SMITH & SMITH

[2020] FamCA 34

FAMILY COURT OF AUSTRALIA

SMITH & SMITH [2020] FamCA 34

FAMILY LAW – CHILDREN – With whom the child lives and spends time – Where the child has lived with the mother, who is her primary attachment figure, and spent time with the father – Where the mother stopped the father seeing the child and alleged that the child had been subjected to physical, sexual and emotional abuse in the father’s household – Where during the trial, these allegations were not pressed but the mother maintained that the child spend supervised time with the father – Where the father seeks that the child live with him and commence spending time with the mother after a moratorium period of six months – Where departmental investigations found that the child experienced emotional harm and the mother was the person responsible – Where the family report writer opined that if the child remained with the mother, the child’s longer-term emotional wellbeing is likely to be compromised and this will continue to impact on the child’s education and social development – Where it is found that the mother poses an unacceptable risk of emotional and psychological harm to the child – Where the child will live with the father and after a two month moratorium, the mother will spend a long period of supervised time with the child before commencing unsupervised time. 

Australian Passports Act 2005 (Cth)
Family Law Act 1975 (Cth)

Baghti & Baghtiand Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bant & Clayton [2019] FamCAFC 198
Briginshaw v Briginshaw (1938) 60 CLR 336
CDJ v VAJ (1998) 197 CLR 172
M & M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655

APPLICANT: Ms Smith

RESPONDENT: Mr Smith

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

FILE NUMBER: BRC 4289 of 2013

DATE DELIVERED: 28 January 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 17 – 20 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J. Selfridge

SOLICITOR FOR THE APPLICANT: KLM Solicitors

COUNSEL FOR THE RESPONDENT: Ms K. Oakley

SOLICITOR FOR THE RESPONDENT: Sarah Cleeland Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms D. Wardle

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

It is ordered that:

1. All previous parenting orders be discharged.

2. The mother and father have equal shared parental responsibility for the child, X born … 2010, in relation to major long term issues (as that term is defined in s 4(1) of the Family Law Act 1975 (Cth)) other than those involving health and education.

3. The father have sole parental responsibility for the child in relation to major long term issues involving the child’s health and education.

4. The child live with father.

5. The mother spend no time with child for two months from the date of this Order.

6. Upon the expiration of two months, the mother spend time with the child for up to two hours per fortnight for three months to be supervised by a suitably qualified psychologist, recommended by the independent children’s lawyer, who has been provided with a copy of the family report filed 26 June 2019 and addendum thereto filed 3 December 2019 and the reasons for judgment of the Honourable Justice Carew dated 28 January 2020.

7. Upon the expiration of five months from this Order, and conditional upon the mother spending time with the child in accordance with paragraph (6) herein, the mother spend time with the child for up to two hours per fortnight at a contact centre or private service nominated by the father in writing for a further period of 12 months.

8. For the purposes of the mother spending time with the child pursuant to paragraphs (6) and (7) herein, each parent shall comply in a timely manner with all reasonable requests made by the person or service supervising the mother’s time with the child and all costs associated with supervision are to be borne by the mother.

9. Upon the expiration of 17 months from this Order, and conditional upon the mother spending time with the child in accordance with paragraphs (6) and (7) herein, the mother spend time with the child unsupervised at all such times as may be agreed between the parents in writing and failing agreement as follows:

   (a)From 9.00am until 12.00pm each alternate Sunday for a further period of six months;

   (b)From 9.00am until 4.00pm each alternate Sunday for a further period of six months;

   (c)From 9.00am Saturday until 4.00pm Sunday each alternate weekend for a further period of six months;

   (d)Thereafter from after school Friday until before school Monday during school term and for one half of all gazetted Queensland school holiday periods for the first half in odd years and the second half in even years.

10. For the purposes of paragraph (9) herein, the father nominate in writing the place at which changeover occurs.

11. For the purposes of paragraph (9)(d) herein, school holidays shall be deemed to commence at the conclusion of the last day of the school term and conclude at 4.00pm on the day prior to the first day the child attends school for the new term and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights then the parent with whom the child is to spend the first half of such periods shall retain the additional night.

12. From the date of this Order, the mother be at liberty to send cards and gifts to the child on special occasions to an address nominated by the father and the father be at liberty to vet any card or gift received before giving it to the child.

13. Upon the expiration of six months from the date of this Order, the mother be at liberty to telephone the child on one occasion each week at a time and day and on a number nominated by the father in writing with the father to be at liberty to place the call on speaker.

14. The mother and father each keep the other informed at all times of an email address and telephone number where they can be contacted.

15. Until the expiration of 17 months from the date of this Order, the mother be restrained from attending at or near the child’s school unless prior written agreement is provided by the father.

16. The child’s passport currently held in safekeeping at the Westpac Bank be released to the father and the father be at liberty to provide a copy of this Order to Westpac for that purpose and thereafter the father hold any passports and visas issued for the child.

17. The father be at liberty to obtain, renew and/or apply for a passport for the child at the father’s expense.

18. In the event the mother fails and/or refuses to sign the passport document/s for the child within 14 days from being presented with same by the father:

    (a)For the purposes of s 11 of the Australian Passports Act 2005 (Cth), the father have sole parental responsibility for the child; and

    (b)The father be permitted to solely sign, apply for and/or renew, without consent of the mother, any Australian travel document which permits:

    (i)The child to have an Australian travel document including but not limited to an Australian passport and visa; and

    (ii)The child to travel internationally.

19. Prior to travelling internationally with the child, the father give four weeks’ notice to the mother and include the following information:

    (a)       The departure and return dates to and from Australia;

    (b)       Details of the destination of travel and an itinerary; and

    (c)       A contact number for where the child will be staying.

20. The father be at liberty to provide a copy of the family report filed 26 June 2019 and addendum thereto filed 3 December 2019 and the reasons for judgment of the Honourable Justice Carew dated 28 January 2020 to any treating psychologist or therapist for the child or himself.

21. The mother be at liberty to provide a copy of the family report filed 26 June 2019 and addendum thereto filed 3 December 2019 and the reasons for judgment of the Honourable Justice Carew dated 28 January 2020 to any treating psychiatrist, psychologist, or therapist for herself.

22. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.

NOTATION

1. It is requested that the Senior Registrar refer a copy of these reasons (in particular paragraphs 118, 151 - 157) to the Australian Health Practitioner Regulation Agency (AHPRA) for consideration of what, if any, action should be taken against Ms D from F Service Pty Ltd trading as the F Service at Suburb G in relation to her provision of treatment to the child X born … 2010 and Ms Smith during the period 13 November 2018 to 14 May 2019.

2. It is requested that the Senior Registrar refer a copy of these reasons to the Department of Child Safety Youth and Women and bring to their attention paragraphs 118, 151 - 157 in particular and request they consider whether Ms D is an appropriate person to conduct training for child safety officers.

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

REASONS FOR JUDGMENT

1. Ms Smith and Mr Smith are the parents of nine year old X. They are in dispute about parenting arrangements, in particular, with whom she should live and what, if any, time she spends with the other parent.

2. Historically, the child has lived with the mother and spent time with the father. The mother stopped the father seeing the child from October 2018 and alleged that the child had been subjected to physical, sexual, and emotional abuse in the father’s household. The father denied all allegations and in turn alleged that the mother was causing the child to not only believe that he was a person to be feared but also encouraging the child to believe she was sick when she was not.

3. During the trial, and contrary to everything said during her evidence, the mother, through her counsel, did not press her numerous and heinous allegations against the father and his wife without explanation. The mother nevertheless maintained that the father’s time with the child should be supervised.

4. For the reasons set out below, I find that the mother poses an unacceptable risk of emotional and psychological harm to the child. The child will live with the father and, after a two month moratorium, the mother will spend a long period of supervised time with the child before commencing unsupervised time.  

Proposals

1. The mother proposes[1] that she have sole parental responsibility for major long term issues and for the child to live with her. She also proposes that the child spend supervised time with the father and that the child undergo psychiatric therapy to address her resistance to the father and, upon that being addressed, the parents attempt to reach agreement about what further time the child should spend with the father.

   [1] See the minute of order - exhibit 8.

2. The father proposes[2] that he have sole parental responsibility for major long term issues relating to health and education and that the parents have equal shared parental responsibility in relation to other particular major long term issues. He proposes that the child live with him and spend no time with the mother for six months. Thereafter he proposes that the child spend supervised time with the mother until such time as the mother addresses various issues relating to her inability to promote the father/child relationship and, upon her doing so, the parents attempt to reach agreement about what further time the child should spend with the mother.

   [2] See the father’s amended Response which was further amended during submissions to reflect long term supervision.

3. The independent children’s lawyer (“ICL”) proposes[3] that the father have sole parental responsibility for major long term issues and that the child live with him. Further, the ICL proposes that the child spend no time with the mother for three months and then no less than two hours per fortnight supervised by a highly skilled counsellor or child psychologist for six months. Thereafter, the ICL proposes that the child spend unsupervised time with the mother.

   [3] See exhibit 11.

Issues

1. The significant issues requiring determination in this case were clarified and confirmed with the assistance of the parents and the ICL and are as follows:

   a)What is the extent of the child’s medical condition?

   b)Is the child at an unacceptable risk of emotional or psychological harm from the mother?

   c)What is the likely impact on the child if she is deprived of a relationship with the father?

   d)What is the likely impact on the child if she is removed from the mother’s primary care?

   e)Is it possible for the child to have a relationship with both parents?

2. When this matter was set down for trial the mother contended that a significant issue in the proceedings (and the reason she had contravened the existing parenting order by withholding the child) was that the father and his wife posed an unacceptable risk of sexual/physical/emotional/psychological harm to the child. At the conclusion of her evidence (and prior to cross-examination of the father or his wife) the mother, through her counsel, informed the Court that she did not press “that the child is at an unacceptable risk in the father’s care of physical, emotional, or sexual harm from the father and/or his wife” and that this was no longer an issue for trial.  No explanation was provided for the mother’s sudden change of position.

3. The mother’s change of position was both curious and extraordinary in light of her strident and unshakable evidence during cross-examination that she believed the child had been the object of sexual deviance by the father’s wife, repeatedly beaten with a shovel by the father, locked in a dark room, deprived of food, and subjected to camera surveillance in her bedroom at the father’s home. The mother also made it clear that in her view the child’s symptoms of Functional Neurological Disorder (“FND”) (or Conversion Disorder) were caused by the trauma the child had endured in the father’s household. As recently as March 2019, the mother was still agitating for criminal proceedings to be pursued against the father and step-mother. She had engaged a criminal law firm to make representations on her behalf and in March 2019 the mother misinformed Ms H, the family report writer, that there was an ongoing police investigation and that the police would not approve of the child seeing the father during the family report interview process. Contrary to the mother’s assertions to Ms H, the police investigation concluded in March 2017 and has not been re-opened.

4. Despite the mother’s change of position at trial, she maintained that the child should not spend unsupervised time with the father until certain conditions were fulfilled. The reasons proffered for supervision were based upon the premise that the child was petrified of the father and that her medical condition would be exacerbated if she were forced to spend time with the father before she was ready. For reasons which will become evident, I do not accept the premise upon which the mother’s position is based.

Background

1. As with most parenting cases, it is useful to set out some historical background to the parent’s dispute.

2. The mother and father were married in 1998 and separated in 2012. They divorced in 2014. They have one child together, X born in 2010.

3. The mother is 49 and engaged full time in home duties although she has undertaken some study in healthcare. Until 19 December 2019, the mother and child lived together in rental accommodation in Suburb J, an outer suburb of Brisbane.

4. The father is 49 and operates his own business. He remarried in 2015. His wife is Ms K and they live together in L Town. Ms K is currently studying full time, although she was formerly a public servant for 21 years.  

5. A final parenting order was made on 23 May 2016 (“the 2016 order”) that provided for the child to live with the mother and spend alternate weekends and holidays with the father. Despite the 2016 order, the mother stopped the father spending time with the child from 22 October 2018 and stopped telephone communication between the father and child from 12 November 2018. 

6. The 2016 order was suspended by order on 31 July 2019 upon the mother’s undertaking to facilitate the child attending school unless a medical certificate was provided.

7. The child has missed an extraordinary amount of school over the last three years (30 days in 2016, 23 days in 2017, 29.5 days in 2018, 39 days in semester 1, 2019 and 4 days in semester 2, 2019).

8. The child has suffered a number of febrile seizures, most recently on 6 January 2015, but has outgrown these. The child has been assessed by numerous medical and allied health professionals, particularly over the last few years. The mother reports that the child presents with an array of unusual symptoms including tremors, loss of consciousness, temporary paralysis, temporary blindness, dizziness, speaking in an odd voice etc. Neither the father nor his wife have ever observed these symptoms.

9. The parents appear to accept that the child has been diagnosed with FND (or Conversion Disorder), although it may well be that it is more correct to say that the child has been diagnosed with symptoms of this disorder. The child has displayed a number of bizarre symptoms which were found, after extensive investigation, to have no medical cause. Medical specialists opine that the condition is related to the stress the child is experiencing in her environment, in particular, family conflict.

10. The mother has taken 123 video recordings of the child’s ‘symptoms’ and 12 of them were tendered into evidence. I must say that to the untrained eye, the child appears to be play acting with significant encouragement from her mother.

11. The mother said that two of her neighbours (Mr and Ms E) and a friend, Ms M, have also witnessed the ‘symptoms’ and video recorded them. These people were not witnesses in the mother’s case (although an attempt was made to rely upon affidavits from Mr and Ms E but when the mother could not make them available for cross-examination she no longer sought to rely upon their affidavits). The mother estimated that up to a further 70 recordings taken by her neighbours and/or friend exist. The mother did not produce any of these recordings.

12. On 9 November 2016, the child was referred by her then treating General Medical Practitioner, Dr N, to Dr C, a paediatrician. On each occasion that the child has been examined by Dr C up to the end of 2018, the examinations have been described as normal. 

13. In her affidavit filed on 26 November 2018, the mother says that on an unspecified date the child told her that she had entered her step-mother’s bedroom after hearing some sounds coming from the bedroom and saw her step-mother touching herself and that she continued to touch herself despite the presence of the child. The mother says that the child told her that the incident had occurred in 2016.

1. On 26 February 2017, the mother took the child to the O Hospital Emergency Department at 6.43pm. The mother was accompanied by her elderly neighbour, Mr E. The reason for the attendance related to an allegation, attributed by the mother to the child, that the father had hit the child on the head. The mother informed staff that the child had been diagnosed with epilepsy. The mother conceded during the trial that the child has never been diagnosed with epilepsy. The hospital records include the following information:

   … no injuries found. …

   …

   [The mother] states that it is only through questioning X (sic) about her visits that she discloses that her father and his partner have hit her on her head at various times.

   …

   [Ms H] observed child who appeared happy and active. She skipped out to the Paeds kitchen and retrieved a biscuit. … Child was mostly outside while [Ms H] and [the mother] spoke.

   …

2. Despite there being no injury, the child was interviewed by police on 27 February 2017 at the mother’s instigation. The interview commenced at 6.57pm and took 28 minutes. At the commencement of the interview the child was told that the interview was being recorded by video camera. The child looked towards the camera and smiled.

3. During the police interview, the child’s demonstration of being ‘hit’ in the head by her step-mother involved one light tap on her head. The child’s demonstration of the father ‘hitting’ her head was similarly minor and the child said “it hurt a bit”. Of more significance is the child’s statement that her parents are fighting over her in court and she is upset by that. The child also said, among other things:

   … when I get bigger my mum said that I will say to court that I am going to choose my mum because my mum is actually nice to me and tells me what my dad is doing wrong and like what my dad is doing …

4. No action was taken by police against the father or step-mother. The mother did not inform the father that the child had been interviewed by police. The father only became aware of the interview from documents produced pursuant to subpoena during these proceedings.

5. On 21 March 2019, the mother told Ms H, the family report writer that in December 2017 the child said her step-mother was doing the “wrong thing” in the bathroom. The mother said that the child did not expand upon this because she had a panic attack and “blacked out” but later that day she questioned the child in front of Mr and Ms E and the child said that her step-mother had put her own finger into her vagina and into her mouth and then into her anus and into her mouth. In her affidavit filed 26 November 2018 the mother says that these ‘disclosures’ occurred on two different days namely on 31 October 2018 (reference to the “wrong thing”) and 1 November 2018 (reference to the “finger in vagina”). Although Ms H drew attention to the disparity in the dates in the family report the mother did not explain the disparity during the trial. The mother also told Ms H the child had made the ‘finger in vagina disclosure’ on 5 March 2019 to Ms D. According to Ms H the mother said that the child disclosed “fresh information…namely that when Ms K came into the bathroom, she locked the door, kissed her and removed her clothes before putting her finger in her vagina and mouth.”  Ms D’s consultation notes for 5 March 2019 make no mention of the step-mother kissing the child but do record the child as having said the step-mother “put her finger in her vagina, then her mouth, then on her bottom then her mouth again”, and that it “kinda happened two times, once in the bedroom and once in the toilet”.  The mother also told Ms H that on 6 March 2019 she took the child to the E’s home so that she had witnesses to what the child was saying.

6. On 7 December 2017, the child’s then treating General Medical Practitioner, Dr P, wrote another letter of referral for the child to Dr C. In his letter of referral he said:

   …

   As you are aware that [the father] and his ex wife are not in talking terms which I feel is affecting X’s mood and stability. I do get conflicting reports from both parents regarding X’s mood when she comes back after spending some time with either of them. Its (sic) hard for me to say if X (sic) has been having seizures or not …

   From the history I gather X has found a way to miss school by getting to the sick bay more often knowing someone will pick her up and she can miss school. Whenever she has missed school and come to me for an assessment I have not found anything wrong with X most of the time. I have raised this concern with her Mum regarding not encouraging this behaviour. I believe X might benefit from counselling considering she has to take lot (sic) on board with regards to her parents (sic) separation.

7. The mother rejected Dr P’s opinion that the child’s presentation was being used by the child to get out of school. The mother did not go back to Dr P.

8. On 8 December 2017, the child was again seen by Dr C. Also in attendance at the consultation were the mother, father and step-mother. Dr C’s examination of the child is described as entirely normal. On 24 January 2018, Dr C referred the child to a clinical psychologist, Dr Q (it seems that Dr C initially referred the child to another psychologist Dr R whom the mother took the child to once on 9 January 2018 but missed the next four appointments). Dr C also recommended that the child attend school and participate in activities including swimming. At the end of her notes for the consultation on this day is the following entry:

   to video any seizures/concerning episodes

9. While I initially interpreted this note to mean that Dr C suggested videoing the child when she presented with symptoms, I am not sure this is a correct interpretation. It would seem to be at odds with Dr C’s other advice which was to distract the child when she was exhibiting symptoms and maintain usual routines including going to school. In any event, it does not appear that Dr C ever witnessed the child’s symptoms either in person or on video. The first video recording taken of the child was almost a year later on 22 October 2018 (according to exhibit 5).

10. In a letter dated 13 August 2018, Dr Q, the psychologist, opined that the child was suffering from a moderate level of anxiety although the child was unable to describe many of her symptoms other than “dizziness”. Dr Q noted that the child was “quite open about the events and activities that occurred at her father’s home during access, but was very guarded in relation to the day-to-day activities that occurred during her access periods with her mother”. The child did not return to Dr Q after the initial eight sessions.

11. The mother says that the child suffered an episode of slurred speech and tremors while they were walking on the beach on Monday, 22 October 2018. The mother’s evidence about this incident contained a number of inconsistencies. In any event, the child was transported to the T Hospital by ambulance and released at 12.35am the following day. The child did not attend school that day.

12. On Wednesday 24 October 2018, the mother collected the child early from school because she was said to be experiencing a hand tremor. The mother took the child to her neighbours, Mr and Ms E, so that she had witnesses to the child’s ‘symptoms’. The mother called emergency services and during this call the mother instructed the E on three separate occasions to video record the child. On one of these occasions, the mother missed an instruction given to her by the operator. The mother did not produce the video recording made on this occasion. The child was again transported by ambulance to the T Hospital and released shortly thereafter. The mother said in her affidavit that a neurologist at the hospital diagnosed the child with FND. No evidence was produced to corroborate this assertion by the mother.  

13. On Thursday 25 October 2018, the child was again seen by Dr C who noted that the child was smiling and reactive. Contrary to the mother’s evidence that Dr C “confirmed X’s symptoms”, her examination of the child is described as normal.

14. The mother did not permit the child to go to her father’s on 26 October 2018 and kept her at home.

15. The mother admitted that she contacted the Department of Child Safety Youth and Women (“the Department”) on 31 October 2018 and the record of her notification is as follows:

    … [the child] started telling a story about a little girl who was in the bathroom and the step-mother came in and started masturbating in front of the child. [The mother] believes that this is [the child’s] way of saying that her step-mother Ms K has does (sic) this. [The mother] was asked the words that [the child] used when she was telling the story, and [the mother] said that they could not remember the words that [the child] used as they were in shock but it eluded to masturbation.

    [The mother] provides that [the child] reported that this happened about a year ago.

16. In her affidavit filed on 26 November 2018, the mother says that the child made a “disclosure … regarding sexual abuse perpetrated by [the step-mother] towards her”.  The relevant paragraphs are set out below:

    46.At first, X told me that Ms K was ‘doing the wrong thing’. When I asked X what she meant she told me she was going to tell me a story. She started saying to me “There was a girl named X she was eight (8) and Ms K was doing the wrong thing it was another time”. X then started having a panic attack, she collapsed and dropped to the floor.

    47.I sought some legal advice as I was concerned about what “doing the wrong thing” meant.

    48. After school on 1 November 2018, I went with X to our neighbours and asked her what she meant by “Ms K doing the wrong thing”. We are very close to our neighbours and X feels very comfortable with them.

    49. At first, X was signing what had happened to her. I apologised to her but said I wasn’t sure what she meant.

    50. X disclosed to us that there was a time approximately 12 months ago where she was alone in the bathroom when she was at Mr Smith and Ms K’s. She said that Ms K came into the bathroom and locked the door behind her. X said that Ms K removed her clothes and put her finger inside of her vagina and her own mouth. She said that she then put her finger in her bottom and then in her own mouth. When she was done, she looked at X with a tilted head (which X demonstrated) then unlocked the door and let X leave the room.

17. When asked how it could be that the mother had no memory of what words the child used when she spoke to the Department on 31 October 2018 and yet her affidavit filed 26 November 2018 purports to set out the words used, the mother said that she had somehow recovered that memory.

18. On 1 November 2018 both the mother and Mr E questioned the child. The mother said she wanted Mr and Ms E to witness the child “blacking out”. The mother also admitted during cross-examination that for three consecutive days she, and on one occasion Mr E, questioned the child. The mother admitted during cross-examination that she had wanted the Court to believe that the child’s statements were spontaneous and unrelated to anything she was asked. The mother said that the child had another panic attack on 1 November 2018.

19. The child was subjected to a second police interview on 2 November 2018. On the way to the police station the mother said that the child exhibited symptoms associated with FND. The mother’s friend, Ms M accompanied them in the car on the way to the police station and twice video recorded the child having an ‘episode’ which the mother described as seizures and passing out. Neither of these video recordings were produced by the mother. Despite the mother’s description of the child’s presentation she did not seek medical attention for the child but rather presented her to police for questioning. The mother admitted that her purpose in having the child questioned by police was to have the child recount the story the mother said she had been telling for the previous three days.

20. Upon arrival at the police station, the mother did not inform police that the child had been subjected to three consecutive days of questioning nor did she tell them that the child had been having seizures and passing out on the way to the police station.

21. In this second police interview the child gave a confused, inconsistent and implausible account of her step-mother locking her in a bedroom one morning, taking off her (i.e. the step-mother’s) pyjamas and touching her right “butt cheek” and her tongue with her finger. The child also said her father and step-mother had hit her and friends in the head with a shovel and that she expected to be going to court.

22. The mother agreed during cross-examination that she “confronted” the child after the police interview to ask her why she did not tell police what she had told the mother. According to the mother, the child said that she “freaked out” because of the video camera in the police interview. As noted earlier the child was perfectly at ease and even smiled for the camera in her first police interview and by the time of the second interview it is apparent from exhibit 5 (the mother’s recordings) and exhibit 2 (the second police interview) that the child is perfectly at ease in front of a camera.

23. The child was also interviewed on 2 November 2018 by child safety officers from the Department, although it is unclear at what time on 2 November this occurred.

24. No action was taken by police or the Department against the father or step-mother.

25. On 5 November 2018, the mother showed one of the video recordings she had made of the child’s ‘symptoms’ to a General Medical Practitioner, Dr U. The mother told Dr U that the child had temporary paralysis and was unable to walk yet Dr U was able to get the child to walk. Dr U’s practice notes include the following:

    Reason for visit:

    Pseudoseizures

    …

    Mum showed me video of what X has been doing over the (sic) weekend ‘losing consciousness’ – X appears to be voluntarily movings (sic) arms and legs and having ‘blackouts’ – do not appear to be genuine LOCs

    …

    Parents do not get along

    Mum states that all of this began after X visited her father

    …

    Concerns have  been raised by X’s dad … that mum ‘doctor shops’ and has seen multiple GPs if she feels that she isn’t getting the diagnosis or management that she wants

    TODAY

    Initially lying in the bed in the treatment room, moving arms and legs, shaking

    Able to answer questions,

    States ‘pain everywhere’, on further questioning confirms that there is pain throughout her whole body, not worse anywhere in particular

    During consult she appears to close her eyes and lower her head intermittently, continues to tremor during this time, breathing normally, crinkled forehead and flinched when stroked on forehead

    mum states this is her ‘going in and out of consciousness’

    painful stimuli not attempted as X definitely not unconscious

    I walked X from treatment room to my room, mum states can’t walk but she walked – was toe walking and shaking her legs, does not appear to be genuine inability/tremor

    Neuro exam completely normal

    Had (sic) and leg movements intermittent, distractible

    …

    X does not appear to be having genuine neurological symptoms –

    Likely behavioural stress/adjustment component

    X is a switched on kid and seems to be aware of the benefits of exhibiting these symptoms-

    doesn’t have to go to school, mum spends more time with her

    …

    DScssion (sic) with Mum re: importance of not having discussions about her dad in front of X, it is important to keep adult conversations adult and not involved (sic) X, particularly when she is talking disparagingly

    Reinforced need to normalise X’s routine, go to school

    Not video her attacks, ‘play them down’, don’t make a bit (sic) thing of when she is having them etc

26. Dr U told the mother that the ‘symptoms’ were not genuine. The mother rejected Dr U’s opinion and despite Dr U’s advice not to video the child, the mother continued to do so and the child continued to miss school e.g. in semester 1, 2019 the child missed 39 days of school.

27. On 13 November 2018, the mother took the child to yet another psychologist, Ms D. The first two appointments (about 50 to 60 minutes on each occasion) were largely occupied by the mother informing Ms D of a long list of accusations against the father and step-mother including that they locked the child in a cupboard in the dark, deprived her of food, put the child at risk by taking her on rides at Sea World, that the father had an array of weapons, had engaged in stalking, monitored the child with cameras in her bedroom, left her in a car unsupervised, hit her in the head, engaged in sexual misconduct etc. The mother also told Ms D on 3 December 2018 that the child had been diagnosed with epilepsy when she had not. 

28. Ms D saw the child for a maximum of ten minutes on each of the first two appointments. During these two occasions, Ms D did not observe any concerning behaviours by the child nor hear her make any statement indicating that she had been harmed in any way by the father or step-mother. Despite this, Ms D concluded on 21 November 2018 that the child’s “behaviours … suggest more sexual abuse than yet disclosed.”

29. Extraordinarily, Ms D saw the child on 31 occasions between 13 November 2018 and 14 May 2019, ostensibly to treat the child’s anxiety.

30. In a letter from Dr C to Dr N, dated 16 November 2018 Dr C opined, among other things:

    …

    I think in X’s case, she is responding to stress in her environment, in particular family conflict, …[I] encouraged them[4] to keep X engaging in her usual activities, including sending her to school. Distracting her from her symptoms is often a useful strategy.

    …

    [4] The mother and step-mother attended this appointment. The father was interstate.

31. The mother ceased to consult Dr C when she refused to see the mother separately from the father. Dr C insisted that clinically it was more reliable to convey information to the parents at the same time to avoid any miscommunication. The mother raised family violence as a reason for her refusing to attend appointments with the father. The mother did not expand upon this in her evidence. I note that the mother’s previous attempts to obtain a protection order against the father have either been unsuccessful or withdrawn.

32. The child was interviewed by child safety officers from the Department on 18 December 2018.

33. On 5 February 2019, Dr U referred the child to Dr V at W Service. As already noted, the mother had, by this time, already arranged for the child to see Ms D, and refused to provide her name to Dr U. It is unclear whether the child saw Dr V.

34. On 27 February 2019, the Department concluded their investigation and found that the child has experienced emotional harm and the mother was the person responsible. The harm identified was the mother continually exposing the child to ongoing conflict between the parents and exposing her to ongoing discussions about the Court proceedings. The Department concluded that there was no evidence that child has suffered harm from the father or step-mother. No action was taken because the Department considered it to be a family law matter and they considered that there was very little they could do to assist. The Department nevertheless referred the mother to “intensive family support”, however it is unclear if the mother took this up.

35. When the child was interviewed on 21 March 2019 by Ms H, the child said that she could “swap” the movements to other parts of her body. This would seem to lend some support to Dr U’s opinion that the child’s ‘symptoms’ were not genuine, but ultimately nothing really turns on whether or not the symptoms are genuine. The specialist medical assessment is that the child’s presentation is stress related.

36. Dr Y, a neurological paediatrician, who only saw the child on one occasion in October 2018 was asked by the ICL during the trial to view five of the videos tendered in the trial. By agreement, a summary of her response to the ICL was also tendered into evidence. Dr Y opined that what she observed in the recordings were “non-epileptic episodes and part of Functional Neurological Disorder” and were “probably similar to the episodes she saw X for”. She further opined that the best way to treat “these cases is with psychological input, not lots of opinions”.

1. The mother said during her evidence that the child had recently undergone assessment for Autism Spectrum Disorder by a person at the same practice as Ms D. According to the father, and he was not challenged, Autism Spectrum Disorder had already been ruled out by a paediatrician, Dr Z some years ago.

2. Since the child ceased seeing her father in October 2018, the mother reports observing or hearing the following in relation to the child:

   a)An “absent seizure” when asked to do the washing up;

   b)Urinary incontinence;

   c)Severe anxiety such that the chid had to sleep with the mother and would not go to sleep unless the mother was facing the child;

   d)Unable to look at a red light in her room because it reminded her of blood;

   e)Becoming obsessed with the mother’s breasts;

   f)Puberty accelerated;

   g)Being petrified of the father;

   h)Not wanting to leave the house;

   i)Persistent hopping and telling her mother that her brain had told her to do it and she could not stop;

   j)Describing the father and step-mother as evil and wanting to kill them.

3. The mother has made numerous allegations against the father and his wife over a number of years. The sole source of information to support the allegations rests upon what the mother says the child has told her.

4. As a result of the mother’s allegations the child has been interviewed multiple times by police and child safety officers from the Department.

5. Before turning to consider the particular issues requiring determination I set out the principles applicable in all parenting disputes.

Applicable legal principles

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[5]

   [5]Family Law Act 1975 (Cth), s 65D.

2. A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:

   a)The person or persons with whom a child is to live;

   b)The time a child is to spend with another person or other persons;

   c)The communication a child is to have with another person or persons; and

   d)The allocation of parental responsibility for a child.

3. The objects and principles of Part VII of the Act are set out in ss 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.

4. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).

5. The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc (s 60CC).

6. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).

7. Family violence is defined in s 4AB and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.

8. In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding” and proof to the reasonable satisfaction of the court “should not be produced by inexact proofs, indefinite testimony or indirect inferences”.[6] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[7] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard” although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”. ^[8]

   [6] M & M (1988) 166 CLR 69 citing Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J).

   [7] M & M (supra); N and S and the Separate Representative (1996) FLC 92-655.

   [8] See Johnson & Page (2007) FLC 93-344, 81,890 [68], 81,891 [71].

9. The Full Court of the Family Court recently reviewed the role of the Court in assessing risk in Bant & Clayton[9] and said:

   [9] [2019] FamCAFC 198.

   38.  In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:

   Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

   39.  It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).

   40.  The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment.  As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:

   151.       …Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …

   41.  As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.

10. The Full Court went on to stress the importance of the whole of the evidence in assessing risk and said:

    51. The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.

11. The Court is not required to make findings of fact on every factual dispute raised by the parties.[10] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[11]

    [10]Baghti & Baghtiand Ors [2015] FamCAFC 71.

    [11]M & M (1988) 166 CLR 69.

12. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

13. Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).

14. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

15. Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).

16. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

17. Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[12]

    [12]Banks & Banks (2015) FLC 93-637.

What is the extent of the child’s medical conditions?

1. In a letter from Dr C to Dr N dated 16 November 2018, Dr C summarised her history of involvement and opined:

   [The child] has seen me several times over the last two years for review after experiencing a variety of symptoms including dizzyness (sic) and shaking episodes. X (sic) has a history of Febrile seizures (seizures which only occur in the context of a fever) which she seems to have outgrown.

   X recently has had episodes of shaking/ change in voice and change in conscious level. X has been seen by myself and Dr Y, a paediatric neurologist. We both agree that Xs (sic) current symptoms are non-organic/functional in nature. This means that her symptoms do not have a medical cause and are not dangerous. She is not deliberately producing these symptoms but they are her bodies reaction to things which are outside of her control. I think in X’s case, she is responding to stress in her environment, in particular family conflict, and I am organising for her to have ongoing support with a psychologist. This has been beneficial to her in the past. I have explained the diagnosis to Ms Smith and Ms K and encouraged them to keep X engaging in her usual activities, including sending her to school. Distracting her from her symptoms is often a useful strategy.

   As family conflict seems to be a trigger for X I suggested family counselling but Ms Smith was not keen to pursue this.

2. As already noted, the trial proceeded on the basis that the child had been diagnosed with FND on 24 October 2018, although the father initially corrected this during cross-examination to state that the child had exhibited symptoms of FND. After some pressure from the mother’s counsel, without objection, the father appeared to make a concession about the diagnosis. Counsel for the mother, who made the assertion a number of times during cross-examination that a diagnosis of FND had been made, quite properly sought to correct the record by informing the Court that he may have been mistaken when making that assertion as he was unable to locate any document confirming the diagnosis said by the mother to have been made on 24 October 2018.

3. Although it is true that the summary of Dr Y’s evidence (exhibit 9) appeared to proceed upon the premise that such a diagnosis had been made, I note that on 1 May 2019 it seems the mother was advised by the National Disability Insurance Scheme that she needed to obtain an opinion from a neurologist to support her application for funding in relation to the child’s FND. That tends to suggest the absence of a diagnosis.

4. In the end, I am not of the view that much turns on whether or not a conclusive diagnosis of FND has been made or whether or not the symptoms are genuine or not. The medical experts agree that there is no medical cause for the child’s presentation, that her condition is not dangerous, and that her presentation relates to stress which will be best managed with psychological assistance and no further assessments.

Is the child at an unacceptable risk of emotional or psychological harm from the mother?

1. For the following reasons I find that the mother poses an unacceptable risk of emotional or psychological harm to the child.

2. According to the mother, the child appears to have become more and more debilitated over the past three years despite her time with the father and step-mother being limited to alternate weekends and half holidays[13] and then ceasing altogether in October 2018.

   [13] Other than occasions when the mother did not facilitate the child spending time with the father.

3. In December 2018, the mother reported to Ms D that the child was refusing to bathe. In January 2019, the mother told Ms D the child was having nightly nightmares; was scared of unfamiliar people; was having mood swings and self-harming. On 7 January 2019, the mother told Ms D that the child was beginning to understand that she was sick. According to Ms D the child’s anxiety had worsened as at 30 January 2019, her “forgetting” was “worse” as at 13 February 2019, and her fear of the dark was “worsening” as at 6 March 2019. By May 2019, the mother reported to Ms D that the child was continually walking backwards and had developed temporary blindness. At the time of trial the mother said the child also continued to have incontinence problems, intermittent ‘seizures’, and had developed an unhealthy obsession with the mother’s breasts.

4. The mother initially sought to have the Court believe that the child’s ‘condition’ arose because of trauma suffered at the hands of the father and step-mother. Although the allegations against the father and step-mother are not pressed, the mother contends that the child is petrified of the father and should only see the father unsupervised after successful psychiatric therapy.

5. As the medical evidence suggests that the child’s symptoms are stress related, an obvious question arises – is the mother the source of the stress? This is the very point raised by Dr B, the psychiatrist who assessed the parties during these proceedings.

6. While the mother was not diagnosed with a mental illness, Dr B was of the view that “the Child’s functional and behavioural problems since 2014 had created a syndrome of anxiety for [the mother]” and that the history “raises the notion that The Mother believes she knows what is best for The Child and the possibility that she has difficulty in complying with medical or mental health recommendations that are in the best interests of the Child (as opposed to her best interests)”. Dr B expressed it as “bizarre” that the mother responded to his question about the health of the child as “good” given the history. Dr B opined that the mother’s consideration of home schooling the child would have “significant prognostic considerations”. Dr B found the mother to be, at times, spontaneously argumentative. According to Dr B, treatment for the child requires stability and a management plan that “must not focus on disability, but which must focus on functioning, e.g. attending school and extracurricular activities”. Dr B opined that the child has developed Conversion Disorder i.e. “a serious stress related disorder of emotional and psychological functioning” while mainly in the mother’s environment.

7. In determining the issue of risk to the child from the mother it is pertinent to observe firstly, that the child is well aware that she is the focus of the conflict between her parents and that her mother does not want her to have a relationship with her father. She is also aware of the mother’s view that the father is a person who will hurt her (the child).

8. As long ago as 7 August 2016, the father provides an account of the mother not only involving the child directly in a dispute about the child’s passport but also making statements to the child (in face of the father’s denials) that “Daddy’s hurt you. Daddy’s hurt you hasn’t he”. This evidence was not challenged by the mother.

9. The child’s statements to police on 27 February 2017 not only confirm the child’s anxiety about being the focus of her parent’s conflict but of the mother’s direct involvement of the child in the dispute. As noted above the child said among other things:

   … when I get bigger my mum said that I will say to court that I am going to choose my mum because my mum is actually nice to me and tells me what my dad is doing wrong and like what my dad is doing …

10. The child was also exposed to the mother’s outburst opposing the child seeing the father at the family report interviews on 21 March 2019. The relevant paragraphs of Ms H’s report are set out below:

    203. Ms Smith reacted immediately with great resistance toward this part of the process and argued with the report writer for several minutes as to why it would not be good for X to see her father. She cuddled X reassuringly and the child appeared to be also trying to reassure her.

    204. While X was present next to her, Ms Smith referred to Police investigations and warned the report writer that the Police would not approve of X seeing her father. Ms Smith went on to say in front of the child that exposure to her father and Ms K was likely to trigger her illness and it could take weeks for her to recover.

11. Ms H’s observation of the child with the father on 21 March 2019 was uneventful. The child was calm and at times responsive towards the father. The child requested an end to the session only after losing at a card game. The child did not display any fear of the father nor did the session trigger any illness.  

12. Prior to the observation session, the child told Ms H that her mother said she did not have to see or speak to the father and the child said that she would not see her father even if the Court said she had to. The child also said her mother thought it was okay for her not to go to school and that “she worried about [her] Mum not having enough money, and we might not be able to go to the Judge anymore”.  It is significant, in my view, that despite these statements and the mother’s overt opposition, the child agreed to see the father on the day of the family report interviews.

Is it possible for the child to have a relationship with both parents?

1. Ms H opined that the child is more likely to have a relationship with both parents if she lives with the father. I accept her opinion but would go further and find that there is almost no prospect of the child having a relationship with the father and step-mother if she remains with the mother. I say this not only because of the matters already discussed in this judgment, but because of the entirely negative statements made by the child about the father to Ms H, which in my view are almost entirely influenced by the mother. The child accused the father of hitting her with a shovel; painting her room black so she could not see; locking her in her bedroom; depriving her of food; and lying. At one point she said “he always lies and makes people believe him”. Ms H also reports further information provided by the child including:

   179. X volunteered more information saying, “I also came here to explain that last year I went into Dad and Ms K’s room in the morning, and Ms K was looking at me “in a mysteriously way”. X then tried to explain a very complicated story about how Ms K locked the door, switched off the light and then took off her clothes. She said that Ms K then turned the light back on and was naked, and then she put her finger into her vagina and into her mouth and then into her bottom and back in her mouth again. X said that Ms K then switched the light off, and put on her clothes again and unlocked the door.

   180. As she explained this story, X herself got very confused as to what had happened and when, in particular whether the light was on or off.

   181. X then added, “the same things happened the year before in the bathroom.” She repeated the story about Ms K putting her finger into her vagina and bottom into her mouth. When asked more about this, X was unsure how she came to be in the bathroom with Ms K and said that she could not remember.

   …

   184. When the report writer commented to X that by now she must have told this story a lot of times, and she replied, “yes, I tell the story to lots of people so I don’t have to go to Dad and Ms K’s.”

2. The child’s accusations against the father and step-mother are likely to have arisen as a result of the mother, either personally or with the assistance of others, manipulating or pressuring the child to make false allegations. Alternatively, it may be that the mother’s persistent questioning of the child and exposure to the conflict has created an expectation in the child that she should say bad things about her father. The mother’s actions may not be malicious but rather associated with her own “syndrome of anxiety”. Whatever the reason/s, the consequences have been dire for the child. 

3. Importantly, the child is not only more likely to spend time with both parents if she lives with the father, she is more likely to have a positive view of both parents if she lives with the father. The father stressed his commitment to the mother and child relationship despite all that has gone on in the past and I accept that he will do all he possibly can to maintain that relationship.  

Conclusion

1. The mother poses an unacceptable risk of emotional and psychological harm to the child. The mother has no regard at all for the father’s role and will not promote or facilitate the child having a relationship with him. The child will not be able to have a relationship with both parents if she lives with the mother.

2. I am satisfied that the child will be well cared for by the father and the step-mother and that they will do all they can to assist the child to adapt to her changed living arrangements. I am also satisfied that prior to the mother disrupting the father’s time with the child, she enjoyed her time with the father and step-mother.

3. Given the mother’s entrenched attitudes, I have given serious consideration to making an order, as sought by the father, for long term supervised time only with provision for the parties to reach agreement to remove the requirement for supervision if the mother is able to demonstrate a significant change in attitude.

4. However, I am conscious that if the parents are unable to reach agreement, and I am not at all optimistic of them being able to, a return to Court would be inevitable. That would be a poor outcome for the child.

5. Additionally, long term supervision is problematic particularly as the child gets older. It is likely to become boring for the child and it may well be that she will become resistant to attending in the long term. Any such resistance will not only impact on her relationship with the mother but also the father.

6. In concluding that a graduated reintroduction of unsupervised time between the child and the mother is in the best interests of the child, there are a number of factors that I must balance.

7. The child will need to be protected from the mother’s response to the change in the child’s living circumstances. I accept Ms H’s opinion that the mother will likely be “extremely distressed”. The mother will need time to address her anxiety and change her attitude, hopefully with professional assistance. In this regard I note Ms H’s opinion that:

   In my view, the mother will need to engage with an experienced therapist to begin working on skills to improve her understanding of the child’s social and emotional needs, and the impact upon her of not having the opportunity to have a relationship with both parents. It may be necessary for some of this work to be undertaken by a psychiatrist, depending on the outcome of the psychiatric assessment.

8. I expect that any therapy the mother elects to engage in will take some time to change her views and destructive behaviours and also to address her anxiety. It will take even longer if the mother elects not to seek professional assistance. Hopefully, the prospect of spending unsupervised time with the child, whom she loves, will be a sufficient motivation for her to seek the help she needs to address her issues.

9. The child will also need time to settle into her new environment without adverse influence from the mother and to develop strong and secure relationships with the father and step-mother in order to withstand any attempt by the mother to undermine those relationships.

10. I am conscious of the difficulty associated with predicting what will best meet the needs of the child when there are so many variables but as the High Court observed in CDJ v VAJ[15] (McHugh, Gummow, Callinan JJ):

    150. … Such applications [applications for a parenting order] necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. … 

    [15] (1998) 197 CLR 172.

11. The best outcome in the circumstances will be one that errs on the side of caution while limiting the prospect of the matter returning to Court. While my interim order prohibited the mother from having any contact with the child, she is about to start at a new school and that, in my view, is another reason to delay the reintroduction of the child spending time with the mother. Accordingly, there will be a further two months of no time between the mother and the child, to allow the child further time to settle.

12. Upon expiration of the further two month period, I will order the commencement of two hours per fortnight supervised by an appropriately qualified professional recommended by the ICL for three months. Given the complexities of this case I consider that professional oversight is required initially.

13. After that three month period, the supervision will move to a contact centre for 12 months before moving to unsupervised time, which will increase gradually over a further period.

14. Such an order will in my view best meet the changing needs of the child and protect her from harm.

15. I propose to order that the mother be responsible for the costs associated with supervision. Although the mother is not currently employed I expect the mother will be sufficiently motivated to maintain a relationship with the child so as to ensure she has funds sufficient to meet the necessary costs. In this context I note that the mother privately funded her legal representation for the trial. I have also taken into account the fact that the father will have the full time support of the child and will need to pay for psychological intervention for the child and himself in dealing with this significant change in circumstances. The mother will also have a further two months to raise the necessary funds.

16. Ms H recommended that the father have sole parental responsibility for major long term issues, particularly relating to health and education. I accept that recommendation given the mother’s attitude to medical issues and also her inability to ensure the child’s regular attendance at school in the past. The father does not seek sole parental responsibility for major long term issues other than health and education. As no other major long term issue was identified as possibly resulting in dispute I propose to adopt the recommendation of Ms H and make the order sought by the father. 

17. The mother did not make any submissions in opposition to the ‘specific issues orders’ set out in the father’s proposed order and accordingly, I will largely adopt the orders sought by him on those other matters, save for provisions relating to the mother’s travel overseas and the payment of a surety. There was no evidence relating to those matters and no submissions made in support of them.

other matters

1. During the trial I heard evidence from a psychologist, Ms D. Ms D’s involvement in providing treatment to the child is a source of considerable concern.

2. Particular matters of concern include:

   a)Ms D saw the child in circumstances of high conflict between the parents without seeking any input from the father and seems to have disregarded the information received from other independent sources;

   b)Ms D refused to provide the father with any information, despite the previous final parenting order acting as an irrevocable authority[16] for the child’s educational and health service providers to discuss the child’s healthcare with each parent and provide information and documents. Additionally, Ms D continued to treat the child despite there being an order for the parents to have equal shared parental responsibility and the absence of the father’s consent to her treatment;

   c)Ms D saw this very young child on an extraordinary 31 occasions over the period 13 November 2018 to 14 May 2019;

   d)Ms D accepted at face value the mother’s litany of complaints against the father and step-mother and permitted the mother to discuss these matters when the child was in earshot e.g. on 17 December 2018 while the mother recounted numerous allegations against the father and step-mother: Ms D’s notes indicate that “X used the phone to stay distracted while Mum gave parent update”;

   e)Ms D approached her treatment of the child upon the premise that she had been sexually abused and after only the briefest observation of the child (where nothing of concern was noted), Ms D concluded that there was more sexual abuse to disclose;

   f)Ms D recommended the child attend school for very limited periods and suggested the child be placed in a tent in the class room;

   g)Ms D’s advice was in direct conflict with the child’s treating paediatrician and GP who had recommended the child attend school unless medically unwell and that the child should be distracted when exhibiting symptoms;

   h)Ms D recommended the child’s disability be acknowledged, even suggesting that the child use a wheelchair at Sea World in case she suffered an episode;

   i)Ms D’s advice was contrary to medical and psychiatric advice that the child should not be encouraged to focus on disability;

   j)Ms D undermined the child’s relationship with significant adults in her life based solely on information provided by the mother e.g. she suggested to the child that her step-mother was not an honest person; and

   k)During cross-examination Ms D admitted abusing Medicare by continuing to see the child while representing to Medicare that her client was the mother.

   [16] Order dated 23 May 2016, paragraph 18.

3. Ms D’s intervention in this matter certainly does not appear to have done anything to assist the child. Ms D has permitted herself to be involved in pressuring the child to make ‘disclosures’ including of sexual abuse against the father and the step-mother. It is, at the very least, surprising that Ms D’s was not more cautious in her dealings with the mother given the circumstances.

4. Ms H, the family report writer, questioned Ms D’s advice and so-called treatment. She said:

   240. These notes were extensive and have not been summarised in detail,  however, having read them, it is evident that the psychologist from F Service has spent the majority of her time speaking with Ms Smith, and has not met with the father, nor has made an effort to do so. It appears that the account provided by the mother and child has been accepted without question, even though F Service has a copy of Court Orders, that the psychologist has spoken to DOCS and to the Principal of the Suburb J School on a number of occasions.

   241. Having reviewed the notes carefully, it appears that in the psychologist’s effort to try and assist X, the psychologist is giving questionable advice and failing to provide the mother with the much-needed guidance that she requires in this complex situation. The attempts at treatment are reinforcing X’s fears and her negative view of the father, and rather than improving, the child’s problems are increasing.

   [emphasis added]

5. Ms H also recommended that the child cease attending upon Ms D and in particular said:

   I am concerned that some of the advice provided by the counsellor at F Service was not beneficial for the child in the circumstances. It appears that the counsellor tended to accept the account provided by the Mother without question, even after being provided information with other agencies, and this served to reinforce dysfunctional behaviour.

6. Having regard to Ms D’s questionable intervention in this matter, I was concerned to hear from Ms D that she provides training to child safety officers with the Department.

7. I intend to refer Ms D’s involvement in this case to the appropriate professional body.

Ms H

1. Before concluding, I wish to record the Court’s gratitude to Ms H for her assistance in managing the transition of the child to the father’s care on 19 December 2019. The Court’s resources were unable to provide the necessary support and without Ms H’s intervention, the experience for the child in being removed from her mother may have been even more difficult.

I certify that the preceding one hundred and fifty-eight (158) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 28 January 2020.

Associate: 

Date:  28.01.2020