SHELLEY and DICKENS

[2020] FCWA 16

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: SHELLEY and DICKENS [2020] FCWA 16

CORAM: TYSON J

HEARD: 23 JANUARY 2020

DELIVERED : Ex tempore

FILE NO/S: PTW 6930 of 2011

BETWEEN: MS SHELLEY

Applicant

AND

MR DICKENS

Respondent

Catchwords:

FAMILY LAW – INTERIM PARENTING – Child is eight and a half years old – Where the child lives with the mother and the mother is not facilitating any contact with the father - Application by Independent Children’s Lawyer at the conclusion of the evidence to immediately change the child’s residence from the mother to the father – Where the Single Expert Witness recommended during his oral evidence at trial the child live with the father as soon as possible – History of family violence between the parties – Risk of physical and psychological harm - Application dismissed – Case turns on its own facts

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms U
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Ms Korzeniecka

Solicitors:

Applicant	:	Calverley Johnston
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Platinum Legal

Case(s) referred to in decision(s):

Bondelmonte & Bondelmonte (2017) 257 CLR 662

TYSON J:

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shelley & Dickens has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

1At the end of the trial I am asked to make an immediate interim change to the long-standing arrangements for the care of [G], born [in] 2011, who is eight and a half years old. G is the only child of the applicant mother and the respondent father. The application has been made by the Independent Children’s Lawyer [(“ICL”)] after the conclusion of the evidence. The application is supported by the father, with one minor exception. Counsel for the mother has explained she is presently unable to take the mother’s instructions. I intend to proceed on the basis the application is opposed by the mother.

2On 29 November 2019 I delivered ex tempore Reasons in relation to an application to discharge the Single Expert Witness [(“Single Expert”)], [Mr R]. In those Reasons I summarised the background facts, together with a brief history of the proceedings. Those matters are familiar and well-known to all of the parties, and in those circumstances I do not intend to repeat them. I refer and rely upon my earlier Reasons in that regard.

3In short, G’s parents do not agree on the arrangements that are in her best interests. G lives with her mother and currently is not spending any time with her father. She last saw her father in June 2019 on a supervised visit. That is notwithstanding the current interim orders made in March 2019 for G to spend supervised time with the father.

4The mother has made an interim application to suspend the father’s time with G, which has been adjourned. The central dispute between the parents is with whom G should live. Up until the commencement of the trial, the mother’s position was that G should live with her, she have sole parental responsibility, and G spend supervised time with her father.

5At the commencement of the trial the mother amended her position to seek G have no contact or communication with her father. Today, after having heard the evidence of the Single Expert, the mother’s counsel advised the mother would be further amending her position. The mother now seeks that G spend alternate weekends from Friday afternoon to Monday morning with her father.

6The father’s position throughout these proceedings has been that G should live with him, he have sole parental responsibility, and G spend daytime visits only with the mother for 12 months on terms and conditions.

7Each parent has raised serious allegations in terms of G’s safety in the care of the other parent. As a consequence, an ICL was appointed for G and Mr R was appointed as the Single Expert.

8At the commencement of the trial on 10 June 2019, the then ICL indicated she did not intend to express a position in relation to the arrangements that were in G’s best interests until she had heard the evidence.

9The trial commenced before me on 10 to 14 and 19 June 2019, inclusive. It was then adjourned part-heard and listed for a further three days in November 2019.

10At that time the mother’s case had been completed and the father was being cross-examined.

11On 27 November 2019, [Ms A] sought to withdraw as the ICL as a result of a matter that had been raised by the mother’s counsel with her that morning.

12There was a subsequent application made by the mother to discharge the Single Expert, which I dismissed and I have referred to.

13As a result of those matters, the trial was unable to be completed. Ms Korzeniecka was then appointed as the ICL and the trial was listed for a further four days from 20 to 23 January 2020.

14As I have indicated, the trial has now concluded. I have had the benefit of hearing each of the parties, together with a number of witnesses, including the maternal and paternal grandmothers, the mother’s partner [Mr B], her friend [Ms C], the Single Expert, and today [Mr P], G’s school principal.

15In my Reasons that I delivered in November 2019 I summarised at some length the two reports of the Single Expert. Specifically, Mr R in his report acknowledged the limitations, including the considerable amount of factual information in dispute, and expressed a view that the Court needed to make findings of fact to enable a conclusion to be drawn about what arrangements are in G’s best interests.

16He described the parents’ conflict as high and their relationship as dysfunctional, combatant, highly distrustful and not supportive. While the mother had made a number of repeated allegations in terms of G being at risk of physical and sexual abuse by the father, neither the Department nor the police who had interviewed G were able to find sufficient evidence to substantiate her allegations.

17He commented that, notwithstanding the mother’s position that many of G’s difficulties had been caused by her father, at that time there had been no contact and G had been in the exclusive care of her mother while she continued to experience problems and, indeed, she appeared to have developed further difficulties.

18The Single Expert concluded the matter needed to be determined at trial as quickly as possible. At that time he did not make recommendations about with whom G should live, explaining he was unable to do so based on the limited undisputed evidence and the need for there to be findings of fact.

19He described G as failing to reach her developmental milestones and observed the number of problems she was experiencing across a range of areas not usually associated with children of her age. He considered G was significantly impacted by the current parental dispute, in terms of her lacking a sense of security. He was unable to conclude the cause of G’s difficulties, but proffered a number of hypotheses.

20During the trial the Single Expert, was asked by the ICL what arrangements he considered were in G’s best interests. He expressed his view that it was in G’s best interests to be removed from her mother’s care and transitioned into her father’s care, on the basis that intensive psychological support was put in place for the family, with a period of no contact between G and her mother. That recommendation had not been contained in his report. It was provided in response to a question posed by the ICL, with some reluctance.

21Mr R repeated in his oral evidence, as had been expressed in his report, that it was likely a combination of factors had contributed to G’s difficulties. The most likely factors were the mother’s parenting in her home environment, including the mother’s perception and reaction to G’s behaviour, together with the mother’s stress and anxiety, in addition to the interruption to G’s relationship with her father.

22Mr R recommended interim arrangements be put in place, to allow ongoing monitoring and oversight by the Court, the ICL, and a number of psychologists. At the request of the ICL he provided the names of a number of clinical psychologists whom, in his view, were qualified to assist the family to implement the arrangements he recommended.

23The Single Expert’s evidence included that G was not thriving in her mother’s care, he did not consider G was at risk in the care of her father, and G would successfully manage the transition with the support of the father and the proposed psychologists. He expressed optimism about G’s outcome were she to live with the father and the father’s capacity to provide for G’s needs.

24He acknowledged that outcome would be devastating for the mother, whom had done her best to try to meet all of G’s needs, but said despite her best endeavours, she had not adequately done so. The Single Expert described the mother as continuing to prevent G having a relationship with her father, in circumstances where he did not consider the father presented a risk of harm and where the mother maintained a fixed belief that he continued to present a risk, rejecting any evidence which contradicted her own beliefs.

25He referred to some examples of the mother’s behaviour in respect of G as bizarre and delusional, including, for example, the mother insisting that G had hair missing from her head and bruises, which were not observed by independent third parties.

26The Single Expert considered the parties’ relationship had been violent and the mother had been the victim of family violence at the hands of the father.

27He described the family violence in the context of the parties’ relationship as unacceptable, inappropriate and serious. He noted the mother had suffered significant physical injuries, including a broken wrist and broken teeth. He described the parties’ relationship, as highly conflictual and toxic, but observed the incidents of family violence arose out of arguments between the parties and the context of those circumstances needed to be considered.

28He did not consider the father presented an ongoing risk of family violence and observed since separation, there had not been further incidents between the parties. He noted there was no independent evidence to suggest the father had behaved in a violent manner towards third parties, including his now partner, whom he has been in a relationship with for two and a half years.

29Mr R considered the mother had been the victim of family violence in her relationship with [Mr D] and that G had been exposed to incidents of serious family violence, which coincided with some of G’s behavioural difficulties at the time.

30He also referred to the fact the father alleged the mother had also been an instigator of family violence. He did not recommend either party attend a course for domestic violence but, rather, they each seek individual counselling.

31The Single Expert attended the trial on 21 and 22 January 2020. He was cross-examined extensively. His evidence was completed late last night.

WHAT IS THE CURRENT APPLICATION?

32At the conclusion of the evidence, as indicated, the ICL has made the current application for an immediate change in residence. The proposed orders she seeks are:

Until further order:

Procedural

1.All previous parenting orders be discharged.

Parental Responsibility

2.The Respondent have sole parental responsibility for the child [G], born 22 June 2011 [(“G”)].

3.The Respondent keep the Applicant advised of any decisions made by him in exercising parental responsibility.

Lives With

4.[G] live with the Respondent.

Transition

5.The Applicant cause [G] to be delivered up to the Family Court of Western Australia at 3.00pm on Thursday 23 January 2020.

6.On Tuesday 28 January 2020, the Applicant arrange for all of [G’s] belongings to be made available to the Respondent at the offices of the Independent Children’s Lawyer.

[G]

7.The Respondent forthwith do all acts and things necessary to arrange for [G] to attend upon psychologist, [MS Q], or such other psychologist as nominated by the [ICL] (“[G]’s psychologist”) in the event [MS Q] is unavailable.

8.The Respondent and the Independent Children’s Lawyer have leave to provide to [G]’s psychologist:

a.copies of the Single Expert Witness Reports prepared for the purpose of these proceedings;

b.copies of any Court Orders;

c.a copy of any judgment delivered in the proceedings; and

d.copies of any documents requested by [G]’s psychologist.

Aftercare Psychologist

9.The parties forthwith engage with clinical psychologist, [MS Z] (“the aftercare psychologist”) for the purpose of:

a.providing aftercare therapy;

b.ensuring that [G] is transitioning well into the Respondent’s care;

c.to prepare [G] for spending time with the Applicant;

d.liaising with the parties, to the extent, she deems appropriate;

e.supporting [G] in any manner she deems appropriate; and

f.liaising with any general practitioner, specialist, and mental health practitioner involved with [G] and any school that [G] attends.

10.In the event that [MS Z] cannot assist the parties, the Independent Children’s Lawyer nominate another psychologist for the purpose of the preceding paragraph.

11.The parties shall comply with any recommendations made by aftercare psychologist from time to time.

12.The Respondent shall ensure that [G] attends all appointments scheduled with the aftercare psychologist.

13.The parties equally share the costs of the aftercare psychologist, in the event that Legal Aid cannot fund the costs of the aftercare psychologist.

14.The Independent Children’s Lawyer have leave to provide to the aftercare psychologist:

a.copies of the Single Expert Witness Reports prepared for the purpose of the proceedings;

b.copies of any Court Orders;

c.a copy of any judgment delivered in the proceedings; and

d.copies of any document requested by the aftercare psychologist.

15.The aftercare psychologist be at liberty:

a.to inspect any subpoena documents retained by the Court, to which the Independent Children’s Lawyer has leave to inspect; and

b.contact any medical practitioner, specialist, mental health practitioner and school [G] attends upon.

16.The Independent Children’s Lawyer be at liberty to request a report from the aftercare psychologist for the purpose of ascertaining the progress of the aftercare therapy.

17.The costs of the report referred to in the preceding paragraph be borne be Legal Aid if funding is granted, and failing funding being granted, by the parties equally.

Spends Time With

18.The Applicant be restrained by injunction and an injunction be hereby granted restraining her from having any contact whatsoever with [G] for a period of 60 days from the date of these orders, unless otherwise directed by the aftercare psychologist.

19.After a period of 60 days or upon the aftercare psychologist determining that [G] can recommence spending time with the Applicant, [G] spend time with the Applicant, supervised by a supervision agency of the Applicant’s choice (“the Service Provider”) provided that the Service Provider is in close proximity to [G]’s principal place of residence.

20.Subject to the availability of the Service Provider, wait lists and the family being assessed as suitable for the provision of its services by the Service Provider, [G] spend time with the Applicant each fortnight for a minimum of 2 hours, or as otherwise recommended by the aftercare psychologist.

21.Each party shall:

a.telephone the Service Provider as soon as practicable to arrange an appointment for an intake interview;

b.attend the intake interview at the arranged time;

c.attend any appointments arranged by the Service Provider;

d.comply with the Rules of the Service Provider;

e.comply with all reasonable requests or directions of the staff of the Service Provider; and

f.provide a copy of this order to the Service Provider.

22.The costs of the:

a.intake interview shall be borne by the party undertaking the intake; and

b.supervision shall be borne by the Applicant.

23.After a minimum of 6 visits the Independent Children’s Lawyer shall request from the Service Provider a written report and shall pay for the said written report subject to Legal Aid funding, and in the event Legal Aid funding is rejected, the parties shall equally pay the costs of the report.

24.The Independent Children’s Lawyer have leave to provide any court document to the Service Provider if requested by the Service Provider (including but not limited to the Single Expert Witness Reports and any judgment delivered in the proceedings).

Communication

25.The parties shall communicate with each other by way of email only.

26.The Respondent keep the Applicant advised of [G]’s progress at school and in relation to any medical issues regularly.

27.The parties advise the other of any change of telephone number, email address or residential address within 24 hours of such change occurring.

Education

28.The Respondent be permitted to enrol [G] in a school close to his place of residence and shall forthwith advise the Applicant and the Independent Children’s Lawyer of the details of the new school upon enrolment.

29.The Applicant be permitted to contact [G]’s school for the purpose of obtaining school reports only.

30.The parties be at liberty to provide a copy of these orders to [G]’s school.

Medical

31.The Respondent keep the Applicant and the Independent Children’s Lawyer informed of any medical or mental health practitioners that [G] attends and the outcome of any appointments or tests.

32.The Respondent ensure that [G] continue to attend upon paediatric [specialist] Dr [H] as required and follows all recommendations made by her.

Injunctions

33.The Applicant be restrained by injunction and an injunction be hereby granted restraining her from:

a.contacting any medical practitioner or specialist that [G] attends upon;

b.contacting the school [G] attends, save for the purpose of obtaining school reports as set out in paragraph 29 above; and

c.contacting [G]’s psychologist.

34.The parties be restrained by injunction and an injunction be hereby granted restraining the parties from:

a.denigrating each other and each other’s family to or in the presence or hearing of [G]; and

b.discussing the court proceedings in the presence or hearing of [G]

Applicant’s Psychologist

35.Within 30 days, the Applicant attend upon clinical psychologist [MS W] (“the Applicant’s psychologist”) for the purpose of providing therapy and support given [G]’s transition to the Respondent’s care.

36.The Applicant comply with all recommendations made by her psychologist from time to time.

37.The Independent Children’s Lawyer have leave to provide to the Applicant’s psychologist:

a.copies of the Single Expert Witness Reports prepared for the purpose of the proceedings;

b.copies of any Court Orders;

c.a copy of any judgment delivered in the proceedings; and

d.copies of any documents requested by her.

Respondent’s Psychologist

38.Within 30 days, the Respondent attend upon a psychologist of his choosing (“the Respondent’s psychologist”) for the purpose of supporting him with [G]’s transition to his care and in relation to him understanding the impact of the domestic violence that occurred in his relationship with the Applicant.

39.Upon the Respondent engaging the psychologist, he provide their name and contact details to the Independent Children’s Lawyer.

40.The Respondent comply with all recommendations made by his treating psychologist from time to time.

41.The Independent Children’s Lawyer provide to the Respondent’s psychologist:

a.copies of the Single Expert Witness Reports prepared for the purpose of the proceedings;

b.copies of any Court Orders;

c.a copy of any judgment delivered in the proceedings; and

d.any document requested by the Respondent’s psychologist.

Reportable

42.For the avoidance of all doubt, all therapy and psychological intervention set out in these orders be reportable.

Airport Watchlist

43.The parties be restrained by injunction and an injunction be hereby granted restraining them from removing or attempting to remove [G] from the Commonwealth of Australia without the prior written consent of the other party or further order of the Court.

44.The Australian Federal Police be requested to place the said child’s name on the Airport Watch List operating at all international ports in Australia until further order of the Court or for a period of 2 years and the Independent Children’s Lawyer do supply to the Australian Federal Police with a sealed copy of this order.

Further progress of the proceedings

45.The proceedings be adjourned to date to be allocated by the Court for monitoring in early May 2020.

33In summary, she has articulated that in light of the evidence, she holds concerns that G is at risk of harm in remaining in her mother’s care. The ICL advised the parties of her position in Court and, with my leave, handed up her minute which was provided to the parties. I stood the matter down to allow each party an opportunity to consider the application and, in the case of the mother, an opportunity to speak with her counsel and have the assistance of the social support worker present at Court.

34When the matter was recalled, the father advised he largely agreed with the proposals of the ICL, save for the duration of time G was to be placed on the Watchlist.

35At that time the ICL had not completed her discussions with the mother, whom I was advised was understandably distressed, and her counsel had not had an opportunity yet to take her instructions.

36I stood the matter down. When the matter recalled, the mother’s counsel indicated the mother is in such a state that she is not in a position to take her instructions and, unfortunately, the social worker who was previously available is not currently available to assist in that regard.

37I indicated to Ms [U] that I did not need to hear from her in relation to the matter.

WHAT IS THE LAW?

38These proceedings are determined under the provisions of the Family Court Act 1997 (WA) as the parties were not married.

39In deciding whether to make a particular parenting order I must regard G’s best interests as the paramount consideration. The Court’s power is to make such parenting orders as it thinks proper. In determining what parenting orders are to be made, G’s best interests are the paramount but not the only consideration.

40Section 70A provides for a presumption that it is in the best interests of G for her parents to have equal shared parental responsibility, unless there are reasonable grounds to believe that a parent or other relevant adult has engaged in abuse, or family violence.

41The phrase “reasonable grounds to believe” is important. For the statutory presumption to be inapplicable it is not necessary for abuse or family violence to be proven; it is sufficient for there to be reasonable grounds to believe that a parent has engaged in behaviour of that nature.

42If an order for equal shared parental responsibility is to be made, I am required to consider whether G spending equal time with each parent is in her best interests and whether such an arrangement would be reasonably practicable. If so, I am then required to consider making such an order. As the High Court observed in Bondelmonte & Bondelmonte (2017) 257 CLR 662 the making of a parenting order whether final or interim involves the exercise of judicial discretion and assessment of the circumstances set out in the legislation. It involves value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in G’s best interests.

DISCUSSION AND CONCLUSIONS

43In summary, the ICL says that in an incredibly difficult matter with a lengthy history, with the benefit of having heard all of the evidence and, in particular, what she described as compelling evidence by the Single Expert, she felt compelled to make the application now before the Court.

44She says her priority as the ICL is to ensure G’s safety, both physically and emotionally. In light of the evidence of the Expert, whom she described as having been unwavering in terms of his recommendations now as to what was best for G, that a change of residence was preferable sooner rather than later. In particular she has highlighted the evidence of the Single Expert in which he indicated his optimism that G would flourish and his prediction of difficulties for G in the future if the situation is not rapidly rectified.

45The ICL referred to the questions she put to the Expert about a scenario in which G may continue to live with her mother and how that might look, to which the Single Expert indicated it was doomed to fail.

46The Single Expert maintained his evidence, as contained in his report, about the risk of cyclical behaviour if G remained in her mother’s care and the prospect of further allegations being raised by the mother, given the history.

47The ICL said it was an unenviable position to make the application at this stage and, while she understood that each parent loved G dearly, she considered it was appropriate and, indeed, necessary to make the application. While she said that it was not ideal for there to be interim orders made, she did not consider it appropriate for the Court, nor was the Court in a position, to make any final orders.

48She further articulated that while she had made inquiries with a number of the proposed clinical psychologists set out in the minute, she was still waiting to hear from them about their costs and availability, and if Legal Aid were unable to fund their proposed involvement, the minute set out an application for the parties to share those costs.

49The father, in summary, says that he agrees with the submissions of the ICL, which he described as absolutely “spot on”. The father says the blueprint of the orders outlined by the Single Expert are more practical and sensible than the orders he sought at the commencement of the trial. He is confident adopting the approach now proposed by the ICL, in accordance with the recommendations of the Single Expert, is in the best interests of G.

50As indicated, the mother’s counsel has not been in a position to take her client’s instructions.

51I am not in a position today to summarise and evaluate all of the evidence that has been led over many months, in a trial that has taken 10 days, spanning between June 2019 and January 2020. That trial time does not include time on 20 June 2019, when the then ICL was unwell and the trial needed to be vacated, nor the events that took place on 27 and 29 November to which I have already referred.

52During the course of the trial, 39 exhibits have been handed up. I have had the opportunity to read extensive affidavit material filed on behalf of all the parties. This matter is, as the ICL has described, complex, and there is significant evidence now before the Court.

53As the chronology indicates, there have been a number of significant changes that have taken place during the hearing, including but not limited to the mother’s amendment at the commencement of the trial; her subsequent amendment in terms of orders sought; the articulation by the ICL of the orders that she seeks, with the benefit of having heard the evidence; the recommendations given by the Single Expert in his oral evidence which were not contained in his written reports; and the father’s amendment now to echo the proposals of the ICL.

54There have been serious allegations raised about G’s safety in the care of each parent. I do not propose to repeat the mother’s allegations, but in light of the orders she now seeks, which provides for G to spend substantial and significant unsupervised time with her father, I take that she no longer considers he poses an unacceptable risk of harm.

55In relation to the proposals set out by the ICL, they echo the recommendations made by the Single Expert, but include for G to live with her father immediately, for the father to have sole parental responsibility, for G to be delivered up to the Court, and for the engagement of a number of psychologists, including Ms Q for G, Ms Z as the after-care psychologist, and Ms W for the mother.

56These people were named by Mr R. I do not have their resumes, but Mr R’s evidence was each were clinical psychologists. Indeed, each of them are familiar to the Court, having been involved in other matters. None of those clinical psychologists have, to my knowledge, had any contact with this family to date.

57I do not currently have any evidence about the psychologists’ costs, their availability, nor their willingness to be involved in the manner that is now proposed. I make no criticism of the ICL for that fact, appreciating these issues have only arisen out of the evidence given by the Single Expert, which was completed late yesterday.

58I make that observation simply to highlight that these proposals contemplate and, indeed, rely on significant involvement from third parties in circumstances where I have no knowledge or evidence about their availability or willingness to be involved.

59This is a difficult matter. I acknowledge the ICL has come into the matter late and in difficult circumstances, where the trial has been part-heard. She has had the benefit of reading the transcript of the first part of the trial and also access to the Court annotator. She has also had the benefit of participating in recent days of the trial.

60I am not bound by the proposals of the parties.

61I accept the application has come as a surprise to the parties. I appreciate the concerns raised by the ICL about G remaining in her mother’s care.

62However, I am not satisfied that it is appropriate at the conclusion of the trial, to make an order to immediately remove G from her mother’s care. I want and, indeed, the parties and G deserve that I have an opportunity to reflect on and consider all of the evidence I have heard over a number of days. I am simply not in a position to do so now.

63I accept significant issues have been raised, but I do not consider those circumstances are such as to warrant what would be a serious step, to remove G from her mother’s care today.

64I do not want any party to take my decision today to refuse to grant the orders as any indication of the possible outcome in this matter. I am simply dealing with the oral application.

65It is in G’s best interests that I undertake a proper, careful and considered analysis of all of the evidence before making a decision, be it final or interim.

66I appreciate, given the history of the matter, this trial has been difficult and distressing for everyone involved. I have no doubt all parties want to ensure the arrangements that are put in place, are in G’s best interests.

67I accept that there are legitimate concerns that have been raised about the safety of G in her mother’s care. There have been serious concerns raised historically about the safety of G in her father’s care, which no longer appear to be maintained by the mother.

68I am not satisfied that it is in G’s best interests to make orders today, to change her living arrangements.

69For those brief Reasons, I intend to dismiss the application and to proceed to hear from the parties in terms of their closing submissions.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CD

Secretary

7 FEBRUARY 2020