Sanyal & Sanyal (No 2)
[2023] FedCFamC1F 941
•3 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sanyal & Sanyal (No 2) [2023] FedCFamC1F 941
File number: SYC 3831 of 2022 Judgment of: CHRISTIE J Date of judgment: 3 November 2023 Catchwords: FAMILY LAW – INTERIM PARENTING ORDERS – EX TEMPORE – Gender diverse child – Where the child was born biologically as a boy and now identifies as a girl – Where a single expert report recommends on an interim basis for the child to be transferred to the care of and primary residence with the father and spend no time with the mother – Where the father makes an application in accordance with the single expert’s recommendation – Where the Independent Children’s Lawyer supports the recommendations of the single expert and aligns with the father’s application – Where the mother opposes the application – Where the parties are in agreement as to numerous issues peripheral to the spend time with and live with arrangements for the child – Separation from primary carer – Physical risk – Where the evidence does not establish that the father poses a physical risk to the child – Psychological risk – Where the single expert expresses a view that the child is currently living in an unwittingly emotionally and developmentally harmful, and unwittingly emotionally abusive context – Enmeshment between the child and the mother – Where there is a risk of psychological harm to the child posed by continuation of present live with orders – Where the evidence supports a conclusion that the mother presently will not/cannot facilitate the child’s time and relationship with the father – Orders made in accordance with the father’s application and the ICL’s position. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CC
Family Law Act Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Cimorelli & Wenlack [2020] FamCAFC 58
Cottey & Backe (No 2) [2020] FamCAFC 206
Cowling & Cowling (1998) FLC 92-801; [1998] FamCA 19
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Fowler & Northwood (2022) 66 Fam LR 212; [2022] FedCFamC1A 173
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Isles & Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97
Marvel v Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
Parks & Farmer [2012] FamCAFC 12
Redmond & Redmond [2014] FamCAFC 155
SS & AH [2010] FamCAFC 13
Whiteman & Newton [2013] FamCAFC 127
Division: Division 1 First Instance Number of paragraphs: 152 Date of hearing: 3 November 2023 Place: Sydney Counsel for the Applicant: Ms Treherne Solicitor for the Applicant: Holmes Donnelly & Co Solicitors Counsel for the Respondent: Ms Dart Solicitor for the Respondent: Ramsden Family Law Solicitor for the Independent Children's Lawyer: Ms Karagiannis, Legal Aid NSW ORDERS
SYC 3831 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SANYAL
Applicant
AND: MS SANYAL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
3 NOVEMBER 2023
THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged.
Parental Responsibility
2.The father have sole parental responsibility for the child born 2023 (known as “X”).
3.In the event the father is to make any decision regarding the long-term care welfare or development of X, the father is to provide not less than seven (7) days notice in writing of that decision to the mother.
4.In the event notice is provided to the mother pursuant to Order 3 above, the mother is to provide a response within five (5) days, and the father is to consider the mother's position and the best interest of X prior to making that decision.
5.Order 2 is not intended to prevent the mother from obtaining information from or providing information to X’s school, doctors or counsellors.
Time Arrangements
6.X live with the father.
7.The mother and the father are restrained from discussing these Orders with X.
8.The parties shall permit and facilitate X to attend a conference between a Court Child Expert, the Independent Children' s Lawyer and X commencing immediately upon the making of these orders.
9.A Court Child Expert and the Independent Children's Lawyer are requested to discuss with X these Orders and advise the nature and implications of these Orders, with a particular focus on paragraph 968 of the Report of Dr B dated 2 October 2023 ("Dr B's Report") confirming to the child that these Orders are unequivocal in nature.
10.The father shall do all acts and things to:
(a)Cause Ms J to assist him in the process of X coming into the father's care and that Ms J spend time with the father and X for the balance of today; and
(b)Take leave from his employment for the two (2) weeks after the making of this order and for such further period as he determines necessary.
11.The mother do all acts and things to cause to be delivered to the father's residence by no later than 1.00 pm on 4 November 2023, sufficient clothing and personal items of X, including but not limited to school uniforms, books, laptops and other personal items.
12.The mother prepare the balance of X's primary belongings to be made available for collection and that the father collect such items during school hours on the next date the X attend school.
13.Forthwith the mother provide to the father details of the following which X may attend:
(a)School activities;
(b)Extracurricular activities; and
(c)Contact details for the parents of X's current close friends.
14.X spend time with the mother as follows:
(a)For a period of two (2) months following the date of these Orders X spend no time with the mother.
(b)Following the period referred to in Order 14(a) above and for a period of two (2) months, X spend time with the mother by Facetime only and such Facetime is to occur as follows:
(i)To be supervised by K Family Services, and if available, the same supervisor who previously assisted the parties, namely Ms L.
(ii)The supervised time is to occur each Wednesday at 5.30 pm unless agreed otherwise by the parties in writing.
(c)Following the time referred to in Order 14(b) above and pending receipt of Judgment, X spend time with the Mother for a period of three (3) hours to occur as follows:
(i)To be supervised by K Family Services, and if available, the same supervisor who previously assisted the parties, namely Ms L.
(ii)That the supervised time is to occur each Saturday from 11.00 am to 2.00 pm unless agreed otherwise by the parties in writing.
15.For the purposes of Orders 14(b) to 14(c) the parties shall be equally responsible for the payment of the fees charged by the supervision service.
Update from Dr B
16.That not less than three (3) weeks prior to the commencement of the Final Trial, in accordance with paragraphs 966.3-966.4 of the Report of Dr B, the single expert report be updated and within five (5) days the ICL make such arrangements as are necessary to effect same.
Ongoing Psychological Intervention
17.That in accordance with paragraph 985 of the Report of Dr B, the parties and the child continue to engage with Ms M, and Ms M only, in relation to X’s ongoing welfare including but not limited to:
(a)X’s wellbeing and ongoing assistance;
(b)Each of the parties’ ongoing information generation and advice regarding X; and
(c)The recommendations which Dr B has made about each parties’ vulnerabilities.
18.That for the purposes of the attendance upon Ms M, the parties meet the cost of Ms M as follows:
(a)For all attendances by X in equal shares;
(b)For all attendances by the Father, 100% by the Father; and
(c)For all attendances by the Mother, 100% by the Mother.
19.That unless advised by Ms M that further psychological assistance ought to be provided, the parties are restrained from causing X to attend upon any other psychological treater.
20.In the event that notification is received by the parties that Ms M recommends psychiatric assistance in accordance with paragraph 961.1.1 of Dr B's Report, the Independent Children's Lawyer approach Dr B to obtain the contact details of the practitioner referred to in paragraph 961.1.1 of the Report of Dr B and thereafter, the parties do all acts and things to engage that practitioner and continue the engagement as and when recommended by them at their equal cost.
Release of the Report
21.A copy of Dr B's Report be released to the following individuals:
(a)Ms M;
(b)Ms N - treating practitioner for the mother;
(c)Each of the parties’ individual treating practitioners; and
(d)Any further treating practitioner for the child as may be agreed in writing.
22.Pending further Order, a copy of Dr B's Report dated 2 October 2023 not be released to the parties but they are at liberty to read it in the offices of their legal representatives.
23.That these proceedings be relisted 30 days before final hearing for consideration of release of Dr B's Report to the parties.
Restraints
24.The parties are restrained from applying pressure to X or seeking to persuade X with regard to her gender expression, or with regard to any future gender affirming medical or surgical interventions, or legal name or gender change.
25.Each party is restrained from discussing the contents of Dr B's Report with X.
26.Each party is restrained from physically disciplining X when she is in their care.
27.The parties are restrained from denigrating one another or members of the other parent’s family in the presence or hearing of X and shall use their best endeavours to ensure no other person do so.
28.The mother is restrained from attempting to remove X from the care of the father including but not limited to collecting X from school, an extracurricular activity, treating practitioners, or the father's care generally.
Mother’s Attendance upon her Treating Practitioner
29.The mother attend upon her treating practitioner, Ms N, at a frequency and for a duration recommended by Ms N (informed by Dr B’s report).
Provision of Information
30.Each party advise the other and keep the other party advised of his or her current address and contact numbers and advise the other party of any changes to those details within seven (7) days of such change occurring.
31.The parties keep each other informed of:
(a)Any medical problems or illnesses suffered by X while in their care; and
(b)Any medication prescribed to X and shall ensure the other party is provided with the medication while X is in the other parties' care.
32.The parties shall inform each other in writing as soon as practical, of any specialist medical appointments with any medical consultant, psychologist, psychiatrist, counsellor or therapist in relation to X.
33.During any periods referred to in these Orders in the event X is hospitalised or receiving medical attention, the parent spending time with X shall notify the other party as soon as practical after the first contact with either the medical practitioner, medical centre or hospital.
Communication Between the Parties
34.The parties are to communicate about matters pertaining to the care, welfare or development of X as follows:
(a)By telephone in the case of emergency;
(b)For pressing but non-emergency issues, by short factual text message; and
(c)For minor day to day issues, by email to an email address nominated by the parties, with such email address to be utilised only for communication between the parties in relation to X.
Miscellaneous Orders
35.The parties continue to use the name X with female gender expression, save and except in the event of X unilaterally expressing a persistent transition to an alternate name or gender expression for an extended period of three (3) months.
36.Neither party change X’s school enrolment without the consent in writing of the other party.
37.The parties shall facilitate all requests by the Independent Children’s Lawyer to meet with X.
Release of Orders
38.A copy of any Interim Orders and/or Judgment made by this Court, be released to the following:
(a)Dr B;
(b)The treating practitioner for X as may be applicable from time to time; and
(c)The treating practitioner for each of the parties.
39.The Independent Children’s Lawyer be permitted to provide a copy of these orders to the child’s school.
40.The parties and Independent Children’s Lawyer have liberty to relist the matter on seven (7) days notice by the filing of an application to be listed before the trial judge.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
These are proceedings concerning interim parenting arrangements for X born 2015 who is known as X (hereafter “X” or “the child”). X is eight years old as at the time of hearing.
The parents commenced cohabitation and were married in 2011. They separated on 22 May 2022.
X is the only child of the parties’ marriage. X was biologically born as a boy. It is an uncontroversial fact that X identifies as a girl.
The father’s Application in a Proceeding filed 26 October 2023 seeks on an interim basis that:
(a)He have sole parental responsibility for X and orders be made providing notice to and considering input of the mother in relation to whatsoever decision regarding X’s long‑term welfare;
(b)X transition into the father’s full-time care;
(c)X spend no time with the mother for a period of two months and thereafter for a period of two months X spend time with the mother via Facetime once per week supervised by K Family Services and thereafter X spend time with the mother once per week for three hours supervised by K Family Services;
(d)The parties and X continue to engage with Ms M for ongoing psychological intervention in relation to X;
(e)The parties be bound by various restraints as to X’s gender, the report of the single expert, disciplining X and denigrating one another; and
(f)The mother continue to attend upon her treating practitioner, Ms N.
The mother opposes this application and seeks orders which provide that X continue to live with her and otherwise that:
(a)X spend time with the father every second Saturday for three hours supervised by a contact service;
(b)The single expert report be released to Ms M, Ms N and the parties and time be extended for the parties to render questions to the single expert;
(c)The parties enrol in a parenting program and the father enrol in father-specific parenting courses;
(d)The parties and X continue to engage with Ms M for ongoing psychological intervention in relation to X;
(e)The parties be bound by various restraints as to X’s gender, the report of the single expert, disciplining X and denigrating each other; and
(f)The mother continue to attend upon her treating practitioner, Ms N.
The Independent Children’s Lawyer (“ICL”) in her Outline of Case document indicated support for the recommendations of Dr B which if implemented would be largely in line with the relief sought by the father.
It is uncontroversial that, since separation, the child has not spent time with the father save for electronic communication via Facetime which most recently occurred in March 2023.
PROCEDURAL HISTORY
The father commenced these proceedings on 6 June 2022 by filing an Initiating Application seeking parenting orders. The mother subsequently filed a response on 7 July 2022 as to both parenting and property. The property proceedings between the parties resolved by consent on 26 April 2023.
The matter first came before the Court on 12 July 2022. On that occasion orders were made for the appointment of an ICL, material to be produced by the NSW Department of Communities and Justice and NSW Police, the appointment of a single expert for the preparation of a report and the matter to be listed for Interim Hearing.
An Interim Hearing took place before Judge Boyle of the Federal Circuit and Family Court of Australia (Division 2) on 21 July 2022. Orders by Judge Boyle dated 22 July 2022 provided that the child would live with the mother and for the parties to attend upon a Court Child Expert for a Child Impact Report. An order was made transferring the matter to the Federal Circuit and Family Court of Australia (Division 1).
At the Interim Hearing before Judge Boyle each party made submissions as to the single expert to be appointed on 12 July 2022. The applicant had objected to that appointment. Orders were made discharging the previous order on 12 July 2022 appointing the single expert and the ICL was directed to nominate different experts for the parties’ consideration. The ICL nominated Dr B (“the single expert”).
The matter first came before me for case management on 2 August 2022. The matter again came before me on 8 August 2022 and the father wished to retain the expert first appointed. On that date I made orders appointing Dr B as a Single Expert Witness to prepare a report, the contents of which I will return to later in these reasons.
On 16 December 2022 the Child Impact Report by the Court Child Expert, Ms O, dated 28 October 2022 was released.
On 21 December 2022 orders were made by consent for the child to have weekly electronic communication with the father via Facetime. Orders were also made by consent in relation to the preparation, scope and cost of the Single Expert’s report.
On 19 January 2023 the father filed an Application in a Proceeding seeking that the child live with the mother and spend time with him initially supervised and graduating to four nights per fortnight unsupervised.
The father’s application was heard by a Senior Judicial Registrar on 9 February 2023. The mother and father were each represented by counsel. Judgment was reserved until 13 February 2023 and on that date orders were made for the child to spend time with the father via Facetime supervised and thereafter with the father for three hours each week supervised by a supervision service.
On 30 May 2023 I made orders listing the matter for final hearing commencing 4 March 2024 and for the parties to make arrangements with Ms M for psychological assistance for the child.
The Report of Dr B
Dr B conducted interviews for the Single Expert Report on 15 May 2023 and throughout mid‑late September 2023. Dr B’s report is dated 2 October 2023.
At [988]-[991] the single expert made numerous recommendations as to the release of the Single Expert Report to the mother and discouraged the parties discussing the content of the report with the child. On 23 October 2023 I made orders releasing Dr B’s report with those recommendations in mind and I directed that if either party wished to make an Application in a Proceeding they do so by 26 October 2023 supported by an affidavit. The father made such an application on even date.
The single expert’s report is comprehensive. The single expert’s recommendations on a final basis, noting that they are yet to be tested, include significantly that:
(1)The father have sole parental responsibility for major decisions for the child;
(2)Specific orders as to the X’s medical treatment, therapy and approaches to her gender identity be made such as: X commence and continue therapy with clinicians that specialise in providing therapy to gender diverse children and written consent of both parents would be required before any gender affirming medical or surgical intervention;
(3)X be transferred to the care of and primary residence with the father;
(4)X, after an initial period of no contact with the mother, begin to spend time with the mother supervised by a professional supervision agency graduating to unsupervised time that is no more than a 50/50 arrangement;
(5)Both parents continue to consult with Ms M; and
(6)The mother engage in psychiatric and psychological treatment.
Of significant relevance to this present application, the single expert recommended that the Court consider a change of residence to paternal care on an interim basis. Specifically, the single expert at [980]-[987] makes recommendations regarding interim arrangements as follows:
980.I regret that it has taken some time since interviews in June for me to complete this report, and would not wish this delay to infer a lack of concern about the children’s current circumstances.
981.I have expressed a view that [X] is currently living in an unwittingly emotionally and developmentally harmful, and unwittingly emotionally abusive, context.
982.I am concerned that if [X] continues in maternal sole care, she will become more entrenched in what in my view is the enactment of a damaging partisan stance “for” the mother and “against” the father.
982.1.If [X] spends no time with the father, then she is likely to experience less stress but also no lived experience of the father to challenge her partisan stance.
982.2. If there are attempts to recommence [X]/father time whilst she is living in predominant maternal care, the experience of the past year suggests that [X] will demonstrate significant distress and disrupted function, some of which will arise from the dissonance between her lived experience and her partisan stance, but the response of the [X]/ mother dyad will be to reactively hold to and to further elaborate their partisan stance against the father. Each time [X] enacts one of these extreme decompensations in the face of child/father time, she further cements in her mind and body her aversion to the father.
983. With a respectful awareness that the observations and conclusions of this report have not been tested by the court, I therefore recommend that the court consider a change of residence to paternal care on an interim basis.
983.1. Any such interim orders would need to be unequivocal, backed up with strong expectations of the adults involved, and communicated to [X] as unequivocal. If the mother and/or [X] viewed such orders to be weak, and if [X] perceived a need or duty to demonstrate loyalty to the mother in the context of ongoing court processes, this might lead to concerning escalation of emotion and behaviour in [X].
983.2. Whilst my recommendation is for change of residence on a final basis, a change of residence on an interim basis does not preclude an alternative outcome after final hearing. If the child remains in maternal care, [X’s] fixed partisan stance is unlikely to shift, and paternal solo parenting capacity and maternal capacity to adapt to the father playing a substantial parenting role remain untested. If the child transfers to paternal care on an interim basis, then if the matter proceeds to final hearing, the court is likely to benefit from some observations of paternal solo parenting capacity and maternal capacity to adapt, as well as the child being able to express some views formed in the less coercive and more open/ reflective context of paternal care.
983.3. If [X] is in one parent’s predominant care during the stressful leadup to any final hearing, in my view, the father has greater capacity to continue to raise the child well in the day to day and to protect the child from partisan narrative and partisan pressures, during such a stressful period.
984. If [X] is to transition to the father’s care on an interim or final basis, I recommend that:
984.1. The changeover occur at court with the assistance of a child court expert
984.2. The father attend court with one or two adults known to [X] over time, at least one of whom is female, who can assist him and whose presence is likely to reduce stress in [X], for example [Ms J]. They might sit next to [X] on the back seat of the car, on the way home. They might spend the rest of the day and evening with the father and [X].
984.3.The father have a period of at least two weeks but preferably four weeks where he is not working or working very reduced hours, so that he can focus on assisting [X] to adapt to the change. [X] will be assisted by parental presence but also by ordinary rhythms and expectations, for example meals, morning and bedtimes, school attendance (unless the father judges that [X] is not in a state to attend), helping with ordinary tasks such as cooking and cleaning.
984.4. The father seek regular (e.g. weekly or perhaps twice in the first week) appointments with [Ms M] to discuss how to assist [X]. Often it is best for [X] not to attend therapy herself during these first few weeks, just to keep things ordinary and nonpartisan, but the father should discuss with [Ms M] when it is best for him to bring [X] along.
985. Both parents and the child continue in therapy with [Ms M], and commence the therapy recommended at para 961.1 above.
985.1. Each therapist be provided with a copy of this report, with the clear caveat that it has not been tested by the court.
985.2. This therapy would initially be focussed upon [X’s] current wellbeing and the basic stability and positive function of [X] at school and in her current household, not on pre-empting what final arrangements might be.
986. If each parent seeks the same (which I recommend), this report be released to their treating clinician/s, so that they can discuss and think through the same with their known clinicians. I make this recommendation with respect, and an awareness that each parent has strong positive intention towards the children. My expectation is not that the parent submit to my professional judgement (in particular, prior to it being tested by the court), but that they consider my opinions with the assistance of a professional third party.
987. The court might make interim orders regarding [X’s] name and gender expression, consistent with the recommendations at para 961.1, and interim orders that [X] stay at her current school.
The single expert’s citing of [961.1] in [985] and [987] is a reference to a recommendation that X commence and continue therapy with clinicians that specialise in providing therapy to gender diverse children.
The single expert says of his recommended transfer of care for X:
968.In my view, the above transfer to paternal care then subsequent re-institution of clearly delineated time with the mother will work best for [X], with the minimum of personal and relational stress for her, if the adults feel strongly compelled to comply with the orders, and [X] understand clearly that the orders have been made by the court [even if consent orders], and that they are unequivocal and “bigger than” [my words] [X] herself, and bigger than either parent. The unequivocal nature of these orders does two things:
968.1.Gives [X] the containment and “push” she needs to get past any awkwardness or fears that she may feel about the new arrangements.
968.2. Allows [X] to cooperate with the orders without worrying about the mother viewing this as betrayal, because it is clear that the orders are “[the court]’s idea”, and [X] can say to the mother [if she needs to do so] “I didn’t want to, but I had to”.
(Emphasis in original)
THE LAW
The pathway for interim parenting proceedings was set out by the Full Court in Goode & Goode (2006) FLC 93-286 (“Goode”):
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82.In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child's best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child's best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child's best interests, considering making an order that the child spend substantial and significant time as defined in s 6SDAA(3) with the parents, unless contrary to the child's best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
At [68] of Goode the Full Court said (in considering Cowling & Cowling (1998) FLC 92-801 following the amendments to Pt VII of the Family Law Act 1975 (Cth) (“the Act”) as amended by the Family Law Act Amendment (Shared Parental Responsibility) Act 2006 (Cth)):
68....the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is "significantly curtailed". Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties' respective proposals for the future.
In SS & AH [2010] FamCAFC 13 (“SS & AH”) the majority of the Full Court said:
88.In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
…
100.The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The Full Court in Eaby & Speelman (2015) FLC 93-654 referred to the above paragraphs in SS & AH and the Full Court’s citing of same in Marvel v Marvel (2010) 43 Fam LR 348. At [19] the Full Court said that the approach to contentious matters of fact in the determination of interim hearings “enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues not to be ignored”.
As to my consideration of contentious issues, I need not canvas every aspect of the evidence in order to categorise each and every factor as disputed or agreed, nor is it required that I discuss each factor to have “considered” same: Banks & Banks (2015) FLC 93-637 (“Banks”) at [49]‑[50]. In keeping with the abridged nature of interim hearings, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a more fulsome determination at trial: Banks at [48].
Moreover, the Full Court in Redmond & Redmond [2014] FamCAFC 155 emphasised two points at [22]:
22.…First is the distinction between, on the one hand, the acknowledged limitations in an interim hearing to determine disputed issues of fact on untested evidence and, on the other, the need for the court to consider, particularly when the subject facts or allegations are centrally important to a child’s welfare, the risks to that welfare if those facts or allegations are ultimately established at trial. Second, the fact that an issue or allegation of fact is disputed does not sit in isolation. Consideration of other evidence, including independent expert evidence, may weigh in the court’s consideration as to probabilities, one way or the other, of an allegation ultimately being established, or rejected, at a trial.
In Cimorelli & Wenlack [2020] FamCAFC 58 (“Cimorelli”), in relation to an assertion that discrete findings were in effect a conclusion that the mother in the case was abusing the children by causing the children to believe the father was a danger to them and thus disrupting or destroying their relationship with their father, the Full Court said:
80.…Despite the limitations which constrain findings at interim hearings, aside from those “couched with great circumspection”, certain provisions within Part VII of the Act direct judges to consider risks which are pertinent to the welfare of children and their carers (for example: ss 60B(1)(b), 60CC(2)(b), 60CC(3)(j), 60CC(3)(k) and 60CG). It would constitute an error of law to ignore the statutory mandate and, correctly, the primary judge did not ignore it.
81.Naturally, the concept of risk encompasses the possibility of harm, not just the probability of harm (M v M (1988) 166 CLR 69). The primary judge was conscious of the need to evaluate the available evidence to determine whether or not it capably vindicated the submissions made by both the father and the ICL that the mother poses a tangible risk of psychological harm to the children. Her Honour’s finding that the evidence did do so was appropriately circumspect and does not foreclose the issue being revisited at final trial, when the evidence will be properly tested. Her Honour was obliged to resolve the issue at an interlocutory stage, albeit provisionally rather than definitively, because it underpinned the parties’ contest over the children’s residence.
(Emphasis in original)
Cimorelli must now be read with the more recent clarified approach to the assessment of risk set out in Isles & Nelissen (2022) 65 Fam LR 288.
Where interim proceedings involve a proposal to change a child’s place of residence and care arrangements, consideration of the “comparative stability of the parties’ proposed arrangements for the child” is warranted: Cottey & Backe (No 2) [2020] FamCAFC 206 at [66]; Parks & Farmer [2012] FamCAFC 12 at [87]. Logically, that requires consideration of present stability and, to that end, the Full Court in Whiteman & Newton [2013] FamCAFC 127 said at [33]:
33.It need hardly be said that the Court would always take into account the stability of a well settled arrangement and that, where there is controversial evidence about the child’s needs, a decision may well be made to leave the child in that environment. However, in this case the child was not really in a well settled arrangement because she had been living with both her grandmother and mother. The judge also had the benefit of the doctor’s evidence about the child’s state which was compelling.
It is also necessary to have regard to the likely duration of time between the making of any interim order and the matter being determined at final hearing: Deiter & Deiter [2011] FamCAFC 82 at [50]-[51].
It is necessary for me to approach the evidence – including the expert evidence – on the basis that it is yet to be tested. That does not mean that I cannot give any weight to the untested evidence but rather I need to be cautious about my approach and cognisant of the possibility that in due course the evidence may change. With that in mind it is necessary to consider the possibility that any orders made at an interim hearing may not be the same as those which are made at the conclusion of a contested final hearing.
CONSIDERATION
There are some key matters which are not agreed to which I will return but first I will set out the relevant agreed or uncontroversial facts. The following appear to be agreed:
(a)X is an 8 year old child;
(b)X identifies as a girl but was born a biological boy;
(c)The last face to face time between the father and X was about 17 months ago;
(d)The last telephone communication between the father and X was during Dr B’s interviews in May 2023;
(e)There was an incident involving X and the father, resulting in charges, which occurred prior to separation which I will discuss in detail;
(f)X and the mother have a close relationship;
(g)X has expressed views consistent with remaining in the care of her mother;
(h)Both sets of previous interim orders have broken down;
(i)The matter is listed for final hearing in March 2024;
(j)X and the parents will have the support of Ms M, psychologist, moving forward; and
(k)X’s school attendance has been below par, otherwise the mother’s day-to-day parenting capacity is not in issue.
The parties agree broadly on some of the specific issues orders which I should make and I will canvas those areas of agreement below.
The mother and the father and impliedly the ICL all agree that Dr B’s report should be released to Ms M and Ms N and I will make that order.
The mother, the father and the ICL all agree that the parents should be restrained from discussing the contents of Dr B’s report with X, and I will make that order.
The parents are in broad agreement about the mother continuing to attend upon Ms N, (her treating psychologist) although they disagree about the purpose of her attendance, or at least how the purpose of her attendance will be expressed in an order. The mother proposes (Order 30) that she continue to attend upon Ms N with such frequency as is recommended by Ms N. The ICL’s proposed order (Order 25) is silent as to the purpose. I propose to make an order which provides that the mother will continue to attend upon Ms N. I do not propose to set out in the orders which I make the purpose of the mother’s attendance on Ms N. I trust that given that a copy of Dr B’s report and a copy of the orders will be provided to Ms N, the assistance that she provides to the mother will be guided by those documents and the mother’s input.
The parties and ICL, all appear to agree that it will be in the best interests of X to continue to meet with Ms M. Ms M is a psychologist who X has been attending upon since I made orders for same on 30 May 2023. I intend to make an order to continue to facilitate that attendance. Similarly, there is consensus that X should not see any other practitioner, and the parties should be subject to a restraint in that regard. Further, the mother and father agree that they should be responsible for meeting the costs of X’s attendance in equal shares and each pay for their own sessions with Ms M.
The parties are in agreement that if Ms M recommends psychiatric or psychological assistance for X, then it is appropriate that such assistance be obtained and costs for that assistance shared by the parties. The mother proposes a specific psychology practice, whereas the ICL and father make reference to the details of a person known to the single expert. In circumstances where the parties are not necessarily of the same mind about how treatment is to proceed, it is not appropriate at this stage that one or other of the parties have responsibility to engage a specific psychologist, and consequently I prefer the approach of the ICL (with which the father agrees), and I will make orders accordingly.
All parties agree that there should be an injunction, which prevents pressure being placed on X in respect of gender expression, gender affirming medical treatment, surgical intervention and change of legal name or gender, and I will make an order which provides for that.
The parties agree that they will refer to the child as “X” and use female gender expressions, except if X expresses a persistent desire/transition to an alternate name or gender for a period of three months.
Both parties agree to an order which restrains them from physically disciplining X and they agree to mutual non-denigration orders.
The parents agree to provide information in respect of X’s address, contact number and any medical issues which arise for X.
All parties agree that X shall remain enrolled at D School.
All parties agreed that there should be a meeting between X and the ICL, so that X has the opportunity of understanding any interim orders which are made in these proceedings with the benefit of a Court Child Expert. Accordingly, once that agreement became apparent, I made an order which provided that the mother bring X to the Federal Circuit and Family Court of Australia (Division 1), Sydney registry for that purpose today.
The mother and the father agreed that there should be an order that they communicate with one another by telephone in the case of emergency pertaining to X and I will make that order.
The parties are in issue about:
(a)The extent to which the father was an involved parent prior to the parties’ separation;
(b)The extent to which (if at all) the father perpetrated family violence towards the mother;
(c)The cause of the breakdown of earlier orders for supervised time;
(d)The extent to which the father was angry and aggressive in his dealings with X; and
(e)The extent to which the father is supportive of X in respect of her identification as a girl.
I am being asked by the parents to weigh two competing risks. The father, relying upon the single expert report identifies the risk to X as a product of the mother’s focus on X’s gender issues and the connection the mother makes between those issues and the need to exclude the father from X’s life.
The mother points to the evidence of the father’s propensity for anger and aggression and as a consequence the risk that X may be at risk of physical harm in the care of the father.
Need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence
The evidence which I need to consider relates to the following areas:
(a)Alleged physical abuse of X by the father;
(b)Alleged psychological abuse of X by the father;
(c)Alleged family violence (including sexual violence and control) by the father towards the mother; and
(d)Alleged psychological abuse of X by the mother.
I am considering those matters before I turn to consider any of the other considerations in s 60CC of the Act because of the provisions of s 60CC(2A) of the Act.
Alleged physical abuse of X by the father
In early 2022 there was a serious incident involving the child X and the father. The parties do not agree on what happened on that day but the fact that the father pled guilty in 2023 to a common assault of X arising out of the incident on that day is unchallenged. The events are significant both because I must consider what they mean in terms of assessment of future risk involved in both parties’ proposals and I also need to have regard to X’s likely attitude to time with the father arising out of her experience of this incident.
I must also consider that the mother says that this incident was part of a pattern of conduct on the part of the father. The father disputes this.
Dr B was aware of the events of early 2022 when he met with the parties and with X. He has had in mind those circumstances when making his recommendation.
In early 2022 (prior to the parties’ separation) there was an incident which led to the charges against the father. The mother described what occurred in an email to Ms P a counsellor at the gender centre as the father “had shoved [X] to the ground” or thrown X to the ground as per her affidavit.
The facts (Exhibit 1) say:
About 2:00 pm on this day the victim was playing with her 6-year-old friend in the garage. The victim and her friend used the accused’s keys to open the garage door. The accused heard the garage door open and went to the Victim. The Accused placed, both of his hands on the Victims’ shoulders and said, “Where are the keys.”
The victim and the accused searched for the keys but they were unable to find them. The accused held the victim by both arms and pushed the victim out of the way. The victim fell on her bottom floor.
(As per the original)
Those facts also record that the father apologised to X.
The charges were laid in mid-2022 after the parties’ separation on 22 May 2022.
The father submitted that the timing of the mother’s report should impact on the weight which is attached to the event. The mother’s counsel said it is not uncommon for victims of family violence to make reports only after separation. As general propositions both of those submissions may be accurate. For my part I can conclude that the mother’s failure to take action for months is inconsistent with an assertion that X was at a risk as a consequence of continued occupation of the same home with the father.
The father conceded that on that day he had lost his temper and been violent (Dr B’s report at [874]).
I have had the benefit of reading the transcript of the police interview of X. It is plain from that interview that the charges could not have arisen from X’s account to police and must have arisen from the account given by the mother.
The police explicitly raised with X questions about why she was at the police station and the responses which she provided are relevant to my assessment of the potential risks for X.
Exhibit 4 is a transcript of X’s police interview. It is an important piece of evidence because it allows the Court to hear the issue from X’s perspective. The interview took place on 2 June 2022, which was four months after the events which were the subject of the charge. The relevant part of the transcript commences at page four:
POLICE OFFICER: What, what, can you tell me about that, what you, what you think you’re here to talk about?
[X]: Ok, I think I’m here to talk about why, um, me and Mum are leaving Dad.
POLICE OFFICER: Yeah, and why is that?
[X]: Because he didn’t like me wear dresses and - - -
POLICE OFFICER: Yeah. And what happened when he didn’t let you wear dresses?
[X]: I said, ….. no, no, then me and Mum made a secret, Don’t tell Dad we were trying, or, when they try and buy some dresses and we like ….. keep them at Grandma and Grandpa’s house and we hid them in a drawer so when Dad comes to Grandma and Grandpa’s house, he won’t know, he will think that ….
…
[X]: But now I can wear them every day, and whenever I want.
The transcript continues in this vein for several questions until from question 53 where the police officer asks:
POLICE OFFICER: how do you feel about daddy?
[X]: I, it was scary to see him and I didn’t want to go anywhere …..
POLICE OFFICER: OK, why, why are you scared of Daddy?
[X]: Because he didn’t let me wear dresses, and also, if he finds me, he might try to keep me away from Mum.
POLICE OFFICER: Yeah.
[X]: So that’s why I’m ss, don’t want to go anywhere ….. I’m scared of him.
POLICE OFFICER: Why are you scared of him? What makes you scared of him, what does Daddy do that makes you scared of him?
[X]: Uh, I think it was ….. uh - - -
POLICE OFFICER: Has he done something to make you scared of him?
[X]: Um, I’m, I’m, I think ….. wait, I can’t …. I’m just so bad at remembering things.
The interview returned to dresses.
After it appears that the interview has concluded the police officers thank X and ask her if there is anything else she wants to tell them. X says:
Um, I think, um, I think it’s, only just remembered why I’m scared of Dad …When they, when my friend [Q], her, his, her mum and dad came, we had a little party. And then [Q] wanted to have a car keys and he wanted me to unlock the car. So I didn’t give her the car keys, I gave her the garage key to control the garage.
When the police officers ask X if she can remember what happened next, she says:
[X]: Um, I think he got angry at me, then he, like, um, then I think he, I don’t know what to say, what else ….
POLICE OFFICER: That’s alright, just take your time and if, if you remember what happened, you, you said he got angry. Why would - - -
[X]: Because he lost the garage keys.
POLICE OFFICER: OK.
[X]: So if he need to take his car out, he can’t because if, because if they were closed, he wouldn’t be able to get the car. And …. want to get in my closet and so he would come in and s, kid, steal something from the house.
(As per the original)
X did not report the incident as violent. She reported that her father was angry. I accept the father was angry on this occasion.
Dr B canvassed with X her experiences of the father while she was placing a male figure – representing the father – at the farthest reaches of the single expert’s consulting room. X’s narrative and the single expert’s commentary is set out at [834]–[837]:
834.As [X] placed this figure, she spoke in the plural of her disposition towards the father, stating “we” hate him … he was like a monster … he breaks furniture … he steals money, like a bank robber … he yells … he gets crazy.”
835.I asked [X] to tell me more about “breaks furniture’. The father walked out of [X’s] bedroom into the living room, and smashed a vase… he was just breaking furniture… eventually [X] called Mum… [X] went into Mum’s bedroom and woke her up.
836.[X’s] behavioural descriptions likely come in part from [X’s] experience of the father’s angry outbursts. In this regard, [X’s] narrative would be consistent with an incident of paternal frustration occurring during the morning period where the mother tended to sleep in and the father cared for [X].
837.The reference to money is likely to have arisen from maternal narrative. I note [X’s] statement that “we” hate the father, which, in my view represents [X’s] experience of a merged and absolute shared disposition with the mother, of definition of the father in the negative.
It is difficult to reconcile the picture X now paints with her energetic, imaginative and pleasant interactions during supervised video contact in early 2023.
Dr B concluded at [875]:
875.I think it is likely that the narrative of each parent is correct: that mostly the father was a kind and responsive parent, but that intermittentlyhe lost his temper and was verbally and perhaps at times physically aggressive.
And further at [877]-[879]:
877.It does appear that the father had a vulnerability to intermittent verbal and physical aggression towards [X], which was not common and was not his overall pattern of relating to [X], but when it occurred was frightening for [X]. The negative impact of the same in [EARLY] 2022 was mitigated by the father subsequently taking responsibility for his actions and apologising. If there were other occasions where he “covered up” and blamed [X], then this would have amplified the negative impact.
878.So, this intermittent paternal aggression is an important negative that needs to be addressed. It will negatively impact [X’s] development and the child/father relationship over time. On at least one occasion it extended to criminal behaviour.
879.But, my impression is that the father overall has not been, and is not dangerous to [X], and that this vulnerability had not disrupted the overall security and positive nature of the child/father bond…
In reaching that conclusion, Dr B had regard not only to his own interactions, with both the father, the mother and X and his reading of the documents, but also the collateral material available to him from X’s interactions with other third-parties in which she recounted the events which estranged her from her father. She was often unable to remember specifically what it was that had fractured their relationship.
It is important then to consider whether or not those conclusions create a situation of risk such that the father’s proposal would, as the mother contends, expose X to an unacceptable risk of harm.
First, it should be observed that the single expert has made his recommendations including his interim recommendation with the knowledge that the father has been intermittently verbally and physically aggressive and hence has appreciated that factor when reaching the conclusion.
The mother told Ms O Mr Sanyal had had outbursts, which she estimated occurred “about 3 to 4 times per year.” This provides important context to the assessment of risk.
Secondly, it is important to understand what has occurred since that time to make an assessment of whether there is a future risk. The father has undertaken the following courses:
(a)Parenting After Separation (7 weeks) completed late 2022;
(b)Kids in Focus; and
(c)The Parenting Power Up.
I have also taken into account the supervised contact reports contained in the father’s tender bundle.
The father and X had online supervised time on 8 March 2023. There is a report of that visit by the supervised contact worker, Ms L. The following is notable in the preliminary discussion. The father indicated to Ms L that he was looking forward to seeing X and the record said he referred to her as such. When the supervised contact worker spoke to X and asked whether she was ready to see her father, it is recorded that X smiled and said “yes”.
When X came on the screen, the father greeted her as X and the interaction between X and the father during that supervised contact visit was delightful. X clearly has good conversational skills and an impressive imagination. X played games with her father, and the interactions between them were appropriate. At the end of the session, the report records that the supervised contact worker informed the mother that the session had appeared positive from the perspective of the supervised contact worker. Under the heading “highlights and positives”, the report records:
Dad referred to [X] by her name during the session and used she/her pronouns when speaking with [Ms L].
Dad allowed [X] to lead the session, listening and asking interested questions and played along with the toy cat.
[X] engaged well with Dad throughout the session, initiating and responding to conversation.
Both [X] and Dad laughed and smiled frequently during the session.
I accept that the mere fact that the interaction was positive is not dispositive of the question of whether or not further interaction, particularly unsupervised time, poses risk. However, those interactions were also the subject of review by the single expert, and it is the case that there was nothing in the interactions between X and the father predating the first session of supervised contact that caused X to display in the session, any behaviours, which were of concern to the supervised contact worker. To the contrary.
The second session of supervised online time took place on 16 March 2023. That session was equally positive. The “highlights” section of the report reads:
Dad asked some interested questions but allowed [X] to lead the session.
Dad engaged in, and expanded on, [X’s] imaginative play with her ‘pets.’
[X] appeared to enjoy chatting to Dad, going into detail on subjects, and smiled frequently throughout the session.
Again, there is nothing in the report of the supervised contact worker which would cause the Court concern that the session was anything other than positive for the child. It is therefore somewhat curious that on 22 March 2023, the mother indicated to the supervised contact worker that the child had been upset after the last session. When the supervised contact worker asked X about this, she did not confirm her mother’s account: “[X] shook her head and said, ‘no, she [the mother] misheard me’”. The session was not as positive as the earlier sessions, but it does not appear that there were any negative interactions between X and the father. In the “highlights” section. The report writer has written:
Dad told [X] that her make-up and voice were beautiful.
Dad asked interested questions about school and [X’s] experiments.
[X] interacted well with Dad throughout the session - answering his questions in detail and engaging him in singing and general conversation.
The next occasion was to go ahead on 5 April 2023, but did not occur, and the mother said that X had had a major episode which necessitated her going to the doctor. There was nothing in the session between X and the father which objectively would have led to X having a major episode.
On 9 April 2023, the mother indicated to the supervised contact agency that X was very distressed about the upcoming visit which was to be a face-to-face. Ultimately the visit was cancelled.
While I accept that, it may well be that a child expresses emotions to a parent, which may not otherwise be expressed to a stranger, there is an incredible disconnect between X’s presentation in the sessions with the father, as observed by the objective third-party whose role it is to supervise and her later “decompensation”, to use the language of Dr B. These reports confirm rather than support the position that it is necessary for X’s time with the father to be unmediated by the intervention of her mother, however well-intentioned.
Alleged psychological abuse of X by the father
Is there a psychological risk to X in orders which provide that she live with the father which arises out of his attitude or approach to X’s gender identity?
I accept that the mother is concerned that the father’s early scepticism about whether X’s presentation was indicative of a gender identity issue causes her to have ongoing anxiety about the father’s capacity to assist X.
The Court has a considerable amount of objective evidence by which to draw a conclusion about whether the mother’s anxiety is objectively reasonable.
Dr B records his discussions with Ms R clinical psychologist at S Psychology Service at [688]‑[689]:
688.[Ms R] had experienced the father as engaging, as open to information. [Ms R’s] message about [X’s] presentation and wishes was hard for the father to hear, to wrap his head around… the gender incongruence, the father had photo’s… and gave background about that.
689.The father appeared to be trying. He had done a parenting course… he was keen to be involved as much as he could be.
Ms M spoke to Dr B by telephone. Dr B and records at [711]:
711.[Ms M] had seen Dad twice. The father had presented as very surprised by the situation by where things stand. He presents as optimistic, wanting to re‑engage… he is happy to go along with where things are at, he just wants contact with [X].
Dr B himself concluded at [898]: “the father presented as very child-focussed with regard to [X’s] gender expression, and as well-placed to meet [X’s] special needs with regard to her gender identity and gender expression.
Each of those opinions should be given weight because each of those persons has had dealings with the mother, the father and X and each has specialist skill and expertise. Accordingly I do not find there is any present risk to X arising out of the father’s approach to her gender expression.
Alleged family violence (including sexual violence and control) by the father towards the mother
In her affidavit material the mother sets out serious allegations which if accepted would meet the definition of family violence in s 4AB of the Act. Her counsel submitted that Dr B had failed to give the allegations sufficient weight in his assessment of the parenting arrangements.
The mother gives general evidence to the effect that the father was sexually coercive and required her to engage in sexual acts which were unwanted. It is not clear whether she is explicitly saying that she made her lack of consent known and they occurred in any event or whether she is saying that the acts made her feel uncomfortable and she conveyed this. I think she is saying she refused certain requests and the father placed pressure on her to agree. The father denies that he “forced sex…no…that would be unthinkable.” (Dr B’s report at [267])
The evidence alone (and denied) may not without more suggest that the father poses a risk to X although I accept that ultimately if the mother’s account is accepted by the Court then sexually coercive conduct by a parent towards another parent will be relevant to the making of parenting orders.
Some of the matters upon which the mother relies do not appear to bear directly on risk for the child, for example, her allegation that the medical assistance she received in Country T for her foot, organised by the father, was unprofessional and did not properly address her ailment or her pain.
The mother places the above incident within a series of incidents which she says demonstrate the father’s propensity to exercise control around use of toilets, heating, expenditure on medication, social interactions, clothing and consumption of alcohol. Since these matters are contested I have approached the evidence cautiously with a view to understanding what the significance of them would be to assessment of the risk to X in the orders proposed by the mother and those proposed by the father.
Counsel for the mother said, and I accept, that I must approach this contested evidence on the basis that it may be established at trial to be a true account of what occurred. I am satisfied that the proposal for X to live with the father with the safeguards of Ms M, the work the father has undertaken, the support of the father’s friend and the ongoing scrutiny of court proceedings mean any risk posed by the contested material is not unacceptable.
Risk of psychological harm posed by continuation of present live with orders
These risks are at the heart of the orders sought by the ICL and father and rely significantly on the expert evidence.
The mother says and I accept that she has had access to the report of Dr B for a limited period of time in advance of this hearing and has had limited time to consider what evidence may be necessary. I note she has a brief report from her psychologist and has made arrangements for a medication review with a psychiatrist. The mother did not seek an adjournment nor identify with precision the specific evidence she would have filed or the specific basis upon which she would in due course seek to challenge the expert report.
I am acutely aware of the fact that the single expert does not assume the role of fact finder and the single expert’s evidence is but one piece of the evidence before the Court. But neither of those factors are sufficient to discount (for that reason alone) comprehensive and on its face cogent analysis of a child’s circumstances drawn from multiple sources.
There are two harms identified by the single expert but they are linked. At [813] Dr B recorded: “my impression is that [X] has already experienced emotional, psychological and developmental harm, through the process of precipitous mother-led gender transition, and through the linking of the same with the partisan issues of parental separation.”
Dr B’s observations at [981] as set out in full above underline the serious risk of continued emotional and psychological harm and emotional abuse. The single expert’s recommendations provide a pathway to repair existing harm and avoid further and future harm.
This is a tangible risk of which the case law speaks. The question for the Court at an interim stage is the urgency of the risk.
When Ms O saw X in December 2022. She expressed the opinion that it was important, psychologically, emotionally, and developmentally for X to see her father, and for this relationship to be repaired.
The consent orders which were made in December 2022 did not remedy the position. The orders of the Senior Registrar were equally unsuccessful.
The mother submits that the Court should again, make orders which provide for supervised time on the basis that the final hearing is listed in March next year. On behalf of the mother, it was submitted that the single expert did not produce his report with alacrity and the situation can and should await the final hearing.
The difficulty with that submission is that the court allocates its work, according to the pressures of all of the cases, awaiting determination. The fact that this matter is listed in March 2024, for final determination should not in an appropriate case, prevent the Court from taking action, in circumstances where action is required. Counsel who appeared on behalf of the father identified that there had been a delay occasioned by the appointment of a single expert and the need for a replacement single expert. Each of those delays has strengthened rather than diminished the urgency of the situation being addressed.
As regards the need to grant urgent interim relief counsel for the father placed emphasis on Dr B’s conclusion that X has special needs and vulnerabilities such that the parenting she receives should be designed to address them.
The other considerations which arise under s 60CC of the Act which are relevant for X are the nature of her relationship with each parent, the effect of separation from her mother and maternal grandparents, her views and the parental capacity of each of her parents.
Dr B identified 3 significant concerns in the mother child relationship namely:
(a)X’s special needs as a gender diverse child;
(b)X’s personal narrative and relationship with the father; and
(c)X’s developmental vulnerabilities.
Dr B concluded that in two of these three domains the mother’s approach had already caused significant harm to X.
I accept the mother may well disagree with the expert opinion as she is entitled to do. She may seek the opportunity to challenge both the opinion and the factual matrix upon which it rests. But as much as that is her right the Court must not by that reason alone put to one side for months evidence which supports the conclusion that the current arrangements have caused significant harm.
The submissions of the father and ICL focused on the immediate risk posed by the mother’s inability to date to address not just the complete breakdown of the father/child relationship but also her inability to comprehend the impact of that for X. Dr B’s immediate concern for X was to address the cognitive dissonance between her lived experience and the current narrative and stance to arrest developmental and emotional harm.
The mother also says that the nature of X’s relationship with her is such that a separation such as that proposed by the single expert raises a risk of psychological harm for X. I accept that X and the mother have a close relationship and the disruption which would be effected by a change of residence would be distressing for X. The mother’s counsel used the expression “grief” and I do not discount this may be the position. That is not the same as finding that the change will be a source of significant psychological harm. It is a balancing exercise in which the single expert has taken into consideration the potential impact of separation and concluded that the parenting arrangements should be made notwithstanding anticipated distress. I accept that evidence because of my other findings about the father’s preparedness to act in a manner which is child-focused and attentive to potential distress.
In effect what the single expert proposes is that the Court should not determine this issue on a final basis without first consider an interim change because to do so would not be in the best interests of the child. The single expert says that the evidence supports a conclusion that there are advantages to the child in an interim order which places the child in the care of the father pending final hearing to better inform the Court about the viability of orders for time with both parents in due course. This is not a data gathering exercise but rather an opportunity to make orders which present as being in the best interests of the child and being able to reflect and review on whether or not that determination was accurate.
The mother refers in her affidavit material to the reasons for judgment of her Honour Judge Boyle and the need for a cautious approach at interim hearing. The Court is now in a significantly different position from the position when the matter came before Judge Boyle because it is possessed of material from numerous sources and has observed the failure of two sets of interim orders.
Importance to X of a meaningful relationship with both parents
One of the matters which I have considered significant to this interim determination is the question of what circumstances are best likely to promote the opportunity to X to have a meaningful relationship with both of her parents. In that regard I note that the mother’s affidavit material indicates that she supports X seeing and spending time with the father. In May 2023 Dr B wrote to the ICL (and indicated he was content with the opinion being provided to the parties and the Court). At that time he said he recommended:
… there be no further attempts to facilitate face to face, video or any other form of child/father time at this point. This is because the same is currently likely to be unsuccessful, aversive to the child, worsening not improving the child’s disposition towards the father, and (it is reported by the mother) disrupting of the child’s broader wellbeing and functioning.
Having now had the opportunity to read and consider Dr B’s comprehensive October report that interim email recommendation appears to have arisen in a context where Dr B could not be satisfied that reintroduction of the father and X would be successful unless the mother was (temporarily) removed from the equation – a conclusion which is made explicit in the later report.
In that regard I note that the mother was unable or unwilling to facilitate a telephone call between X and the father for X’s recent birthday. In that context, notwithstanding the evidence the mother gives about her preparedness to facilitate time, I am persuaded that the single expert’s view about the mother’s witting or unwitting influence on X will thwart efforts to do the very thing the mother says she supports, namely facilitate X’s relationship with the father.
As discussed above, I am aware and take into consideration the fact that X’s expressed views are contrary to the orders which the father and ICL propose. In approaching her views I am aware of her age and her maturity. X is only eight and her alliance with her mother is evidenced in the language she deploys to talk about her father – the “we” and the “enemy”. I appreciate that X will find any order contrary to her expressed views confronting and distressing.
When X met with the Court Child Expert, Ms O, Ms O asked her if she would like to see her father and X answered: “I would say no about seeing Dad”. When asked why X answered: “I forgot the reason”.
Ms O offered the following opinion:
While [X] clearly stated that she does not want to spend time with her father, this expressed view could be based in her possible discomfort of being with him now as a girl, or her worry about being questioned or confronted by him regarding her gender. It may be that [X] has picked up her mother‘s concerns and views even though [Ms Sanyal] reportedly encourages [X] to have contact with her father.
Those interviews took place in December 2022. By the time X saw Dr B her position had if anything strengthened in circumstances where there had been no face-to-face time with the father.
Apart from third parties such as Ms M and Dr B the mother is best placed to provide information about X’s current attitude. The father says he requested to speak with X for her birthday. I am not aware from the mother’s affidavit material why she did not facilitate a telephone call between the father and X for X’s birthday.
I am not aware from the mother’s affidavit material what X’s response was to the father’s recent birthday gift.
The absence of that evidence leaves me with the conclusion of the single expert that the mother will not/cannot facilitate X’s time and relationship with the father. There is no adult guidance and support for restoration of this relationship by the mother or in her household.
The mother’s proposal does not contain evidence which directly addresses how her proposal will effect change to the status quo which has seen a complete cessation of the relationship between child and parent.
Both parents, by their respective applications, seek orders which will change the current arrangements for X. Neither party has taken the position that any change must await the final hearing. The mother points to the fact that the change proposed by the father and the ICL is significant and will represent an enormous, unprecedented change for the child. Ordinarily the Court would be extremely cautious to affect such change at an interim hearing and would look to whether the problem which the change seeks to address is one which is chronic or acute. I accept that X has experienced stability in key spheres of her life in the period when she has been in the mother’s care: for example, I accept that she is engaged with friends and the maternal family and a therapist has been engaged to assist X.
There are some aspects of X’s care which are less settled. X’s school attendance has been below what may be regarded as acceptable at about 80 per cent. While the mother’s affidavit says she accepts responsibility for the attendance rate her affidavit goes on to indirectly lay the blame for poor attendance at the feet of the father (notwithstanding X has been living with her and has not been spending time with the father). X’s poor school attendance was an issue at least as recently as September 2023 well after X had any contact with the father and well after the issue of what school bathroom she should use had been settled.
The single expert evidence does address itself to the urgency of the situation. The single expert report devotes considerable attention to the need for interim relief to in effect arrest a situation which has arisen for X which, if not arrested as soon as practicable and allowed to remain, may be unable to be changed. The single expert is recommending that action be taken in effect before it is too late to take action.
The final hearing is not scheduled to commence for a period of about four months and accordingly the orders which I make today may operate for at least five months. I have considered the submission that change at the scale proposed by the father and ICL ought not take place on an interim basis. The difficulty with the submission is contained in the evidence of the single expert– as set out above, in particular paragraphs [981]–[982]. It is important that the court give proper consideration to the evidence of the single expert whose qualifications have not been called into question when that expert identifies that a child’s living arrangements are “developmentally harmful” and “emotionally abusive”.
In a sense the fact that the single expert has identified that the harm and abuse are occurring “unwittingly” makes it more important that the Court address it since the conclusion is that the party themselves has been unable to identify and address it.
The observations of Justice Austin sitting in the Appellate Division of this Court in Fowler & Northwood (2022) 66 Fam LR 212 have application to the task that I am undertaking in this case. At [24] his Honour said:
24.Single experts are called as witnesses because their qualifications and experience equip them to provide opinion evidence to the court which is relevant to the determination of the issues in dispute, though their expert opinion evidence is not necessarily decisive. Judicial power to decide the legal dispute always rests in the hands of the trial judge, not the expert witness (Albert & Plowman [2020] FamCAFC 23 at [19]–[22]). No judge is bound to accept or reject the whole or any part of the evidence of a single expert (U v U (2002) 211 CLR 238 at 261). But by the same token, when ostensibly credible evidence is before the court, a judge is expected to heed it. Even though expert opinion evidence is normally untested in an interim hearing, the provisions of the Act expressly require a judge to react to credible evidence concerning risks of harm to which children might be exposed and against which they require protection (Cimorelli & Wenlack [2020] FamCAFC 58 at [80]–[81]; Lim & Zong (2020) FLC 93-939 at [32]–[33]).
I am being faced with two competing interim applications both of which are ostensibly designed to reintroduce the child X to time and a relationship with the father and both of which are overtly put forward in recognition of the value of such a relationship to X.
The mother submits that her application is to be preferred because the father’s application would expose X to risk (as discussed above). Having canvassed the assessment of risk issue and concluded that that X is likely to experience short term distress (identified by the single expert) but that I conclude that such orders will not expose her to an unacceptable risk of physical or psychological harm.
The difficulty then with the mother’s proposal is expressed at [820] of the single expert report:
In my view if [X] remains in majority maternal care, then any form of planned incremental return to child/father time, even if gradual and even if therapy supported, is almost certain to fail.
In addition I accept that it involves new supervisors, a new location and the involvement of the maternal grandparents. It is likely to continue to signal to X that time with the father is to be feared. I do not in making this finding in anyway criticise the maternal grandparents who are important people in X’s life.
Having had the opportunity to consider the evidence, the outline of case documents filed by each of the parties, and with the benefit of oral submissions I have concluded that it is necessary to make changes to the existing position in respect of X’s parenting arrangements. I accept that paragraph [820] of the single expert report is a hypothesis but it is grounded in what has occurred. In that regard the agreed facts are central. X has not spent time with her father since separation notwithstanding the mother has said she is supportive of the relationship. X has become more resistant to time the more time has passed.
It is apparent that it would be difficult and contrary to X’s best interests that her parents have equal shared parental responsibility. This is primarily because as Dr B observed the parents are cautious about and mistrustful of one another. Many of the more serious and difficult questions relating to X’s long-term care, welfare and development, have been dealt with by agreement between the parties and will be reflected in the making of orders, which each of them have agreed to. There may be other parenting issues which require determination in the intervening period but this would appear to be unlikely. In order to avoid a dispute which would not be in X’s interests, I propose to make the orders in respect of parental responsibility, proposed by the father and the ICL.
I propose to make an order that X live with the father. I recognise that such an order is not without potential disadvantages. The most significant of which in my view is the impact on X of separation from her mother. I have earlier discussed the fact that the single expert expects this to be a source of distress to X, and as a consequence set out a number of matters which might ameliorate such distress. Those included the father, making sure that he had the support of a family friend known to X. I have read the affidavit of Ms J filed 26 October 2023. I accept that Ms J is known to the child although she (like the father) has not seen the child for some time. I know that she is available to assist the father immediately. I note that the father has made arrangements with his place of employment to take leave. I note the father has agreed to orders which would provide for psychological support for X. Each of those factors is likely to assist X in transitioning, although I do not think any one of those factors is capable of addressing her distress in the short-term.
I accept that the father has previously not been the sole provider of care to X and does not have family support in Australia. However, I have formed the view that his involvement in X’s care prior to separation was not negligible and X recounted memories of their bike rides together to Ms O. There was also a child focus in the father’s interactions during supervised time and Dr B witnessed X lean in as the father shared memories during his telephone call observation. He noted X did not appear physiologically aroused. Those matters combined with the father’s courses and attendances on Ms M allay concerns about the transition.
The father has not set out a routine for X in his material but this is to be expected given the circumstances. I accept he will develop one. He has a home closer to X’s school. There is an agreement she should remain enrolled. This will be a source of stability in the short term. He has asked his employer for more flexible work arrangements and has received their assent. He will need to make arrangements for her care in the school holidays but in that regard he will only be in the same position as many working parents.
The fact that this is a difficult case and one where neither proposal is without disadvantages does not change the fact that whether the determination is interim or final the requirement is to, having considered each of the relevant statutory considerations, draw a conclusion as to which proposal (between two imperfect options) will operate to serve the best interests of X.
The father and the ICL propose various orders the effect of which is to assist X with the transition and I intend to make those orders. As I appreciate the situation the mother does not join in requesting the making of those orders because she opposes the transfer of X’s place of residence from her home to that of the father, but did not otherwise make submissions contrary to the making of those orders if I were minded to change the person with whom X lived.
Both the father and the ICL proposed that there be a period of time during which there was no contact between the mother and X. As discussed above the genesis of that submission is in the evidence of Dr B to the effect that only if such a provision were put in place, does he have any confidence that it will be possible to reintroduce X and the father. At the expiration of the two‑month period, the father proposes supervised Facetime to occur on a Wednesday at 5.30 pm. The ICL also proposed supervised Facetime on a Saturday from 11.00 am–2.00 pm.
Following two months of Facetime contact, the father proposes face-to-face contact resume with the mother and X being supervised by the same agency. The ICL’s minute would seem to concur. The father’s orders provide for the mother to pay the costs of supervision. It is appropriate in my view that the cost of supervision be shared equally by the parties. The imposition of supervision is not a punishment for a party, but is a means by which the court insures that risk issues are mitigated and the child has the opportunity to benefit from seeing and spending time with both parents. Each party would appear to have the capacity to contribute to the cost of supervised time and I will order accordingly.
The father sought an order that the mother obtain a referral from a general practitioner to a psychiatrist who treats adult patients, ideally a psychiatrist familiar with a treatment of psychotic disorder, such a schizoaffective disorder who has an interest and skill in medication treatment, but also in addressing psychological relational and adaptive issues in a patient. I am not confident that this is an order which I ought make on an interim stage in circumstances where it is not tied to the making of a parenting order directly.
I accept that the mother has recently obtained a referral to attend upon a psychiatrist and intends to obtain a review of her medication, it would be appropriate for the mother to file evidence by any treating psychiatrist she may have consulted for the purpose of the final hearing, and I will not order her to see a specific psychiatrist. I will order that the mother provide a copy of Dr B’s report to any treating psychiatrist she consults.
I have considered the parties’ competing applications for release of Dr B’s report. The mother is not prevented from accessing the report and reading it and giving instructions in respect of it. I will allow the parties to revisit this issue a month prior to the trial so that I can determine whether release is necessary and in the interests of X.
I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 3 November 2023
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