Vasil and Vasil (No 2)

FAMILY COURT OF AUSTRALIA

VASIL & VASIL (NO 2)

[2020] FamCA 854

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where the child is living with the mother and spending time with the father – Where the father is seeking to spend more time with the child – Where the mother considers the time spent with the father should be subject to the child’s wishes – Where the child is fourteen years of age – Where the child has expressed that she does not wish the time she spends with the father be regulated by a court order – Where the father argues the child’s voice is not hers but that of her mother – Where the father considers the child needs to be the subject of therapeutic intervention – Whether the mother would promote and facilitate the child’s relationship with the father – Consideration of meaningful relationship – Best interests of the child – Orders.

FAMILY LAW – EVIDENCE – Expert Evidence – Where the father instructed an American clinical psychologist to provide a report analysing the Family Assessment Report – Where there was no agreement that the psychologist be appointed as a single expert – Where the father did not make an application to tender a report or adduce evidence of an expert witness – Where there was no objection to the report being received into evidence or to the witness giving evidence – Where the psychologist made no contact with any other party or child – Where the psychologist was not provided with any other court documents –Where the psychologist was not provided the relevant divisions of the Family Law Rules 2004 (Cth) – Consideration of weight to be given to the evidence – Where the expert witness was not objective.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 67ZT
Family Law Rules 2004 (Cth) rr 15.45, 15.51, 15.52, 15.54, 15.59

Godfrey & Sanders [2007] FamCA 102
Lord Abinger v Ashton (1873) 17 LR Eq 358
Lynch & Lynch (1966) 8 FLR 433
Mazorski & Albright [2007] 37 Fam LR 518
Re W & W: Abuse allegations; expert evidence (2001) FLC 93-085

APPLICANT:

Ms Vasil

RESPONDENT:

Mr Vasil

FILE NUMBER:

ADC

1397

2017

DATE DELIVERED:

9 October 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

7, 8 and 9 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jordan

SOLICITOR FOR THE APPLICANT:

Jordan & Fowler Family Lawyers

COUNSEL FOR THE RESPONDENT:

Litigant in Person

SOLICITOR FOR THE RESPONDENT:

Orders

That the parties have equal shared parental responsibility for X born … 2006 (“the child”).
That the child shall live with the mother.
That until 1 January 2021 the child shall spend time with the father as follows:-
(a)Each alternate Saturday from 11.00 am to 6.00 pm commencing 10 October 2020;
(b)Each intervening Monday from the conclusion of school until 7.30 pm;
(c)Such further and other times as may be agreed between the parties but subject to the child’s wishes.
Subject to Order 5, as and from 1 January 2021 the child shall spend time with the father in accordance with her wishes.
That until the child turns 16 years of age in addition to orders 3 and 4, the child shall spend additional time with the parties as follows:-
(a) On Father’s Day with the father from 10.00 am to 5.00 pm;
(b) On Mother’s Day with the mother from 10.00 am to 5.00 pm;
(c)On the child’s birthday for a period of not less than three (3) hours with the party with whom the child is not spending time or as may be agreed;
(d)With the father on 25 December 2020 from 3.00 pm to 8.00 pm and each alternate year thereafter;
(e)With the mother on 25 December 2020 from 9.00 am to 3.00 pm and each alternate year thereafter;
(f)With the father on 25 December 2021 from 9.00 am to 3.00 pm and each alternate year thereafter;
(g)With the mother on 25 December 2021 from 3.00 pm to 8.00 pm and each alternate year thereafter.
That the father shall be at liberty to communicate with the child by telephone or text message.
That until the child turns 16 years of age, each party have leave to remove the child from the Commonwealth of Australia for holiday purposes subject to the child’s wishes on no more than one (1) occasion in each calendar year for any period occurring in or substantially in designated school holidays but not exceeding twenty one (21) days provided that:-
(a)The travelling party is to give the stay at home party sixty (60) days’ notice in writing;
(b)The travelling party shall provide the stay at home party with a full itinerary and contact particulars within twenty eight (28) days of the intended departure date; and
(c)The travelling party shall not travel with the child to any country to which there is a “do not travel” Department of Foreign Affairs and Trade Notice or a country that is not a signatory to the Hague Convention.
That each party shall keep the other informed of their current residential address, telephone number and email address and advise the other party of any change to same within forty eight (48) hours.
That each party shall immediately inform the other of any serious illness, injury or accident involving the child, with each party to be at liberty to visit the child during regular visiting hours in the event the child is admitted to hospital.
That each party be at liberty to receive reports, notices, and any other information that is usually provided to the parent by any school, educational institution, sporting body or extra-curricular organisation in which the child may from time to time be enrolled or attend.
That each party be at liberty to attend all school functions and school sport and related extra-curricular activities and events to which parents are ordinarily invited to participate in and/or attend.
That all handovers that do not occur at the child’s school shall occur at such location as may be agreed between the parties and/or the child.

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 Vasil & Vasil 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 ADELAIDE

FILE NUMBER: ADC 1397 of 2017

Ms Vasil

Applicant

And

Mr Vasil

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Vasil (“the mother”) and Mr Vasil (“the father”) are the parents of X born … 2006 (“the child”). The child is 14 years of age.
The child has two older siblings namely Mr Q who is 23 years of age and Mr Y who is 21 years of age.
The parties separated on 1 April 2016.
The mother filed an Initiating Application seeking orders for settlement of property which was the subject of a Response by the father on 16 May 2017 seeking property and parenting orders.
Interim orders were made on 18 May 2017 as follows:-
12.That until further order the child, [the child], do live with the wife and spend time with the husband as follows:-
(a)From 9.00am to 6.00pm every Saturday commencing 20 May 2017;
(b)From after school until 7.30pm each alternate Monday commencing 22 May 2017; and
(c)At further or other times as shall be agreed between the parties.
On 22 September 2017 the father filed an Application for Contravention alleging three counts of contravention in respect of order 12(a) of orders made 18 May 2017 and again on 3 August 2018 the father filed a further Application for Contravention of orders which proceeded on two counts alleging that there had been a breach of order 12(a) by the mother and that she did so without reasonable excuse.
The proceedings were transferred to the Family Court of Australia by order of Judge Cole on 21 June 2019.
The outstanding contravention applications were heard and determined in October 2019 and judgment was delivered on 24 October 2019 noting a finding that the mother was in breach of Count 3 of the Application for Contravention filed 22 September 2017. No penalty was imposed and each party was to pay their own costs of and disbursements in respect of the proceedings.
In September 2019 the mother sought to vary the interim parenting arrangements such that they were either suspended or subject to the wishes of the child as may be conveyed directly to the father.
The father opposed the interim orders sought by the mother and argued that there had been no agreement between the parties but that he had been forced to accept a reduction in time arising from the mother’s refusal to comply with the earlier interim orders.
Orders were made on 24 October 2019 as follows:-
3.That the parties have equal shared parental responsibility for [the child] born … 2006 (“the child”).
4.That the child shall live with the mother.
5.That the child shall spend time with the father as follows:-
(a)Each alternate Saturday from 11.00 am until 6.00 pm commencing 26 October 2019;
(b)Each intervening Monday from the conclusion of school until 7.30 pm;
(c)Such further and other times subject to the child’s wishes, NOTING THAT the parties and the child have agreed that the father is able to attend and observe the child’s soccer training, practice and games.
In addition, additional orders were made for the child to spend time with the father on special occasions such as Father’s Day, the child’s birthday, the father’s birthday and on Christmas Day.
Neither party was satisfied with the interim arrangements being a basis to resolve the child’s parenting arrangements.
By Amended Initiating Application filed 27 July 2020 the mother seeks the following orders:-
1.That the parties have joint parental responsibility for [the child] born on in 2006.
2.That the said child live with the wife (mother).
3.That the said child spend time with the husband (father) in accordance with her wishes.
By Amended Response to Initiating Application filed 3 September 2020 the father agrees that the parties should have equal shared parental responsibility for the child and that the child live with the mother.
The father seeks that the child spend significant and substantial time with him summarised as follows:-
(1)Each Tuesday during the gazetted school period, from the end of school (or school rated activities) until the commencement of school on the following Wednesday;
(2)Each alternate weekend during the gazetted school period from the end of school Friday until the commencement of school on the following Monday;
(3)Each alternate Monday during the gazetted school period to the week allocated for the weekends for the child to spend time with the father on weekends from after school until 7.30 pm;
(4)For one half of all gazetted school holiday periods being the first half in odd numbered years and the second half in even numbered years provided that any time that the child is to spend with the father that coincides with school holidays shall be suspended.
In addition, the father also sought that the child spend time with him during the Christmas and Easter periods, on Father’s Day and the father and the child’s birthday.
The parties were able to agree common orders in respect of the communication of residential and contact details, school reports and notices and an obligation to keep the other party informed of serious illness, accident or incidents involving the child.
The father also sought that any further dispute between the parties as to the parenting arrangements for the child following the delivery of final judgment be dealt with by family dispute resolution.
An important aspect of the proceedings was a further order sought by the father in the following terms:-
24.That a risk assessment for DSM-5 V995.51 for Child Psychological Abuse be conducted on the child by Dr AA at a time to be set by the court and with the subsequent report being made to this honourable court through either further application by the father or at the court’s bequest.
It is now the father’s position that whilst upsetting to him, that when the child reaches the age of 16 years there would be little utility in the orders that he seeks and that the child’s relationship with each of the parties should properly be as the child may determine and subject to her wishes.

Documents relied upon

The mother relies upon the following documents:-
(1)Amended Initiating Application filed 27 July 2020; and
(2)The mother’s trial affidavit filed 27 July 2020
The father relies upon the following documents:-
(1)Amended Response to Initiating Application filed 3 September 2020;
(2)Trial affidavit of the father filed 3 September 2020; and
(3)Affidavit of father annexing a report of Dr AA, psychologist, filed 4 September 2020.
Central to the proceedings is the Family Report of Ms BB (“family consultant”) dated 31 August 2020.

Evidence

The mother was represented by counsel. The father has maintained his status as a self-represented litigant throughout the proceedings. Opportunity was given to the father to seek legal representation but was declined by him.
At the commencement of the trial the Court highlighted the provisions of Pt VII Div 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular whether the Court should dispense with the provisions of s 69ZT of the Act and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
Neither party spoke against he provisions of s 69ZT of the Act to apply.
I considered that the principles as set out in s 69ZT would be better served by receiving the evidence that each of the parties relied upon, but exercising my discretion under s 69ZT(4) of the Act as to the weight which would be given to the evidence, particularly if it is contentious.
Neither party sought to raise objections to affidavits of evidence.
Explanation was given to the father as to the practice and procedure of the trial and the extent and nature of assistance that I was able to give to the father.

The Mother’s Case

The mother considers that the relationship between the parties is dysfunctional and will remain so for the foreseeable future at least until there has been a resolution to the competing claims of the parties for settlement of property.
The mother does not wish to be involved in any process that is likely to lead to further litigation and accordingly seeks that consideration be given to the child making her own arrangements with the father.
The mother is confident that the child will maintain a relationship because she is mature and well-grounded, has the capacity to engage and communicate with the father independently of the mother and of late there have been occasions when the child has made arrangements with the father that are outside of the current interim orders.

The Father’s Case

The father argues that the child’s wishes should be disregarded as her “voice” is not hers but rather that of her mother.
The father holds the strong view that the child may be demonstrating narcissistic traits as a result of the mother’s influence and that before final parenting orders should be made the child needs to be the subject of therapeutic intervention directed to the protection of the father’s relationship with the child.

The Mother

The mother relies upon her trial affidavit which provides scant assistance in terms of evidence relevant to the future parenting arrangements for the child.
The mother was prepared to accept the recommendations of the family consultant and restated her belief that the father had a minimal relationship with the subject child.
The mother denied the father’s assertion that during the course of the relationship she exhibited violent rages and was the catalyst for disharmony.
The mother agreed that the police had attended on a number of occasions and conceded that she did defend herself after she had been subjected to hours of verbal abuse by the father.
She maintained her position that both she and the children were frightened of the father.
She rejected any proposition by the father that she attempts to influence the child against the father and confirms that the child is free to spend time with the father and members of his extended family on any basis that she wanted to.
She denied that she had thwarted any attempt by the father to attend extra-curricular activities and expressed no opposition to the father attending at the child’s curricular and extra-curricular activities.
The mother disclosed that there were a number of occasions when the child would contact her from the father’s home asking that she be collected.
The mother tendered a copy of the father’s Westpac Bank statement which showed that the father had accessed a product called “Web Watcher” for USD $99.95 which is apparently a spyware product.
The mother is not complimentary towards the father and whilst her position is that she will not stand in the way of the child spending time with the father, her evidence supports a finding that she would not support the child’s relationship with the father nor encourage it.
Neither party is kindly disposed towards the other and I am left in little doubt that the child has a clear understanding of the mother’s dislike for the father.
The mother’s evidence was not impressive. I find that whilst she would not prevent the child from having a relationship with the father there is no willingness on her part to promote such a relationship.

The Father

The father relies upon his trial affidavit filed 3 September 2020.
He denies that he had minimal involvement in the children’s lives and in particular that he perpetrated family violence towards the mother and the children during the course of the relationship.
He contends that it was the mother’s erratic behaviour which was the cause of the disharmony between them.
The gravamen of the orders sought by the father is to relieve the child of the need to make parenting decisions and to reinstate a beneficial relationship with him.
The father argues that the mother has engaged in parental alienation and that the “voice” of the child is not “authentic” but rather a megaphone for the mother’s dislike of the father.
The father’s trial affidavit relies heavily upon the report of Dr AA who was engaged by the father to provide critical comment and opinion as to the various family assessment reports prepared during the course of the litigation, but in particular the report of the family consultant.
The father’s evidence was that he wished to protect X from the psychological and emotional risk perpetrated by the mother.
The father’s evidence was a recitation of concepts and propositions as expressed by Dr AA in his various reports.
The father admitted that he placed significant weight on the musings of Dr AA and that on reflection considered that the reports of Dr AA were insightful and provided a credible explanation for the mother’s conduct and the child’s reluctance to fully engage with him.
The father considered that therapeutic intervention was essential for the child in order to redress the damage caused by the mother’s deep dislike of him.
When challenged, the father was not able to put forward the method and manner by which the proposed therapeutic intervention with the child would occur. The father was not able to identify a psychologist or health professional in Australia that would be able to undertake the therapy and could see nothing wrong with Dr AA having a high level of involvement.
The father appeared to be in the thrall of Dr AA and has embraced and adopted his propositions with high enthusiasm but with little critical consideration.

The father’s evidence demonstrated a strong desire for a closer relationship to develop between the child and the father, but he was misguided as to why that was not occurring at present and how it could be remedied.
The father’s steadfast adoption of the mantra of Dr AA does not allow for the possibility that he might be wrong that the child has inherited narcissistic traits from the mother and that little or no weight should be given to the child’s wishes.

The Family Consultant

By order made on 18 March 2020, Ms BB (“family consultant”) prepared a Family Report pursuant to s 62G(2) of the Act.
The Family Report dated 31 August 2020 sets out the information received by the family consultant in addition to the interviews with the parties and the child and observed interaction.
The family consultant attempted to contact the child’s adult brothers but without success.
The family consultant recorded that each of the parties had set out historical allegations of physical and verbal abuse by the other of them and correctly identified risk factors likely to impact upon the child arising from the acrimonious and ongoing litigation of the parties, the mother’s report of the father’s obsessive nature and the father’s report that the mother has alienated the child from him resulting in psychological abuse and denigration.
The family consultant was alert to the father’s reliance upon Dr AA and his proposition that the child had developed a “trauma attachment pathology”[1] and needed a “guided treatment plan to restore [the child’s] healthy attachment bonding”[2] with the father.
[1] Family Assessment Report dated 31 August 2020 at [27].
[2] Ibid.
At [49] of the report, the family consultant recorded the mother’s attitude to the child maintaining a relationship with the father as follows:-
The mother concluded by saying that although she does not see the value in [the child] maintaining a relationship with her father when the father’s “sole role is to put me down…mess with her head…telling her how bad I am”, the mother nonetheless said that she just wants [the child] to be happy. She said, “If she wants to see her father I’ll support it but if she wants to come home then she should be allowed to…[Dr D] said when [the child] wants to leave…[the father] needs to facilitate this”. …
The father repeated his view of the mother during the course of the relationship as being verbally abusive and prone to narcissistic rage.
The father believed that the mother was using the child as a weapon to hurt him. The father used the concept of “inter-partner violence”[3] to describe the nature of his relationship with the mother and that her continued denigration of him had an adverse impact on the two adult children by them now having a minimal relationship with the father.
[3] Ibid at [54].
The father was keen for the family consultant to speak to Dr AA concerning his critique of the report of Ms CC and to ensure that the family consultant conducted her assessment in a professional manner.
The family consultant found that the adult relationships were “strikingly dysfunctional and characterised by blame and fault finding”.[4]
[4] Ibid at [65].
The child presented as a year 9 student and was calm and detached from the litigation. She believed that the parental conflict was not about her but rather about money.
The child did not understand why the father could not accept that she did not want to engage in an equal time shared care arrangement and was frustrated by the father’s persistence to see her when she did not want to do so.
Despite the child’s frustration with the ongoing conflict, there were occasions when she had spent extended time with the father such as a trip to Queensland which was enjoyable.
There was no equivocation in the child’s presentation of her relationship with her mother. She described the mother as “more of a parent than Dad…basically I’m tight with my Mum…we’re more like sisters”.[5] She considers that her mother’s home is a safe happy place and felt that she was more loved by the maternal family rather than the paternal family.
[5] Ibid at [69].
The family consultant based weight on the child’s reflection that she did not feel heard by her father and that he dismissed her wishes as being a reflection of the mother rather than acknowledging that the child no longer wanted her relationship with the father to be regulated by court order.
The family consultant drew a clear contrast between the observations of the father with the child and those involving the mother.
The impression of the family consultant was that there was “awkwardness between father and daughter”,[6] whereas with the mother there was “warmth and spontaneity”.[7]
[6] Ibid at [78].
[7] Ibid at [81].
The family consultant did not consider that the father was child focussed and was puzzled by his apparent refusal to accept that the child was resistant to a shared parenting arrangement.
An important consideration is the family consultant’s observation that the child presented as “relaxed and mature”[8] and had:
seemingly informed views about the nature of her relationship with each of her parents, which seemed to fuel her ideas about time spending arrangements with her father, seemed to belie the father’s pathologizing narratives in this regard.[9]
[8] Ibid at [92].
[9] Ibid.
The mother’s counsel chose not to cross-examine the family consultant. The father embarked upon a detailed cross-examination of the family consultant and persisted with his proposition that the family consultant had misconceived her role, had acted unprofessionally and had failed to recognise that the child’s expressed views were not her own but rather, those of her mother either directly stated or as an indirect result of the mother’s ongoing dislike for the father and her refusal to facilitate and promote the child’s relationship with him.
I find the evidence of the family consultant to be well considered and straightforward. The family consultant undertook a detailed consideration of relevant court documents, undertook appropriate interview and assessment with each of the parties and accurately observed the child’s interaction with each of them.
I reject the father’s criticism of the family consultant.

Dr AA - psychologist

The father’s evidence demonstrates that he has been significantly influenced by the work and opinion of Dr AA. The father has relied upon interim reports by Dr AA and the family consultant noted the father’s request that Dr AA overview or in some way participate remotely in the family assessment.
In preparation for the hearing, the father considered that the mother or the Court may call Ms CC, psychologist, to give evidence. Accordingly, Dr AA was instructed by the father to prepare a report or critique the report of Ms CC and of the family consultant. Ms CC was not called to give evidence and her report was not before the Court or read into evidence.
The father relies upon the report of Dr AA, annexed to the father’s affidavit filed 4 September 2020, in respect of the family report prepared by the family consultant.
At the commencement of the hearing counsel for the mother foreshadowed that there may be an application seeking that the father’s affidavit filed 4 September 2020, annexing the report of Dr AA, be struck out. The application was not pursued and when asked whether there was still opposition to the Court receiving the report of Dr AA and hearing his evidence, the mother’s counsel raised no objection and did not pursue the application. It is assumed that the decision not to oppose the Court receiving the evidence of Dr AA was part of the mother’s trial strategy. If so, such approach is to be discouraged.
Dr AA is a clinical psychologist licensed in the United State of America. He has been retained by the father:
as a consultant in clinical psychology to assess with the resolution of his family conflict and the restoration of a healthy and normal-range attachment bond with his daughter.[10]
[10] Affidavit of the father filed 4 September 2020, annexure A.
Specifically, the father requested that Dr AA review the report of the family consultant and to provide an analysis.
The father conceded that he had not provided Dr AA with any significant background either by his own history or by reference to court documents including affidavit material other than the family consultant’s report and the report of Ms CC.
Dr AA made no contact with the mother, the child nor the adult siblings.
The only information as to the history and as to the child’s presentation is gleaned from the reports of Ms CC and the family consultant.
Division 15.5.2 of the Family Law Rules 2004 (Cth) (“the rules”) sets out the procedure for the appointment of a single expert. There was no agreement between the parties that Dr AA would be appointed as a single expert.
The father did not make an application seeking an order under r 15.45 for the appointment of Dr AA as a single expert.
Sub-rule 15.45(2) provides:-
When considering whether to make an order under subrule (1), the court may take into account factors relevant to making the order, including:
(a)the main purpose of these Rules (see rule 1.04) and the purpose of this Part (see rule 15.42);
(b)whether expert evidence on a particular issue is necessary;
(c)the nature of the issue in dispute;
(d)whether the issue falls within a substantially established area of knowledge; and
(e)whether it is necessary for the court to have a range of opinion.
Division 15.5.3 of the rules provides for the requirements necessary for the Court to give permission for a party to rely upon expert evidence but not a single expert witness.
Sub-rule 15.51(1) provides:-
A party must apply for the court’s permission to tender a report or adduce evidence at a hearing or trial from an expert witness, except a single expert witness.
Rule 15.52 requires that a party must bring an application for permission to tender a report or adduce evidence from an expert witness.
It is not controversial that the father did not make such an application and that no affidavit was filed which might assist in the Court assessing whether the requirements under sub-r 15.52(2) have been satisfied.
Rule 15.54 provides for the instructions that are required to be given to an expert witness:-
(1) A party who instructs an expert witness to give an opinion for a case or an anticipated case must:
(a) ensure the expert witness has a copy of the most recent version of, and has read, Divisions 15.5.4, 15.5.5 and 15.5.6 of these Rules; and
(b)obtain a written report from the expert witness.
(2)All instructions to an expert witness must be in writing and must include:
(a)a request for a written report;
(b)advice that the report may be used in an anticipated or actual case;
(c)the issues about which the opinion is sought;
(d)a description of any matter to be investigated, or any experiment to be undertaken or issue to be reported on; and
(e)full and frank disclosure of information and documents that will help the expert witness to perform the expert witness’s function.
(3) …
(4) …
Division 15.5.5 of the rules sets out the duties and rights of an expert witness.
Sub-rule 15.59(3) provides:-
(3) The expert witness has a duty to:
(a)give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness’s knowledge and capability;
(b)conduct the expert witness’s functions in a timely way;
(c)avoid acting on an instruction or request to withhold or avoid agreement when attending a conference of experts;
(d)consider all material facts, including those that may detract from the expert witness’s opinion;
(e)tell the court:
(i)if a particular question or issue falls outside the expert witness’s expertise; and
(ii)if the expert witness believes that the report prepared by the expert witness:
(A)is based on incomplete research or inaccurate or incomplete information; or
(B)is incomplete or may be inaccurate, for any reason; and
(f)produce a written report that complies with rules 15.62 and 15.63.
Dr AA was not advised of the provisions of Divs 15.5.4, 15.5.5 and 15.5.6 of the rules.
In the ordinary course, the almost total departure from the requirements of Pt 15.5 of the rules as it relates to expert witnesses would have been sufficient for the Court to strike out the evidence sought to be relied upon from Dr AA.
As discussed, evidence was heard from Dr AA and his report was received. Given the father’s unequivocal acceptance of the views of Dr AA that the mother seeks to alienate the child from the father and that little weight can be placed upon the child’s views notwithstanding her age, a more detailed consideration of the evidence of Dr AA is required if only to better assess the father’s current presentation and factors relevant to s 60CC of the Act.
In Lynch v Lynch (1966) 8 FLR 433 at 433 Begg J issued the following caution in respect of the use of psychiatric (or psychological) evidence:-
In my view, the evidence of a psychiatrist usually has little place in a contested custody application. In many of the cases recently I have noticed that a tendency is developing to employ a psychiatrist virtually to argue the applicant’s case rather than to give a straightforward medical opinion about a child’s nervous or mental condition and the possible effects of the strains and stresses. I make no secret of the fact that I seek to discourage this tendency to bolster up a claim for custody with the assistance of so-called expert evidence.
The weight to be given to the evidence of a purported expert similar to the role of Dr AA was considered by the Full Court in the decision of Re W & W: Abuse allegations; expert evidence (2001) FLC 93-085.
The following appears at [149]:-
In a chapter titled “Problems Relating to the Expert Witness in Personal Injury Cases”, appearing in Harold H. Glass (Ed.) (1970) Seminars on Evidence, The Law Book Company Ltd, Mr. Gordon J. Samuels (as he then was) said:
“The criticism made of the expert witness may be justified. But, in justice, it should be directed not at the witness himself but at the role which the lawyers have forced him to adopt. It was they who originally altered his function from that of an assessor to that of a witness; and it is not his own corruption which had brought him into low repute, but the circumstances in which this function has to be discharged. The allegation of undue adherence to his client’s cause is made by those [who] have created and who perpetuate the forensic techniques to which he has been forced to adapt himself. It is not the expert’s own choice to be a partisan but a consequence of the adversary system in which he has to play a part.”
At [157] their Honours considered and adopted the following statement in Lord Abinger v Ashton (1873) 17 LR Eq 358 at 374:-
Undoubtedly there is a natural bias to do something serviceable for those who employ you and adequately remunerate you. It is very natural, and it is so effectual, that we constantly see persons, instead of considering themselves as witnesses, rather consider themselves as the paid agents of the person who employs them.
The process adopted by Dr AA was to consider paragraphs in the report of the family consultant that he considered were either objectionable or worthy of comment and then to provide his critique.
Paragraphs 24, 25 and 26 of the family report do no more than record that each of the parties made historical allegations of physical, verbal, psychological and financial abuse of the other. It could not be said that the family consultant determined that the mother’s allegations were more credible than those made by the father. Nonetheless, the following comment by Dr AA is directed to the mother seeking to impugn her credibility and motives without Dr AA having received any input from the parties, the child or other members of the family:-
Dr. AA Comment: In this situation, the past spousal conflicts characterised by the mother as various forms of “abuse” are not relevant to the current child custody matter, they are long ago, they are disputed for accuracy, they are low-level, and they are spousal issues not issues that elevate the risk that the father will be emotionally or physically abusive of his daughter. There is no credible indication by any report that the father represents an abuse risk towards his daughter.
The technical term for “domestic violence” is Intimate Partner Violence (IPV), this term expands the construct beyond a “marital” relationship. The various “abuse” allegations from the mother are not distinguishable from normal-range spousal arguments interpreted by the mother’s perception. There are two forms of IPV, terrorist and situational. The type of IPV that is of concern is terrorist IPV (usually involving narcissistic or psychopathic pathology), and the type of IPV in this matter is likely situational at its worst. The father presents no credible risk to his daughter by all indication in the data surrounding this family.[11]
[11] Report of Dr AA dated 2 September 2020 at 8 – 9.
At [36] the mother was asked to consider the basis of the child’s consistent reluctance to spend extended time with the father. She did not feel that the father had spent significant time with the child prior to separation, but rather focused on activities with the boys.
Dr AA again sought to impugn the mother in the following comment:- [12]
[12] Ibid at 17.
Dr. AA Comment: The mother seeks sole possession of the child and she believes the father is “selfish”. In preschool we learn to share, take-turns. The father wants to share, the mother wants the child all to herself, and the mother calls the father selfish.
The technical term is “projection”. It’s when we take a disowned and unacknowledged negative characteristic in ourselves, like selfishness, and we don’t see this quality in ourselves, instead we “project” the personal characteristic in ourselves onto other people and accuse them of our own disowned trait.
·“Narcissist persons eliminate bad aspects of themselves using massive projections.” (Svrakic, 1990)
·“The narcissist exaggerates his own importance, achievements, abilities, talents, and efforts, while splitting off, disassociating, or repressing negative elements of his self and projecting them onto others.” (Cohen, 1998, p.198)
·“The propensity to blame is an outstanding feature of narcissistic behaviour in general. It is a way for the narcissist to see himself in a good light and a manifestation of the splitting off of the negative aspects of the self and projecting them onto others that is a major narcissistic defense. (Cohen, 1998, p.206)”
…
(Footnotes omitted)
Dr AA considers that:
The mother is constructing false stories as justification for the child’s continuing rejection of her father because the mother has no capacity for insight into her own behaviour.[13]
[13] Ibid.
The father referred to the mother’s rage in his interview with the family consultant. Apparently accepting without challenge the father’s history of the mother’s purported aggressive conduct, Dr AA’s following comments are surprising in circumstances where he has not spoken to the mother, nor had he received any psychological assessment of her functioning:-
Dr. AA Comment: This reporting is consistent with a narcissistic-borderline pathology and is apparently supported by report of the older children. While confirmation of accuracy is needed, the father’s report appears credible for both its internal coherence of symptoms reported, and in the context of all the additional reporting of symptoms leading to the same explanatory cause.
In my earlier list of the worst possible parents, narcissistic-borderline was #2, right behind sexual abuse incest. Clinical concern for [the child’s] emotional and psychological well-being with the mother is substantial.[14]
[14] Ibid at 31.

Dr AA considers that the mother’s behaviour is consistent with a narcissistic personality pathology and manifests as child abuse in that:-
Dr AA Comment: …the mother has no way of retaliating, abusing, or punishing the father for the wrongs she perceives were done to her. Her only available weapon to use against the father is his love for his daughter. The mother has entirely destroyed that which the father holds most dear in all the world, his bond with his daughter. …[15]
[15] Ibid at 32.
Dr AA considers the mother’s behaviour in alienating the child from the father as a “savage and brutal form of IVP spousal abuse, where one parent essentially “kills” the other parent’s child. …”[16]
[16] Ibid at 33.
At [55] the family consultant records the father’s view that the three children (including the two adult children) have been affected by the mother’s ongoing denigration of him.
Dr AA accepts without question the father’s reporting as credible and he provides the following explanation for Mr Y’s behaviour in not wanting to make contact with the father:-
Dr. AA Comment: … There is a reason that suicidal behaviour is associated with borderline personality pathology, it’s because suicidal behaviour is associated with childhood sexual abuse and 70-80% of people diagnosed as having a borderline personality disorder have a history of sexual abuse victimization as children.
Was Mr Y sexually abused? Probably not, more likely we are looking at a ripple of sex abuse, not the rock. The rock likely occurred a generation or two earlier, and likely with the mother. A causal origin in the mother’s unresolved childhood trauma for this family conflict and attachment pathology in the child, is consistent with all the evidence reported, and it explains all the evidence reported.[17]
[17] Ibid at 34.
Dr AA considered that whilst the child may have a narcissistic personality disorder it is likely that she does not but rather that she is influenced in her attitudes and belief about the father by the mother who Dr AA considers does suffer from narcissistic personality disorder.
Dr AA considered that the professional standards of practice of the family consultant were:
substantially deficient, her opinions are not professional, they are entirely her personal opinions and are no more credible than those of your next door neighbour. …[18]
[18] Ibid at 60.
Dr AA disagreed with the family consultant’s assessment of the child as a normal functioning 14 year old child and opines that her conduct is indicative of “severe attachment pathology, as bad as it gets”.[19]
[19] Ibid at 62.
The family consultant was considered to have caused damage to the child by being:
captured into the coalition by her need to “rescue” the child from the father, she needs to be the “protective other” so she joins the false trauma reenactment narrative, the story, the kabuki theatre of display, with the purpose to collaborate in the elimination of the father from the child’s life. …[20]
[20] Ibid.
Dr AA went so far as to assert that the family consultant was “advocating for the elimination of the father from the life of his daughter and leaving the severe attachment pathology completely untreated and unresolved…”[21]
[21] Ibid at 63.
Consideration was also given to the quality of the family consultant’s relationship with her father and Dr AA asks the question “If it was a good relationship, then doesn’t she remember how important her dad was to her?”[22]
[22] Ibid.
Dr AA considered that the explanation for the lack of knowledge or understanding by the family consultant of the attachment system between a parent and a child and her inability to recognise multi-generational transmission of trauma was as a result of her “professional laziness and professional sloth.”[23]
[23] Ibid at 64.
He summarises his opinion of the family consultant in the final paragraph of his report as follows:-
Dr AA Comment: …
[The family consultant] needs to hope she is right and Dr. AA is wrong, because if she’s wrong and I’m right, she’s a child abuser as a mental health person, and that’s likely malpractice for professional ignorance (lack of knowledge or information), incompetence (failure to do her task successfully), negligence (failing to show proper care in her professional practices, harming both the child and the father, and failure in her duty to protect.[24]
[24] Ibid at 65.
In evidence, whilst Dr AA did not resile from the broad principles enunciated in his report, he did concede that some of his more florid and exaggerated remarks should be tempered by an acknowledgement that he has not seen or assessed any of the parties including the child.
I find that the evidence of Dr AA is of little assistance other than to raise a spectre of concern that the father is in the thrall of Dr AA and his view that the mother has alienated the child, that this will impact on how he interacts with the child, particularly if he is open about the view adopted from Dr AA that the mother suffers from narcissistic personality traits, is a child abuser and is likely to be a victim of generational sexual abuse.
I do not consider that Dr AA was attempting to be objective or that he approached the task as instructed by the father in an open and unbiased manner. Dr AA had determined that his task was to lend support to the father’s determination that the mother had deliberately alienated the child.

Parenting considerations

I approach the matter from the perspective that the Court should now focus on the practical reality of each parties proposal, bringing to account the considerations of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interest test is to be considered by application of the objects of s 60B(1) of the Act and the underlying principles of s 60B(2) of the Act.
I am cognisant of the primary considerations and additional considerations in respect of the matters as set out in ss 60CC(2) and (3) of the Act. Whilst I am mindful of the direction contained in s 60CC(2A) of the Act and in particular the focus by the father of what he considers is the detriment likely to be caused to the child by the mother not supporting the child’s relationship with him, I do not consider that this is a significant factor in the proceedings.
I propose to adopt the following approach:-
(1)Give consideration to the separate proposals put by each of the parties as they were identified to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act namely, the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm if applicable;
(5)Have regard to the additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act are to be considered, and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation or comment.

Meaningful relationship

Section 60B(1) of the Act provides that the aims and objects of the Act are to ensure that the best interests of the child are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of the children.
In Mazorski & Albright [2007] 37 Fam LR 518 at [26], Brown J considered the definition of “meaningful” to be synonymous with “significant”, “important” or “of consequence”.
A meaningful relationship does not connote an optimal relationship.
In Godfrey & Sanders [2007] FamCA 102 at [36] Kay J considered the requirements of the legislation in relation to the promotion of a meaningful relationship in the following terms:-
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
The child maintains a relationship with the father. She is 14 years of age. She communicates directly with the father and he concedes that of recent date arrangements have been made for the child to spend time with him over and above the provisions of the current interim orders.
The father concedes that for a considerable time there has not been compliance with the orders and he has not sought to enforce compliance.
There is a begrudging that it would not be in the child’s interests to force the issue of compliance.
The family consultant found that the child wishes to maintain a meaningful relationship with the father but seeks that he accept she does not want to be the subject of rigorous compliance with orders.
In finding favour with the thrust of the recommendations of the family consultant that significant weight be given to the child’s wishes, I do not ignore that the mother did not impress as a person with a focus on promoting the child’s relationship with the father.
The mother was ready almost at a moment’s notice to arrive at the father’s premises if so requested by the child. There is no suggestion that the father poses a risk to the child and accordingly no harm could come to the child if the mother were to lend her support for the child spending more time with the father.
The mother has an obligation not just to facilitate the child’s time with the father but to promote and encourage that relationship.
There is no suggestion on the evidence of the family consultant that the child does not benefit from maintaining a relationship with the father. The focus of the proceedings is the extent of that relationship and whether it should be dictated or determined by the child or by reliance upon Court orders.

Child’s wishes

There is no uncertainty to the manner in which the child would wish to spend time with the father.
The family consultant was satisfied that the child was capable of mature reflection in respect of the circumstances in which she found herself and was cognisant of the conflict between the parties and her perception that the unresolved financial dispute was an impediment to a more natural and normal relationship being able to develop between the father and the child.
In the absence of any evidence to the contrary, I consider that the opinion of the family consultant as to the weight that should be given to the child’s wishes as highly relevant and supports a finding that significant weight should be afforded to the views of the child.
Whilst I have considered the other s 60CC additional considerations, they are of lesser relevance save as to the need to consider s 60CC(3)(l) namely:-
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

Conclusion

I propose to make orders that provide for the parties to retain equal shared parental responsibility for the child.
The child shall live with the mother and spend time with the father for three months as set out in order 5 of interim orders made 24 October 2019 and thereafter the child will spend time with the father in accordance with her wishes.
It seems that there is some utility in continuing the orders in terms of paragraphs 6 to 13 of the interim orders modified to bring to account the more benign relief set out in the mother’s Amended Initiating Application and the father’s response.
I make orders as appear at the commencement of these reasons.

I certify that the preceding one hundred and fifty four (154) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 9 October 2020.

Associate:

Date: 9 October 2020

[2020] FamCA 854

9 October 2020

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