Smyth & Smyth

[2022] FedCFamC1F 342

Federal Circuit and Family Court of Australia

(DIVISION 1)

Smyth & Smyth [2022] FedCFamC1F 342

File number(s):	MLC 1937 of 2020
Judgment of:	STRUM J
Date of judgment:	16 May 2022
Catchwords:	FAMILY LAW – CHILDREN – Orders by consent that the mother have sole parental responsibility and the child will not spend any time with the father – Discrete issue regarding the terms of the child’s continued therapy/counselling – Where the child is 15 ½ years of age – Where the child’s views and opinions should be considered.
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60CC
Division:	Division 1 First Instance
Number of paragraphs:	24
Date of hearing:	4 – 6 May 2022
Place:	Melbourne
Counsel for the Applicant:	Mr Hutchings
Solicitor for the Applicant:	Suke & Associates
Counsel for the Respondent:	Mr Robinson
Solicitor for the Respondent:	Pearsons Lawyers
Counsel for the Independent Children's Lawyer:	Mr O’Connell
Solicitor for the Independent Children's Lawyer:	Bowlen Dunstan & Associates

ORDERS

MLC 1937 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR SMYTH

Applicant

AND:

MS SMYTH

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	STRUM J
DATE OF ORDER:	16 MAY 2022

THE COURT ORDERS THAT:

1.The Applicant Father’s application for orders in terms of his amended proposed minute tendered on his behalf on 12 May 2022 and marked Exhibit F2 be dismissed.

2.The order for the appointment of the Independent Children’s Lawyer be discharged upon the expiration of 30 days from this date, prior to which the Independent Children’s Lawyer meet with and explain these Orders to the child.

The court orders by consent that:

3.All previous parenting orders in relation to the child X born in 2006 (“the child”) be and are hereby discharged.

4.The Respondent mother have sole parental responsibility in relation to decisions concerning the health of the child.

5.The mother keep the father informed in writing as to any decisions concerning the health of the child she makes as soon as practicable upon making such decision/s such notification to include any hospitalisations, serious injury or illness of the child.

6.The father forthwith sign all documents presented to him to renew the passport for the child.

7.All extant parenting applications be otherwise dismissed.

and the court notes that:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the fact sheet attached hereto and these particulars are included in these orders.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

STRUM J:

1. Competing applications for final parenting and property orders were listed before me for trial for six days, commencing on 11 May 2022. The matter was stood down that day for negotiations. On 13 May 2022, the property applications were adjourned to 1 August 2022 before me for four days.

2. Parenting issues have resolved, subject to one discrete issue which is the subject of these reasons for judgement. That single issue proceeded before me on 12 May 2022. I will make orders by consent in terms of the minute of orders sought by the respondent mother (marked Exhibit M1), to which the applicant father indicated his consent through his counsel. Those orders do not provide for any time to be spent or contact between the father and the child the subject of these proceedings, X, born in 2006 and aged nearly 15.5 years. I have no doubt that was a difficult decision and painful concession by the father. However, it is common ground that this accords with X’s wishes at the present time. There is a dispute between the parties as to why this is so. In broad compass, the mother ascribes this to her allegation that X was exposed to family violence by the father and the father ascribes this to his allegation that X has been alienated from him by the mother. Given the limited, but nevertheless important, ambit of the dispute and the resolution of all other parenting issues, neither party sought to cross-examine the other, and sensibly so in the circumstances. That necessarily precludes me from making any findings in relation to those contested allegations but they are not germane to the issue before me. Suffice it to say that the evidence suggests there may be some merit in each of the parties’ allegations. However, I take that matter no further.

3. At the commencement of the hearing, the father relevantly sought orders in the following terms:

   1.The mother do all acts and things required to facilitate the child continuing to attend upon [Ms C] for counselling as to her anxiety for not less than the next 12 months at such times and places nominated by [Ms C] NOTING THAT [Ms C] may opt not to nominate further appointments at any time.

   2.The father be at liberty to receive such updates from [Ms C] as to [X’s] attendance and progress as determined by [Ms C] to be in the child’s interests.

4. A minute to that effect was tendered and marked F1. However, after the luncheon adjournment, the father amended his application to seek the following relevant orders:

   1.The mother and father ensure any psychologist / counsellor attended upon by [X] make contact with [Ms C] for a handover.

   2.The parties ensure any school attended upon by [X] informs any psychologist / counsellor engaged by them of paragraph 1 of these Orders.

   3.The father be at liberty to receive updates from any psychologist / counsellor attended upon by [X] as to her attendance and progress as determined by the psychologist / counsellor to be in the child’s best interests.

5. A minute to that effect was tendered and marked F2. That somewhat further narrowed the ambit of the dispute, albeit that the second of those proposed orders was poorly drawn and unclear. At issue is whether I should make the amended orders sought by the father, any other orders in this respect or, as submitted by the mother and the Independent Children’s Lawyer, no orders at all.

6. I have been assisted by written reports and oral evidence from Ms B and Ms C. Ms B is a psychologist who prepared two family reports in this matter dated 7 May 2020 and 10 May 2022. The latter report was of particular relevance. Ms C is also psychologist who prepared a report dated 26 April 2022, pursuant to orders made by McEvoy J on 12 November 2021. The reports were annexed to affidavits by the respective psychologists filed by the Independent Children’s Lawyer.

7. Ms C undertook nine sessions with X between 20 January 2021 and 25 April 2022, some in person and some by telephone. Ms C was retained by the parties for the purposes of a psychological assessment of, and a report in relation to, X and, if recommended by her, treatment for X. The letter of instructions to Ms C dated 16 December 2020 was tendered and marked Exhibit M2. Ms C relevantly opined as follows in her report:

   a.“[X] has expressed a strong sentiment that she doesn’t want to talk about things anymore, but has shown an interest in exploring things that may benefit her into the future, such as a greater understanding of her sleep patterns and personality.” (Court Book page 2077)

   b.When [X] was assessed during her initial session in 2021, she scored in the below average range for anxiety.  When she was reassessed on 25 April 2022, she scored higher but nevertheless in the average range.  (Court Book page 2078)

   c.“[X] has consistent [sic] stated that she does not wish to see her father currently.  The recent home visit was an opportunity to talk to [X] about the future projection of what her contact with her father may be like, even into adult hood, with her curiosity and openness to hear a brief message from her father evident, as discussed with him in sessions (“I think about you every day and love you very much”).  It will be vital that any further contact between [X] and her father feel very safe for her, and be on her terms and at her pace.  This is much more likely when court proceedings have been completed.”  (Court Book page 2079)

   d.“[X] has been strongly impacted by the conflict between her parents and their subsequent separation and court proceedings.  She is an intelligent adolescent and is close to her mother, and thus may be more aware of the court processes than is healthy for her development.  She has strongly stated that she has no desire to see her father at this stage however has demonstrated some interest and curiosity in verbal communication he has recently sent her via the writer.

   [X’s] anxiety is context specific and related directly to her experience of her father during conflict with her mother.  Although it is not diagnosed as clinically significant in its presentation, it severely affects her mostly at night-time, with hypervigilance to noises and consistent sleep disruption.  [X] has expressed interest in learning more about her sleep and how to improve it so that her schooling is not disrupted and her daily life is enhanced, so this will be the focus on counselling in the near future.

   It is recommended that [X] to access counselling [sic] at least each term holidays, and preferably more regularly as the opportunity arises.  A booking for the July school holidays has been made with [X] and her mother (in terms of transporting her to the appointment) and it is intended that more regular sessions should be able to occur without further lockdowns in the near future.  It is planned to provide additional information and strategies prior to this session for [X] to assess in terms of helpfulness and effectiveness in reducing her hypervigilance.

   It is recommended that [Ms D] continue to be supported in catering for [X’s] psychological health and emotional safety, while not limiting [X]’s independence and autonomy as a developing adolescent.  This is a delicate balance for any parent, made more complex in the context of family conflict and particularly the history of the parental relationship.  It is recommended that [Ms D] consider additional support is needed to ensure she does not rely on disclosure to [X] of issues that may need to be worked through independently post court.  This may be family oriented therapy that allows a greater understanding of the impact of situations such as the loss of their baby daughter on both parents, for example.

   It is recommended that [Mr Smyth] be further supported in strategies to respectfully contact [X] in ways that do not overwhelm her, at her pace and in a manner that is acceptable and not putting any additional stress on her nor increasing her hypervigilance.  This means that any additional contact needs to be carefully planned and would benefit from being mediated via the writer or another suitable person that [X] is able to trust.  It is envisaged that a further appointment would be made in the next month or so prior to the next session planned in July with [X]." (Court book pages 2080 – 2081)

   [emphasis added]

8. In the preparation of her second family report dated 10 May 2022, Ms B had the benefit of, inter alia, Ms C’s report. Ms B relevantly opined as follows in that report:

   a.“When enquiry was made of [X’s] well-being, she emphasised her fatigue around the issue of meeting with professionals listing [Ms C], the ICL and the writer.  She said,’ It makes me annoyed; I’ve said that I don’t want to see my Dad, but [the Independent Children’s Lawyer] said [Ms C] told him that maybe I did want to see him’.  [X] went on to say, ‘That’s not true, I’m trying not to be rude but I told him that’s not right, that’s what’s annoying’.  There was frustration in [X’s] voice as she stressed her points.  When asked whether it’s possible her father’s meetings with [Ms C] led to some positive change and that this factor might suggest a degree of optimism [X] continued, ‘I don’t want any contact at all with Dad, he hasn’t changed … He might be good for a week and then it would go back to how he was … he’s done a parenting course so what! …  I saw him driving along the other day, it was his car, he was driving like a stupid person, all reckless, that’s what he’s like he hasn’t changed’.  [X] found the encounters with professional [sic] stressful adding, ‘I would be less stressed if this went away, once the Court stuff is over and if he just goes away’.  When the question was put differently to [X] her position remained unchanged.  She said, ‘No one understands what this is like for me, I’ll have nightmares if I see him … I don’t want this anymore, I just want to move on’.  [X’s] account was summarised back to her, and she confirmed she wanted the judge to know her views and that they be reflected in Court orders.  At the conclusion of the interview [X] was able to report positively on her schooling, peer group and home life.  [X] expressed a strong and clear view for her current situation to remain unchanged.” (Court Book pages 2102 – 2103, paragraph 8)

   b.“[X] is either realistically estranged from her father as a consequence of his parental ineptness and coercive and controlling behaviours or rejecting of her father to primarily support her mother is anxious and overprotective parenting style or a combination of both.  Only a testing of the evidence will aid in determining which style has been most influential in shaping [X’s] view.  Even with that determination, the outcome is unlikely to change.

   The quality of [X’s] relationship with her parents is influenced by events both pre and post separation.  It is not simply that her exposure to a conflicted separation has led to an unhealthy alignment with her primary caregiver and needs to reject her father.  It is a combination of parent and child factors, including [X’s] age and temperament that interact to produce the relationship dynamic.  The strength of the mother daughter bond, which has been variously described as having some enmeshed features, combined with the continued threat [X] perceives [Mr Smyth] to pose to her safety, reinforced the dynamic.

   Given the length of time that has passed, and the resources employed to support a reconnection between [X] and her father it is reasonable to conclude that now is not the time to repair the relationship.  Despite [Ms C’s] report indicating some cautious optimism expressed by [X] about her father this was rejected when put to [X] at interview with the writer.  Introducing another professional with similar goals will unlikely be received well by [X] and may reinforce her resistance.

   In conclusion, [X] needs some respite from engagement and processes designed to repair the relationship.  She is expressing feelings of fatigue, stress and irritability around interventions.  This psychological state is not one conducive to reunification with a parent nor is it conducive to improved psychological functioning.  Furthermore, her age and stage are such that it is unlikely she can be compelled to cooperate with arrangements that do not align with her consistently held beliefs about those arrangements.  In these circumstances, it is recommended that the Court give significant weight to [X’s] wishes and views on this matter.”  (Court Book pages 2105 – 2106, paragraphs 14 – 17).

   [emphasis added]

9. In cross-examination of Ms C and Ms B and in submissions on behalf of each of the parents, focus was placed more on the matters upon which those experts superficially disagreed, rather than those upon which they substantially agreed. The differences between Ms C and Ms B are more apparent than real.

10. Prior to cross-examination of those experts, Ms C was provided with a copy of Ms B’s second family report and they conferred by telephone.

11. In the course of cross examination, Ms C conceded that continued therapy for X with her, whilst recommended, was better encouraged than mandated. She agreed that the issue of further therapy is best left to X, when she feels ready, and she did not recommend that her involvement be mandated by the Court. Ms C agreed with Ms B's conclusion at paragraph 17 of her second report, namely, that X needs some respite from engagement in processes designed to repair the relationship between her father and her; that she is expressing feelings of fatigue, stress and irritability around interventions; that her psychological state is not one conducive to reunification with her father nor is it conducive to improved psychological functioning; that it is unlikely she can be compelled to cooperate with arrangements that do not align with her consistently held beliefs about those arrangements; and that, in those circumstances, significant weight should be given to X’s wishes and views on this matter. However, she did not resile from her recommendation that X have access to counselling.

12. Whilst Ms C said that she was willing and able to continue her treatment of X, when I asked her whether X might instead attend upon her school counsellors, she agreed that the advantage of such an approach was that they would be seen to be independent of both parents. This was in circumstances where Ms C was criticised in cross-examination for purportedly exceeding the terms of her remit, namely, the treatment of X’s anxiety and related sleep issues, rather than the repair of her relationship with her father. Not only did Ms C disagree with that criticism, it was, in my opinion, unfair. In her report, Ms C opined that X’s anxiety and sleep issues were, at least in part, related to her issues with her father (Court Book pages 2078 and 2080).

13. Ms C said that she had spoken with both of X’s school counsellors, in the junior and senior schools at E School, and that, in her opinion, they are both very qualified. She said that counselling at school would take pressure away from the home environment and would be a “safe space” for X. Further, if X’s anxiety is related in part to school, as is the case with her sleep-related issues, then counselling at school would be another advantage. Ms C was of the view that any other counsellor upon whom X may attend should speak to her by way of handover, for background and continuity. However, she said that would be good practice on the part of any new psychologist who became aware of her previous involvement. In this regard, I note her evidence that the school counsellors at E School are very qualified.

14. In cross-examination, Ms B opined that whilst further therapy for X might be beneficial, like Ms C, she agreed it should not be mandated if it is to be therapeutic for her. She said that even without orders, psychological services are readily available for X; children have greater awareness of their mental health and are more sophisticated in this regard than 20 years ago and know how to seek out support, including at school.

15. In relation to X’s attendance upon Ms C, Ms B opined that she is a very compliant child and that her engagement may not have been active but rather simply “ticking off" what needed to be done. She said that whilst X has tolerated the intervention, she wants it to end.

1. Ms B agreed that none of X’s needs could not be met by her school psychologists. However, she suggested that X take a break from psychological intervention altogether, which will give her respite from the chronicity of the parental conflict.

2. Ms B opined that it may be that X does not need to see a psychologist. She said that X is not crying out for psychological assistance, rather, she is crying out for it to stop. If it transpires that she does need it hereafter, Ms B’s view was that X has the wherewithal to reach out for it.

3. Turning to the orders ultimately sought by the father, the following may be observed:

   (a)As to the first proposed order, the requirement for the father to have input in any handover process is otiose, in circumstances where, by consent, the mother is to have sole parental responsibility in relation to decisions concerning X’s “health”. That term is not defined and, as a matter of interpretation, must be taken to include not only her physical health but also her mental health. It is difficult to see what input he could reasonably have.

   (b)As to both the first and second proposed orders (insofar as the latter, as drafted, is intelligible), they would of necessity involve X’s school in the hitherto Court-mandated therapeutic process. Ms C’s evidence is that she is an intelligent adolescent whose independence and autonomy as a developing adolescent ought not to be limited. X told Ms B that she found the encounters with professionals stressful; that she would be “less stressed if this went away, once the Court stuff is over"; and that she just wants to move on.

   (c)As to the third proposed order, whilst the receipt by the father of any updates from any psychologist or counsellor would be “as determined by the psychologist / counsellor to be in the child’s interests", Ms C’s evidence was that X is an intelligent adolescent.  Whether any psychologist or counsellor upon whom she may choose to attend provides updates as to her attendance and progress to the mother and/or the father should be left to X, in the ordinary course, rather than such professional/s.

4. Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

5. Section 60CC(1) of the Act relevantly provides that, in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3). I have considered all of those matters; however, it is readily apparent that only a limited number thereof are relevant in this limited, single-issue case.

6. To my mind, the principal, if not determinative, matter is that specified in section 60CC(3)(a) namely, any views expressed by the child and any factors (such as the child’s maturity level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views. X is nearly 15.5 years of age and in year 9 at school. I accept that she is an intelligent child. Her views are clear and consistent, on the evidence of both experts. She has expressed a strong sentiment that she does not want to talk about things anymore. She has emphasised her fatigue around the issue of meeting with professionals. She has found the encounters with professionals stressful. She just wants to move on. Ms B’s evidence, which I accept is that X needs some respite from the processes in which she has been involved; that she is expressing feelings of fatigue, stress and irritability around interventions; and that this psychological state is not one conducive, inter alia, to improved psychological functioning. Ms B recommends that the court give significant weight to X’s wishes and views on this matter, and I do so.

7. Insofar as I must consider the matters set out in section 60CC(3)(g), namely, the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant, I have addressed the issue of X’s maturity in the preceding paragraph. Otherwise, none of the other matters specified in paragraph (g) are presently relevant.

8. Another matter set out in section 60CC(3) is to be found in paragraph (j), namely, any family violence involving the child or a member of the child’s family. There are allegations and counter-allegations between the parents in this regard, however, by reason of the sensible way in which counsel conducted the trial of the limited parenting issue, neither of them was cross-examined in this regard, or at all. Without in any way minimising family violence and, in particular, the mother’s allegations in relation thereto, given the narrow scope of the enquiry before me, it does not have much, if any, bearing on the issue to be determined by me.

9. In the circumstances and for the reasons I have given, I decline to make the orders sought by the father and shall only make the orders to which the parties consent.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum.

Associate:

Dated:       16 May 2022