Robb & Harper - [2022] FedCFamC2F 1047

Federal Circuit and Family Court of Australia
(DIVISION 2)
Robb & Harper [2022] FedCFamC2F 1047

File number(s): MLC 990 of 2011

Judgment of: JUDGE GLASS

Date of judgment: 11 August 2022

Catchwords: FAMILY LAW – CHILDREN – RESIDENCE - child’s best interests – where there is a lack of parental cooperation and communication – non-compliance with previous consent orders – where the child has been exposed to parental conflict – where experts opine that child’s relationship with the mother is enmeshed and the mother is incapable of supporting child’s relationship with the father – cognitive dissonance by child – change of residency

Legislation:
Family Law Act 1975 (Cth), Part VII, s 4AB, 60B, 60CA, 61DA, 65DAA, 65DAC, 69ZN ss 4(1), 60CC(2), 60CC(2A), 61DA(4)

Evidence Act 1995 (Cth) s 140

Cases cited:
Kramer and Anor & Ward (2017) FLC 93-817; [2017] FamCAFC 270

M v M (1988) 166 CLR 69 at 76

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Manifold & Alderton (2021) FLC 94-015; [2021] FamCAFC 61

Lennon & Lennon [2011] FamCA 571

Division: Division 2 Family Law

Number of paragraphs: 194

Date of last submission/s: 5 August 2022

Date of hearing: 1-5 August 2022

Place: Melbourne

Counsel for the Applicant: Ms Agresta

Solicitor for the Applicant: Leslie Family Law

The Respondent in person: Ms Harper

Counsel for the Independent Children's Lawyer: Dr Alexander

Solicitor for the Independent Children's Lawyer: Macgregor Solicitors
ORDERS

MLC 990 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ROBB

Applicant

AND:
MS HARPER

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE GLASS

DATE OF ORDER:

11 AUGUST 2022

THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged.
2.The Father have sole parental responsibility for the child X born in 2010 (“X”).
3.X live with the Father.
4.The parties and X continue to attend upon Ms B or her nominee (“therapist”) for the purposes of reportable family therapy with a specific focus on rebuilding the relationship between X and the Father, with the parties to share the costs of that work as follows:
(a)The Father to pay the costs of his sessions and X’s sessions;
(b)The Mother to pay the costs of her sessions; and
(c)The parties to share equally in the costs of any Report;

and the parties shall follow all directions of the therapist in relation to therapy, including but not limited to X’s attendance and treatment, including engagement with any alternate or additional treaters.
5.The parties be at liberty to provide the therapist with:
(a)copies of the Court documents filed in these proceedings since 1 April 2019 including the Affidavit of Dr C dated 25 October 2019;
(b)the Family Reports of Mr D dated 22 February 2021 and 6 April 2021;
(c)the Child Impact Report of Ms E dated 8 April 2022;
(d)the section 69ZW Report prepared by Child Protection and dated 1 May 2022;
(e)the Family Report of Ms F dated 6 June 2022; and
(f)all Orders made in these proceedings since 1 April 2019.

6.For a period of 10 weeks, (“Contact Moratorium Period”), the Mother, her servants and/or agents be and are hereby restrained from spending time with or communicating with X by any means, including mail, telephone, email, text message or social media.
7.During the Contact Moratorium Period:
(a)The Father shall exercise sole parental responsibility for X, and shall notify the Mother of any decisions he has made with respect to X’s long-term care, welfare and development as soon as practicable after the decision has been made;
(b)In the event X contacts or communicates with the Mother, the Mother shall not respond to such contact or communication and shall report such communications to the Father via email forthwith;
(c)In the event X attends upon the Mother at her home or any other location save as explicitly outlined in these Orders, the Mother shall report same to the Father and shall do all things necessary to facilitate X’s return to the Father;
(d)The Father shall provide a weekly written email update to the Mother by 10:00pm each Thursday outlining any issues in how X is managing the change to her residential arrangements and any other pertinent matters;
(e)The Mother be at liberty to contact X’s school by way of email, to obtain updates in relation to X’s progress, and the parties or either of them shall provide a copy of this Order to the school as authorisation for same; and
(f)The Mother otherwise be restrained from contacting or personally attending upon X’s school.

8.Upon the expiration of the Contact Moratorium Period, Orders 6 and 7 herein be discharged and X spend time and communicate with the Mother, her servants and agents as follows:
(a)From the expiration of the Contact Moratorium Period for a period of three months:
(i)on each alternate weekend from 12:00pm Saturday until 2:00pm Sunday; and
(ii)on each Sunday that X is not spending time with the Mother via Facetime, Zoom, Skype or such other form of electronic communication from 5:00pm until 5:30pm;

(b)Thereafter, for a further period of three months:
(i)on each alternate weekend from 5:30pm Friday until 2:00pm Sunday; and
(ii)on each Wednesday and each Sunday that X is not spending time with the Mother, via Facetime, Zoom, Skype or such other form of electronic communication from 5:00pm until 5:30pm;

(c)Thereafter:
(i)On each alternate weekend from 5:30pm Friday until 2:00pm Sunday;
(ii)For half of each school term holiday period as agreed and failing agreement from 12:00pm on the first Saturday of the holiday period until 2:00pm on the second Sunday of the holiday period; and
(iii)During the long summer holiday period 2022/2023 (provided that the Contact Moratorium Period does not fall within such holiday period) as agreed and failing agreement, from 12:00pm on the first Saturday of the holiday period until 2:00pm on the first Tuesday of the holiday period and thereafter on a week-about basis commencing 2:00pm on Sunday 25 December 2022;
(iv)During the long summer holiday period 2023/2024 and each alternate year thereafter as agreed and failing agreement from 12:00pm on the first Saturday of the holiday period until 2:00pm Christmas Day, and from 12:00pm on 2 January until 2:00pm on 16 January; and
(v)During the long summer holiday period 2024/2025 and each alternate year thereafter as agreed and failing agreement from 2:00pm on Christmas Day until 2:00pm on 8 January and from 12:00pm on 18 January until 2:00pm on 25 January;
(vi)On X’s birthday if not already spending time with the Mother, as agreed and failing agreement as follows:
A.If a school day:
I.in City G from the conclusion of school until 7:30pm; or
II.via Facetime, Zoom, Skype or such other form of electronic communication from 5:00pm until 6:00pm;

B.If a non-school day, from 12:00pm until 5:00pm;

(vii)On the Mother’s birthday if not already spending time with the Mother, as agreed and failing agreement as follows:
A.If a school day:
I.in City G from the conclusion of school until 7:30pm; or
II.via Facetime, Zoom, Skype or such other form of electronic communication from 5:00pm until 6:00pm;

B.If a non-school day, from 12:00pm until 5:00pm;

(viii)On the Mother’s Day weekend if not already spending time with the Mother, from 5:30pm Friday until 2:00pm Sunday;
(ix)on each Wednesday and each Sunday that X is not spending time with the Mother, via Facetime, Zoom, Skype or such other form of electronic communication from 5:00pm until 5:30pm; and
(x)At such further and other times as agreed between the parties in writing.

9.In the event X is spending time with the Mother pursuant to Order 8 herein, such time be suspended from the conclusion of school Friday until the commencement of school Monday, on the Father’s Day weekend.
10.For the sake of clarification, the Mother, her servants and/or agents be and are hereby restrained from spending time with or communicating or attempting to communicate with X by any means, including but not limited to telephone, text message, email, via social media, via “applications”, online forums and the like, save as explicitly provided for in these Orders.
11.Changeover occur as agreed and failing agreement as follows:
(a)For spend-time pursuant to Orders 8(c)(vi)(A)(I) and 8(c)(vii)(A)(I), inside the McDonald’s Family Restaurant at H Road, City G;
(b)For any changeovers on Christmas Day, inside the McDonald’s Family Restaurant at J Street, Suburb K; and
(c)Otherwise, at L Contact Centre at M Street, Suburb N (“the changeover contact centre”), with both parties to do all things and sign all necessary documents to forthwith enrol with the changeover contact centre to ensure changeover can occur in accordance with these Orders.

12.Both parties shall comply with all reasonable directions of the changeover contact centre.
13.The Mother be and is hereby restrained from attending at or proximate to the Father’s home save with the express written consent of the Father.
14.In the event the Mother fails to return X to the Father at the conclusion of any period of spend-time pursuant to these Orders:
(a)he Father may do all things necessary to obtain Police assistance to facilitate X’s return to his household and may provide the Police with a copy of these Orders if necessary; and
(b)Shall be at liberty to contact the Chambers of Judge Glass without notice to the Mother for the purposes of an urgent listing of an application for a Recovery Order.

15.All communication between the parties, their servants and agents in relation to parenting arrangements be via email, save in the event of an emergency relating to X whereby they shall communicate via telephone and/or text message, and all communications shall be courteous and respectful.
16.The parties be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of X and from permitting any other person so to do;
(b)discussing these Orders and/or any aspect of these proceedings with X or in her presence or within her hearing; and
(c)showing X any documents produced for the purposes of these proceedings, or leaving such documents in a place where X might reasonably come into contact with them.

17.Each party shall advise the other of any serious illness or injury suffered by X as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
18.That within 24 hours of these orders, the Mother provide the Father with details of her residential address and details of X’s mobile phone number AND each party keep the other informed at all times of their current residential address and contact telephone number.
19.Save as set out in Orders 6 & 7 herein, both parties be permitted to attend all school events relating to X normally attended by parents and receive at their expense all school reports, school photograph order forms and newsletters.
20.The Independent Children’s Lawyer be released from her undertaking given to this Honourable Court on 11 March 2022 regarding non-disclosure of the Mother’s residential address in Town O.
21.The Father enrol X in P School as soon as possible for the completion of her primary schooling and ensure that X have any vaccinations that that school and any other primary or secondary school may require.
22.Each party enrol in and complete the “Tuning into Teens” parenting program run by Q Counsellors.
23.In order to facilitate Order 3 of the Orders:
(a)The Mother is restrained from attending Level 5, 305 William Street, Melbourne for 24 hours;
(b)The Mother deliver X’s favourite clothes, book, toys and belongings as directed by the Independent Children’s Lawyer;
(c)The Mother forthwith depart from 305 William Street, Melbourne;
(d)The Independent Children’s Lawyer meet with and explain the effect of these Court Orders to X; and
(e)X may be released from the Court Children’s Service only into the Father’s care unless otherwise agreed between the parties, including the Independent Children’ Lawyer.

24.The Independent Children’s Lawyer be discharged on 12 October 2022.
25.All extant applications be dismissed.

THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Robb & Harper has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GLASS, J:

These proceedings concern X born in 2010. X is nearly 12 years of age.
Her parents separated prior to her birth and have been involved in extensive litigation about her almost ever since. Throughout that time X has been living with her mother, Ms Harper. A number of Orders have been made for X to spend time with her father, Mr Robb, and, more recently, to undertake family therapy with him. Those arrangements have broken down, with the result that X has not spent time with her father since August 2020.
Mr Robb now proposes X live with him, spend no time with Ms Harper for a period of approximately 10 weeks, following which her time with her mother be gradually re-introduced building up to two nights each alternate weekend, half school holiday periods and special occasion time. He also proposes that X attend upon family therapy. The particulars of his application are contained in his Further Amended Initiating Application filed 4 July 2022. He relies on his trial affidavit filed on 5 July 2022 as well as eight expert reports commissioned in the proceedings. During the hearing, reference was also made to a 9^th report, namely a Family Consultant Memorandum dated 20 September 2013.
Ms Harper proposes the following orders be made for X:
1. That X is to continue to live with birthing Mother and First and Highest Custodian, Ms Harper [Harper].
2. That Ms Harper [Harper] as X's birthing mother and First and Highest Custodian have Sole Parental Responsibility of X until she comes of age.
3. That X's father, Mr Robb, be prohibited from bringing matters back before the Family Law Court.
4. That any contact between Mr Robb, the father, and X, must be initiated by X, and established in writing, so it is clear that any contact sought by X is in line with her own desire, free will and consent.
5. That all court associates and representatives be removed from X, and X's birthing mother and First and Highest Custodian, lives. [1]
[1] Ms Harper’s ‘Orders to be made’ Affidavit filed 6 April 2022, page 3.
Ms Harper relies on three affidavits filed by her on 6 April 2022 and an affidavit filed by her on 1 April 2021.
By the conclusion of the trial, the Independent Children’s Lawyer supported Mr Robb’s proposal, although suggested some amendments to his proposed orders. Those changes are not controversial as far as Mr Robb is concerned.
General evidentiary issues
Ms Harper was afforded the opportunity to obtain legal representation through funding available to parties due to the consequences of section 102NA of the Family Law Act 1975 (Cth). She declined to obtain that legal representation and chose to represent herself at trial.
The Court emphasised to Ms Harper both at the commencement of the hearing and at an earlier directions hearing, the central importance of cross-examination to the trial process. Nevertheless, she elected not to cross-examine Mr Robb. She also declined a subsequent invitation to do so despite Mr Robb’s evidence having concluded.
Given correspondence in relation to the section 102NA issue from the Independent Children’s Lawyer in March 2021 and Ms Harper’s written assertion in March 2022 that no cross-examination is required, I am satisfied that no procedural unfairness arises to Ms Harper as a result of her election not to cross-examine Mr Robb.
Mr Robb was cross-examined at length by the Independent Children’s Lawyer. He was questioned in relation to conduct by him that was clearly inappropriate, including him expressing anger and aggression to a psychologist, Dr C, and posting inappropriate material on public Facebook pages in the communities in which Ms Harper and X reside. When the specifics of the allegations were put to him, he freely admitted the behaviour and acknowledged its inappropriateness. He gave evidence of having removed inappropriate Facebook posts and apologising to Dr C for his outbursts. His oral evidence was given in a straightforward and clear manner and I had no impression he was seeking to obfuscate or mislead. I find no basis to conclude that Mr Robb’s evidence generally lacked reliability or credibility.
By comparison, Ms Harper’s oral evidence was very difficult to follow. She consistently refused to answer questions directly, typically preferring to launch into a pressured speech in relation to matters that went well beyond the question she was asked. She required regular re-directing in order to answer the questions that were being asked of her. She was reluctant to make any concessions that she perceived might be against her interests. Her evidence was also replete with inconsistencies. For example, when asked about events that took place during the family report interviews in May this year, she initially claimed not to remember. She subsequently gave clear evidence of what was said, by whom and in what order. Even that evidence was internally inconsistent.
Much of Ms Harper’s oral evidence repeated the style of address she employed in her opening statement, which was to make general assertions without descending into any particularised detail. She repeatedly stated that the detail was described in her affidavits. Those lengthy documents generally did not establish the factual basis for her conclusory assertions. Accordingly, her evidence often took the form of conclusory statements not supported by facts which might enable me to be satisfied of the conclusion.[2]
[2] Kramer and Anor & Ward (2017) FLC 93-817 at [10].

Ms Harper inaccurately submitted that there was no evidence to support submissions made by the Independent Children’s Lawyer and Mr Robb. For example, she submitted that there was no evidence of Mr Robb’s living arrangement or “even whether he was seeing his own children”. Mr Robb gives unchallenged evidence in relation to housing and living arrangements and the fact X’s half siblings, R and S, spend time with him for 7 nights each fortnight.
Ms Harper also submitted that there is no evidence ever produced that has indicated there have been any concerns with X living in her sole care. There are a multitude of reports before the Court that document such concerns. To take but one of many examples, Ms Harper relied on a report from the Department of Families, Fairness and Housing dated 1 May 2022 which did not recommend X be removed from her care, ignoring the fact the report concludes that “Ms Harper has a well-documented history of actively discouraging contact and alienation of Mr Robb from X’s life.”[3] That opinion is supported by various factual bases in the report. I reject Ms Harper’s general submission that there is no evidence of any concerns to X in her mother’s care.
[3] Department of Families, Fairness and Housing report dated 1 May 2022, page 5.
Statutory framework
The applications fall to be determined by reference to Part VII of the Family Law Act 1975 (Cth). I am guided by the objects of that Part and the principles underlying those objects.[4] X’s best interests are the paramount consideration.[5] In determining those best interests, I am to consider the matters prescribed by section 60CC of the Act.
[4] Family Law Act 1975 (Cth), s 60B.
[5] Family Law Act 1975 (Cth), s 60CA.
I am to apply a presumption that it is in X’s best interests for her parents to have equal shared parental responsibility for her.[6] The presumption does not apply if there are reasonable grounds to believe either of X’s parents have engaged in child abuse or family violence. It may be rebutted by evidence that satisfies me it would not be in X’s best interests for her parents to have equal shared parental responsibility for her.
[6] Family Law Act 1975 (Cth), s 61DA.
If I am satisfied that X’s parents should have equal shared parental responsibility for her, I am required to consider whether X spending equal or substantial and significant time with each of her parents is in her best interests and reasonably practicable.[7]
[7] Family Law Act 1975 (Cth), s 65DAA.
It is convenient to first address the section 60CC considerations before turning to the presumption contained in section 61DA and, if applicable, the matters prescribed by section 65DAA of the Act.
Primary considerations
The Act prescribes two primary considerations.[8] The second of those is to be given greater weight than the first.[9] It is accordingly convenient to begin by addressing the second primary consideration.
The need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[8] Family Law Act 1975 (Cth), ss 60CC(2).
[9] Family Law Act 1975 (Cth), ss 60CC(2A).
Ms Harper asserts that X has been subjected to, or exposed to, family violence and abuse, including sexual abuse. Her assertions extended to alleging that the Court, including its associates, have “consistently and repeatedly enabled, facilitated and perpetrated harm, abuse and trauma” on X and her mother, as well as the Court gaslighting her for 12 years.
Family violence is defined to mean violent, threatening or other behaviour by a person that coerces or controls a family member, or causes them to be fearful.[10] Abuse is defined to mean any of the following:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child. [11]
[10] Family Law Act 1975 (Cth), s 4AB.
[11] Family Law Act 1975 (Cth), ss 4(1).
Ms Harper’s oral evidence in relation to the asserted family violence and abuse was in the most general and conclusory of forms. Ms Harper was given multiple opportunities to give specific evidence of what she said the family violence or abuse entailed. She failed to do so, repeatedly resorting to a phrase to the effect that it was all detailed in her affidavits.
When Ms Harper was asked to identify the passages of her extensive affidavit material that she said supported such a conclusion, she identified paragraphs that relate to the following topics:
(a)X’s behaviour and comments when she is due to communicate with her father pursuant to orders;
(b)Difficulties during zoom calls when X has been upset, crying, angry;
(c)X’s resistance to communication with the father;
(d)X’s refusal to get out of her mother’s car at changeover with her father and other difficulties at changeover;
(e)Mr Robb filing a contravention application;
(f)Comments made by a Registrar during a hearing; and
(g)other difficulties at changeover.
Ms Harper then claimed that the entirety of her affidavit filed 1 April 2021 supported her allegations of family violence and abuse. That submission is fanciful. That affidavit essentially records the extensive efforts that have been undertaken to endeavour, largely pursuant to Court Orders, to facilitate a relationship between X and her father. It does not generally catalogue violent, threatening or other behaviour that seeks to coerce or control, or cause fear.
On one occasion, Ms Harper does depose that X “appeared to be scared of the Father”[12] after a Zoom call in 2020 during which it is alleged that Mr Robb was mocking the situation of the call and X texted her father that she did not like what he said on the phone. What behaviours X was exhibiting on that occasion to suggest to Ms Harper that she appeared scared of her father are not articulated. I am accordingly unable to reach the same conclusion.
[12] Ms Harper’s Affidavit filed 1 April 2021, paragraph 104(b)(xi).
Ms Harper’s evidence is certainly that X was displaying significant behavioural issues around the times she was spending time or communicating with her father. Ms Harper appears to attribute that behaviour to abusive or violent conduct by Mr Robb. I am not so satisfied. Mr Robb seeking to spend time with his daughter is neither family violence, nor abuse. Such a finding would be inconsistent with one of the statutory examples of family violence, namely preventing a family member from making or keeping connections with family, friends or culture.
Ms Harper gives evidence of an incident of physical violence prior to X’s birth. She deposes that at the time of separation, when she was eight weeks pregnant with X, Mr Robb “pushed me to the ground and pinned me down after an argument during which he shouted in my face things to the words to the effect of, 'I will not be controlled. You will not control me.’”[13] Mr Robb did not challenge that evidence. There is no suggestion of any subsequent incidents of physical violence after the parties’ separation more than 12 years ago. Whilst obviously the Court is concerned about any incident of family violence, I am not satisfied that it now suggests X is at any relevant risk of harm in her father’s care.
[13] Ms Harper’s Affidavit filed 1 April 2021, paragraph 129(b).
Ms Harper regularly referred to Mr Robb’s conduct during a session with Dr C, in effect contending that it amounted to family violence. She relies on the following paragraph of his report:
Even though [Ms Harper] had expressed these concerns in a respectful manner, [Mr Robb] became increasingly angry, repeatedly and loudly calling [Ms Harper] a manipulative liar. I repeatedly and strongly urged him to contain himself and respond more collaboratively, particularly in the context of [X] sitting just outside in the waiting room. He refused to acknowledge or assist with (whether or not he agreed with) [Ms Harper]'s concerns.
At that point, it was my view that further discussion was both pointless and counterproductive to [X] 's welfare, and I ended the session without arranging another. [14]
[14] Dr C’s Affidavit filed 25 October 2019, page 12, quoted in Ms Harper’s Affidavit filed 1 April 2021 paragraph 71(e)(xiii).
What is absent from that description of events, as well as Ms Harper’s own evidence in relation to them is any suggestion that Mr Robb’s conduct was coercive, controlling, or caused fear. I am not satisfied that it amounts to an incident of family violence.
Ms Harper was specifically asked to identify when it is that X has described that she has been abused or neglected by Mr Robb. She was unable to do so. When pressed, she ultimately conceded that what she was alleging was mental and emotional abuse. The only statements attributed to X that she referred to, were reports of X’s worries as identified in counselling with Ms T in August 2020. Those worries include “family’s safety” and “dangerous people”.[15] It is reported that she said “My biggest worry is when I have to go see my dad”; “At home, I worry about when I am about to have a call with dad” and “worrying makes me feel sick”.[16] That evidence does not support the conclusion that X has reported being abused or neglected by her father. Those worries as expressed to Ms T are consistent with an explanation for X’s behaviour proffered by Consultant Ms F, to which I will return.
[15] Ms Harper’s Trial Affidavit filed 6 April 2022 (“Ms Harper’s Trial Affidavit”), annexure 3.
[16] Ms Harper’s Trial Affidavit, annexure 4.
It was repeatedly suggested to Ms Harper that X has not reported that she is scared of her father or provided a reason why she might be scared of him. Ms Harper acknowledged that there is no evidence before this Court of X saying so.
In closing address, Ms Harper submitted that frustration is family violence. In a general sense, I reject the submission. Frustration per se is not family violence. Expression of frustration might constitute family violence, depending upon whether or not it causes coercion or control, or causes fear. Any such alleged consequences are starkly absent from the evidence.
The impression I formed is that what Ms Harper considered to be family violence and abuse was the fact that Mr Robb had pursued a relationship with his daughter, including through litigation in this Court. So much is consistent with her evidence that:
This is a history of family violence and abuse of the court system, of [X]'s father using the court system to exert control and force over myself and [X] and to punish me for reasons I have never comprehended.[17]
[[Mr Robb]]'s presence and his forcing [X] into unwanted contact with him in [sic] has been the source of much trauma and distress for [X] across most of her life.[18]
[17] Ms Harper’s Trial Affidavit, paragraph 55.
[18] Ms Harper’s Trial Affidavit, paragraph 67.
I am not satisfied that such behaviour amounts to family violence. That Ms Harper may have preferred him not to do so, seemingly to the point of causing her some substantial distress, does not establish that she was coerced or controlled, or was fearful.
Allegations of sexual abuse
Ms Harper maintained a position in the proceedings that I ought to find Mr Robb has perpetrated sexual abuse on X. That position was inconsistent with her oral evidence during which she did not say that she believed him to have done so. It is also inconsistent with her claim in closing address that she has never accused Mr Robb of sexually abusing X. She gave oral evidence that according to the experts she consulted with, there were serious red flags. Ms Harper’s written evidence in relation to the topic conflates a number of issues, and it is regrettably necessary to extract that evidence in its totality. She gives the following evidence under a heading “Sexual abuse concerns 2014-2015”[19]
[19] Ms Harper’s Trial Affidavit, page 16.
118. [X], aged 4-5 regularly returned from visits away with [Mr Robb] very distressed and crying of a very sore genital area on the 2.5 hour trip home.
119. She was twice found engaging in sexualised play, looking very distressed and worried when approached and upon gentle discussion revealed it was 'something to do with Daddy' and 'don't tell mummy’
120. [X] often whimpered and cried in her sleep following visits away, saying things such as 'nooo, stop ... I don't like it" and was extremely distressed around changeover,
121. [X] refused to talk to the Father on the phone and after one call that I insisted she take, under threat from [Mr Robb] of a return to court if I don't 'make her', [X] hung up saying, "yukky daddy''
122. Kindergarten drop offs are becoming increasingly difficult, with [X] refusing to separate from the Mother.
123. [X], was very distraught prior to contact and distraught and experiencing severe separation anxiety following contact, which was documented by her school
124. 2 May 2015 Despite the reduction of parent contact and hence conflict theoretically eliminating child's stress around contact, [X]'s distress at changeover only increases.
125. [U] Contact Centre writes a letter to both parents, after a highly distressing changeover on 1 May, concerned about [X]'s 'increasing distress at changeover, recommending counselling for all Parties
126. ([sic] I don't believe that [Mr Robb] has ever pursued counselling himself, apart from reference to such in an affidavit with one of his doctor/mates.
127. X told me at the time, that once outside of [U Contact Centre], following this distressing changeover, the Father apparently told [X] that, "she musn't [sic] do that again- not to make a fuss again".
128. 1 May 2015 Mother engages services of [Ms V, W Counselling Services], having been verbally notified of [U Contact Centre] pending recommendations before the letter was sent.
129. In discussion with [X] about the purpose of these sessions being to discuss her feelings, [X] says:
130. 'But what about if I tell the lady and the lady tells Daddy and Daddy gets angry at me".
131. When reassured that the Father shouldn't get angry at her [X] says: 'So what about if I tell the lady and she tells Daddy and Daddy gets angry at the lady".
132. 12 May 2015 Mother drives [X] to attend appointment with [Ms V], but half-way there -over an hour from home- is contacted by [Ms V] to say that the appointment cannot go ahead.
133. [Mr Robb] refuses to give his consent for [X] to attend counselling.
134. 17 May 2015 Following [X]'s weekend visit with [Mr Robb], [Mr Robb] retained and refuses to use or return, court-ordered Communication book.
135. The CB is a record of my concerns around [X]'s distress and her regularly returning with irritated and sore genital area.
136. 18 May 2015 - I attempted to bypass [Mr Robb]'s blocking of therapy for [X], obtaining Medical Referral from [Y Medical Clinic] for [X] to undertake counselling.
137. At same appointment, the Monday after the weekend away [Mr Robb], [Y Medical Clinic] was concerned at [X]'s presentation, and contextual history, took photos of [X]'s genital area, showed them to visiting paediatrician, and requested Mother's permission to submit report to DHHS Child Protection.
138. June 2015 [Mr Z] from DHHS wrote to [Mr Robb] following the report made, urging the Father to return the Communication Book to the Mother and to give the Mother permission to organise therapy for [X] "in the best interests of [X]”, warning the Father that "if a further report with similar concerns were received, they would have to assess the need for further investigation". This was not nothing.
139. [Mr Robb] refused to comply to [Mr Z’s] recommendations and retains the Communication Book to this day.
140. Neither did [Mr Robb] give his permission for myself to obtain therapy for [X].
141. [Mr Robb] began to bring his son to changeovers ([X] will not go to him alone).
142. October 2015 [X] developed [sic] a frequent urination problem, with accompanying stomach aches.
143. December 2015 Following numerous medical consultations and tests, [X] is diagnosed with 'hyperactivity of the bladder' by [Dr AB] at the Royal Children's Hospital in December 2015.
144. All professionals with whom I discussed, objectively my concerns at that time told me that the situation and behaviours I described were all red flags for the very strong likelihood that there had been sexual abuse.
145. I never made accusations to [Mr Robb]. I merely tried to discuss [X]'s distress. [Mr Robb] refuse do discuss it and refused toa [sic] allow [X] to seek therapy, and withdrew the communication book, all of which served only to heighten my suspicions and concerns
146. I declare, that whether or not [X] was sexually abused - and the perpetrator may well have been someone apart from her father - and we may never know, as this all occurred at a very young age, [Mr Robb]'s conduct and choices at the time were concerning and far from child focused and did nothing to support [X] who was suffering, and this was documented, and only served to deepen the conflict between us and raise my concerns and this all impacted negatively on [X] and did nothing to improve their relationship, nor our own.
The evidence in support of the allegation that Mr Robb has sexually abused Ms Harper is circumstantial. She did not deign to particularise what she means by “sexualised play” [20] in her evidence. She did not raise any concerns in relation to sexual abuse with Consultant Ms F. Apparently no medical practitioner formed the view that X had been sexually abused. She does not identify which professionals considered there to be a “very strong likelihood that there had been sexual abuse”.[21] No such professional is giving evidence in the case, nor are any reports adduced into evidence supporting the contention.
[20] Ms Harper’s Trial Affidavit, paragraph 119.
[21] Ms Harper’s Trial Affidavit, paragraph 144.
The Department of Families, Fairness and Housing record that in 2015:
[X] was taken to a doctor who was unable to form an opinion on the cause of the redness around the vaginal opening. The doctor consulted a paediatrician who was also unable to form an opinion.
[Town AC] SOCIT were informed but advised they had no role as the child had made no disclosure and the GP and paediatrician and not formed an opinion that sexual abuse had occurred. [22]
[22] Department of Families, Fairness and Housing report dated 22 March 2022.
In early 2021, Ms Harper acknowledged to Consultant Mr D that X “has never made a direct disclosure around sexually inappropriate behaviours toward anyone and confirmed no historical factors relating to Mr Robb contributing to concern around his potential to engage in sexual abuse against minors.”[23] Inconsistently with the assertion that X has been abused by her father, she also advised Consultant Mr D “of X appearing comfortable within her father’s care”.[24]
[23] Family Report of Mr D dated 22 February 2021, paragraph 43.
[24] Family Report of Mr D dated 22 February 2021, paragraph 44.
There is no evidence that anyone has formed the belief that X has been sexually abused by Mr Robb. Ms Harper herself does not have that belief. That she seeks a finding from this Court that X has in fact been sexually abused by Mr Robb, is quite extraordinary in those circumstances. It supports Mr Robb’s submission to the effect that Ms Harper is simply doing everything she can to inhibit a relationship between X and her father.

Certainly, the evidence does not satisfy me that Mr Robb has sexually abused his daughter on the civil standard of proof as enshrined in section 140 of the Evidence Act 1995 (Cth).[25] Whilst that is not determinative of the question of whether X is at unacceptable risk of future sexual abuse by Mr Robb, I am not satisfied that conjectural conclusion is open based on the historical facts and circumstances proved in this case.[26]
[25] M v M (1988) 166 CLR 69 at 76; Isles & Nelissen (2022) FLC 94-092 (“Isles & Nellisen”) at [2-3].
[26] Isles & Nellisen at [53].
Other inconsistences
Ms Harper’s assertion that X has been the victim of family violence or abuse is inconsistent with her earlier consent to arrangements for X to spend time with her father. She consented to orders in 2014 that provided for X to spend substantial, significant overnight time with her father. She thereafter complied with those Orders for an extended period of at least 12 months. She then entered into a parenting plan in 2016 that provided for a modification of the time between X and her father that again included multiple periods of extended overnight time between them.
Ms Harper sought to explain that inconsistency by asserting that she felt as though she had no choice but to agree to the arrangements. I reject that explanation. Ms Harper had variously failed to comply with the court’s orders to facilitate X’s time with her father and I am not satisfied that she would have continued to facilitate that time if she was genuinely of the belief that doing so placed her daughter at unacceptable risk of harm.
Ms Harper’s suggestion that X is at unacceptable risk of exposure to family violence or abuse is also inconsistent with her now proposing that any contact between X and her father occur in accordance with her wishes. She does not suggest that any such time occur in a supervised or controlled setting. She gives evidence of X not remembering the abuse her mother says she has suffered, so presumably, even on her own case, X would not take any such abuse into account in considering whether she wishes to see her father.
Also inconsistent with the allegations maintained during the trial, Ms Harper did not raise any concerns with Consultant Ms F that X is at risk of exposure to family violence or sexual abuse. She also did not raise any allegations of family violence with Consultant Ms AD in August 2017, nor were any such issues identified as significant in Consultant Mr D’s family report in February 2021. Somewhat presciently, Consultant Ms AE opined the following in May 2014:
Every element of [X]'s possible relationship with her father is re-examined and re-framed through the lens of [Ms Harper]'s discontent about [Mr Robb]. [Ms Harper] starts with the premise that [Mr Robb], in relationship was unable to address her emotional needs and she formulated a narrative that sought to discredit him in entirety making allegations of family violence with scant regard for the truth. [27]
[27] Family Report of Ms AE dated 22 May 2014, paragraph 76.
Whether Ms AE’s opinion of aetiology is accurate or not, I am satisfied that Ms Harper has formulated a narrative that seeks to discredit Mr Robb through making allegations of family violence and abuse with scant regard for the truth.
The only family violence established by the evidence occurred prior to X’s birth more than 12 years ago. The evidence does not support any allegations of abuse. I am not satisfied that there is any unacceptable risk of harm to X by spending time, or indeed, living with her father.
The benefit to X of having a meaningful relationship with both of her parents
Mr Robb asserts that if X remains living with Ms Harper, she will have no relationship with him. That contention firstly arises for consideration against an extensive litigious background and its historical lack of success in facilitating X’s relationship with her father. Secondly, the contention ought to be examined by reference to Ms Harper’s current attitude.
History of X’s time with her father
Mr Robb’s evidence of X’s time with her father was unchallenged. To the extent that Ms Harper’s evidence contradicted his, I prefer Mr Robb’s given the observations I have previously made in relation to the manner in which both gave their oral evidence.
After X’s birth, Ms Harper moved with X three and a half hours drive away from Mr Robb and made it difficult for X to spend time with him by not agreeing to times and claiming that he was not X’s father.
Mr Robb initiated proceedings in the Federal Magistrates Court (as this Court then was) in February 2011 seeking orders for X to spend time with him. Orders to that effect were made in March 2011, July 2011 and March 2012. Ms Harper failed to comply with those Orders and was found to have contravened the March 2012 Orders without reasonable excuse and was placed on a 12 month good-behaviour bond and ordered to pay Mr Robb’s costs.
In December 2012, the parties entered into final consent Orders providing for X’s time with her father to gradually increase. Ms Harper continued to fail to comply with those Orders. In December 2013, she was again found to have contravened the Orders and placed on a 24 month good-behaviour bond. Thereafter, X largely spent time with her father in accordance with the Court’s Orders.
In September 2014, final consent Orders were entered into that provided for X to spend alternate weekends with her father from Friday to Monday. Those Orders were complied with until early 2015. Thereafter, compliance became intermittent, with Ms Harper proffering various reasons why X was unable to spend time with her father. X did spend 6 consecutive nights with her father during the summer holidays of 2015/2016.
In March and April 2016, the parties agreed to vary X’s time with her father to occur on long weekends rather than fortnightly, which agreement was documented in a Parenting Plan. By October 2016, those arrangements had again broken down with Ms Harper asserting that X was old enough, at the age of 6, to decide whether she spent time with her father and did not want to do so.
Mr Robb advised Ms Harper of his intention to return to the September 2014 Orders in early 2017. The Parenting Plan itself contemplated that outcome if no further agreement was reached between the parties. Nevertheless, Ms Harper failed to thereafter comply with the September 2014 Orders.
In June 2017, Mr Robb initiated further proceedings proposing that X live with him. He informally discontinued those proceedings in August 2017 resulting in final Orders being made in his absence in October 2017 providing for X’s mother to have sole parental responsibility for her and for her to spend time with her father as agreed between the parties. Ms Harper failed to respond to proposals Mr Robb made to spend time with his daughter with the result that they spent no time together until Mr Robb initiated the current proceedings in April 2019.
In July 2019, agreement was reached for the parties to attend upon Dr C for family therapy. Some limited visits occurred as agreed with Dr C until Ms Harper withdrew from that therapy in around October 2019.
In June 2020, interim Orders were made providing for X to spend unsupervised day time with Mr Robb, initially for 4 hours, increasing to 6 hours in September 2020. Three visits occurred in accordance with those Orders before Ms Harper failed to facilitate any subsequent time between X and her father from September 2020.
In April 2021, agreement was reached to vacate the then listed final hearing in order for the parties to undertake family therapy. With the assistance of that therapist, the Orders provided for X to spend time with her father for day visits every 4 weeks and by Zoom twice each week. Ms Harper was thereafter uncontactable, with Orders being required to be made in December 2021 for substituted service.
On 31 January 2022, Orders were made for the parties to attend upon Ms B for family therapy. Whilst Ms Harper did virtually attend upon Ms B in February and March 2022 and also facilitated X doing so, she did not respond to further communication from Ms B seeking to arrange an in-person session. Ms Harper gave fanciful evidence that she thought the obligation to attend upon Ms B had been discharged by subsequent orders. No such order has been made. Despite Orders being extant throughout the period from September 2020 to date for X to spend time with her father, Ms Harper has failed to comply with such Orders.
That history suggests that any orders now made for X to spend time with her father are unlikely to be complied with.
Ms Harper’s current attitude
Ms Harper gives the following affidavit evidence:
1.1Thank you for your invitation to attend this Court to discuss further the matters related to [X] spending time with her father.
…
2.1It is recognised that this court is a court of the private BAR guild, exercising its private legal systems of statues [sic] and legislations upon the general populace, who are referred to as ‘the public’.
2.2. Such statutes and legislations of the private BAR Guild may not be coherent with timeless Maxims of Law, which ensure the safety of everyone.
2.3. If a statute or legislation is incoherent with Maxims of Law, it is referred to as a legal fiction, and is null and void from the beginning.
2.4. It is understood that to conduct one's matters via a legal practitioner is to succumb to the jurisdiction of the private legal system of the private BAR guild system, a system of commerce in which the joinders the living sentient man or woman to individual's Birth Certificate Name which is then traded, as seen fit by the administrators.
2.5. And to be clear, joinder is created between the lower case and upper case names. The lower case being a name of a living Sentient Being. The upper case being a tradable bond in commerce.
2.6. This is well known and common knowledge.
…
3.4.I am a Sentient Being, not chattel, not property, and not under Guardianship as an incompetent.
3.5. As mother of [X], I confirm I am the first custodian of [X] and her wellbeing.
3.6. I recognise that there is no one in this court who is of a higher standing in this matter, than myself.
4. I confirm [X] is a living, Sentient Being, of sound mind, and is not chattel nor property of the Court (and) to be administered as the Court sees fit.
…
12.No consent is granted for decisions to be made in these matters that are not in alignment with the free will and consent of [X] and myself.
…
23.… a removal of [X] from the home she feels safe in, against her free will, would of course be an act of slavery and kidnapping.
…
34.… there is no one in this private courtroom who is of higher standing in this matter, than myself.
…
44. Please be advised, due to the level of exhaustion experienced at finding these matters yet again in the court, should any decisions made by the court that are against these initial Orders, I do reserve the right to dismiss them in the days following the trial.
…
47.Orders will be deemed null and void if not freely consented to in these proceedings. [28]
[28] Ms Harper’s Trial Affidavit.
Ms Harper sought, in part, to distance herself from those statements when asked about them in oral evidence. She did so despite adopting that affidavit evidence as being true and correct. She did maintain in oral evidence that she considered the Court’s orders could only be based on some consensual contractual relationship between herself and the Court. Ms Harper also gave oral evidence that “I cannot force [X] against a very demonstrable will and to her great distress into an unwanted relationship with him at this point.” When I raised with her the impression I formed from her evidence was that she would not comply with the Court’s orders unless I made the orders she sought, she gave evidence “I cannot do anything that’s going to harm my daughter”. That evidence supports a conclusion that Ms Harper will not comply with any Court orders requiring X to spend time with her father.
It might be thought that Ms Harper’s proposal to be bound by an order providing that any contact between X and her father be as “initiated by X, and established in writing, so it is clear that any contact sought by X is in line with her own desire, free will and consent”[29] suggests that Ms Harper will support a relationship between X and her father if it is X’s wish to do so. On a number of occasions, Ms Harper gave evidence that she would support such a wish.
[29] Ms Harper’s ‘Orders to be made’ Affidavit filed 6 April 2022, page 3.
However, when the Court enquired of Ms Harper what she would do if X asked to spend time with her father this coming weekend, Ms Harper’s response was to suggest that she would seek family therapy. She then professed not to understand the question. When it was repeated to her, she repeated her evidence that she would seek therapy. Crucially, she did not give evidence that faced with a situation of X wishing to see her father, she would promote and facilitate that desire. Indeed, doing so would be inconsistent with her sworn evidence that X has suffered through 11 years of “harmful associations” with her father.[30]
[30] Ms Harper’s Trial Affidavit, paragraph 66.
I also suggested to Ms Harper that if I formed the conclusion X should have a relationship with her father, there appeared to be no alternative but for her to live with him. She did not accept the proposition, alleging there were alternatives. However, the only alternative she suggested was for X to have a break and not be required to see her father for an extended period of time. Quite clearly, that would not entail X having a relationship with her father.
If I were to adopt one alternative recommendation of Consultant F, and order X to spend time with her father on 4 occasions each year, there is no basis in evidence upon which I could conclude that Ms Harper would comply with such an order. Previous efforts by the Court to enforce her compliance with parenting orders through the imposition of good behaviour bonds have been ineffectual, at least in the long term. Consultant Ms F herself saw that alternative not so much as affording X the opportunity to see her father, but an opportunity, four times each year, to hear a message that her father wants to see her, acknowledging that it “would be very difficult to X to say yes to the offer.”
Ms Harper was unable to say anything positive about Mr Robb during cross-examination. Her only response to the question was to assert that he is “very persistent”. She sought to explain that failure in closing address as being the result of being extremely tired due to extended travel to and from the Court and being involved in what she described as a harrowing family court trial. Rather than seeking to then rectify the failure, she repeatedly asserted that he is cruel and abusive. Her failure to identify any positives in relation to Mr Robb leaves me unconvinced that she will now positively promote X’s relationship with her father. That conclusion is not impeached by Ms Harper professing in closing address that she would seek further therapeutic support both for herself and X. The evidence is that both Ms Harper and X have attended upon numerous counsellors and no shift in Ms Harper’s perspective has yet become evident.
Regrettably, I am not satisfied there is any prospect of X having a meaningful relationship with both of her parents whilst living primarily with her mother. Ms Harper is either unwilling or unable to comply with Court Orders that require her daughter to spend time with her father. That conclusion is consistent with her evidence that she has done her best and “I can’t get her there”.
Mr Robb’s capacity to facilitate X’s relationship with her mother whilst living in his care is untested. He was asked by Counsel for the Independent Children’s Lawyer what he would do in the event X said that she did not want to see her mother. He gave evidence “if it’s court-ordered time, I will honour it as I always have.” He also gave evidence that he would explain to X there are rules that need to be followed. He referred to not accepting the whims of his children and noted that: “I have to respect her concerns and her potential anxiety now. So I will listen and be very careful about how I manage it and deal with it and I would probably seek professional support to help with that.” Mr Robb’s evidence supports a conclusion that he is very likely to be able to facilitate a meaningful relationship for X with both of her parents.
Additional Considerations
Any views expressed by X and any factors (such as her maturity or level of understanding) relevant to the weight that should be given to those views
Ms Harper contends, in effect, that X’s expressed views not to see her father should be given substantial weight. She submits that X’s best interests are served by X initiating when she might see her father. She repeatedly described any historical time X spent with her father as “unwanted”.
The Court has the benefit of multiple reports during the preparation of which X has been offered an opportunity to express her views. They provide important context to the present assessment of the weight to be now given to her views.
In September 2013, X was 3 years old. Consultant Ms AE reports:
[X] explained that “...it is not really fun at dad’s because I am so worried about mummy and I cry when mummy goes…I don’t like it there (at daddy’s) it is too rich.” Invited to explain this [X] said “…mummy doesn’t want me to visit daddy yet,” when asked what [X] wanted she burst into tears, becoming extremely distressed running to sit in the consultant’s lap seeking comfort and [X] confided that “…I like to see dad…I like to go there.” [31]
[31] Child Inclusive Conference Memorandum by Consultant Ms AE dated 20 September 2013 (“Child Inclusive Conference Memorandum dated 20 September 2013”), page 6.
At such a young age, X was already experiencing dissonance between expressing her own feelings about wanting to see her father and her mother’s opposition and reactions to such visits. Very troublingly, she was already expressing that she was worrying about Ms Harper.
In May 2014, X told Consultant Ms AE that “mummy mixed it up but I want to see daddy”. [32] X is also then recorded as saying “I like to go and see daddy … I like R and I see AG next door.” [33] She also reported that “I love it at dads … I like to stay at dads."[34]
[32] Family Report by Consultant Ms AE dated 22 May 2014 (“Family Report dated 22 May 2014”), page 27.
[33] Family Report dated 22 May 2014, page 27.
[34] Family Report dated 22 May 2014, page 28.
Nevertheless, again consistent with the dissonance between her experience and her mother’s views, she reported: “mummy is upset about me going to daddy’s.”[35] Tellingly, when X was observed in her mother’s presence, without any conversational context, there was a “sound of a sob emanating from X, not followed by any tears, but she shook her head and said ‘...I don't want to go to daddy ever’ in an atonal delivery and then as if nothing was said she resumed laughing and hitting her toy.” [36] Consultant Ms AE observed that the only context of that behaviour and statement was Ms Harper’s presence.
[35] Family Report dated 22 May 2014, page 28.
[36] Family Report dated 22 May 2014, page 30.
In August 2017, after a period of not having seen her father for some time, X was described as being “somewhat flippant about seeing her father today and spending time with her father more broadly”.[37] Nevertheless, during observations between the two of them X “happily engaged with him. She remained in close proximity with him throughout the brief observations and demonstrated a familiarity with him, referring to him as “daddy”. She also sought his assistance with tasks. The pair’s interaction was jovial, with the pair laughing and smiling in one another’s company.” [38]
[37] Child Inclusive Conference Memorandum by Consultant Ms AD dated 2 August 2017 (“Child Inclusive Conference Memorandum dated 2 August 2017”), page 2.
[38] Child Inclusive Conference Memorandum dated 2 August 2017, page 2.

In June 2019, X was described as comfortable in describing her wishes to Dr C. He records X as reporting:
I remember Dad. I helped him with work. I have two half-brothers [R] and [S]. I haven't seen them for a long time. I don't know why and why I say I don't want to see them. I don't know why I don't want to see them. I used to have a good time with Dad. I have good memories. I was happy to go and see him. Sometimes I missed my mum and my dog, but now I don't have a dog and we have two cats. I don't remember crying about not wanting to see Dad. I do have good memories of him. [39]
[39] Affidavit of Dr C filed 25 October 2019, page 9.
X subsequently told Dr C that “Mum told me that Dad used to take me in his car. I don't remember but I'm starting to. I don't want to see him. I don't know why.” [40] During a joint session between X and her father, Dr C recorded that both agreed to have time together for one to two hours. Dr C’s view was that “X asserted her own wishes comfortably and clearly”.[41] Despite X subsequently indicating she had a positive experience of spending time with her father, she told Dr C that she did not want to see him, again without explanation.
[40] Affidavit of Dr C filed 25 October 2019, page 10.
[41] Affidavit of Dr C filed 25 October 2019, page 10.
Dr C described a dissonance between X’s expressed views and immediate lived experience in this way:
[X] presented as bright and easily engaged, and continued to present an unexplained reluctance to see her father in parallel with good memories of him and a good experience of the Saturday visit.
….
There was no obvious explanation for [X]'s stated reluctance to engage with her father, which was at odds with the actual engagement between them. [42]
[42] Affidavit of Dr C filed 25 October 2019, page 15.
By 2021, X apparently ceased being able to voice her documented positive experience of her father or any positive desire to see him. Consultant Mr D made the following observations of her during a remote video assessment:
51.[X] responses were highly limited in relation to her father regularly responding with, "I don't know", "unsure" or that she could not remember. She also made broad statements, such as being "uncomfortable" with her father and "I just don't want to see him". When follow on questions were asked, [X] was unable to elaborate returning to a position of not knowing and being unsure. Specific questions such as whether her father was friendly or mean were answered with, "I can't really say" and "not really" and "I just want to be with mum".
52.[X] denied being scared or fearful of her father. [X]'s limited responses were viewed as likely reflecting a guardedness around her relationship with her father and unwillingness to explore her experiences within the interview.
53.The only tangible examples of concerns [X] raised, included disliking one of her father's jokes, because it was not funny and reporting a vague memory of him attempting to remove her from a vehicle when she was around 4-5 years old. She described then thinking of her father as a "mean person". Reference to significantly historical accounts raised the potential exposure to adult conversation relating to this topic. [X] also disclosed disliking [Mr Robb]'s partner "[Ms AH]", and "all of them" referring to her siblings. Upon query she thought this was likely related to being forced to spend time with them.
54.…. [X] described her mother as being supportive of her attending spend time with her father and responded that if she did ask to go, she thought her mother would be enthusiastic. [X] upon query described a view that her mother wants to help me, in "not going". She however, in contrast, also reported her mother encouraging her to attend in the past, providing examples of her mother suggesting spend time would be ok and advising that the spend time will be finished soon.
55. In relation to spend time, [X] reported not wanting any further contact with her father and stated she just wanted to be with her mother. [43]
[43] Family Report by Consultant Mr D dated 22 February 2021 (“Family Report dated 22 February 2021”).
Consultant Mr D went on to opine that:
During the current interview, [X] maintained a strong resistance to any communication with her father. She lacked specificity and was unable to provide any substantive incidents or a coherent narrative to explain this position.
…
This lack of apparent substance appears to support a view that there are no reasonable explanations for her present resistance and extended estrangement from her father. In absence of such an explanation, the dynamic was viewed as understandable as a result of the parental conflict and the mother child relationship. [44]
[44] Family Report dated 22 February 2021, paragraph 63.
I will return to Mr D’s assessment of the mother child relationship. However, for present purposes it is significant to observe that Mr D did not recommend, as erroneously asserted by Ms Harper, that X’s relationship with her father be severed. Put another way, it was not his assessment that X’s expressed resistance to spending time with her father should be given decisive weight.
Consultant Ms E spoke to X by electronic means in around April 2022. When she directed X to speak about her father, “X’s engagement regressed to one word, faint answers. She was unable to provide any detail regarding this relationship, however clearly expressed not wanting to see or spend time with Mr Robb.”[45]
[45] Child Impact Report by Consultant Ms E dated 8 April 2022 (“Child Impact Report dated 8 April 2022”), paragraph 10.
Child Protection spoke to X, also in approximately April 2022. X was asked her views and thoughts about seeing her father. It is reported that:
[X] said she has not seen her dad for about two years, she didn’t really want to see him. When asked why she said she said [sic], “no reason, I don’t really feel comfortable, I guess”.
….
[X] said if she was made to see her dad, she would be “sad and annoyed”, it’s also “upsetting”.
Child Protection asked [X] if she felt this why [sic] because her mum gets upset about Family Law Court. [X] said “my mum gets upset but doesn’t really mind if I go or not go, she is fine if I want to go, she will take me.” [46]
[46] Department of Families, Fairness and Housing report dated 1 May 2022, page 4.
Clearly Ms Harper is unable to shield X from her own feelings of being upset at the proceedings in this Court. Unsurprisingly in that circumstance, one of X’s expressed wishes to Child Protection was “That it’s over, Family Law Court.”[47] Nevertheless, it was Child Protection’s conclusion that “there is no current evidence that X would be at significant risk of harm in Mr Robb’s [sic] care should contact resume.” [48] Again, that is inconsistent with any suggestion that X’s views should be afforded decisive weight.
[47] Department of Families, Fairness and Housing report dated 1 May 2022, page 4.
[48] Department of Families, Fairness and Housing report dated 1 May 2022, page 5.
X was interviewed in person by Consultant Ms F. It was reported that:
In terms of the parental dispute, [X]’s narrative was closely aligned with that of [Ms Harper]’s. She stated that although she hasn’t seen [Mr Robb] for over a year and that she has few memories of him. She also believes that he doesn’t listen to her and he does things that make her feel uncomfortable, like bringing her half siblings along to spend time with her. As in previous assessments, [X]’s responses in relation to [Mr Robb] were limited with broad statements such as not feeling “comfortable” with him. These feeling were explored further and she explained that her discomfort was not born from fear, unhappiness, boredom or embarrassment but rather that the thought of spending time with [Mr Robb] made her feel upset, shy and grumpy. [49]
[49] Family Report by Consultant F dated 6 June 2022 (“Family Report dated 6 June 2022”), paragraph 45.
Consultant Ms F observed that, consistent with previous assessments, X expressed a resistance to spending time with her father but was unable to articulate her reasons for this.
Consultant Ms F was asked by the Independent Children’s Lawyer what weight should be placed on X’s expressed reluctance to see her father. Consultant Ms F gave the following oral evidence:
I think it’s difficult to put much weight on [X]’s views about this because I did get the impression that it was difficult for [X] to express her own particular views independently, but she does genuinely consider her mother’s perspective and reactions to things before her own views come to the fore. So she – she – I get the impression that [X] weighs up her own needs against her mother’s needs and her mother’s reaction to that.
In circumstances where X has historically expressed positive experiences of her time with her father, has failed until very recently to offer any explanation for her resistance to spending time with her father and now appears to have aligned her views with her mother’s, I am not satisfied that any significant weight should be placed on X’s expressed desire not to see her father. That conclusion is also supported by one of the more troubling aspects of Consultant Ms F’s evidence, namely that X prioritises her mother’s emotional wellbeing before her own. X’s maturity or level of understanding does not lead to a different conclusion.
The nature of X’s relationship with each of her parents and other people, including any grandparent or other relative
In assessing the nature of X’s relationship with her mother, it is relevant to record some of the observations made about that relationship in expert reports over an extended time frame. Themes emerge from the earliest assessments of enmeshment, gatekeeping, co-dependency, hypervigilance, cognitive dissonance, undue influence and alienation.
In September 2013, X was observed to respond to her mother’s anxiety about being placed in child-care by “appearing to be distressed and reluctant to leave her mother”.[50] Consultant Ms AE opined that:
[Ms Harper] is a loving mother but she is enmeshed with her daughter and cannot separate her experiences from those of [X] even for simple issues such as driving, as she reflects her exhaustion and stress and insists this is applicable to [X]. Neither mother nor daughter exhibit well defined boundaries as [Ms Harper] was observed seeking [X]’s opinion about matters, such as entering the Child-Care Room, and she reported soliciting [X]’s opinion about spending time with her father. [Ms Harper] does not appear to comprehend the emotional pressure on [X] of such a discussion. [Ms Harper] lacks insight into this dimension of her parenting; and she genuinely believes she facilitates the relationship between father and daughter. [51]
[50] Child Inclusive Conference Memorandum dated 20 September 2013, page 5.
[51] Child Inclusive Conference Memorandum dated 20 September 2013, page 5 and 6.
Consultant Ms AE went on to opine that X’s presentation was “demonstrating the intense emotional pressure [on X] to conform to the maternal line whilst allowing her to retain her own independent and clearly separate thoughts and experiences.”[52] She also observed that Ms Harper’s “tenacious hold on her erroneous perceptions in defiance of reality is concerning”.[53] Nearly 9 years ago, Consultant Ms AE recommended Ms Harper attend a psychiatric examination and undertake counselling to separate her needs from those of X. Whilst Ms Harper gives evidence of undertaking counselling, it appears from subsequent reports to have been ineffective in assisting her to separate her own needs from X’s.
[52] Child Inclusive Conference Memorandum dated 20 September 2013, page 6.
[53] Child Inclusive Conference Memorandum dated 20 September 2013, page 7.
In her May 2014 family report, Consultant Ms AE opined again that Ms Harper appears unable to separate her needs from her daughter’s and that as a consequence, her “‘reading’ of X’s emotional state appears, at times, to border on the delusional”.[54] Echoing Ms Harper’s present accusation that the Court is abusing and perpetrating family violence on her and her daughter, Consultant Ms AE observed that “Ms Harper's bitterness is palpable as she identifies herself as abused by a system which she perceives as finding her at fault and erroneously so, and one that holds her rigorously accountable for her actions claiming “ ... what I say is twisted around and presented in a negative light”.[55] Also consistent with Ms Harper’s present attitude to the imposition of orders contrary to those proposed by her, Ms AE observed that:
[Ms Harper]'s nuanced view of the father-daughter relationship is that she should determine and apportion [X]'s time with [Mr Robb] if and when she considers it to be appropriate that [X] spend time with her father. [56]
[54] Family Report dated 22 May 2014, page 9.
[55] Family Report dated 22 May 2014, page 14.
[56] Family Report dated 22 May 2014, page 18.
When X was observed with her mother in May 2014, Ms Harper was observed not to seek to soothe X, whose behaviour had changed from happy to “grizzly screwing up her face” [57] upon her mother’s arrival. Despite Consultant Ms AE requesting Ms Harper play with X, she engaged in “X's discontent and [sic] amplified this making no attempt to distract her or engage in play.”[58]
[57] Family Report dated 22 May 2014, page 30.
[58] Family Report dated 22 May 2014, page 30.
In August 2017, Consultant Ms AD commented on the inconsistencies between Ms Harper’s report of X’s anxiety and X’s presentation to the Consultant. She considered those inconsistencies give “rise to the possibility that Ms Harper may have engaged in some gatekeeping behaviours”. [59]
[59] Child Inclusive Conference Memorandum dated 2 August 2017, page 2.
In August 2019, Dr C observed that it was “concerning that [Ms Harper] appeared unable to consider that X maintained a degree of hypervigilance in relation to her own anxiety and distress, and seemed unable to consider even the possibility that the child might have a good time with Mr Robb AND appear very credibly distressed to her.” [60] In effect, X’s hypervigilance is attributed to her relationship with her mother.
[60] Affidavit of Dr C filed 25 October 2019, page 14.
In February 2021, Consultant Mr D, in a report which Ms Harper repeatedly referred to, opined as follows:
A more specific analysis might refer to an unhealthy level of co-dependence in the parent child relationship commonly referred to within professional literature as enmeshment. Enmeshed relationships are commonly defined by a child learning to define themselves by compliance with their parents needs and need for parental approval. It manifests with children struggling to express their own emotions where they conflict with their parents' views. It to some extent can assist explain [X]'s manifestation of upset and resistance as reflecting her mother's own need for [X] to share her negative perspective of [Mr Robb]. The probability of such an explanation, is also supported by historical descriptions of observation sessions, where [X] is described as enthusiastic and without concern and then conversely described by [Ms Harper] as shortly after returning to her care as highly anxious and distressed. [61]
[61] Family Report dated 22 February 2021, paragraph 63.
In April 2022, Consultant Ms E opined that “concerns were raised regarding X being coached or unduly influenced by Ms Harper to reject her father”.[62] Consultant Ms E went on to opine:
19.…. if [X]’s relationship with [Ms Harper] is enmeshed, with a level of co-dependency and with an inability to perceive [X]’s interests as separate from [Ms Harper]’s, this dynamic will be in conflict with [X]’s course of develop promoting increased individuality outside of her family unit.
20. This type of conflict that [X] may be experiencing can be described as cognitive dissonance, with her need for independence and her need to remain close and aligned to [Ms Harper] is experienced as incongruent. When this occurs it creates emotional discomfort, which can eventually become intolerable. To overcome this and cope, children will align with one idea and reject the other. In this circumstance, [X] may over align with [Ms Harper] at the expense of ability to fully explore her identity and overall social developmental trajectory.
[62] Child Impact Report dated 8 April 2022, paragraph 13.
Accordingly, consistent with Consultant Ms F’s observation that X prioritises her mother’s emotional needs ahead of her own, Consultant Ms E opines that X may be unable to fully explore her own identity and social development.
Whilst, as Ms Harper was at pains to point out, Child Protection did not recommend in May 2022 that X be removed from her mother’s care, the following opinion is expressed by them:
[X] has said she does not want to see her father; however, [Ms Harper]’s [sic] has a well documented history of actively discouraging contact and alienation of [Mr Robb] from [X] life. This denies [X]’s right and the opportunity to reconnect with [Mr Robb] and freely develop her own views and wishes without consequence. This is evidenced by [X] not being open with her mother in relation to Child Protection’s conversation about contact with [Mr Robb] and Family Law court. It is concerning [Ms Harper] has directly exposed [X] to conspiracy theories that appear to be an attempt to obstruct legal processes and in turn contact with [Mr Robb].[63]
[63] Department of Families, Fairness and Housing report dated 1 May 2022, page 5.
Accordingly, it is Child Protection’s opinion that the nature of X’s relationship with her mother is such that X is denied the right to have a relationship with Mr Robb, but also the opportunity to develop her own views and wishes.
In May 2022, Consultant Ms F conducted a brief observation session between X and her father to which I will return. After Mr Robb had left the room, X explored the contents of a gift brought by him in the presence of Consultant Ms F, who reported the following:
51. When [Ms Harper] entered the room, [X] immediately ran to her and began sobbing uncontrollably. Her mother hugged her and looked over her head and angrily asked the writer “what have you done to her?” [Ms Harper] was redirected to assist her to regulate however when it became apparent that [Ms Harper] was unable to soothe [X], the writer directed them to sit in another area of the room where they could sit adjacent to one another. When [X] made eye contact with the writer, she stopped sobbing and was able to re-engage in a conversation.
52. [Ms Harper] stated that [X] did not wish to have any of the items that [Mr Robb] had brought her. When the writer asked [X] if she would like to keep the crystals that had been kept aside, [Ms Harper] interjected and said she wasn’t interested however [X] made eye contact with the writer and nodded. The writer handed [X] the crystals and she put them in her bag. [64]
[64] Family Report dated 6 June 2022.
Consultant Ms F’s oral evidence in relation to the topic was consistent with her report. She did not consider that X appeared scared of her father. She confirmed that Ms Harper had asked “What have you done to her” a number of times in an angry tone. Consultant Ms F considered this behaviour inappropriate given X’s distress, which Ms Harper was failing to alleviate. Surprisingly, given the fact Consultant Ms F had only that day met X for the first time, Consultant Ms F considered that it was her who was able to settle X and not X’s mother.
Ms Harper challenged Consultant Ms F’s recollection of those events. Ms Harper gave some oral evidence in relation to the episode but expanded upon that oral evidence in suggesting to Consultant Ms F a different version of events. I prefer Consultant Ms F’s version which was consistent with her report and based on her contemporaneous notes from the interviews. Ms Harper’s assertion that she also took contemporaneous notes was not the subject of any evidence by her.

Mr Robb gave evidence that he abandoned the court process rather than abandoned X. Ms Harper rejected that explanation, asserting that Mr Robb had abandoned his daughter. I consider it to be a distinction without a difference. Mr Robb, of his own volition, ceased spending time with his daughter which negatively impacted upon their relationship. That he has expressed remorse for his decision reflects a present understanding and insight into it, consistent with a present capacity to provide for his daughter’s emotional needs.
Ms Harper complains that Mr Robb failed to engage in family therapy as proposed by her at various times. She asserted that therapy was necessary due to issues identified by X’s school with separation anxiety and concerns raised by the supervised changeover service, U Contact Centre. The history of the parties’ engagement with family therapy is sadly representative of the entrenched nature of the dispute between them. Mr Robb has, at various times, been reluctant to engage in therapy suggested by Ms Harper, particularly on very short notice, as when Ms V was proposed. However, Ms Harper has failed to continue to attend upon the agreed family therapist, Dr C, as well as continue her attendance upon Ms B as recently ordered. I do not consider Mr Robb’s conduct in failing to agree to some of the therapy proposed by Ms Harper reflects more poorly on his capacity to provide for X’s emotional needs than Ms Harper’s conduct in failing to continue with agreed or ordered therapy.
In closing address, Ms Harper proposed that she would participate in therapy. That position was inconsistent with her prior position during her evidence and her assessment with Consultant Ms F. She sought to assure the Court that she had reflected on the matters raised during the trial. In assessing the weight to be given to those assurances, it is notable that Ms Harper’s sworn evidence in April 2021 was that she is “prepared to continue with any therapy for X to assist her.”[87] Despite orders for her to do so, she was uncontactable for an extended period of time and failed to comply with subsequent Orders for family therapy to take place. I am not now satisfied that she will follow through with any such proposal contrary to her past behaviour. As Consultant Ms F observes, Ms Harper “has been unwilling to accept or engage in therapeutic strategies aimed at supporting X to spend time with Mr Robb, choosing on most occasions to obstruct or withdraw from therapy when there has been a successful reunification.”[88]
[87] Ms Harper’s Trial Affidavit, paragraph 133.
[88] Family Report dated 6 June 2022, paragraph 61.
I am not satisfied that the complaints made by Ms Harper lead to the conclusion that Mr Robb lacks the capacity to provide for her daughter. I accept Consultant Ms F’s unchallenged opinion that:
… [Mr Robb] was able to articulate a sound understanding of [X]’s passions and hobbies and her developmental needs at this age, despite having spent no time with [X] for over eighteen months. He was thoughtful when considering the impact his proposal would have on [X] but also concerned about the long term impact [Ms Harper]’s proposal may have on [X]. Although he has been frustrated by the circumstances, he didn’t relay this to [X] during the brief observations and when the meeting ended he was compliant with the request to leave the playroom area. He was able to reflect on strategies that might be helpful to support [X] to spend time with him based on past interventions that had worked but didn’t insist that the observations should have been conducted differently. He was child focussed and regulated his own emotions to ensure that [X] was not distressed in his presence. He proposed ongoing support with [Ms B], should [X] live with him and he was open to following any recommendations in order to progress the situation with [X]. [89]
[89] Family Report dated 6 June 2022, paragraph 57.
Consultant Ms F agreed in oral evidence that Mr Robb’s willingness to leave the playroom area immediately upon request reflected quite a profound level of insight into his daughter’s needs, considering “it would have been a very difficult thing for him to do to walk away at that point.”
Consultant Ms F also gave oral evidence of being “quite surprised at how well he had chosen the gifts given he hadn’t seen her for some time, that he was still able to make that connection with her – who she is and what she might be interested in.” He had chosen items of memorabilia, crystals and rocks that accurately aligned with his daughter’s interests. Consultant Ms F rejected any suggestion that the gifts were extravagant, as had been suggested by Ms Harper. I accept Consultant Ms F’s opinion, given she both saw the gifts and X’s response to them.
Mr Robb’s capacity to provide for X’s emotional needs significantly exceeds Ms Harper’s. I accept Consultant Ms F’s oral evidence that he “has a much more realistic perspective on X’s emotional needs and how to address them.” Whilst his capacity to provide for her other needs on a full-time basis is untested, his general parenting capacity is readily inferred from the fact that he is equally sharing in the care of R and S, with their mother’s agreement.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and either of her parents and any other relevant characteristics of X
The expert opinion before the Court is that the risks to X arising out of her enmeshed relationship with her mother are particularly acute at her present age and stage of development. As Child Protection opines, she is “at a critical point of emotional and psychological development as she progresses from late childhood into early adolescence. It is likely X will be exposed to risk of harm if she continues to be placed at the unacceptable position of feeling she must bear some responsibility and choose sides.”[90]
[90] Department of Families, Fairness and Housing report 1 May 2022, page 5.
Consultant Ms F opines:
There is a risk that the enmeshed parent / child dynamic may undermine [X]’s emotional development and this may have a significant impact on [X]’s identity development, psychological wellbeing and her social development as she nears her teenage years. This level of enmeshment can be challenging for adolescents to navigate as they begin to individuate and explore their identity. [X] has already begun to demonstrate some self-exploratory behaviour with regards to her identity and appearance with her reportedly shaving her head and transforming her style recently. [X] is approaching an important developmental stage, adolescence. She will begin to individuate from her primary caregiver and family relationships and her social network will expand with her peer relationships becoming more significant. [X] requires the opportunity to tackle these important developmental stages without the burden of the parental dispute or the impediment of an enmeshed mother / child relationship. [91]
[91] Family Report dated 6 June 2022, paragraph 62.
X’s stage of development was also significant in Consultant Ms F’s evaluation that:
[X]’s quick dismissal of the photographs in [Mr Robb]’s gift box may suggest a level of ambivalence towards her extended paternal family or it may also indicate a level of shame at not being able to recognise any of her relatives. Neither option is positive given [X] is entering a period of development where her identity development is prefaced on the relationship she has with her family of origin. Her choice to shave her head and transform her appearance indicates that she may already be embarking on a period of self-discovery and exclusion of the paternal extended family may become further entrenched as she prioritises less time with immediate family and begins preferring to spend time with her peers.[92]
[92] Family Report dated 6 June 2022, paragraph 64.
Further, Consultant Ms F opines that the prevention of X’s relationship with her father and paternal family, combined with “the limited and superficial relationships X has with her peers, could have long term implications on her identity development as she enters adolescence. X will have few alternative perspectives from which to develop relationship templates limiting her capacity to develop healthy relationships into adulthood.”[93]
[93] Family Report dated 6 June 2022, paragraph 68.
If X’s relationship with her mother is as enmeshed as theorised by Consultant Ms F, she opines that:
…there could be substantial implications on [X]’s ability to develop peer relationships as she matures. [X] may feel compelled to avoid meaningful relationships with others to prevent scrutiny on the relationship by [Ms Harper]. She would likely have less emotional availability for other relationships which would limit her perspective, creating a rigid world view, not unlike the one [Ms Harper] has. This could limit her social development and place her at risk of poor mental health as an adult.[94]
[94] Family Report dated 6 June 2022, paragraph 69.
Consultant Ms F’s evidence in those respects were unchallenged and I accept it. It appears there may now be a possibility to alter X’s developmental trajectory before her rejection of her paternal family becomes further entrenched. To repeat, her existing trajectory leaves her vulnerable to poor mental health and detracts from her social development. As Consultant Ms F described in oral evidence, it may also lead to her losing her relationship with her mother as she grows up, leaving her in the difficult situation of having no family connections at all. As Consultant Ms F also said in oral evidence, these are not theoretical risks. They are projected outcomes of the utmost gravity.
If X is an Aboriginal or Torres Straight Islander child, her right to enjoy her Aboriginal or Torres Strait Islander culture and the likely impact of any proposed parenting order on that right
X is not an Aboriginal or Torres Strait Islander child.
The attitude to X and to the responsibilities of parenthood, demonstrated by each of X’s parents
Several coincidental events give me further cause for concern about Ms Harper’s attitude to the responsibilities of parenthood.
In June 2019, Ms Harper unilaterally engaged Dr C in order to undertake family therapy. Mr Robb subsequently agreed to attend upon Dr C. Dr C held a series of eight appointments which involved either or both of X’s parents and X. In October 2019, Dr C prepared a report at the parties’ request which recommended monthly reviews with Dr C involving both parents and X at his direction. He also recommended a series of visits of increasing duration between X and her father up to “full weekend contact”.[95] Ms Harper then unilaterally withdrew from any further sessions with Dr C and sought to engage a new therapist. Her evidence that she had withdrawn because of costs and burdensome travel was inconsistent with the fact she had herself selected Dr C. Her withdrawal suggests that she was unprepared to continue working with a professional who did not support her narrative that X should not have a relationship with her father.
[95] Affidavit of Dr C filed 25 October 2019, page 16.
In relation to Ms Harper’s withdrawal from therapy, Consultant Ms F opined as follows:[96]
[Ms Harper] appears to have a low tolerance for any interventions aimed at introducing a relationship between [Mr Robb] and [X] and when inevitable difficulties arise in the therapeutic setting, [Ms Harper] withdraws [X] from therapy. This may hamper [X]’s capacity to develop resilience and work through difficult situations, creating a maladaptive template for managing challenging circumstances in life.
[96] Family Report dated 6 June 2022, paragraph 65.
There was nothing about Ms Harper’s evidence during the hearing that suggested she would behave differently in the future. As identified, the absence of consistent and appropriate therapeutic intervention in Ms Harper’s care raises very substantial concerns about X’s development.
Conversely, it has been a consistent element of Mr Robb’s case that X undertake therapy and he seeks to be bound by an order to do so. So much reflects well on his attitude to the responsibilities of parenthood given Consultant Ms F’s opinion that “X would benefit if any therapeutic interventions could be maintained for a prolonged period so that X can develop a strong therapeutic bond with one professional that allows her to explore difficult feelings and experiences in a safe and contained setting.”[97]
[97] Family Report dated 6 June 2022, paragraph 65.
On 1 April 2021, the Independent Children’s Lawyer attended upon X’s school, AK School. At 9:11am that morning, Ms Harper sent an email to the Independent Children’s Lawyer that included the following:
…
I knew that [X] would be upset about your visit and see it as only another example of the negative way that this whole court process impacts on her otherwise happy life, regardless of how I might attempt to convince her otherwise or frame the visits.
…
I chose to tell her this morning as I felt that doing so would at least eliminate the further fear of such things getting 'sprung' on her at school, and also give her time to process her feelings in a private and safe place. I was dreading it. The result was just as I feared.
…
Imagine my dilemma knowing that her ' best day ever ' was now going to be tainted with this visit from the ICL, which in her mind and heart is just another negative association and obligation related to her Fathers presence, court and all the negative impact these things have on her life- another time when she is forced to think and talk about and remember a part of her life she is wanting and trying to forget.
….
Now her school- the ONE place that this process and her father has not yet touched-a safe place-is also tainted.
She is now angry at me for 'letting it happen' despite my having told her I had no choice and that it eliminated a trip to Melbourne. Another wedge between is [sic] created, related to just another unwanted thing I am forced to make [X] do and go through in this process.
A very happy and excited child is now a sad, worried and angry child, hiding in her bedroom before school. Another day of her little life is negatively tainted and impacted through, in her mind, her father and this whole court process.
This has to stop. This litigation process and forced contact with the Father impacts negatively in so many ways on [X]'s (let alone my own) life. It repeatedly impacts negatively on her relationship with me-the only parental relationship of trust and security that she has. [98]
[98] Mr Robb’s Trial Affidavit filed 5 July 2022, annexure 27.
That day was X’s last day of school for the term. Ms Harper thereafter changed her school enrolment. X did not have an opportunity to say goodbye to her friends or teachers at that school. Ms Harper gave evidence that the year prior, X had changed schools in effect pursuant to her request. In relation to the change of school in 2021, Ms Harper made the decision, giving evidence that she did so because she had not been happy with AK School in seeking to justify her conduct. I am not satisfied of her explanation.
I consider that Ms Harper removed X from AK School because she considered it to have become “negatively tainted” by Ms McGregor’s visit. It was a significant decision, particularly when it is observed that X was performing and achieving well at AK School. Ms Harper’s own evidence filed on 1 April 2021 was that X was “performing at her expected level of achievement or higher in all subjects” and her “behaviour and effort, according to her latest report, are at the highest level which places her in the “Excellent” tier.”[99] Importantly, it was also a school at which she was attending regularly having suffered from previous school refusal issues. It was Ms Harper’s attitude and response to Ms McGregor’s visit upon X at school that drove her decision, not what was best for X’s education.
[99] Ms Harper’s Affidavit filed 1 April 2021, paragraphs 17 and 18.
It appears similar attitudes have driven Ms Harper’s withdrawal of her consent for Consultant Ms F to contact X’s school or recent counsellor, and her denial of a request by Child Protection workers to see X at school. According to the Department of Families, Fairness and Housing, Ms Harper reported that she “wished the school to be a safe place for X and it not have people visit her there where she would be upset”.[100] Limiting Consultant Ms F’s access to information from X’s school and counsellor, limits some aspects of her assessment. Ms Harper’s attitude has taken priority over facilitating her daughter’s best interests by preventing expert opinion to be as fully informed as is possible.
[100] Department of Families, Fairness and Housing report dated 1 May 2022, page 3.
Ms Harper recorded zoom calls between X and her father. She has not adduced evidence of the Independent Children’s Lawyer’s asserted consent to her doing so. I accept Consultant Ms F’s opinion that it is concerning that X’s time with her father was being recorded and transcribed and indicative of a lack of child focus. Ms Harper’s assertions that these calls were abusive were not established.
Despite Consultant Ms F’s report having been produced on 6 June 2022, Ms Harper had not read it at the commencement of the trial. Even when that was raised with her on the first day of the hearing, she had still failed to read it by the conclusion of the third day of the hearing. She variously gave evidence that she had not read it because she knew what it would say and that she did not want to be upset, preferring to focus on her parenting of X. By the third day of the hearing, she was unable to articulate any negatives that X might experience by remaining in her care and not having a relationship with her father. She also indicated that she had not read the invitations for her to reflect on various matters as set out in the report. Two such invitation were:
[Ms Harper] may wish to consider [X]’s experience of the negative perception she has of [Mr Robb], given that [X] may one day recognise traits in [Mr Robb] that resonate in her.
...
[Ms Harper] may wish to reflect on whether her attempts to erase [Mr Robb] from [X]’s life are in her own long term interests, as [X] may perceive [Ms Harper]’s behaviour quite differently in adulthood. [101]
[101] Family Report dated 6 June 2022, paragraph 74.
I formed the impression that Ms Harper has great difficulty engaging with opinions or perspectives that are inconsistent with her own. That she failed to completely read the central independent evidence in a case involving the question of whether her daughter should remain living with her, reflects poorly on her attitude to the responsibilities of parenthood.
In October 2017, Mr Robb posted the following on an Town AL Community Facebook page, at least in so far as it is in evidence before me:
Hey Guys, my daughter [X] lives in [Town AL] and I have not seen her for more than two years ..... Neither has she seen her half brothers, grandparents or cousins etc .. If anyone knows her can they please show her which i created for her as her mum won’t let us be part of her life. Perhaps someone kind can let her know we miss her and love her and would love to speak with her and can pass on this message thank you
.COM
[X]
[X] we love you and miss you, please call daddy on 0 ... [102]
[102] Ms Harper’s Affidavit filed 1 April 2021, annexure -8.
In December 2018, Mr Robb posted the following on AO Council Facebook page:
"About bloody time! I have not seen my daughter for more than 2.5 years my ex has contravened orders constantly and the courts does nothing. She has been put on good behaviour bonds, fined by the court which she still hasn't paid back (the least of my concerns) and even threatened with jail but that doesn't stop her from contravening orders such as weekly phone calls, fortnightly weekends with dad or school holidays time are all ignored. I have no contraventions not one ... Held hostage by mum, how does an eight year old reason why doesn't dad play with me anymore?" [103]
[103] Ms Harper’s Affidavit filed 1 April 2021, paragraph 65.

Mr Robb readily admitted the posts were inappropriate and occurred in a moment of frustration. He gave uncontradicted evidence of subsequently removing the posts, although he could not recall what prompted him to do so. Nevertheless, I am not satisfied the posts amount to family violence or abuse as was suggested by Ms Harper, nor reflective of an entrenched negative opinion of her. He readily gave oral evidence that Ms Harper loves X and provides for her physical needs.
Any family violence involving X or a member of her family
I have already referred to the allegations of family violence made by Ms Harper when considering the second primary consideration.
If a family violence order applies, or has applied, to X or a member of her family, any relevant inferences that can be drawn from the order, taking into account its nature, the circumstances in which it was made, the evidence admitted in proceedings for the order, any findings made by the court or in the proceedings for the order, or any other relevant matter
Ms Harper has applied for two intervention orders against Mr Robb, the first in approximately 2011 and the second in approximately 2019. Both were resolved by Undertakings without any contested hearing determining any factual disputes.
Ms Harper gives evidence the first application was made because Mr Robb “has displayed problems with controlling behaviour, anger management and controlling his temper”.[104] Mr Robb deposes to her then alleging that he was angry and verbally abusive during a visit to X at her mother’s home, which allegation he denies. She deposes to her bringing the second application due to inappropriate social media posts from Mr Robb and him visiting and contacting X’s school.
[104] Ms Harper’s Affidavit filed 1 April 2021, paragraph 130.
The evidence before me is insufficient to draw any inferences from the Undertakings which resolved the Intervention Order applications made by Ms Harper. I do not accept Ms Harper’s suggestion that the existence of the Application and Undertakings is evidence in itself that family violence was then being perpetrated.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to X
Ms Harper has complained about the impact of litigation in relation to X upon her and X over an extended period of time. Complaining about what she perceives as the Court’s repeated failures, she opened her case by stating “This needs to stop.” The Act requires consideration of the impact of proceedings on children.[105]
[105] Family Law Act 1975 (Cth), s 69ZN.
However, Dr C, who had the benefit of meeting with each of the parties and X on several occasions in 2019 opined that “There are no grounds for optimism that litigation will provide a resolution to the dispute. In my view, it is likely that any orders (consent or otherwise) will carry a high risk of failure in the context of the high conflict between the parents.”[106]
[106] Affidavit of Dr C filed 25 October 2019, paragraph 16.
Both parties have, at various times, acted to prolong the litigious dispute between them. Ms Harper has consistently failed to comply with the Court’s Orders both relating to X’s time with her father and her engagement in family therapy. Mr Robb has discontinued previous proceedings, only to re-commence them at a later time.
Whilst it might appear preferable to simply abandon any attempt at now facilitating a relationship between X and her father, consistent with Ms Harper’s position, it remains to be seen whether that consideration outweighs others to which I have referred.
Assuming successful implementation of the ordered outcome, it will largely be a matter for the parties to reflect on and consider whether they will modify their historical approach to compliance with the Court’s Orders to minimise the likelihood of future proceedings.
Any other relevant fact or circumstance
Not relevant.
Parental responsibility
The presumption that it is in X’s best interests for her parents to have equal shared parental responsibility may be rebutted by evidence that satisfies me that such an outcome would not be in her best interests.[107] None of the parties propose that X’s parents have equal shared parental responsibility for her.
[107] Family Law Act 1975 (Cth), ss 61DA(4).
Ms Harper has essentially conducted herself as being the parent solely responsible for all decision-making for X, including school selection and what therapeutic assistance she obtains. She has done so essentially without reference to Mr Robb. She has instructed X’s school not to release information to Mr Robb.
Whilst the parties initially made use of a communication book, it is not suggested that has been an effective means of communication between the parties and there is no evidence of it having been used in the last 5 years. Ms Harper was uncontactable for an extended period of 2021 and now refuses to disclose her address.
There is no evidence of any recent successful communication or cooperation between the parties in relation to X. That absence, coupled with the extensive litigation history between the parties, demonstrates both intractable and enduring conflict between them. Rationally synthesised, I am not satisfied that X’s parents are capable of complying with the legal obligation consequential to the making of an order for equal shared parental responsibility.[108] That obligation is a requirement to make a joint decision about major long-term issues affecting X.[109]
[108] Manifold & Alderton (2021) FLC 94-015 per Austin J at [109]
[109]Family Law Act 1975 (Cth), s 65DAC.
Consistent with the parties’ positions, I find that it is not in X’s best interests for her parents to have equal shared parental responsibility for her. The presumption to the contrary is rebutted. I am accordingly not required to consider whether X spending equal time or substantial and significant time with each of her parents is in her best interests and reasonably practicable.
Given the binary outcome now proposed to be in X’s best interests, namely that she either live primarily with one parent or the other, I agree with Consultant Ms F that sole parental responsibility ought be determined according to her living arrangements. Whilst it is a very significant step to deprive a parent of parental responsibility with which they are invested by law,[110] I consider that in circumstances of the entrenched dispute between X’s parents, her primary residential carer should be able to make decisions for her, unimpeded by the other parent.
[110] Lennon & Lennon [2011] FamCA 571 at [108].
Conclusions
It is unfortunate that I am now faced with such a start choice in determining what parenting orders are in X’s best interests. Ms Harper has deprived X of the possibility of maintaining a relationship with her father by spending time with him in the ways that he has previously sought. Regrettably, the earliest experts engaged in the case have forecast this possibility. By way of example:
Gatekeeping behaviours exist on a continuum and there is a significant risk in this case that if such behaviours continue or intensify [X] may lose this relationship with her father all together. [111]
[111] Child Inclusive Conference Memorandum 2 August 2017, page 2.
Ms Harper has repeatedly failed to engage with those opinions and successfully modify her attitude and behaviour. Her vilification of Mr Robb first observed by Consultant Ms AE in 2014 has persisted, seemingly unabated. Her assertion in evidence that she does not have a negative attitude towards Mr Robb was inconsistent with the way in which she conducted her case. When that inconsistency was raised with her, she sought to justify her attitude by reference to the fact that “he has been abusive and we had been subject to abuse and family violence ever since she was little.” Because I have rejected her assertions in relation both to family violence and abuse, the basis for her negative attitude is unjustified and lacks focus on her daughter’s best interests.
As Consultant Ms F opines, on X’s “current trajectory, while X lives with Ms Harper, she is unlikely to have the opportunity to have any meaningful relationship with Mr Robb, thereby jeopardising her social and identity development and placing her long term mental health at risk.”[112] Ms Harper’s proposal for X to decide if and when she might spend time with her father, and even then, for such a decision to result only in her mother taking her to family therapy, does nothing to seek to deviate from the current trajectory. As Consultant Ms F also opines, Ms Harper does not appear to have any plan for how X could spend time with her father.
[112] Family Report 6 June 2022, paragraph 72.
I am not satisfied that it is in X’s best interests to continue to be deprived of a relationship with her father. The only viable way such a relationship can be facilitated is by living with him. There is no unacceptable risk of harm to X in her father’s care. He has a greater capacity to provide for her emotional needs. X needs to be relieved of the substantial burden of prioritising her mother’s emotional needs before her own.
Perhaps understandably, Ms Harper did not devote any forensic attention to responding to the precise proposal advanced by Mr Robb and the Independent Children’s Lawyer. Those parties agree on the orders that should be made given the conclusions I have reached.
I am generally satisfied that proposal is in X’s best interests, ultimately providing for X to spend regular time with Ms Harper on alternate weekends, for half school holiday periods and on special occasions. It will ensure X has the therapy that is opined to be necessary for her. It reflects Consultant Ms F’s recommendation that X have approximately two months during which she does not see her mother. I consider that the injunctive relief sought is appropriate both in order to maximise the prospect of X successfully transitioning to her father’s care and to minimise X’s future exposure to conflict between her parents. Despite Ms Harper’s reservations, I consider it necessary for Mr Robb to know Ms Harper’s residential address so that he knows where his daughter will be staying during time with her mother.
However, I am not satisfied that a recover order should issue in the event X is not transitioned into her father’s care. Any application for such an order should be supported by evidence. I will also delay the discharge of the Independent Children’s Lawyer by two months in the event any such issue arises.
Pursuant to Orders made at the conclusion of trial, X is to be delivered to the Court’s Children’s Services. I consider it to be in X’s best interests for this outcome to be disclosed to her by the Independent Children’s Lawyer whom she has previously met. She may accordingly be released to Mr Robb and I will require the delivery of the items required to be available as directed by the Independent Children’s Lawyer.

I certify that the preceding one hundred and ninety-three (194) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass.
Associate:
Dated: 11 August 2022

File number(s):	MLC 990 of 2011
Judgment of:	JUDGE GLASS
Date of judgment:	11 August 2022
Catchwords:	FAMILY LAW – CHILDREN – RESIDENCE - child’s best interests – where there is a lack of parental cooperation and communication – non-compliance with previous consent orders – where the child has been exposed to parental conflict – where experts opine that child’s relationship with the mother is enmeshed and the mother is incapable of supporting child’s relationship with the father – cognitive dissonance by child – change of residency
Legislation:	Family Law Act 1975 (Cth), Part VII, s 4AB, 60B, 60CA, 61DA, 65DAA, 65DAC, 69ZN ss 4(1), 60CC(2), 60CC(2A), 61DA(4) Evidence Act 1995 (Cth) s 140
Cases cited:	Kramer and Anor & Ward (2017) FLC 93-817; [2017] FamCAFC 270 M v M (1988) 166 CLR 69 at 76 Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97 Manifold & Alderton (2021) FLC 94-015; [2021] FamCAFC 61 Lennon & Lennon [2011] FamCA 571
Division:	Division 2 Family Law
Number of paragraphs:	194
Date of last submission/s:	5 August 2022
Date of hearing:	1-5 August 2022
Place:	Melbourne
Counsel for the Applicant:	Ms Agresta
Solicitor for the Applicant:	Leslie Family Law
The Respondent in person:	Ms Harper
Counsel for the Independent Children's Lawyer:	Dr Alexander
Solicitor for the Independent Children's Lawyer:	Macgregor Solicitors

MLC 990 of 2011
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR ROBB Applicant
AND:	MS HARPER Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE GLASS
DATE OF ORDER:	11 AUGUST 2022