is said to be in response to having concerns to protect the child from physical harm, but different physical harm to the type of harm which was rejected by McClelland DCJ at [142] to [160] of his reasons. Indeed, the allegations now post-date the final judgment.
Although counsel for the father and the ICL submitted that the nature of the allegations by the mother were similar baseless ones previously dealt with by McClelland DCJ, their character is somewhat different. In part, they seem to relate to the father becoming frustrated and physically handling the child. The allegations against the father in the earlier proceedings were of neglectful care and sexual impropriety.
I have gained the impression that the mother is desperate to reverse the effect of the Court’s final orders, in circumstances where she had been the primary carer of the child. It seems likely that she will continue to reject the Court’s decisions which involve unreasonable limit of her time with the child and put the child at risk. In her own words, she stated:[42]
I am aware that I have a duty to comply with the court orders. I have a higher duty, however, to ensure that my daughter is safe.
[42] Affidavit of the mother filed 16 September 2021 at [13].
Although my preliminary impressions at [53] might diminish the objective weight that ought to be given to her evidence about the reasons for non-compliance, at this preliminary phase when the parties’ evidence is untested, I should not make a finding that non-compliance since the consent orders of 24 June 2021 has been unjustified on her part. Further, I consider it of some significance that despite the father’s contention of widespread disregard for the Court’s orders on the mother’s part, he has not made an Application for Contravention and indeed agreed to trial increased time between the mother and child.
The final orders specifically provided for the mother’s communications with the child by telephone.[43] It is troubling that the mother’s communications with the child do not appear to have progressed according to the order. Instead, the mother in part construed a mechanism by which she could communicate with the child, seemingly covertly, unknown to the father. The content of the text exchanges between mother and child is worrying. It conveys that the mother has sought to entrench herself in the day-to-day arrangements for the child and influence the child’s behaviour vis-à-vis the father.
[43] Order 7.
While there is no direct evidence that either parent failed or fails to meet their obligations of maintaining the child, it is of some concern that documents from the Child Support Agency (“CSA”) suggest that the mother notified the CSA that the father had “nil” time or care of the child at a time when the Court orders provided otherwise.[44] However, it would also appear that this was rectified soon after.
[44] Affidavit of the father filed 16 September 2021 at Annexure -10.
I was informed by the ICL that the child has been spending time with the mother in accordance with the orders of 29 September 2021 since they were made. This is also apparent from the reports from TT Family Centre annexed to the affidavit material. If I make orders contrary to those, it will involve a further change to the child’s arrangements. There is evidence that the child is already confused by the conflict about the time she spends with the parties,[45] so I envisage that a further change may cause some further destabilisation and confusion for the child.
[45] Child Inclusive Conference Memorandum at [30].
The effect of the orders made on 29 September 2021 has been to seriously limit the time the mother spends with the child and, because it is supervised time, I envisage it poses a considerable barrier to the child maintaining and fully benefiting from a meaningful relationship with the mother.
The evidence of the father is that the child has had some difficulty adjusting to only seeing her mother for three hours per fortnight, but this has now settled.[46]
[46] Affidavit of the father filed 14 December 2021 at [7] and [8].
The father’s evidence in various parts, involves acknowledgment and concession about difficulty he has in managing the child’s behaviour. He attests to needing and receiving psychological support in that regard from Mr D, which suggests he has some insight into how his behaviour impacts the child. However, I am troubled by the reference below, appearing in the Y Child Protection Service progress notes:[47]
RD advised of FA’s self-disclosure about restraining X, how this hurt X and he now has stopped because X is reporting this to MO. RD shared concern that FA did not stop as it was hurting X.
[47] Affidavit of the mother filed 16 September 2021 at annexure H.
The mother's case relies on the evidence referred to at [30] to demonstrate lack of capacity to safely provide for the child's physical and emotional needs. I am not currently persuaded that this is the case. If it were the case, one would have expected the child protection authorities to have intervened or proceedings would have been taken for breach of the ADVO made 13 July 2021, as there have been reports and allegations about the father’s treatment of the child since then.
The mother’s evidence and allegations against the father, in my view need to be approached with some caution in view of the findings relating to her anxiety and attitude to the care and well-being of the child referenced in the final reasons for decision of McClelland DCJ, and also self-evident in the statements she makes to the child in her text messages. The text messages indicate that the manner in which the mother communicates with the child emphasise her love and strength of relationship with the child, while diminishing those elements of the child's relationship with the father and his family.
The mother did not dispute the authenticity of the text messages or the fact that she had provided the phone secretly to child. She may have provided the phone out concern for the child’s safety to enable communication initiated by the child, but often the communications are merely about day-to-day matters and seem to be a means by which the mother has been able to entrench herself in the child's life. This raises a serious question that will need to be addressed at the final hearing, as to the whether the mother seeks to control the child to the detriment of the child’s relationship with the father. This was a serious concern of the Deputy Chief Justice based on other findings of fact he made.[48]
[48] Reasons for Judgment of McClelland DCJ delivered 26 March 2020 at [460].
There is no evidence that the mother is unable to meet the child's physical needs. However, there is evidence of a permissive style of parenting, whereby the child heavily influences the mother. Examples from the affidavit material are:
·The mother buys presents for the child, allegedly to influence with whom the child wishes to live and spend time;[49]
·The lengthy text message exchange between the mother and the child when the child left the father’s home on 18 November 2021 which the father attached to his 14 December 2021 affidavit, the authenticity of which was not disputed by the mother;[50]
·Evidence that she engages the child in negotiations to either remain in her care or only spend short periods of time with the father.[51]
·She has stated that she will not force the child to go with the father, citing that by not doing so she is protecting the child.[52]
[49] Affidavit of the father filed 14 December 2021 at [33].
[50] Affidavit of the father filed 14 December 2021 at Annexure -04.
[51] Changeover attempt on 23 July 2021 as per affidavit of the father filed 16 September 2021 at [30]; changeover attempt on 4 August as per affidavit of the father filed 16 September 2021 at [34]; changeover attempt on 1 September 2021 as per affidavit of the father filed 16 September 2021 at [47].
[52] Affidavit of the mother filed 16 September 2021 at [13].
The preliminary findings referred to at [60] - [64] are consistent with the findings by McClelland DCJ about the mother's vulnerabilities or anxieties, behaviours and traits. Collectively, the paint on the canvas seems to depict that the mother currently continues to expose the child to risk of emotional harm, especially in light of the views of the Family Consultant.[53]
[53] Child Inclusive Conference Memorandum dated 8 July 2021.
If the mother coerces or controls the child to promote her relationship and damage the father’s relationship, this may amount to family violence, the meaning of which is provided for in section 4AB of the Act. I emphasise that I do not make any findings as to this, but simply identify that it needs proper exploration at a final hearing.
As to the alleged risk of harm posed by the father, there are some concessions about the father’s physical interaction with the child, which appears to establish a level of family violence towards the child within the meaning of the Act,[54] as the father has admitted that:
(a)He threw fertiliser pellets in the direction of the child on 18 November 2021, some of which hit her and this incident was frightening to her;[55]
(b)He physically moved the child away from a glass sliding door in April 2021, at which point she stumbled/fell onto the doorframe. The father denies that the child was injured, however concedes that a few days later he sighted a bruise on her leg;[56]
(c)He had physically restrained the child, which hurt her.[57]
[54] Pursuant to statutory meaning in section 4AB of the Act.
[55] Affidavit of the father filed 14 December 2021 at [11].
[56] Affidavit of the father filed 16 September 2021 at [70].
[57] Records of the Y Local Health Service dated 13 May 2021, attached to affidavit of the mother filed 16 September 2021 at Annexure H.
As to the contention that the father’s difficulties with the child are due to her suffering a mental health disorder, I am not prepared to accept that the diagnosis by Ms WW is valid at this juncture. The opinions proffered by Ms WW have not been tested and at face value do not sit consistently with the evidence put before the Court from the school. That evidence suggests that objectively the child is developing normally and is progressing satisfactorily, meeting age-appropriate goals. Further, the evidence from both parties about the extra-curriculum activities in which the child engages does not seem overtly consistent with a social disorder as opined in the report of Ms WW.
If the child does have tantrums and melt-downs disproportionate to what might be regarded as “normal" for a child of her age, there may be other explanations which arise on the evidence before the court. It may be in response to risk of harm as alleged against the father or as suggested by Dr AAA, Paediatric Registrar, due to family dysfunction with divorce/living arrangement[58]. This impression being consistent with the views of the Family Consultant about the impact of the parenting dispute on the child. That is, rather than being a psychological disorder, it could be “normal”.
[58] Affidavit of mother filed 16 September 2021 at Annexure F.
I also accept the written submissions made on behalf of the mother on 22 December 2021 as to the lack of probative value of the views contained in Ms WW’s report of 1 September 2021 based on Makita[59] principles, particularly in light of possible alternative explanations for the child’s behaviour as discussed above.
[59] Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705.
DETERMINATON AND CONCLUSION
The decision making pathway referred to in Goode & Goode [2006] FamCA 1346 and MRR & GR [2010] HCA 4 applies in this case, but the task of the Court in this instance should have a particular focus in my view.
The orders to be made upon the Application for Review should primarily be influenced upon evaluation of the considerations in sections 60CC(2) of the Act as directed by section 60CC(2A) of the Act, especially based on what has occurred since early 2021. In addition, I cannot ignore the context of the final judgment and the findings made in the court’s reasoning, as the Court had already not that long ago determined what was in the best interests of the child.
Multi-levelled evaluations of many considerations, some of which are inter-related must be assessed on a discretionary basis according to evidence not yet tested, while following the required decision making pathway.
The risk assessment involved at the focussed level of considering sections 60CC(2) and 60CC(2A) of the Act, concerns the respective proposals and the various alleged risks to the wellbeing of the child said to attach to each proposal.[60] This risk assessment is not in a vacuum, but should also involve discretionary attention to all considerations in section 60CC(3) of the Act.
[60] Deiter & Deiter [2011] FAMCAFC 82; Marvel & Marvel [2010] FamCAFC 101.
During the hearing, I raised the focus of the court’s task with counsel and invited submissions. The relevant exchange during the hearing has been transcribed due to the technical issues referred to above at [13] and it is useful to set out the salient parts of the discourse:
MS BRYAN: And in my submission, when making an interim assessment and working through the interim pathway as set out in [Goode & Goode (supra)] and as prescribed by section 60CC [of the Act], this should be the starting point in relation to risk for the court. I say again that while the factual matrix morphs with new developments over time, the underlying dynamic of the way in which the mother and the child and are enmeshed and the way in which that seems to be escalating has not changed, and
HER HONOUR: Can I engage with that submission, Ms Bryan?
MS BRYAN: Yes.
HER HONOUR: Let’s assume that everything that you’ve submitted so far is right.
MS BRYAN: Yes.
HER HONOUR: But it seems to me that there’s a concession by the father that there have been incidences of – I will put it as blandly as conflict, between him and [the child]
MS BRYAN: Yes.
HER HONOUR: which have led to physicality and some degree – I think that’s all I can say – of injury or insult.
MS BRYAN: Yes.
HER HONOUR: Now, if that’s the case, how do I prioritise – and I’m inviting a submission about this – the immediate physical harm or risk of physical harm to the child against that bigger picture submission that you make about the long-term damage, I suppose – I’m not putting this very well, but the long-term damage – to the child both – well, particularly emotionally, by limiting the mother’s time with the child and – because of her behaviours, if I accept everything you say about her behaviours and her anxiety?
MS BRYAN: Yes, your Honour. There’s a bit in that question.
HER HONOUR: There is. That’s why I ask it.
MS BRYAN: If I might approach it this way: it’s a nuanced submission to make, but I would urge the court to consider the gravity of the physical harm that the father acknowledges has occurred. The throwing of fertiliser pellets: if the court was to look at a spectrum of physical risks to the child, that is insulting – I like that word that your Honour used – it is frightening, it is unacceptable – but physically, the risk to her was relatively limited. And that risk, in my respectful submission, is constrained by the father’s recognition/acknowledgement of what happened – his insight.
And he is also working with Mr D, and these are matters that he discusses with Mr D – how to parent the child. He has also discussed with [Ms] WW strategies for assisting the child to downregulate. And when your Honour reads my client’s affidavit material, you will see that he talks at some length about how both he and the police on various occasions have employed those strategies to help the child downregulate.
The second limb of my answer would be that a short-term focus on putting the child in the care of a parent who may or may not cause physical harm – I have to acknowledge – I don’t think there’s a suggestion that the mother is a physical risk to the child – is that the long-term damage and confusion and blurring of boundaries that this child experiences when in her mother’s care will ultimately impact on her wellbeing and development. That comes out in the Deputy Chief Justice’s reasons and very much was a consideration for the family report writer, Dr B, in her two family reports for those proceedings. And that dynamic between the mother and child, we say, is a significant, if not the primary cause of the child’s oppositional defiant behaviour disorder.
And that, in turn, causes real, genuine difficulties that my client doesn’t try and gloss over in managing the child’s physical behaviour. For example, with the glass door, as I understand it, what he was trying to do was calm her down and move her away from the door so that she didn’t break the glass door and suffer really serious physical injury by – through glass shards. That’s at page 23 of the section 69ZW; although, I acknowledge that the glass shards is my impression of what the father was trying to do, but certainly, he describes trying to calm her down and move her away from a situation of danger. So his physical interactions with her, putting aside the fertiliser throwing, are entirely around managing her physical outputs. They are responsive to the child’s dysregulated behaviour; they are not the genesis of the child’s dysregulated behaviour.
In evaluating the competing previously identified and possible risks of harm to the child at this preliminary stage, it cannot be escaped that there is some degree of risk of physical harm posed by the father to the child. This appears to have been relatively mild to date. However, if there is perpetuation of anger, lack of control and use of physical discipline it will likely lead to more insidious emotional harm over time and potentially serious physical injury, although the father may not intend that outcome.
The required risk assessment also involves evaluating the likelihood of the perpetuation of the risk of harm referred to at [75]. The history of events since the making of the final orders made 26 March 2020 tend to indicate what I consider to be a gradual escalation of conflicts between the father and the child, some physical or other insults or distress experienced to or by the child.
The events conceded to have occurred between the father and child are not one-off incidents, and the episodes involving the child and the sliding door, with the axe and fertilizer being thrown on 18 November 2021 involved grave potential for emotional and physical harm.
The consistency of some information about these events from various sources, to the effect that the child has had bruising and has said she has been frightened or scared, gives me an impression that the child is at risk of some degree of physical and emotional harm from these sorts of incidents.
In arriving at the impression referred to above, I am particularly influenced by the relatively recent expert views of the Family Consultant, set out in the Child Inclusive Memorandum in July 2021. In particular, I note paragraph 46 which says:
The incident that lead to the current ADVO is concerning as [the child] reports the need to protect herself. Whether this is a perceived threat or learnt due to it previously occurring, is difficult to differentiate between, in a preliminary assessment. The long term effect this may have on [the child] will be severe as this could impact her trust, feelings of safety and feelings of belonging, which all form a part of her identity.
I observe that the types of incident between the child and father to which the Family Consultant was referring continued even after the interim orders on 29 September 2021 were made and the mother’s time was supervised and limited.
The mother’s contention to the effect that she does not suffer anxiety is based on evidence not yet scrutinised and which at face value is heavily influenced by the mother’s subjective reporting of history. This is self-evident from reports of Dr R and Ms BBB.
The evidence overall leaves the impression that the mother continues to present a risk of emotional harm to the child regardless of whether there is evidence of a formally recognised psychiatric disorder.
The contents of the Family Consultant’s report, on which I place significance, are also very telling regarding the risk of emotional and psychological harm posed by the mother’s conduct as described in the evidence elsewhere in these reasons and in her report. In particular, the Family Consultant states at paragraphs 33 and 41 as follows:
33.… [The child] did however say that [the mother] worries a lot, and she knows this as [the mother] always tells her. [The child] said [the mother] would often say “I worry so much about you” or “I worry dad will hurt you” on the first day [the child] comes for changeovers…
…
41. It is concerning that [the child] perceived this interview was in relation to what [the child]’s time with the father was like, as the interview is in relation to what [the child’s]’s life is like in both households. If [the mother] is influencing [the child] to report negatively about her father, it will affect [the child]’s relationship with her father initially, however may also damage her relationship to her mother in the long run.
These statements involve sentiments consistent to the findings made by McClelland DCJ. Despite the mother's denials of any formal diagnosis of mental disorder relating to anxiety, I am left with the clear impression that the mother has self-reported an admitted tendency to worry and this likely influences her actions in making allegations about the father. The potential for the allegations to be exaggerated is not lost, but some allegations are corroborated or partly admitted as discussed in the reasons above.
It may be that the mother continues to knowingly or subconsciously engage in conduct to diminish the child’s relationship with the father and undermines the father’s capacity to parent. If so, this presents a further risk of emotional harm to the child as identified by the expert views of the Family Consultant at paragraph 41 referred to above.
While counsel for the father asserted that there has not been compliance with Order 9 of the final orders, I observe the following:
·Clinical psychologist Dr R prepared a report dated 11 May 2020.[61] On its face it is evident that the requirement for assessment and intervention was as required by the Court order. However, Dr R stated the assessment was limited by lack of information; and
·On 9 November 2020, Ms BBB, a different registered psychologist, provided a report referring to initial assessment on 2 November 2020.[62] It appears she was provided with the documents referred to in Order 9(e), although regrettably arguments were also provided.
[61] Affidavit of mother filed 10 June 2021 at Annexure D.
[62] Affidavit of mother filed 16 November 2021 at Annexure B.
I agree with the Family Consultant that there is a need for both parents to be psychiatrically assessed by an independent psychiatric expert. The history of the conflict between the parents, which continues apparently unabated reinforces the statements made by McClelland DCJ at [120] of his reasons for judgment about both parties’ mental health presentations. Those reasons being based on Dr B’s evidence cited at [118] of the final reasons.
The material before the Court suggests that without specifically focussed psychological and/or other specialist intervention, the mother is likely to continue to behave in ways to create or exaggerate difficulties for the father in parenting the child. Without appropriate intervention, the mother’s conduct will quite likely present more frequent and worsening risk of harm to the psychological well-being of the child.
The fact of conflict between the father and child as portrayed in the evidence, regardless of the specific reason for it suggests that he too presents some risk of physical and/or harm emotional to the child.
The magnitude of the relative risks referred to in the reasons above and the particular degree of likelihood of their occurrence cannot be accurately assessed at this interim stage.
Although the father apparently has some insight into the difficulties managing the child and is seeking psychological assistance, the evidence also conveys that he and his household is one under considerable strain and stress.
It is highly concerning that the father has not put any evidence before the Court from his wife, even in the face of the remarks of McClelland DCJ in the prior proceedings.[63] This is particularly so due to the yet untested evidence about arguments between the father and his wife. This appears relevant to the question of whether the child is being exposed to family violence in the father’s household.
[63] Reasons for Judgment of McClelland DCJ delivered 26 March 2020 at [9].
The fact that the father agreed to trial the child spending more time with the mother and then consented to the order of 24 June 2021, albeit his explanation, is also possibly consistent with him not coping.
On the other hand, one would have expected the conflict at changeovers and allegations of physical harm to reduce once the mother was spending more time with the child, but instead it continued. Why that is so cannot presently be determined in my view, even on a preliminary basis, as tempting as it may be to look to the past findings to inform the Court now.
Further, in my view I ought not determine what interim orders should be made solely on the basis of whether the mother has done that required of her pursuant to Order 9 of the final orders. The relative and respective risks raised on the evidence since the final orders were made need to be carefully considered.
I cannot presently determine whether what the mother says she has done, constitutes compliance with Order 9 of the final orders. If, as the mother claims, she has been unable to obtain the treatment implicit in Order 9(c) because a psychologist says she does not require it, the mother’s time could not progress despite her endeavours. I do not believe this would have been the intent of the order. The reports also suggest that there have been “appointments”,[64] but there is no evidence about what they entailed.
[64] Affidavit of mother filed 10 June 2021 at Annexure D; affidavit of mother filed 16 November 2021 at Annexure B.
If the mother can desist from behaviours that:
· tend to involve the child in the parenting dispute; or
· adversely influence the child’s attitude of the father; or
· interfere with the day-to-day parenting by the father;
it seems preferable for her to spend more time with the child to promote their meaningful relationship for the benefit of the child. This in turn would tend to reduce the identified risk of harm to the child presenting due to the father’s current circumstances where it appears he has been emotionally stretched and is having difficulty coping with the child’s dysregulated behaviours.
I do not ignore the concern expressed at [57] about the possible disruption or confusion a further change may entail, but there will be no change pursuant to the Orders I intend to make until the mother has engaged in at least six sessions of treatment. This should afford some confidence that the change will benefit the child rather than destabilise the child, noting her expressed desire to spend more time with her mother.[65]
[65] Affidavit of the father filed 14 December 2021 at [7]; Child Inclusive Conference Memorandum at [30].
Based on any reading of the affidavit material, conflict arises at changeover which quite likely has been witnessed by the child. Changeovers under the final orders were largely to be at school except on non-school days. There is little or no evidence of “trouble” at changeovers at school. This strongly suggests that the conflict between the parents witnessed by the child is likely to be diminished if the changeover occurs on “neutral ground” and in public. Indeed, this was the view expressed by the Family Consultant.[66]
[66] Child Inclusive Conference Memorandum at [49].
It is likely that the substantive proceedings will take months if not longer to be finalised, and I do not consider it in the child’s best interests that she spend only 3 hours of supervised time with the mother, in light of the relative risks of harm to the child alerted to in these reasons despite the earlier findings of McClelland DCJ.
Regardless of the father's explanation, he in fact consented to orders that the child should spend 5 nights per fortnight with the mother with no conditions for supervision and he is by no means a stranger to litigation in the court. Prior to the consent order, he had agreed to trial gradual increase of the mother’s time, again without supervision.[67] Such acquiesce is very concerning if as he now alleges the mother poses unacceptable risk to the child’s well-being.
[67] Affidavit of the father filed 16 September 2021 at [107].
The mother sought an interim order for sole parental responsibility. In view of the nature and scope of the dispute between the parties at this juncture, it is not appropriate to interfere with the final orders of McClelland DCJ concerning parental responsibility or with whom the child should primarily reside.
The father and ICL both contend that the allegations by the mother against the father represent a continuation of a pattern of harmful past similar behaviours which the court has already ruled upon. In my view that contention is overly simplistic.
The finding about the mother’s anxieties, which prevailed in the reasoning of McClelland DCJ, included acceptance of the views of the expert, Dr B.[68] That report was not before me, although counsel for the father and the ICL each contended I should have regard to it. Neither the father nor the ICL had identified this as evidence to be relied upon prior to the hearing.
[68] Reasons for Judgment of McClelland DCJ delivered 26 March 2020 at [180].
In view of mother’s counsel objecting to it being read in evidence,[69] in my discretion I do not read it. However, I am acutely aware of the basic tenor of what the expert said and the Court accepted as the report is cited in a number of instances in the reasons for judgment of McClelland DCJ. Dr B has not had regard to the events or incidents which have occurred after the final hearing in 2020. Accordingly, its weight is minimal, and the Court has the benefit of the Family Consultant’s views.
[69] Written submissions of the mother filed 22 December 2021.
Although there are some similarities between the current allegations against the father and those made by the mother in the past, they are not the same. I am cautious to simply dismiss them as baseless or irrelevant at this juncture. I consider I would fall into error by doing so.[70] In arriving at this view, I am conscious that Dr B had expressed some doubt about the father’s capacity to meet the child’s long-term physical, emotional and intellectual needs as her primary carer in a 2015 report. Dr B’s views are cited at [340] of the final reasons for judgment foreshadowed that the father’s capacity to deal with day to day care was speculative and involved a significant level of crystal balling. The assessment of this evidence before McClelland DCJ is at [347] of his reasons noting the father had progressed to 5 nights per fortnight by the trial. However, in my view the assessment must logically be seen in the light of the limitations described at [321] of the final reasons, which seem to be equally relevant to capacity to manage the child’s behaviour as it is to capacity to provide routine daily care.
[70] Moose and Moose [2008] FamCAFC 108.
The mother has sought orders on the review application requiring the father’s time to be supervised. In the context of the final judgment and my satisfaction, because it was not disputed that the father continues to engage in treatment with Mr D, I do not consider supervision or reversal of the primary living arrangement warranted. Although there is a suggestion that the father may pose a risk to the child of physical and/or emotional harm, it is not capable of being characterised as unacceptable risk.
Although I am not persuaded that the orders sought by the mother in the Application for Review should be made, based on the foregoing reasons I do not consider it to be in the best interests of the child to simply dismiss the Application for Review.
In concluding as I have, I have been particularly mindful of the impassioned plea by the ICL in her closing submissions about the effect on the child of the continued dispute between her parents. The child has likely endured the adverse effects of conflict and instability due the parenting disputes between her parents. However, the Senior Registrar’s order was not the “circuit breaker” the ICL submitted was required, as the disputes and conflict continued.
I consider that the terms of the orders I propose to make, clearly and explicitly require the mother to engage in specific treatment before she can proceed to spend more time with the child. If she fails to do so, that will be an important consideration at final hearing of her Initiating Application.
No contravention proceedings have yet been commenced. If the mother fails to comply with these orders, contravention proceedings may be more appropriate. In such proceedings upon a breach being established, the Court’s orders may be educative in nature, but will gradually progress to more and more serious sanctions in cases of contemptuous or multiple repeat breaches.
Taking a cautious and child protective approach at this interim stage is required.[71] I consider it preferable to make orders that ought to reduce each of the respective risks of harm to the child discussed in these reasons. I propose to make orders on an interim basis according to draft orders and I will give the parties an opportunity to be heard as to their terms.
[71] Marvel & Marvel [2010] FamCAFC 101; Matenson & Matenson (2018) FLC 93-848 at [35] (discussing Goode & Goode [2006] FamCA 1346).
At the conclusion of the review hearing before me, all parties submitted that the proceedings should be transferred to Division 1 of the Court. I treated the submissions as if it were an oral application by consent and indicated that I would address it in my judgment.
Although I consider a transfer to Division 1 of the Court should occur for a number of reasons, the power to make such an order reposes in the Chief Justice pursuant to section 51(1) of the FCFCOA Act. As the power does not appear to have been delegated to a judge of Division 2 of the Court, I cannot make the order sought.
However, I have decided to refer the application to the National Assessment Team (“NAT”) and invite the Chief Justice to consider exercising his power to transfer on his own initiative pursuant to section 51(2)(b) of the FCFCOA Act. Should it be of assistance to the Chief Justice, I make the following observations.
This appears to be matter suitable for transfer given:
(d)The complex history of the parties parenting disputes, which have previously been before the Family Court of Australia;
(e)The voluminous nature of the evidence of mutual allegations of risk of harm to the child;
(f)The level of concern about exposing the child to harm from the entrenched positions and continuing conflicts;
(g)The nature of the expert evidence required as discussed in my reasons and the currently anticipated contest about this;
(h)The likely length of time before trial dates could be allocated in Division 2 of the Court; and
(i)The likely length of the final trial.
The above factors seem to be relevant considerations for the purposes of paragraph 4.11 of the Central Practice Direction.
Noting the above, I will have my Associate refer this matter to the NAT shortly following publication of my orders.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 2 February 2022
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