Thorp & Thorp

[2021] FamCA 254

FAMILY COURT OF AUSTRALIA

Thorp & Thorp [2021] FamCA 254

File number(s):	NCC 2868 of 2020
Judgment of:	CLEARY J
Date of judgment:	27 April 2021
Catchwords:	FAMILY LAW – CHILDREN – competing applications for variation of interim parenting arrangements for two children aged seven and five – Where current operative interim parenting orders were made by consent for the father to have supervised time with the children – Where the mother alleges risk of harm to the children in the father’s care and submits there is a need to protect the children from physical or psychological harm from being subjected to abuse, neglect and family violence – Where the father agreed to supervised time as an opportunity to spend time with the children but is ready to spend substantial and significant time – Where the need for protection by way of supervision is not established – Where there is a risk that the children will come to believe that they are not safe with the father, simply because of the constant presence of someone else if supervision continues – Supervision orders discharged and contact varied for the children to spend time with the father progressing slowly to alternate weekends and ultimately to holiday time by agreement and in the event the parties do not agree, a matter for final trial – Counselling order varied to commence within 14 days of agreement by the parties that counselling should take place.
Legislation:	Family Law Act 1975 (Cth) s 60CC
Number of paragraphs:	64
Date of hearing:	23 April 2021
Place:	Newcastle
Counsel for the Applicant:	Mr Rugendyke
Solicitor for the Applicant:	Legalbit Pty Ltd
Counsel for the Respondent:	Ms Bridgett
Solicitor for the Respondent:	CBD Law Pty Ltd
Solicitor for the Independent Children's Lawyer:	Mr Fawcett, Catalyst Family Lawyers

ORDERS

NCC 2868 of 2020

BETWEEN:

MR THORP

Applicant

AND:

MS THORP
Respondent

INDEPENDENT CHILDREN'S LAWYER

Other

ORDER MADE BY:	CLEARY J
DATE OF ORDER:	27 APRIL 2021

THE COURT ORDERS THAT:

1.Further to orders made by consent on 25 September 2020:

1.1Order 1.2 and 1.10 of the orders are discharged;

1.2Order 1.8 is varied by the addition of the following:

[1.8]In the event that the parties agree that the children should have therapeutic counselling then

1.8.1That within 14 days of agreement for counselling each of the parents shall do all acts and things to cause the children to engage in counselling with a psychologist specialising in children’s issues provided that such psychologist has not previously provided therapeutic service to either of the parents or either of the children and the following shall apply:

a.       Should the parents be unable to agree upon the psychologist/s to engage within 14 days of agreement for counselling then the parents shall engage the psychologist/s as nominated by the Independent Children’s Lawyer;

b.       That each parent shall complete the intake assessments and provide all authorities required by the psychologist/s to commence working with the children and each parent shall equally pay all costs associated with the children’s therapy;

c.       That the mother shall arrange the children’s counselling sessions and advise the father within 24 hours of the appointments made and both parents shall attend the psychology sessions unless advised otherwise by the psychologist (or members of their staff);

d.       That unless directly requested to do so by the psychologist/s, neither parent shall communicate directly with psychologist/s without the other parent being present;

e.       That the parties or either of them has leave to provide to the psychologist:

(i)A copy of the Children and Parents Issues Assessment dated 5 February 2021;

(ii)A copy of these orders and reasons.

2.The children shall spend time with the father as follows:

2.1From 10.00 am to 4.00 pm on two consecutive Saturdays commencing Saturday 1 May 2021;

2.2Thereafter on two alternate weekends commencing 15 May 2021 from 10.00 am to 4.00 pm on Saturday and 10.00 am to 4.00 pm on Sunday;

2.3Thereafter on two alternate weekends commencing 12 June 2021 from 2.00 pm Saturday to 10.00 am Sunday;

2.4Thereafter on two alternate weekends commencing 10 July 2021 from 10.00 am Saturday to 4.00 pm Sunday;

2.5Thereafter and continuing each alternate weekend commencing 7 August 2021 from after school (or 3.00 pm) Friday until return to school (or 9.00 am) Monday or 9.00 am Tuesday if Monday is a public holiday;

2.6For block holiday time commencing in the holiday period after the conclusion of Term 3 2021 by agreement between the parties.

3.For the purposes of changeovers pursuant to these orders:

3.1When the children are spending time with the father pursuant to Orders 2.1-2.4 and 2.6, the father shall collect the children from the mother’s residence at the start of any spending time period and the mother shall collect the children from the father’s residence at the end of any spending time period;

3.2When the children are spending time with the father pursuant to Order 2.5, the father shall collect the children from their school at the start of any spending time period and shall return them to their school at the end of any spending time period.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

ORAL REASONS FOR JUDGMENT

CLEARY J

INTRODUCTION

1. This was a matter heard in a duty list on 23 April 2021. There are competing applications for variation of interim parenting arrangements for two children, Z aged seven, and W aged five. The current operative interim parenting orders were made by consent on 25 September 2020.

   SHORT HISTORY

2. The parties are in their early thirties. They met in 2005 and began living together in 2009.

3. In 2012 they married.

4. The two subject children were born in 2013 and 2015.

5. In 2016 or 2017, the mother began self-employed work.

6. In 2017 the father established a company and worked mainly from home.

7. In April 2020 the parties separated. The mother asked the father for a separation and the father asked the mother would she leave the house and take the children with her to give him time to adjust. The mother did leave the house. She had applied for a rental home two days before. It is clear that separation was intended.

8. The parties agreed that they would have an equal time arrangement for the children after the mother had set up her new accommodation.[1]

   [1] Affidavit of the mother filed 1/04/2021, par 65.

9. The mother expressed herself as hoping an equal time arrangement would provide the children with “some consistency and stability post separation”.[2]

   [2] Affidavit of the mother filed 1/04/2021, par 66.

10. The decision of the parents to put this equal time arrangement in place is, objectively, an expression of confidence, by each, in the capacity of the other to care for the children.

11. After about 10 weeks, from 11 August 2020, the mother withheld the children from the father and, also, from attendance at school for about two weeks.

12. On 17 August 2020, the mother filed an Initiating Application, a supporting Affidavit, and a Notice of Risk alleging risk of harm to the children in the father’s care. The interim orders sought by the mother were for residence, no time or communication with the father, and restraint on the father approaching the home of the mother and the children’s school.

13. On 26 August 2020, the father filed a Response with a Notice of Risk, and an Affidavit setting out arrangements for the father to have residence. He also proposed supervised time for the children with the mother. The conflict had now escalated.

14. On 25 September 2020, the interim orders were made and supervised time has occurred since then. Supervision allows children to restore relationships safely. I accept that the relationship between the children and the father, and the children and the mother is, as the family consultant reported, “strong and healthy”.

    EVIDENCE

15. The father relied on an Application in a Case superseded by a Minute of Father’s Proposed Interim Orders and an Affidavit of the father filed 2 April 2021.

16. For the mother, a Response to an Application in a Case, superseded by a Minute of the Mother’s Proposed Interim Orders, with an Affidavit of the mother filed 1 April 2021.

17. For the Independent Children’s Lawyer (“ICL”) there was the Children and Parent’s Issues Assessment (“CAPIA”) of 5 February 2021, a Case Outline document with a proposed Minute of Order, and a tender bundle prepared by the ICL of more than 200 pages.

    THE LAW

18. When the Court is asked to make interim orders or, as in this case, further interim orders, a cautious approach is taken, given that the parties’ evidence given in affidavits is untested. In all areas of dispute, the evidence of each party, at its heights, is weighed up in assessing the best interests of the children, according to statute.

19. The pathway is through section 60CC of the Family Law Act 1975 (Cth) (“the Act”).

    Primary Considerations

20. The parties disagree about who was the primary carer for the children during the relationship but, if considered necessary, that would be a matter for final trial. The children clearly have a meaningful relationship with each parent. The equal time week-about arrangement reflects those views.

    The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

21. Part (2)(b) of s 60CC of the Act is relevant here.

22. The mother submits that there is a need to protect the children from physical or psychological harm from being subjected to abuse, neglect, and family violence.

23. I have concluded in this matter the need for protection by way of supervision is not established.

24. The material put forward by the mother in support of this assertion is as follows:  in terms of violence, the mother said there had been two occasions during their relationship when she and the father were training in a sport and, in her view, the father deliberately hurt her. She ended the training session and walked away. [3]  There were disputes about money.[4]

    [3] Affidavit of the mother filed 1/04/2021, par 12.

    [4] Affidavit of the mother filed 1/04/2021, pars 14-28.

25. There were certainly disputes about parenting styles over children eating, toilet training, “spooky stories”, and the mother’s assertion that the father “gaslighted” W on the topic of BandAids.[5]

    [5] Affidavit of the mother filed 1/04/2021, pars 32-43.

26. There was a dispute over the COVID-19 restrictions. Although what that amounted to was that the mother moved out at a time when COVID-19 restrictions were in place. It appears that she undertook her own balance of risk and, quite sensibly, decided that the calm result of removing the children from the home and assisting them not to be part of any conflict outweighed the possible risk arising from the virus.

    The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

27. Submissions were made by counsel for the mother at great length about the father’s medical records in the Tender Bundle and the mother’s view that the father suffered from mental illness. The records reveal that the father has experienced stress, which he has described himself as being depressed, anxious, stressed at work, and as a result of separation. The records reveal that he sought therapeutic help and has taken advice. Even if it were the case that the father was established to be mentally ill, that itself, would not be sufficient to exclude him from the children’s life or to only be able to see them supervised.

28. The issue is about how well mental health is managed. There was reference by the mother to the paternal family and difficulties in those relationships. The father asserts that he has become closer to the extended paternal family since separation.

29. There were also many expressions of the mother’s opinion about the father, of which the following is an example:[6]

    I believe Mr Thorp to have a narcissistic personality and that he constantly used gaslighting behaviours to control and manipulate the children and I. I was especially concerned for the children following separation as I could no longer be in the home to identify the behaviour or protect the children from it. I have continued to have these concerns, even with the implementation of supervised time.

    [6] Affidavit of the mother filed 1/04/2021, par 68.

30. The expression of the mother’s opinions about the father perhaps having a personality disorder do not amount to a basis for psychiatric assessment as she proposes. Nor do they amount, and I am sure she does not expect it to be the case, to a diagnosis.

    The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

31. I conclude that the events within the period between 25 April 2020 and August 2020, when the mother signed her application and affidavit would be relevant to the radical change of opinion by both parents from equal time, to the mother seeking to exclude the father from the life of the children, and the father proposing, at least initially, supervised time only for the mother.

32. Those events are as follows:  

33. On 2 May 2020, the mother went to the former family home (where the father was living) to collect some possessions and drop off the children. A visit went ahead, although the father did not feel ready for removal of chattels from the home. There was nothing exceptional about this incident.

34. On 9 May 2020, the mother went to the home and packed up her office without incident.

35. On 24 May 2020, the father told the mother he had taken W to the doctor for a “red and irritated vagina”, expressing an opinion about the use of bubble bath in the mother’s home. The mother agreed that there had been bubble baths. There is, objectively, nothing of concern in that incident.

36. The parties had begun sending each other photographs, twice a day, of the children. The mother concluded that at least on one occasion, W wore the same clothes for two days and a night. If that were true, without more, it could hardly amount to neglect or be of any particular significance.

37. By late July 2020, the father stopped the twice daily photographs and the mother referred to his conduct, in doing so, as “odd”. The mother reports that Z had said to her, “Dadaa said that if you weren’t around anymore, we wouldn’t have to leave Dadaa anymore.” 

38. On 24 May 2020, the mother describes the children as emotional and angry, with W scratching her brother. When the mother spoke to her about that behaviour, she reports that W said, “Dadaa lets us do whatever we want. Can you please be more like that”. The child was four at the time, but even if she said those exact words, it is no more than, objectively, a reaction to the different households and different parental styles emerging.

39. On 14 June 2020, after a discussion with the child, the mother says she communicated to the father a comment allegedly made to her in the context of the child having a hair tie, “Yes, because if I look pretty, Daddy will love me more.”  The mother reports that the father said he did not believe W had said that, “I think you are twisting her words.”  The mother felt the father was gaslighting her, which I take to mean causing her to doubt her own recollection and knowledge. Objectively, there is nothing abusive in that exchange.

40. In July 2020, the mother raises in her affidavit, the father hurrying the children off the telephone when they were talking to her.

41. In August 2020, there was an incident where Z, who has apparently suffered eczema all his life, was suffering from eczema. The mother took photographs and annexed them. She took the child to the doctor who prescribed more cream.

42. In August 2020, the evidence of the mother reveals that, what might be described as showing off by Z, where he was touching his own bottom and another child’s in a group of children on a play date. The mother also refers to Z “humping” her. Which triggered fears in the mother. She referred to the child exposing himself and speaking about his penis. The mother, to her credit, said she had previously thought that such things were a natural part of growing up. But, it appears, that they began to look sinister to the mother, in the context of separation.

43. On 11 August 2020, the mother stopped providing the children to the father and kept them home from school. A week later she filed her application. The mother includes in her Affidavit, an incident on 16 August 2020, where Z related a dream to her about being naked at school. It appears to be an unexceptional incident of the child having an innocent and trusting conversation with his mother. It was part of counsel’s submission that the Court should consider every incident, including such an incident as this, which concerned the mother to conclude an overall risk of harm. I reject that submission. Each incident in itself, objectively, has not substantiated risk of harm or abuse by the father.

44. The mother reports more sexualised behaviour by Z. The mother took photographs of Z’s eczema on his upper thighs, directing him “cover your penis so it isn’t in the photo.”  In that context, the child is reported to have said, “Dadaa took a photo of my penis”.

45. The mother contacted Suburb B Police. Two officers came to the home. The mother reports dissatisfaction with their response. Objectively, it has to be said that the police did not consider that any further step needed to be taken and none was. The father gave an undertaking not to remove the children from school, the mother began sending the children to school again. It appears from other incidents reported that the older child makes what he calls “butt” jokes and he drew a penis on a picture of a dinosaur. There is nothing, objectively, to be concerned about in that incident.

46. During supervision there was an occasion where W was showered by the father. Subsequently, the mother was reassured by the supervision service that the shower had been necessary after a toileting accident. But it appears that the mother’s concerns, overall, have grown rather than abated.

47. By 5 February 2021, when the mother was interviewed by the family consultant, she appeared to have reached a settled view and expressed that belief to the family consultant that the father “poses an unacceptable risk of sexual, emotional, and psychological harm to the children”.[7]

    [7] CAPIA dated 5/02/2021, par 7.

48. In some other relevant considerations under s 60CC of the Act are as follows:

    The views of the children

49. The older child, Z, presented as shy at interview. He declined to be interviewed, although he was observed with both his parents. His sister described him as “sad and scared because the parents no longer live together”.

50. The younger child, W, was assessed by the family consultant as a confident and gregarious five year old. W said she likes spending time with the father, whom she calls “Dadaa”.[8]  She said at the father’s house they can be “silly” and that the father is “lots of fun”. W wanted sleepovers at her father’s house and, “If I can’t have sleepovers, I would like to live with him forever.”  She expressed no worries at the home of either parent. It appears the children are healthy seven and five year old children, disrupted by the separation of their parents with whom they each have good relationships.

    Any other fact or circumstance that the court thinks is relevant

    [8] CAPIA dated 5/02/2021, par 21.

    Opportunity to Spend Time

1. The father agreed to supervised time and is now, after about six months, ready to spend substantial and significant time. Although he expressed his willingness to have the children live with him, that will be a matter for final trial.

2. The father has cooperated with supervision but he has made mistakes. He has, at times, made comments in front of the children such as “she has officially wrecked it” and in response to a question from the younger child, about when she could come to her father’s house, “I’m not allowed,” and also, “I will have to check the rules” which was apparently said in a bitter tone. The children would have understood that the father was annoyed and frustrated which would not have assisted them to adjust to separation.

3. A supervisor reported the father as snapping and being quick tempered, which appeared to be a reaction to being directed in a particular way by the supervisor. However, if that was not the case and it was simply a quick tempered moment, that does not put the children at risk. Both parents, as perhaps all parents, have at times disciplined the children and been quick tempered.

4. The children have experienced separation followed by week-about time for almost three months. Then there was a period of no time at all with their father and a fortnight off school, followed by six months of supervised time. This variation provides a change to time with both parents in natural circumstances.

5. There is a real risk that the children will come to believe that they are not safe with the father, simply because of the constant presence of someone else if supervision continues. To date, W has believed that the supervisors are friends of the father who have come along to help out. That would not likely continue indefinitely.

   Family Violence

6. In terms of family violence, there are no reports to police during the relationship. There is no current apprehended violence order.

7. With regard to counselling, the mother proposes that the children recommence therapy with C Services at the first available date. That was a service the children attended on one occasion, arranged by the mother, but subsequently discontinued after attendance at Court on the last occasion.

8. For the father, it was submitted that if an order for counselling was made, the father should have some input. The ICL proposed that there be counselling with a psychologist who had not previously provided therapeutic services to the children or either party. The family consultant recommended that the children have the opportunity to continue with some counselling with the CAPIA to be available to the counsellor.

9. The mother had earlier decided, when she put the children into C Services, that she wanted to put the children into counselling, telling the father, “I want the children to have counselling so there is an unbiased third party to hear these things the children are saying and none of this ‘he said, she said’ stuff.”  Such a purpose is for the benefit of the mother alone, or both parties as the mother may have seen it, in progressing the litigation. There is no other explanation relating to the mental health and behaviour of the children. However, having considered all positions, I accept the evidence of the family consultant, since she is best placed to understand any benefit to the children from ongoing counselling.

   CONCLUSION

10. The parents to agree for counselling to take place, and for there to be involvement of both parties and provision of the CAPIA, these orders and reasons.

11. The orders discharge Orders 1.2 and 1.10 of the September 2020 orders and vary contact so that there is a progression of time, commencing on Saturday with two consecutive Saturdays from 10.00 am to 4.00 pm, then progressing slowly to the point where there is an alternate weekend and, ultimately, some holiday time by agreement between the parties. In the event that the parties do not agree about that, it may be a matter for final trial as to why they do not.

12. The proposal put forward by the father about changeovers has been adopted.

13. The counselling orders made to commence within 14 days of agreement by the parents that counselling should take place.

14. Orders are made accordingly.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cleary.

Associate:

Dated:       27 April 2021