Smith and Smith

[2019] FamCA 1033

FAMILY COURT OF AUSTRALIA

SMITH & SMITH [2019] FamCA 1033

FAMILY LAW – CHILDREN – Where, on the last day of the final hearing, the father makes an application for the immediate removal of the child from the mother’s care to the father – Where the Court has grave concerns about the welfare of the child if she were to remain in the mother’s care based on a number of matters raise during the proceedings – Where the child shall live with the father until further order – Where the father and step-mother are able to assist the child in the transition to the father’s care – Where the mother is restrained from spending time with or communicating with the child.

Family Law Act 1975 (Cth)

APPLICANT: Ms Smith

RESPONDENT: Mr Smith

INDEPENDENT CHILDREN’S LAWYER: Ms Singh-Pillay, Cornerstone Law Offices

FILE NUMBER: BRC 4289 of 2013

DATE DELIVERED: 19 December 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 19 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Selfridge

SOLICITOR FOR THE APPLICANT: KLM Solicitors

COUNSEL FOR THE RESPONDENT: Ms Oakley

SOLICITOR FOR THE RESPONDENT: Sarah Cleeland Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Wardle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Cornerstone Law Offices

Orders

1. Until further order, the child X, born … 2010, live with the father.

2. The mother be restrained from spending any time with, or communicating with, the child.

3. The mother be restrained from approaching Child Dispute Services on Level 3, Commonwealth Law Courts Building, and is to immediately leave the precincts of the Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Smith & Smith has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4289 of 2013

Ms Smith

Applicant

And

Mr Smith

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. There has been an application made on behalf of the father for an immediate removal of the child from the mother’s care to the father.  I propose to take that unusual step in this case, pending the delivery of my reasons for judgment after what has now been a three-day parenting trial.

2. While I am acutely conscious of the fact that the child’s primary carer has always been her mother, and that she has not spent any time with her father for over a year, I am gravely concerned for the welfare of this child should she remain in the care of her mother even on a short-term basis.  The matters causing me this particular concern include the following:

   a)The child has presented with bizarre symptoms over a number of years, including tremors and what have been described as “pseudo seizures”, complaints of temporary blindness, complaints of temporary paralysis, complaints of loss of consciousness, to name but a few;

   b)There is no organic cause for these symptoms, despite thorough investigation;

   c)Medical specialist opinion from a paediatric neurologist and paediatrician is that the child presents with symptoms consistent with Functional Neurological Disorder, if not actually suffering from that disorder; or a Conversion Disorder, which Dr B, a psychiatrist who has also been involved in this case, says that Functional Neurological Disorder is now called.  It is a condition which, the specialists say, is not dangerous, but is a reaction to stress and in particular, the stress of being the focus of her parents’ long conflict about her.  That the child is aware of this focus is beyond doubt, and in particular I refer to the statement made by the child during the police interview on 17 February 2017, which makes this abundantly clear;

   d)Dr B’s observation that the development of the child’s disorder has occurred in circumstances where she has been living with the mother and spending little, if any, time with the father;

   e)The child’s condition has not significantly improved since she ceased to see the father.  Indeed, in my view, there appears to have been at least some deterioration in the child’s condition, in that according to the mother, the child has developed a new symptom, which the mother describes as an obsession with the mother’s breasts.  There is also a continuation, although perhaps not as frequent, of the myriad of bizarre symptoms experienced by the child;

   f)The content of a number of video recordings made by the mother are alarming.  The child is repeatedly recorded in various stages of undress, exhibiting bizarre behaviour including repeated blinking of her eyes, intermittent shaking of her legs, arms and hands, and apparent loss of consciousness.  There have been 123 video recordings produced by the mother in these proceedings.  She has given evidence of there being perhaps up to another 70 recordings made by others, which have not been produced.  What is more alarming, though, is the mother’s conversation with the child during the video recordings that were tendered into evidence.  In particular:

   i)On one occasion, the mother told the child that she had to keep recording in order to protect herself, and this was in circumstances where the child was asking the mother to stop recording;

   ii)The mother repeatedly stated to the child, upon presentation of a symptom, that she was being a good girl and that she was doing well;

   iii)The mother’s commentary throughout the recordings, sometimes prior to the exhibiting of a symptom, for example “she’s passed out”, quickly followed by the child seemingly passing out;

   iv)Repeated questioning of the child as to whether she will attend school and when the child says she will not, acceptance by the mother and assurances to the child that she will not have to attend school.

   g)One of these video recordings, with the child in a state of undress, was posted to a public internet site.  Whether or not the mother herself physically posted the recording, I find that the mother was more likely than not responsible for it being posted on a public forum;

   h)The content of an audio call by the mother to emergency services where the mother ignores direction by the operator as to how best to care for the child pending the arrival of an ambulance while she is heard repeatedly instructing the Mr & Mrs E, her elderly neighbours, to “keep recording.”

   i)The child’s extraordinary absenteeism from school, which has only recently improved as a result, it would seem, of Dr C’s intervention and the undertaking by the mother, after an interim hearing on 31 July, to ensure the child’s attendance at school;

   j)The mother’s engagement of a psychologist, Ms D, to see the child 31 times in the context of having conveyed to Ms D that the child had been sexually abused in the father’s household, and in what appears to have been an attempt to have the child recover memories of abuse.  This is all the more alarming when the mother withdrew all her allegations at trial, even before the father and his wife were cross-examined, without explanation;

   k)The mother’s frankly bizarre allegations against the father, e.g. that he had repeatedly beaten the child with a shovel, when there was absolutely no physical evidence to support such a claim.  If such abuse had occurred, it is inconceivable that the child would not have sustained injury, yet the mother maintained in her oral evidence that she believed that this had occurred;

   l)The mother’s preparedness to, in effect, hide behind the child in order to achieve what was likely to be her ultimate goal, namely, removing the father from the child’s life.  What I mean by hiding behind the child is that the mother repeatedly said in her evidence, “I believe my child” despite acknowledging that the child is not always a reliable source of information, and despite some of the child’s statements to have been frankly fanciful e.g. being beaten with a shovel;

   m)The mother’s appalling insistence that the child be subjected to a police interview of 54 minutes despite the child having been presented with what the mother says were serious symptoms of illness, and the consecutive days of questioning and pressure placed upon the child prior to her interview by police on 2 November 2018;

   n)The recommendation of the family report writer, Ms E, a very experienced social worker, that immediate removal is warranted.  So concerned was Ms E about the impact of her recommendation made in her 27 May 2019 report, she recommended that the report not be released to the mother until the day of the interim hearing, which occurred on 31 July 2019.  The child was not removed at that time, but Ms E maintained her recommendation before me.  Her concerns were that the mother would either abscond or harm the child.  She was not challenged on her opinion, nor was any submission made to challenge the basis of her opinion.  There is certainly evidence that the mother intended to leave her home, and proposed travelling around Queensland and home-schooling the child.  The mother rather reluctantly divulged that she had taken the child to view a different school to the one that she currently attends, and had not informed anyone about that.  I do not accept the mother’s evidence that her plans to travel around Queensland related to a holiday; and

   o)The strength of the mother’s beliefs, as expressed throughout her extensive cross-examination, about the father and his wife being a risk to the child, and the absence of any explanation for withdrawing her allegations, in my view, as correctly submitted on behalf of the father, makes the child remaining with her a dangerous situation.

3. It has been submitted on behalf of the mother that I would not remove the child from the mother for a number of reasons, including:

   a)that the mother is the primary carer – there can be no dispute about that;

   b)that the child has this disorder, which is caused by stress, and that a move is likely to be stress-provoking;  and

   c)the child’s wishes.

4. As to the child’s wishes, I note that Ms E expressed the view:

   Although these were comments made by the child during interview, I do not believe that the views are genuinely held.  I consider that her mother has heavily influenced the child’s views, and that she is effectively following her mother’s lead, as indicated by the acknowledgement that her mother told her that she did not have to go, and fully supports her in not spending time with the father.

5. I also note that despite significant pressure brought to bear or attempted to be brought to bear on the child on the occasion of the family report interviews on 21 March 2019, as described by Ms E in her report, the child nevertheless did spend time with the father, and certainly did not display what the mother describes as the child being petrified of the father.  She was calm.  While she did not engage warmly with the father, she certainly did engage to an extent, and really withdrew her wish to be in the room only after having lost a particular game that they were engaging in.

6. I have no doubt, though, that this move will be significant for the child, and may well be traumatic for her.  However, I am confident that the child will have the support of two loving adults in her father and step-mother, who will do everything in their power to assist the child to make the transition.  The initial transition will occur in Child Dispute Services very shortly, with the assistance, thankfully, of Ms E and the Independent Children’s Lawyer.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 19 December 2019.

Associate:

Date:  24.01.2020