Rasheem & Rasheem
[2024] FedCFamC1F 595
•6 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rasheem & Rasheem [2024] FedCFamC1F 595
File number(s): PAC 2690 of 2024 Judgment of: ALTOBELLI J Date of judgment: 6 September 2024 Catchwords: FAMILY LAW – PARENTING – Where the mother seeks to reconsider parenting orders under s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”) – Where the father opposes this – Where the Court considers the nature and scope of s 65DAAA – Where s 65DAAA is materially different to the previous common law position – Where the Court declines to reconsider the parenting orders – Where the parties disagree on the utility of additional expert evidence – Where no further evidence is required.
FAMILY LAW – PROCEDURE – Where the father seeks to dismiss the Independent Children’s Lawyer – Where the mother and the Independent Children’s Lawyer oppose this – Where the Court finds that the Independent Children’s Lawyer has fulfilled their role – Where the Independent Children’s Lawyer remains appointed.
FAMILY LAW – INJUNCTION – Where the father alleges that the children’s treating psychologist is biased against him – Where the father seeks a s 68B injunction against the mother from causing the children to receive therapy from the psychologist – Where the Court finds that the psychologist had acted outside of her role and caused additional conflict – Where the Court restrains the mother under s 68B of the Act.
Legislation: Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB
Family Law Act 1975 (Cth) ss 60CA, 60CC, 60I, 64B, 65DAAA, 68B, 68LA
Family Law Amendment Act 2024 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.04
Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth)
Second reading speech, Family Law Amendment Bill 2023, Senate Hansard, 17 October 2023
Cases cited: Ainsley & Ainsley (No 2) [2022] FedCFamC1F 455
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Bennett v Bennett (2001) FLC 93-088; [2001] FamCA 462
Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221
Carriel & Lendrum (2015) FLC 93-640; [2015] FamCAFC 43
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26
Dawar & Dawar [2019] FamCA 569
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55
Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346
Hartley & Hartley [2021] FedCFamC1F 178
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Kable v Director of Public Prosecutions(NSW) (1996) 189 CLR 51; [1996] HCA 24
Kartinyeri v Commonwealth (1998) 195 CLR 337; [1998] HCA 22
Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10
Langmeil & Grange [2013] FamCAFC 31
Lim & Zong (2021) FLC 94-048; [2021] FamCAFC 165
Lloyd and Lloyd and Child Representative (2000) FLC 93-045
Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Morton & Berry (2014) FLC 93-613; [2014] FamCAFC 208
NADR v Minister for Immigration and Multicultural Affairs [2002] FCA 361
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85; [1997] HCA 53
Poisat & Poisat (2014) FLC 93-597; [2014] FamCAFC 128
Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; [1975] HCA 28
Rasheem & Rasheem (No 4) [2023] FedCFamC1F 690
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Roadshow Films Pty Ltd v iiNet Ltd (2012) 248 CLR 42; [2012] HCA 16
SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16
Stern v Colli (2022) 65 Fam LR 548; [2022] FedCFamC1A 95
Tibb v Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Tickner v Chapman (1995) 57 FCR 451
Trewitt & Brock [2021] FedCFamC1A 9
Whitehill & Talaska [2024] FedCFamC2F 768
Australian Law Reform Commission, Family Law for the Future: An Inquiry into the Family Law System (Report No 135, April 2019)
Sanson, Michelle, Statutory Interpretation (Oxford University Press, 2nd edition, 2019)
Division: Division 1 First Instance Number of paragraphs: 147 Date of hearing: 15 July 2024 Place: Sydney Counsel for the Applicant: Mr Rosic Solicitor for the Applicant: Michael Jokovic & Associates Counsel for the Respondent: Ms Petrie Solicitor for the Respondent: Veritas Law Firm Solicitor for the Independent Children's Lawyer: Ms Shedden, Shedden & Associates ORDERS
PAC 2690 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS RASHEEM
Applicant
AND: MR RASHEEM
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
6 SEPTEMBER 2024
THE COURT ORDERS THAT:
Parenting
1.The Applicant’s application to re-open parenting proceedings under s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”) be dismissed.
2.The Respondent’s time with X, born 2018 and Y born 2019 (“the children”) resume in accordance with the final parenting orders made on 18 August 2024.
3.No further expert material be produced in these proceedings.
Restraints
4.The Applicant be restrained under s 68B of the Act from causing the children to receive therapy from Ms RR.
Independent Children’s Lawyer
5.The Respondent’s application to discharge the Independent Children’s Lawyer be dismissed.
Costs
6.Should either party seek costs from these proceedings, they must file and serve an application and any affidavit material in support.
7.Within 14 days of the filing of such application the Applicant for the purposes of the costs application file and serve written submissions, not exceeding 1000 words, together with any further material in support.
8.Within 14 days thereafter, the Respondent file and serve a response to the application for costs, any affidavit material in support, and written submissions not exceeding 1000 words.
9.Within seven days thereafter, the Applicant must file and serve any submissions in reply, not exceeding 250 words.
10.Thereafter, judgment shall be reserved, and the matter determined on the papers.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rasheem & Rasheem has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
This case is about X, and Y (“the children”) who are 6 and 4 years old respectively. The Court is required to determine whether to allow their mother (“the mother”) and their father (“the father”) (“the parents”) to relitigate important issues relating their care. The parents’ application is forthcoming notwithstanding that the Court made final orders pertaining to the children on 18 August 2023 following a seven-day hearing (“final orders”).
The Court was also asked to determine two incidental matters. Firstly, whether the Independent Children’s Lawyer appointed during the first hearing should continue to act in that role. Secondly, whether the mother should be restrained from causing the children to receive therapy from their current treating psychologist Ms RR (“the psychologist”).
During submissions, the parents acknowledged that the Court could order expert evidence on the discrete issue of whether re-litigation would benefit the children, noting the disruptive effect further Court proceedings typically have on children. It was suggested that, whatever the report recommends, such evidence might assist the parents in managing the issues raised in their respective affidavits. Similarly, it was put to the parents the possibility that further expert evidence could assist in the resolution of future substantive issues if the Court allowed the mother’s application under s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”).
The Independent Children’s Lawyer and the mother supported the production of additional expert material. The father opposed any such expert report. He contended that it would be proper to evaluate the need for further expert material after the Court has decided the threshold issue under s 65DAAA of the Act.
These reasons for judgment explain why the Court has dismissed the mother’s application under s 65DAAA of the Act, dismissed the father’s application for the removal of the Independent Children’s Lawyer, dismissed the need for further expert evidence, and ordered that the mother be restrained from causing the children to receive therapy from the psychologist pursuant to s 68B of the Act. The mother must comply with all existing orders in relation to the children.
BACKGROUND
The mother is 33 years old and is employed as a professional within her father’s business. The father is 36 years old and is employed as a manager. The parties commenced their relationship in 2012, were engaged in 2013 and married in 2015. The parties separated on a final basis on 15 January 2020. There are two children to the relationship, X and Y.
The final orders were made on 18 August 2023: Rasheem & Rasheem (No 4) [2023] FedCFamC1F 690 (“Rasheem”). The final orders provided for the mother to have sole responsibility for the children, for the children to live with the mother and for the children to spend gradually increasing time with the father. The mother was also permitted to apply for Australian passports for the children, and both parents were permitted to travel overseas with the children on conditions. The father was able to spend special occasion time with the children during their school holidays, on Orthodox Easter, Good Friday, Christmas Day, Father’s Day, and their birthdays. The father was required to submit to hair follicle testing and provide a letter from his treating doctor detailing the same. The Independent Children’s Lawyer was to continue in that role for a period of 12 months after the final orders were delivered.
The final orders prescribed a four stage increase in the time the children were to spend with the father. The first stage continued for a period of three months and allowed the children to spend supervised time with the father on each alternate Sunday from 9.30 am to 2.00 pm and each Thursday from 10.00 am to 2.00 pm until the oldest child commenced school, and from after school to 6.00 pm thereafter. The second stage commenced after the initial stage and continued for a further three months. The children were to spend each alternate Sunday from 9.30 am to 4.00 pm and each Thursday from 10.00 am to 2.00 pm until the oldest child commenced school, and from after school to 6.00 pm thereafter. The third stage of the final orders provided for the children to spend time with the father each Wednesday after school/daycare to 6.00 pm and each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday.
Importantly, the third stage in the final orders was the first to introduce overnight time. The children were scheduled to begin this third stage of time before the mother unilaterally suspended contact with the father. The crux of the mother’s application is that it is not in the children’s best interests to allow overnight time to occur.
Findings in Rasheem
The decision in Rasheem highlighted numerous features which remain relevant to the current proceedings. The Court found that the mother suffered from “anxiety which could easily affect the children” (Rasheem at [159]). Further, it was identified that the mother “had the ability to transpose past experiences onto present experience indiscriminately, and selectively” (Rasheem at [159]). Thus, the mother presented as “a somewhat dependent and over-compliant person” (Rasheem at [152]). It followed that many of the mother’s actions could be viewed through the prism of this anxiety.
The father in Rasheem was found to be evasive about his own conduct and motivation, particularly in relation to his gambling and illicit drug use (Rasheem at [153]). The expert report writer identified that the father’s personality traits “would be best accommodated in terms of borderline or narcissistic personal traits” (Rasheem at [156]). In circumstances where the father submitted to hair follicle testing and completed a gambling treatment program, the Court stated that it “did not believe that the children were at risk of harm arising out of family violence” (Rasheem at [165]).
The parents suffered from deep mistrust and were embroiled in constant conflict. This extended to both the paternal and maternal families (Rasheem at [161]). The Court concluded that the “broader involvement of both paternal and maternal families, set the groundwork for inevitable conflict if the parents were required to consult with each other” (Rasheem at [168]). The impact and severity of the interfamilial conflict between the two factions could not be understated. It posed a significant risk that the children were required to be shielded from.
Events since the final orders
The mother contends that the children have had an adverse reaction to time with the father since the final orders. She deposes to multiple comments by the children between 25 August 2023 and 1 September 2023 to support this. On 29 April 2024, the mother reported that Y was extremely distressed and unable to attend daycare due to fears that the father would flee the country with the children. Y allegedly expressed similar sentiments on 7 May 2024.
The children have also allegedly reported to the mother that the father and his family have made denigrating statements about the mother in front of the children. The mother provides three examples of this, occurring on 4 September 2023, 14 September 2023, and 6 April 2024.
In late 2023, Y reported that the police had arrested the father during the children’s time with him.
The father denies all the mother’s allegations, and instead suggests that “since the making of the orders, my time with the children has been loving, joyful and harmonious” (father’s affidavit, paragraph 19). The father provided numerous images to demonstrate the children’s positive reaction during their time with him (Exhibits R2–R5).
The mother also contended that since the final orders, her financial prospects have deteriorated. In turn, her ability to obtain psychological treatment for the children, or to retain the family home has become more difficult. The mother also suggests that the father is doing well financially, and the father admits that he has not complied with the property components of the final orders. It is ultimately unclear, for the purposes of an application under s 65DAAA of the Act, what relevance these contentions might have.
It is also apparent that the parents have come into conflict whilst implementing the final orders. Since the publication of the final orders, similar interparental and interfamilial dynamics have persisted. The quantity of superfluous, irrelevant, or petty complaints raised by the mother’s witnesses within the affidavit of Ms SS filed 5 July 2024 and the affidavit of Ms TT filed 5 July 2024 exemplify this. The mother continues to raise concerns about the father’s mental state and parental capacity.
The father disagrees with the evidence of the mother and her witnesses. He provides information that the children have been excited to enter his care and joyful when spending time with him. The father highlights Y’s birthday party, a pool party visit in 2023 and an overnight stay in December 2023 as evidence of this.
The father contends that the anxiety of the mother and her witnesses are the primary reason behind the unilateral suspension of his time with the children, and not any change in circumstances or deficit in his ability to parent the children.
Events of 2 May 2024 to 5 May 2024
The events between the period 2 May 2024 and 5 May 2024 appear to be the catalyst for the most recent proceedings and the s 65DAAA application.
On 2 May 2024, the mother received a letter from the treating psychologist of the children containing certain warnings and recommendations based on the children’s alleged reaction to ad hoc overnight time with the father. The letter strongly advised the mother to not allow the children’s upcoming commencement of regular overnight time with the father to go ahead. The mother suspended time with the father in accordance with the psychologist’s recommendation. The mother provided a copy of the psychologist’s letter to her solicitor and the Independent Children’s Lawyer. The father contacted the Independent Children’s Lawyer for assistance understanding, or correcting, the mother’s actions. The Independent Children’s Lawyer did not respond.
On 3 May 2024, the mother contacted New South Wales Police (“NSW Police”) over safety concerns regarding the father’s reaction to the unilateral suspension of time. She was informed that NSW Police could not intervene until such time the final orders were varied.
On 4 May 2024, the Independent Children’s solicitor communicated with the mother and asked her to send the psychologist’s letter to the father. The mother contacted the Department of Communities and Justice (“DCJ”). The mother alleges that she was advised to not share a copy of the letter with the father. The mother communicated the same to the Independent Children’s Lawyer.
On 5 May 2024, the father messaged the mother to indicate that the children have refused to leave his care, and that he would retain them overnight if they requested to do so. This did not occur, and the children were delivered to the changeover point at 5.00 pm 5 May 2024.
Since 5 May 2024, the father asserts that the mother has prevented him from spending time with the children on at least 14 occasions, including three overnight stays (father’s affidavit filed 10 July 2024, paragraph 94) (“father’s affidavit”):
(a)9 May 2024;
(b)16 May 2024;
(c)19 May 2024;
(d)23 May 2024;
(e)30 May 2024;
(f)1 June 2024 to 2 June 2024;
(g)5 June 2024;
(h)8 June 2024;
(i)12 June 2024;
(j)15 June 2024 to 16 June 2024;
(k)19 June 2024;
(l)26 June 2024;
(m)29 June 2024 to 30 June 2024;
(n)3 July 2024; and
(o)10 July 2024.
COMPETING PROPOSALS
The mother was the applicant seeking to produce further expert material, and reconsider final parenting orders under s 65DAAA of the Act. The father raised two further discrete incidental matters for determination – the removal of the current Independent Children’s Lawyer, and the s 68B restraints sought in relation to the psychologist.
Section 65DAAA
The mother sought to vacate Orders 5–14, 28 and 35 of the final orders. In their place she proposes that the father spend time with the children solely as determined by the mother, for the father’s time with the children to be professionally supervised, and for the father to be restrained under s 68B from attending the children’s school, the children’s extra-curricular activities and from attending the mother’s residence. The Independent Children’s Lawyer supported the mother’s application but proposed to suspend, rather than vacate Order 5–14 of the final orders
The father opposed the mother’s orders and sought to enforce the terms of the final orders.
Single expert report
The mother sought orders that a single expert report be prepared pursuant to r 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), and that the father pay all upfront and incidental costs associated with the preparation of such report. The Independent Children’s Lawyer supported the mother’s position in relation to the report and its cost of production.
The father opposed the production of any further expert material on the basis that it would be prudent to wait for the result of the mother’s application under s 65DAAA of the Act. The father did not espouse a position relating to the costs of any material if the Court ordered its preparation.
Independent Children’s Lawyer
The father sought orders that remove the current Independent Children’s Lawyer, and that prevented the appointment of any other Independent Children’s Lawyer in this matter.
The mother sought that the current Independent Children’s Lawyer continue in her role, or alternatively, that a new Independent Children’s Lawyer be appointed for the duration of these proceedings.
The Independent Children’s proposed that she continue to participate in this matter on the basis that she had not breached any of her professional duties.
The psychologist
The father sought orders that the mother be retrained from causing the children to receive therapy from the psychologist.
The mother opposed any restraint being made on her ability to take the children to the psychologist. The Independent Children’s Lawyer similarly opposed any order that would prevent the children from seeing the psychologist.
SUMMARY OF CONTENTIONS MADE
The mother contends that the viability of the final orders is compromised due to an escalation in the level of interparental and intrafamilial conflict. The mother points to signs of distress and anxiety the children allegedly show before, and after, entering the father’s care. She also suggests that the anger of the father and his family has intensified, and that the children are being adversely affected by this. The mother contends that there has been a significant change in circumstances since the final orders and that there is additional evidence available to the Court since the final hearing that would likely result in a different parenting order being made.
In the mother’s affidavit filed 25 May 2024 at paragraph 22 (“mother’s affidavit”), she usefully summarises the key events and factors that necessitated her application:
After the incident 5 May 2024, I contacted my solicitor and sought legal advice with respect to contact moving forward. In circumstances where I have received a letter from the boys psychologist flagging concerns and urgently recommending overnight time be delayed, and where [UU Services] have made multiple recommendations, as detailed later herein, for time to revert back to professional supervision to both me and ICL Julie Shedden, my own observations of the children's behaviour and the safety concerns brought to my attention by Police and DCJ, and finally [Mr Rasheem’s] conduct on 5 May 2024,and the boys reaction after time, I concluded that I could not continue to allow time to progress per Final Orders 18 August 2024 as it would be harmful to the boys.
The father denies all the allegations about his behaviour and the children’s attitude towards spending time with him. The father contends that the mother has wilfully frustrated the operation of the final orders due to her inability to cope with the children spending increased time with him. The father opposes the mother’s s 65DAAA application and asserts that the mother has failed to establish that there has been a significant change of circumstances based on the principles espoused in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”).
The father also contends that the mother should be restrained from causing the children to receive therapy from the psychologist. The father believes that the children should not attend therapy with an individual who holds partisan beliefs as it may harm the children’s perception of the father. Similarly, he views that the psychologist has unhelpfully fed into the mother’s anxieties sparking further conflict between the parents. The father also believes that the psychologist has received limited material that solely supports the mother’s viewpoint. He contends that the Court should give little weight to the psychologist’s evidence as a result of this.
The father also asserts that the current Independent Children’s Lawyer has been unresponsive, unhelpful, and not forthcoming with her options, recommendations, or advice. The father has grave concerns about the contact between the mother and the Independent Children’s Lawyer between 2 May 2024 and 5 May 2024. On these bases, the father contends that the Court should dismiss the current Independent Children’s Lawyer and not appoint a replacement in her stead.
The Independent Children’s Lawyer contends that the Court should allow the mother’s s 65DAAA application. She is concerned by the father’s behaviour post-final orders and does not believe that the Court should completely disregard the issues raised in the psychologist’s letter. The Independent Children’s Lawer believes that further expert material is required to understand the current family dynamics, and that the children would benefit from seeing the psychologist. The Independent Children’s Lawyer contends that she should be reappointed in this matter as she understands the history of these proceedings and has aided the parents in the period post-final orders.
MATERIAL BEFORE THE COURT
In support of her case, the mother relies upon the following material:
(a)Case Outline filed 12 July 2024;
(b)Written submissions filed 12 July 2024;
(c)Initiating Application filed 24 May 2024;
(d)Notice of child abuse, family violence or risk filed 24 May 2024;
(e)Her affidavit filed 24 May 2024;
(f)Affidavit of Ms SS filed 5 July 2024;
(g)Affidavit of Ms TT filed 5 July 2024; and
(h)Documents relied upon and marked in chambers as Exhibits A1–A17.
In support of his case, the father relies upon the following material:
(a)Outline of Case Document filed 12 July 2024;
(b)Written Submissions filed 10 July 2024;
(c)Notice of child abuse, family violence or risk filed 2 July 2024;
(d)His affidavit filed 10 July 2024;
(e)Affidavit of Ms T filed 10 July 2024;
(f)Affidavit of Ms N filed 10 July 2024;
(g)Documents relied upon and marked in chambers as Exhibits R1–R39; and
(h)Videos marked in chambers as Exhibits JK1, JK2 and SK1.
In support of her case, the Independent Children’s Lawyer relies upon the following material:
(a)Outline of Case Document filed 12 July 2024;
(b)Written submissions filed 12 July 2024; and
(c)Documents relied upon and marked in chambers as Exhibits ICL1–ICL3.
APPLICABLE LAW
Disqualification of an Independent Children’s Lawyer
The law regarding the disqualification of an Independent Children’s Lawyer is well established. Justice Tree in Lim & Zong (2021) FLC 94-048 at [21] (“Lim & Zong”) provided an extensive review of the authorities on this issue:
A number of authorities have considered the removal of an Independent Children's Lawyer, and specifically, the circumstances which may justify such a course. From those, the following points may be discerned:
•It is not inconsistent with the independent and professional discharge of an Independent Children's Lawyer’s obligations for her or him to advocate that a particular course of action adverse to, or inconsistent with, the position of a party, ought be taken by the court (Dean & Susskind [2012] FamCA 897 and Sawyer & Sawyer [2015] FamCA 982 (“Sawyer”) at [57]);
•Whilst in a unique position, the Independent Children's Lawyer owes the same professional obligations to the Court as does any licenced legal practitioner (Knibbs & Knibbs [2009] FamCA 840 (“Knibbs”) at [33]-[61], Paco & Racina [2014] FamCAFC 195 at [52]);
•On occasion, the Independent Children's Lawyer will be in an invidious position, but nonetheless they should be no less courageous, no less firm and no less cogent, in advocating for results or findings (Leroux & Leroux [2015] FamCA 1128 (“Leroux”) at [31]);
•Inevitably the role of the Independent Children's Lawyer involves an exercise of professional judgment which may, on occasion, be precarious and difficult (Knibbs at [47]-[50] and Leroux at [35]);
•It is not appropriate for a litigant to endeavour to micro-manage the Independent Children’s Lawyer, or critique every step that they take (Leroux at [218]);
•It is certainly not the case that, even if an Independent Children's Lawyer does make mistake, the Court will necessarily accede to an application to have them discharged. Significantly more than that is required (Sawyer at [80])’
•It is inevitable that the high standards of competence which the Court expects of Independent Children's Lawyers are not always met. Independent Children's Lawyers are, like anybody, liable to human frailty (Sawyer at [79]); and
•A court should be slow to discharge an Independent Children's Lawyer on the basis of largely unsubstantiated complaints of one of the parties (Lloyd and Lloyd and Child Representative (2000) FLC 93-045).
(References omitted)
It was also stated in Lloyd and Lloyd and Child Representative (2000) FLC 93-045 at 87,687 that the Court will consider the discharge of an Independent Children’s Lawyer where:
(i) ...there is evidence that the Independent Children’s Lawyer had, in any way, acted contrary to the children’s interests;
(ii) …there is evidence before the Court that the Independent Children’s Lawyer had acted incompetently in a professional sense;
(iii) …it is apparent that the Independent Children’s Lawyer has demonstrated a lack of professional objectivity; or
(iv) …to continue to act would involve the Independent Children’s Lawyer in a breach of fiduciary duty or a conflict of interest.
The Court agrees with the statement of Rees J in Ainsley & Ainsley (No 2) [2022] FedCFamC1F 455 at [30]–[32] (“Ainsley & Ainsely”):
30 In so far as there may be a divergence of opinion as to whether an ICL should only be removed if the Court finds actual bias in his or her conduct of the case, or whether a finding of the apprehension or perception of bias is sufficient, I am of the view that either actual or perceived or apprehended bias is sufficient.
31 Whilst I accept that the mother perceives that the ICL is biased, the test is objective and not subjective. The principles, which have developed in the context of applications for judges to be disqualified, apply equally to such applications relating to an ICL.
32 In the High Court decision of Johnson v Johnson (2000) 201 CLR 488 at 492, the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) set out the principles to be applied in such an application as follows:
… It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
The Court has also published guidelines for the conduct of Independent Children’s Lawyers endorsed by the Chief Justice (Division 1)/Chief Judge (Division 2) of the Federal Circuit and Family Court of Australia, and the Chief Judge of the Family Court of Western Australia. I acknowledge that these guidelines are currently under review, and only remain guidelines, not absolute rules of law.
None of the changes made to s 68LA of Act by virtue of the Family Law Amendment Act 2024 (Cth) (“the Amendment Act”) impact the present issue in this case, nor do they, for present purposes, disrupt the established jurisprudence surrounding disqualification of an Independent Children’s Lawyer.
Section 65DAAA
Elements of this application are governed by s 65DAAA of the Act. This provision is new and has undergone little scrutiny. Section 65DAAA relevantly provides:
65DAAA Reconsideration of final parenting orders
(1) If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a) the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b) the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2) For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a) the reasons for the final parenting order and the material on which it was based;
(b) whether there is any material available that was not available to the court that made the final parenting order;
(c) the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d) any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3) Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4) The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
Section 65DAAA came into effect on 6 May 2024 by virtue of the Amendment Act. As will be explained through reference to extrinsic material, the new s 65DAAA provision was intended to codify the common law rule established in Rice and Asplund.
The new statutory test espoused by s 65DAAA operates in a substantively different manner to the rule in Rice and Asplund. The Court agrees with the reasoning provided by Judge O’Shannessy in Whitehill & Talaska [2024] FedCFamC2F 768 (“Whitehill & Talaska”) in this respect. Nonetheless, these reasons shall elaborate further on why such reasoning is correct.
Extrinsic material
Section 15AB(1)(a) of the Acts Interpretation Act 1901 (Cth) (“the Interpretation Act”) allows the Court to have regard to extrinsic material to “confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act”.
In preparing this judgment the Court has considered the Explanatory Memorandum of the Amendment Act (Interpretation Act s 15AB(2)(e)), the second reading speech prior to the Amendment Act (Interpretation Act 15AB(2)(f)), and the Australian Law Reform Commission report that prompted a review into the area (Australian Law Reform Commission, Family Law for the Future: An Inquiry into the Family Law System (Report No 135, April 2019) (“ALCR 135”) (Interpretation Act 15AB(2)(b)).
The Explanatory Memorandum to the Amendment Act explicitly stated at [77] that:
New section 65DAAA codifies the common law rule established by Rice and Asplund (1979) FLC 90-725 and elaborated on in subsequent cases, that is, where final parenting orders are in place the applicant must establish that there has been a significant change of circumstance since the making of the orders before those orders can be reconsidered. The rule is founded on the notion that continuous litigation over a child or children is generally not in their best interests.
The second reading speech of the Amendment Act heard on 29 March 2023 similarly stated that the new provision:
… codifies existing case law about the reconsideration of parenting orders, making it clear that it must be in the best interests of the child, and a significant change in circumstances must have occurred, for an existing parenting order to be reconsidered.
It is also clear that the writers of ALRC 135 did not intend to displace the rule in Rice and Asplund. At [11.57] they stated:
In the Discussion Paper, this recommendation included the proposal that leave be required to apply for a new parenting order. However, that would be a departure from the existing situation where it is well settled that the rule in Rice & Asplund can be applied at the outset of a hearing or proceedings or at the end of proceedings… Dealing with these applications as appeals (by adding a leave requirement) risks disenfranchising these people, particularly if these applications were to be dealt with by registrars. It also removes the judicial discretion to consider Rice & Asplund principles at the end of the proceedings when the judge considers it is appropriate, or there is value, in doing so.
It is clear that all extrinsic material evidences a strong intention to codify the existing law founded in Rice and Asplund.
The rule in Rice and Asplund
It is well accepted that the rule in Rice and Asplund is a manifestation of the requirement for the Court to regard the bests interests of the child as the paramount consideration under s 60CA of the Act (Morton & Berry (2014) FLC 93-613 at [20]).
Justice Warnick explained in SPS and PLS (2008) FLC 93-363 at [81] that “[t]hough sometimes unstated, the underlying conclusion will or ought to be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue”. This explanation was accepted as the basis for the rule in Rice and Asplund by the Full Court in Marsden v Winch (2009) 42 Fam LR 1 at [40]–[56], Langmeil & Grange [2013] FamCAFC 31, and Poisat & Poisat (2014) FLC 93-597 (“Poisat & Poisat”).
The defining characteristic of the rule in Rice and Asplund is that an applicant must “demonstrate that a sufficient change in circumstances has occurred” before any re-litigation commenced (Carriel & Lendrum (2015) FLC 93-640 at [57] (“Carriel & Lendrum”)).
The Full Court in Stern v Colli (2022) 65 Fam LR 548 at [35], citing the Full Court in Defrey & Radnor [2021] FamCAFC 67 at [22] described the final evolution of the common law Rice and Asplund test as involving a two-stage process:
The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the [applicant] has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests.
Consideration
Section 65DAAA states that “a Court must not reconsider the final parenting order unless the Court has considered whether there has been a significant change of circumstances since the final parenting order was made”. The Court only needs to consider whether a significant change in circumstances has occurred. This is clearly a deviation from the rule in Rice and Asplund that mandated a finding of significant change in circumstances.
There is no definition of the phrase “consider” in the Act (Tibb & Sheean (2018) 58 Fam LR 351 at [74]). The Full Court, referring to a definition in the Oxford English Dictionary (2nd edition) determined that consideration requires a trial judge to “contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of” (Goode and Goode (2006) FLC 93-286 at [60]; Tickner v Chapman (1995) 57 FCR 451 at 462). The question whether a judge has engaged in the internal mental process of consideration will be answered by the “overt” and “objective” manifestations emerging from the judgment (Bielen & Kozma (2022) FLC 94-123 at [42])
For the purposes of s 65DAAA the Court must simply consider whether circumstances have significantly changed since the final parenting orders were made. The weight afforded to such change is varied, and necessarily based on the facts of the matter. The fundamental criteria that must be satisfied to allow a reconsideration of a final parenting order is that “the Court is satisfied that, in all the circumstances…it is in the best interests of the child for the final parenting order to be reconsidered” (s 65DAAA(1)(b)).
In Whitehill & Talaska Judge O’Shannessy stated at [12] that:
But on its face, section 65DAAA does not require a change of circumstances or provide that there must be a prima facie change of circumstances, rather, whether there is or is not a change of circumstances must be “considered” and all of the circumstances must be taken into account including section 60CC and whether there has been a change of circumstances. This is, on the face of the new section, a difference of substance not merely of emphasis when compared to the orthodox recitation of the rule.
The Court accepts Judge O’Shannessy’s proposition that, whilst it is mandatory to consider whether there has been a significant change of circumstances, such a change of circumstances is not a prerequisite to allow a reconsideration of a final parenting order under s 65DAAA of the Act. Other factors enunciated in s 65DAAA(2)(a)–(d) can inform the discharge of the statutory duty, especially if their evidentiary value outweighs the mere fact that significant change has not occurred.
Nature of s 65DAAA
Under the common law, it was clear that a dismissal of a Rice and Asplund application was not a parenting order per se (Trewitt & Brock [2021] FedCFamC1A 9 at [24]–[26]). This meant that a consideration of the best interest factors (s 60CC of the Act) was not required (Carriel & Lendrum at [56]). Section 64B of the Act was deliberately worded to avoid the dismissal of a Rice and Asplund application (Poisat & Poisat at [54]). By dismissing a Rice and Asplund application, the Court merely affirmed that the final parenting orders produced after the initial substantive hearing remain in the children’s best interests (s 60CA of the Act).
Section 65DAAA alters this position. Even the rejection of an application under this section requires the Court to consider s 60CC of the Act. This is addressed as the affirmative duty under s 65DAAA(1)(b) to not reconsider a final parenting order unless “it is in the best interests of the child for the final parenting order to be reconsidered”. This is an unfortunate step that is likely to increase the amount of potentially unnecessary litigation that children are exposed to. The underlying rationale for rejecting a Rice and Asplund application is unintentionally ignored by s 65DAAA. This renders the adjudicative process required under s 65DAAA different from that under the former rule in Rice and Asplund.
It is important to ascertain the nature of certain orders. Parenting orders invoke additional procedural requirements for practitioners (e.g., s 60I of the Act) and change the substantive consideration required by the Court (e.g., s 60CA of the Act). The structure of s 65DAAA blurs the boundaries between parenting, and non-parenting orders. The rejection of an application under s 65DAAA, akin to the rejection of a Rice and Asplund application, is not a parenting order pursuant to s 64B of the Act. Unlike a rejected Rice and Asplund application, judicial consideration must turn to s 60CC of the Act. The determination of an application under s 65DAAA bears all the hallmarks of a parenting order, without being classified as so.
Before the Court adjudicates, there is no method to determine whether an application under s 65DAAA is a parenting order, or not. Although semantic, it is important to maintain a distinction between orders of different natures. For example, a successful application under s 65DAAA is a parenting order, and it may therefore require the parties to attend mediation and to file a s 60I certificate. Alternatively, the dismissal of an application under s 65DAAA is not a parenting order, and these procedural requirements are unnecessary. Given that neither party can know whether the application will be successful or fail before judgment is delivered, arguably all parties are required to engage in these procedural hurdles. This will generate additional cost and delay if the s 65DAAA application is dismissed.
This Court concludes, therefore, that the provisions of s 65DAAA conflict with, and alter, the rule in Rice and Asplund rather than codify it, notwithstanding the clear terms of the extrinsic material referred to above.
Conflict between statue and common law
Where statue and common law conflict, save for issues regarding human rights, the doctrine of parliamentary sovereignty mandates that legislation prevails (Kable v Director of Public Prosecutions(NSW) (1996) 189 CLR 51 at 74; Kartinyeri v Commonwealth (1998) 195 CLR 337 at 355). Where a provision within a statute purports to cover the field on a particular issue, the common law formerly governing that area is displaced. Section 65DAAA of the Act clearly intends to cover the field on the reconsideration of final parenting orders under the Act. Consequently, the former substantive and procedural rules derived from Rice & Asplund, such as those identified in Whitehill & Talaska at [21], no longer govern adjudication under s 65DAAA.
The intention of Parliament and the Australian Law Reform Commission still must be given some weight. Section 15AA of the Interpretation Act mandates that the Court interprets s 65DAAA in a manner that “would best achieve the purpose or object of the Act”. Justice Gibbs in Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 350 stated that “where two meanings are open…it is proper to adopt the meaning that will avoid consequences that appear irrational and unjust”. There is no reading or interpretation of s 65DAAA(1) available to this Court that would align the text with its purported roots in Rice and Asplund. The Court is now mandated to reconsider final parenting orders even in cases where a significant change of circumstances has not occurred, but it is otherwise in the child’s best interests for a reconsideration to occur.
Whilst it acceptable to strain the construction of Act to give effect to its intended purpose (Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 422; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113; Kelly v The Queen (2004) 218 CLR 216 at [98]), it may be that the words used in the Act simply cannot be construed to give effect to its intended purpose (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; Roadshow Films Pty Ltd v iiNet Ltd (2012) 248 CLR 42 at [120]).
In this instance, the express drafting of the statue conflicts with its intended purpose. A Court cannot add words or phrases into the law to help it function as intended. The High Court in Lacey v Attorney-General (Qld) (2011) 242 CLR 573 stated at [61] that “the Minister’s words, however, cannot be substituted for the text of the law…”. It has always been stated that “the task of statutory construction must begin with a consideration of the [statutory] text…[and] so must the task of statutory construction end” (Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]).
To use an analogy, “where the statutory hiker realises that the statute, as presently drafted, does not have the capacity to reach the summit regardless of how much the language is stretched or strained [the Court] recognising that statutory interpretation is not an extreme sport may simply refuse to continue” (Michelle Sanson, Statutory Interpretation (Oxford University Press, 2nd edition, 2019).
Significant change in circumstances
Notwithstanding the Court’s observations above, this does not mean that previous jurisprudence is irrelevant. It is important to adapt, where possible, the language used in decisions considering the principles in Rice and Asplund to ensure that the jurisprudence has continuing value. Simultaneously, it is important to ensure that the application of decisions considering the principles in Rice and Asplund does not apply “a gloss of pre-existing law to a new and specific statutory provision” (Whitehill & Talaska at [26]).
One such area where the former common law position may be informative is the definition of “a significant change in circumstances”. It is appropriate to apply the collective judicial knowledge embodied in the decisions considering Rice and Asplund principles to new matters under s 65DAAA if it does not limit, expand or otherwise conflict with the text of the new provision. As recognised by Judge O’Shannessy in Whitehill & Talaska at [27], if the Court is wrong, it will be “necessary to re-invent the wheel and the nuts and bolts to make section 65DAAA actually work”.
Section 68B injunctions
Section 68B relevantly provides:
(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii)a person with whom the child is to live under a parenting order; or
(iii)a person with whom the child is to spend time under a parenting order; or
(iv) a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of the child; or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of a person referred to in paragraph (b); or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i).
(2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
In Hartley & Hartley [2021] FedCFamC1F 178, McClelland DCJ restated the relevant principles for the granting of injunctions at [11]–[14]:
11 The Court is empowered to grant injunctive relief in the nature of that sought by the parties pursuant to s 68B of the Act which relevantly empowers the Court to ‘grant such injunction as it considers appropriate for the welfare of the child’ including, pursuant to s 68B(2), by interlocutory order ‘in any case in which it appears to the court to be just or convenient to do so.’
12 At the outset it should be noted that the granting of an injunction restraining the exercise of what otherwise would be a person’s inherent rights and freedoms is a serious matter. The breach of such injunction potentially exposes a person to an action for contempt of Court. As noted by the plurality in Cardile v LED Builders Pty Limited [1999] HCA 18 (‘Cardile’) at [31]:
…that the court may grant an injunction in all cases in which it appears to the court to be just and convenient to do so – does not confer an unlimited power to grant injunctive relief. Regard must still be had to the existence of a legal or equitable right which the injunction protects against invasion or threatened invasion, or other unconscientious conduct or exercise of legal or equitable rights.
(References omitted)
13 In considering the nature of the injunctive relief, it is important to be aware of the general principle that ‘equity intervenes to the minimum extent necessary to do justice’.
14 In the context of family law, in Sieling and Sieling (1979) FLC 90-627 at 78 264, the Full Court said:
The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order and frame its order in such a way to impose no further restriction than is necessary to achieve the protection of the applicant’s interest.
(References omitted)
THE APPLICATION IN RELATION TO THE INDEPENDENT CHILDREN'S LAWYER
The Independent Children’s Lawyer was retained for a period of 12 months following the final orders. In this period, she continued to assist both parties without receiving any further funding from the Legal Aid Commission of New South Wales (“Legal Aid NSW”). It is to the Independent Children’s Lawyers great credit that she continued to support the parties in the manner that she did under these constraints. Despite this, the father contends that the Court should disqualify the Independent Children’s Lawyer. The father does not particularise a specific legal ground justifying removal in his material, so the Court is left to infer the possible grounds for dismissal.
The Court infers that the father’s application is made on two bases. Firstly, that the Independent Children’s Lawyer has not disclosed correspondence between herself, the mother and various treaters. The father indicates that based on evidence of unilateral correspondence with the mother, he has no faith in the impartiality of the Independent Children’s Lawyer. Secondly, that the Independent Children’s Lawyer has failed to render active assistance to the parents “at least since late February 2024” (the father’s written submissions filed 10 July 2024, paragraph 6 (“father’s submissions”). The father indicates that, by virtue of not actively assisting the parties, the Independent Children’s Lawyer provides no value in these proceedings.
Impartiality
The father contends that the Independent Children’s Lawyer was privy to communications which contained serious allegations as to his allegedly poor behaviour and detrimental impact on the children. The father holds particular issue with the fact that “the ICL makes a decision not to inform the respondent of these serious matters nor provide a response to the mother with her views, or make any recommendations regarding what is the best interest of the children moving forward” (father’s submissions, paragraph 8).
The father assumes, by proxy of not including him in all communication, that the Independent Children’s Lawyer has already shown favouritism to the mother’s cause. It may also be the father’s position that the Independent Children’s Lawyer, if not actually biased, carries the appearance of bias in favour of the mother. Consequently, the father seeks a finding of actual or perceived bias against the Independent Children’s Lawyer.
As highlighted by Rees J in Ainsley & Ainsely, the same principles that guide the recusal of a judge guide the disqualification of an Independent Children’s Lawyer. In this sense, the test for actual bias is subjective, “the Judge’s state of mind” (Dawar & Dawar [2019] FamCA 569 at [28]). A finding of actual bias “is a grave and exceptional matter” (NADR v Minister for Immigration and Multicultural Affairs [2002] FCA 361 at [14]), and it must “be distinctly made and clearly proved…cogent evidence is required” (Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]–[69]).
The father provided no material that would demonstrate that the Independent Children’s Lawyer held actual bias against him. Despite this, the father concedes there have been occasions where “there have been communications with each of the respective parties and the ICL to the exclusion of one another” (father’s submissions, paragraph 6). The Independent Children’s Lawyer, quite properly, functioned as a “sounding board” for both parties at various times following the making of final orders.
The father gives credit to the Independent Children’s Lawyer for “facilitating orders around Christmas time and following the commencement of [X] starting Kindergarten” (father’s submissions, paragraph 6). These actions by the Independent Children’s Lawyer allowed the father to spend time with the children, where it might have otherwise been difficult to do so. These are not the behaviours of someone with actual or even apprehended bias against the father.
As recognised by the mother, “no criticism can be made of the ICL’s independence particularly in circumstances where she did not arbitrate or advocate a position in respect to the matters now before the Court” (the mother’s written submissions filed 12 July 2024, paragraph 13 (“mother’s submissions”). The failure of the Independent Children’s Lawyer to provide her opinion, either in support or opposition to the mother and the psychologist is not an error. Providing an opinion either way would likely have aligned the Independent Children’s Lawyer with one of the parties. This would have made her facilitative and supervisory role more arduous. The actions of the Independent Children’s Lawyer were those of a consummate professional acting impartially.
A finding of perceived bias is enough to disqualify an Independent Children’s Lawyer (Ainsley & Ainsley at [30]). The classical test for apprehended bias “is whether a fair-minded lay observer might reasonably apprehend that they bring an impartial and unprejudiced mind to the resolution of the question” (Johnson v Johnson (2000) 201 CLR 488 at 492). The Court accepts that the mother’s behaviours were in accordance with those of a person who had been told by the DCJ to not hand over victims’ services material to a potential perpetrator (the mother’s affidavit filed 24 May 2024, paragraph 17 (“mother’s affidavit”)). It also accepts that the Independent Children’s Lawyer made a professional decision not to go against the mother’s recount of the DCJ’s alleged advice.
In these circumstances, the Independent Children’s Lawyer made a difficult decision that was open to her to make on the material available. It was recognised in Lim & Zong at [21] that “inevitably the role of the Independent Children's Lawyer involves an exercise of professional judgment which may, on occasion, be precarious and difficult”. It is unclear what else the father expected the Independent Children’s Lawyer to do.
A fair-minded lay observer looking at the actions of the Independent Children’s Lawyer would not discern the appearance of bias towards either of the parents. Consequently, this Court does not find that any allegations of actual or perceived bias have been substantiated.
Active participation
The father asserts that, “in circumstances where the ICL has chosen not to play an active role in assisting the parties with recent events then it may be that the Court will not be assisted by an ICL at all in these proceedings” (father’s submissions, paragraph 14). It is unclear, even if the Court made such a finding, that it would ipso facto constitute grounds for dismissal.
It appears that the Independent Children’s Lawyer has actively participated in this matter post- February 2024. It is merely that neither of the parents were privy to her actions. The Independent Children’s Lawyer highlights that she made enquiries with Legal Aid NSW to secure funding for a mediation on the issues currently before the Court (the Independent Children’s Lawyer’s written submissions filed 12 July 2024, paragraph 17) (“ICL’s submissions”). It was an unfortunate reality that “as there were no active family law proceedings on foot by either of the parties, Legal Aid NSW were unwilling to fund such mediation” (ICL’s submissions, paragraph 17).
The Independent Children’s Lawyer correctly identified that “[a]s ICL it was not open to me in a finalised matter to otherwise commence proceedings to embark on a further investigation of the concerns raised by [Ms RR]” (ICL’s submissions, paragraph 16). Similarly, if either parent had concerns about the safety of the children, or breaches of the final orders, they had to return to Court. The Independent Children’s Lawyer recognised that she “unfortunately had no power to determine a complaint by either party against the other party” (ICL’s submissions, paragraph 18). The father conceded that “it may be the case that the ICL is unable to intervene in these circumstances” (father’s submissions, paragraph 11). The Court accepts that the Independent Children’s Lawyer actively participated to the fullest extent she reasonably could. It remains unclear what more the father expected the Independent Children’s Lawyer to do in these proceedings.
The Court accepts the Independent Children’s Lawyer’s assertion that she will use her best endeavours to assist the Court if her appointment is to continue. Consequently, no order for disqualification is made. The presence of an Independent Children’s Lawyer will benefit these proceedings where interparental and interfamilial conflict still runs rampant.
The Independent Children’s Lawyer has not failed in any of her duties, nor has she demonstrated actual or perceived bias. The Court rejects the father’s assertion that proceedings would be better off without the assistance of an Independent Children’s Lawyer. This Court can see no reason why the current Independent Children’s Lawyer should not continue to perform her duties as stipulated in the final orders.
THE APPLICATION IN RELATION TO THE PSYCHOLOGIST
The psychologist was appointed under the authority of Victims Services NSW. The psychologist’s involvement was subsidised on the basis that it may ameliorate the negative effects of family violence allegedly perpetrated by the father between February 2022 and October 2023. The father denies all allegations of family violence in this matter. He is also unaware of any alleged family violence being reported between the making of the final orders to date (father’s affidavit, paragraph 92).
The father holds significant concerns that the psychologist is partisan and is likely to both exacerbate the anxiety of the mother and impart the mother’s fears onto the children. The father attests to not being aware the children were undergoing treatment with the psychologist prior to 8 May 2024 (father’s affidavit, paragraph 88).
The psychologist is partisan, insofar as she makes recommendations relating to the father but has not met him, is unaware of his perspective, and is only seeing events through the prism of the mother. The children seem to have a fruitful therapeutic relationship with the psychologist. Under normal circumstances, the Court would be reluctant to impede a healthy therapeutic relationship. The stated concern is whether the psychologist is a disruptive influence. The fact remains that the psychologist is the children’s independent treating psychologist, not a court-appointed expert.
In the mother’s material she details contact between the psychologist and the Independent Children’s Lawyer on 18 March 2024 and 19 April 2024 (mother’s affidavit, paragraphs 11 and 12). It is suggested, on both occasions, the psychologist voiced concerns about the wellbeing of the children. The psychologist is consistent in her opinion that it would be harmful for the children to spend overnight time with the father. The mother asked the psychologist to provide these concerns in writing (mother’s affidavit, paragraph 12).
The mother knew that the psychologist held a view that the children should not spend overnight time with the father. Despite this, the mother claimed to be shocked about the content of the psychologists’ letter. This is probably an exaggeration. It is more likely, given the extent of the mother’s anxiety, that she seized onto the letter as a catalyst for her own reservations about the impending introduction of the children’s overnight time with the father.
The psychologist formed a negative perception of the father. The psychologist was appointed based on disputed material that seemingly indicates the father had recently committed acts of family violence. The psychologist has only met with the mother and the children. It is possible that the psychologist was concerned about any signs of distress in the children. There is no evidence that the psychologist appropriately tested the veracity of the children’s statements, asked for any further evidence to confirm the children’s alleged fears, or considered the potential risk factor of the mother’s anxiety, before producing her recommendations in writing. It appears unlikely that the psychologist reflected on the inappropriateness as a therapist seeking to influence legal outcomes and that this may be beyond the scope of her role.
The Court accepts the father’s evidence that the mother’s own anxieties provide a plausible explanation for the recommendations of the psychologist. Based on her own fear, the mother “continues to exhibit a pattern of behaviour that blatantly undermines the Orders and our coparenting efforts” (father’s affidavit, paragraph 60).
On balance, the Court concludes that the role of psychologist has been less than optimal. If the psychologist had remained within her role as an individual treating professional, not making parenting recommendations, as will be seen below, many issues would probably not have arisen.
Whilst the children derive some benefit from therapy, the Court is concerned about the unhelpful role played by the psychologist, which ultimately has not been in the best interests of the children. The Court thus restrains the mother from causing the children to receive therapy from her. There is no suggestion, however, that the children should not receive appropriate, measured and impartial therapy in the future.
A restraint against the mother causing the children to see the psychologist ought to be granted under s 68B of the Act. Whilst the law is clear that the Court does not need to have regard to the best interests of the children in making this restraint (Bennett v Bennett (2001) FLC 93-088 at [30]), such a restraint is nonetheless appropriate for the children’s welfare. The psychologist was, regrettably and unintentionally, one catalyst for increased conflict between the parents. It is appropriate for the children to seek therapy, but not from this therapist.
THE EVIDENCE OF THE PSYCHOLOGIST
The psychologist prepared a letter, at the request of the mother, on 2 May 2024 (Exhibit A1). The letter is headed “Note of concern” and recommends ceasing all overnight time between the children and the father due to their alleged reaction to previous time spent with him. The mother used the letter to cease all contact except on her terms – “I concluded that I could not continue to allow time to progress per Final Orders 18 August 2024 as it would be harmful to the boys” (mother’s affidavit, paragraph 22). The psychologist’s letter is clearly, therefore, an important part of, if not the cornerstone of the mother’s case.
The recommendation made by the psychologist is in the penultimate paragraph of her letter which is reproduced below:
I strongly recommend that the children do not have overnight access with their father and that this occur when they are feeling more comfortable and less anxious about separating form (sic) their mother. This recommendation should be in place as of today as there appears to be an overnight visit pending this weekend and I have deep concerns should this go ahead.
The most important, and obvious fact is that the recommendation was that there be no “overnight access”. That, of course, is not what the mother chose to do. It is not clear to the Court precisely how the mother rationalises reliance on the letter of the psychologist whilst ignoring its key recommendation.
In an attempt to justify her extreme position, the mother references concern expressed by UU Services, NSW Police and the DCJ. The mother does not provide any call references or contemporaneous notes of her conversations with the DCJ or with UU Services. Similarly, the COPS entry dated May 2024 (Exhibit A15) does not detail what advice, if any, the mother received from NSW Police that enabled her to justify an immediate suspension of time contrary to the final orders. Moreover, the Court is deprived of any record of what the mother told these authorities.
The mother bore the burden of proving that concerns expressed by UU Services, NSW Police and the DCJ justified deviating from the psychologist’s recommendation.
The fact that the mother solicited the psychologist’s letter and unilaterally suspended all time with the father is concerning given the facts above.
Weight to be given to the psychologist’s letter
There are numerous other difficulties with placing too much weight on the psychologist’s letter.
Firstly, the psychologist appears not to have been informed about the pervasive anxiety difficulties experienced by the mother. It was the mother’s responsibility to have made this disclosure as it is, surely, an important consideration in any assessment relating to the children. There was ample opportunity for this to occur with the mother having an initial one-on-one consultation with the psychologist prior to causing the children to attend therapy. Even if the mother’s anxiety was mentioned and simply not recorded in the psychologist’s notes (a matter of concern in itself), the Court doubts whether the psychologist placed enough weight on the mother’s disclosure.
Secondly, the psychologist relied principally on the mother’s reports and observations of the children, and not on any extrinsic material. She certainly did not consult with the father, or any other members of his family. The mother and the psychologist acted to the exclusion of the father, his perspective, or any material he might have otherwise been able to provide. The father affirms that the mother “provided no further details of whom the children were seeing, nor did she think to include me in this counselling” (father’s affidavit, paragraph 134). The extrinsic material available to the parents, including the children’s school and kindergarten reports are, for the most part, un-remarkable and inconsistent with the concerns expressed in the psychologist’s letter.
Thirdly, the mother was either physically present, or physically proximate to all the observations and interactions between the children and the psychologist. The psychologist does not seem to even consider the possibility that the mere presence of the mother might alter the information proffered by the children. It is possible that all the children’s accounts to the psychologist are infected by this error and are rendered unreliable. For example, one alternate hypothesis to explain the irreconcilability of the behaviour of the children when with the mother and the father is that they were saying and acting out in the way they believed their respective parents desired. The psychologist did not consider this and took no precautions against it.
Fourthly, little weight was placed on the independent observations of the Independent Children’s Lawyer whose recorded comments should have alerted the psychologist to at least consider a narrative alternative to that of the mother.
Fifthly, like the mother, there was no attempt to reality test, or to contextualise, what the children were saying. Perhaps her role as a therapist predicated against such objectivity, but as a therapist she should, respectfully, have avoided any attempt at forensic recommendation. With the long history of this case the psychologist was, in reality, acting in darkness, which is a poor place from which to make recommendations.
Moreover, the Court has some concerns about the accuracy of the psychologist’s records. A handwritten note penned by the psychologist in April 2024 states that she needed to “write up notes”. The note appears to have been made during a telephone conversation with the Independent Children’s Lawyer in which the likelihood of the matter going back to Court was noted. A potential inference that may reasonably be drawn from the timing of the note is that the notes preceding April 2024 were in fact prepared on or after that date. The distinct difference in style between the notes taken during the mother’s initial conference with the psychologist, and all subsequent notes may also allude to this. That is certainly not the Court’s preferred inference, however, it cannot be ignored in light of the father’s evidence that the psychologist had been investigated by her professional regulatory authority. The conditions placed on the psychologist’s practice place a “particular focus on clinical record keeping and documentation, assessment and therapy skills and managing complex client groups” (Exhibit R16).
It is interesting to observe the presence of information recorded by the psychologist which had the potential to distract her assessment from an impartial assessment of risk to the children. For example, her notes in March 2024 refer to the children receiving cash from the father. The note continues to record how the father did not have money to contribute to an operation for one of the children, but had money for such generous gifts to the children. This information was clearly misleading and was probably given by the mother who knew, or should have remembered, the history of the paternal family providing cash gifts both to her, and the children, throughout the marriage. The gifting of cash was a cultural construct within this family, and not a practice from which adverse inferences should be drawn (father’s affidavit, paragraph 144). This forms the basis of one of the psychologists’ arguments in favour of her recommendation not to subject the children to overnight time with the father. It is based upon clearly irrelevant information, and once again demonstrates the inherent risks of an assessment based on information given by one person only, namely the mother.
The Court places minimal weight on the psychologist’s letter. Her recommendation that the children should not have overnight time with the father was based on a flawed methodology. Her written recommendations were willingly embraced by the mother who had been complicit in its methodological flaws.
THE S 65DAAA ISSUE
As explored above, the mother is required to satisfy the Court that “in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered” (s 65DAAA(1)(b)). The Court may have regard to any matters it considers relevant in making such a determination (s 65DAAA(2)).
It is no longer a pre-requisite to demonstrate that a significant change in circumstances has occurred. In this sense, the submissions in the parties’ case outlines were, understandably, misconceived. Nonetheless, the Court will examine the material provided in order to satisfy its new statutory duties under ss 65DAAA(1)(a), 65DAAA(2)(a)–(d) and 60CC of the Act.
Significant change in circumstances (section 65DAAA(1)(a))
The mother contends that there has been a significant change in circumstances since the final orders were made. The predominant change asserted is the deterioration of the children’s mental wellbeing. In particular, the mother states that “the children have shown signs of growing distress and anxiety and are saying that they do not feel safe at the father’s home” (the mother’s Case Outline filed 12 July 2024, paragraph 1 (“the mother’s case outline”)). The distress and anxiety allegedly shown by the children is asserted to be signs of underlying trauma and anxiety that has flared up since they have spent increased time with the father as per the final orders. The Independent Children’s Lawyer states that she is concerned with the father’s hostile behaviour towards the mother at changeover, in the presence of the children, since the final orders (the Independent Children’s Lawyer’s Outline of Case Document filed 12 July 2024, paragraph 8 (“the ICL’s case outline”)).
It has been previously established that the mother lets her anxiety colour her perception of events indiscriminately, and often, unhelpfully. The father suggests that the “the children’s behaviour and any wishes expressed by them are significantly influenced by the mother and her extended family” (the father’s Outline of Case Document filed 10 July 2024, paragraph 3.8 (“the father’s case outline”)). The Court agrees. The Court cannot be satisfied that the children are actually experiencing distress, as opposed to being consciously or subconsciously influenced by the mother’s anxieties.
The mother’s attempt to rely on the “objective” evidence of the psychologist, as independent evidence that the children are experiencing emotional turmoil, is rejected by the Court given the methodological flaws identified above.
On this basis, noting that the father provides evidence that the children are safe and happy in his care, the Court finds that no significant change in circumstance has occurred.
Relevant matters
Whether or not there has been a significant change in circumstances, I am satisfied it is proper in this case to consider the four matters prescribed under s 65DAAA(2) of the Act.
Section 65DAAA(2)(a)
The reasons for judgment provided in Rasheem underpin the final orders made. There was no suggestion by the mother or the Independent Children’s Lawyer that the judgment was deficient.
The father relies upon paragraphs [152] and [157] of Rasheem to justify why the mother’s application should be dismissed. Rasheem at [152] refers to the mother’s anxiety and finding that the mother would be best served with continued engagement in psychological therapy. The Single Joint Expert Report of Dr Zs prepared for the substantive proceedings (Exhibit R31) is quoted at [157] of Rasheem, where Dr Z opined that the children should be able to cope with changes in the parenting arrangements, including the progression to overnight time. The only risk identified by Dr Z was the potential conflict between the families where they are forced to interact with one another. Dr Z’s predictions have materialised.
The reasons for judgment in Rasheem only bolster the father’s case insofar as it directs attention to the mother’s anxiety and its risk to the children.
Section 65DAAA(2)(b)
The mother contends that the Court had no evidence prior to the final orders that “the level of conflict would escalate and that there was a risk that the children would be exposed to elements of conflict that could be psychologically detrimental to them” (the mother’s case outline, paragraph 10). The psychologist’s letter appears to be the fundamental piece of evidence relied upon in this regard. The reservations about the psychologist’s letter and the diminished weight that can be attributed to it have already been noted.
The mother’s assertion that an escalation of conflict is unforeseen is incongruous with the prior interparental and interfamilial conflict in evidence before the Court at the time of the substantive hearing. Rasheem at [168] highlights this:
…The pervasive mistrust and inability to communicate as between the parents, the anxiety that the mother experiences and the father’s struggle with addictive behaviours, and the broader involvement of both paternal and maternal families, sets the ground work for inevitable conflict if the parents were required to consult with each other. The children must be protected from this….
The father’s evidence contends that the children are happy entering into his care and enjoy their time with the paternal family.
On balance, the Court is not convinced that the new material available in this matter necessitates a finding that it is in the best interests of the children for the final parenting orders to be reconsidered and re-litigated.
Section 65DAAA(2)(c)
The mother references the psychologist’s letter and the “children’s numerous reports in respect of things allegedly said to them” as factors that would render the Court highly likely to make new parenting orders (the mother’s case outline, paragraph 9). As stated above, the psychologist’s letter holds little weight, and the mother has done little to convince the Court that the children’s reports are anything more than mere allegations. Even if the children’s views were accepted, the Court accepts the father’s argument that “the children are not at an age where the Court should place any significant emphasis on their wishes” (the father’s case outline, paragraph 3.8).
The final orders were constructed in a manner designed to ameliorate any risk the father posed to the children. Given the Court’s concerns about the mother’s evidence, it is highly unlikely that the Court would change the operation of the final orders to “prioritise the children’s safety and mental health” (the mother’s case outline, paragraph 9). The final orders already achieve this.
Section 65DAAA(2)(d)
In circumstances where the Court does not place great weight on the psychologist’s letter, or the mother’s recount of the children’s reaction after spending time with the father, it is difficult to see what benefit any change to the final orders would generate. Allowing the mother’s application would place the children at the centre of future interfamilial conflict. I acknowledged in Rasheem that the primary risk to the children is the attitude of the parents and their families to each other.
If successful, the mother seeks to prevent the father from having any regular scheduled time with the children. The mother seeks to dictate time with the father at her discretion. Based on the mother’s high levels of anxiety, it is highly unlikely that the children would spend any time with the father under this regime. The children have a positive relationship with the father, and benefit from the time they spend with him. It would be to their immense disadvantage if this time was taken away from them.
There is no benefit to be derived from reconsidering the final parenting orders.
Sections 65DAAA(1)(b) and 60CC
The Court is not satisfied that it would be in the best interests of the children for the final parenting orders to be reconsidered. The children are safe under the current arrangements and their views have been adequately considered noting their tender age. The children’s psychological and emotional needs will still be better served by attending on another treating psychologist. The children have a strong relationship with the father and his family that will only continue to be enriched through overnight time. The mother’s application under s 65DAAA of the Act must fail on these reasons alone.
SINGLE EXPERT REPORT
The Court recognises the futility of ordering further expert material in this matter in circumstances where the final orders remain in force. There has been no significant change in circumstances that warrant the need for updated evidence.
ORDERS IN THE BEST INTERESTS OF THE CHILDREN
The Court has had regard to the factors under s 60CC of the Act above. It is satisfied that it is in the best interests of the children for the final orders to be upheld and for the mother’s application under s 65DAAA to be dismissed.
The Independent Children’s Lawyer shall continue in her supervisory role as specified by the final orders.
The parents are to comply with the final orders and the mother must not cause the children to receive therapy from the psychologist.
I certify that the preceding one hundred and forty-seven (147) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 6 September 2024
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