VENNO and ISAACS
[2024] FCWA 92
•9 MAY 2024
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: VENNO and ISAACS [2024] FCWA 92
CORAM: O'BRIEN J
HEARD: 7 & 8 FEBRUARY 2022, 26, 27 & 28 JUNE 2023, 13, 14, 19 & 20 FEBRUARY 2024
DELIVERED : 9 MAY 2024
FILE NO/S: 3375 of 2019
BETWEEN: MR VENNO
Applicant
AND
MS ISAACS
Respondent
Catchwords:
PARENTING – where children aged 16 and nearly 12 have lived with the wife since separation, and initially were estranged from the husband – where allegations of inappropriate sexual behaviour on the part of the husband had been made, and the wife maintained false beliefs about those allegations for some time – where the children were exposed to those false beliefs – where more recently, and after therapy, the wife has acknowledged those beliefs were false and apologised to the husband – where findings have been made by consent that there was no inappropriate sexual behaviour on the part of the husband, and he poses no risk of harm to the children – where supervised and then limited unsupervised time between the children and the husband commenced but is progressing slowly – where both children have health issues, the older child is neuro diverse, and the younger child is being assessed for neurodivergence - where the husband seeks an immediate change of care for the younger child, utilising [The Program] offered by [Dr H] - where the court is unable to make a finding as to whether [Dr H] is appropriately qualified to express the opinions contained in his reports and evidence – where the methodology adopted by [Dr H] in reaching his firmly expressed opinions is fundamentally flawed – where [Dr H] did not demonstrate the objectivity, independence, and open-mindedness necessary if purported expert opinion is to be of probative value – where the proposed engagement with the program does not identify by name or qualification the proposed facilitators other than [Dr H] - where the proposed engagement with the program would inappropriately delegate to unnamed facilitators the power to determine when and on what basis the younger child would resume communication and time with the wife - where it is not in either child's best interests in any event for there to be a change of care – where the strongly expressed views of the children must be given weight, and attempting to act contrary to them would be counter-productive in any event.
Legislation:
Family Law Act 1975 (Cth)
Family Law Amendment Act 2023 (Cth)
Category: Reportable
Representation:
Counsel:
| Applicant | : | Self-Represented Litigant |
| Respondent | : | Self-Represented Litigant |
| Indpendent Children's Lawyer | : | Ms M Chape |
Solicitors:
| Applicant | : | Self-Represented Litigant |
| Respondent | : | Self-Represented Litigant |
| Indpendent Children's Lawyer | : | Mary Chape Lawyer |
Case(s) referred to in decision(s):
[2022] FCWA 114
[2022] FCWA 28
[2023] FCWA 249
Ajit & Thuvaragesh [2022] FedCFamC1A 80
Banks & Banks (2015) FLC 93-637
Bielen & Kozma (2022) FLC 94-123
Bondelmonte & Bondelmonte (2017) 259 CLR 662
Fencott v Muller (1983) 152 CLR 570
Harrington v Lowe (1996) 190 CLR 311
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
New Aim Pty Ltd v Leung [2022] FCA 722
Pinson & Pinson (No 2) [2020] FamCAFC 111
Stott & Holgar and Anor [2017] FamCAFC 152
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Venno and Isaacs has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).
1The trial of the parenting proceedings between [Mr Venno] ("the husband") and [Ms Isaacs] ("the wife"), about the arrangements for their daughters [Child A] born 3 September 2007 and [Child B] born 22 May 2012, concluded on 20 February 2024. The children live with the wife and were for a significant period estranged from the husband, in circumstances summarised below.
2The children now spend some limited time with the husband. Both have personal attributes, independent of their relationship with the husband, which make the progression of their time with him challenging. Both are engaged in ongoing therapy.
3Both parties want the children's relationships with the husband to progress. They are unable to agree as to just how that should happen. That is the matter requiring determination by the Court. To put the current issue in context, it is necessary to summarise the difficult path this family has taken to date.
Background and the course of the proceedings to date
4Both parties were born in 1979 and work in the provision of health services. They were married in July 2007 in [Country A] and moved with the children to Australia in September 2013. They separated in March 2016 and divorced. Both have re-partnered; the husband lives with his partner [Mr C], and the wife lives with her husband [Mr D].
5The husband commenced proceedings in May 2019. He said that since separation the wife had dictated terms as to when the children could spend time with him, and that over time those terms had become more restrictive. He attributed that, at least in part, to the wife's reaction to him informing her in March 2016 that he is gay. The wife said that the children were reluctant to spend time with the husband, despite her encouragement. She raised suggestions that the children had been subjected to inappropriate sexual behaviour by the husband; those concerns were investigated by the Department of Communities and found to be unsubstantiated.
6Initially, interim orders for supervised time were made by consent. Matters did not progress, and [Dr E] was appointed as the Single Expert Witness ("SEW"), providing her first report in January 2020. In that report, she noted that the children had not spent time with the husband since June 2019 and were expressing clear views that they did not wish to see or speak to him. She queried the weight to be given to those expressed views, given the children's alignment with the wife and concern as to the whether she, notwithstanding superficial encouragement of the children's relationship with the husband, maintained a belief that they were at risk. The possibility that the Court might need to consider orders for the children to live with the husband, if they were to have a relationship with both parents, was squarely raised.
7Orders were then made for family therapy, and [Ms F] was engaged. In her second report dated 16 August 2020,[1] she reported that no real progress had been made to that point, expressed concerns regarding the wife's "apparently strong negative views concerning the [husband]" and the possibility of those views not only being conveyed to the children, but becoming more entrenched.
[1] Noting that Ms F' initial report was dated 2 August 2020.
8Family therapy continued, and Ms F provided a report dated 22 August 2021.[2] In that report, she said that while the wife had initially appeared "quite dubious" about family therapy, subsequently there had been a "significant shift in attitude", such that Ms F described her as being "very much involved in efforts to reunify the [husband] with the children" in a sustained manner, being no longer "stuck" in her belief that he had abused them.[3] She noted also that the husband is a caring father who had done everything in his power to facilitate reunification with the children. His efforts were commendable, although in more recent times he had shown some impatience with the pace of the process. She recommended that family therapy continue.
The first tranche of trial – 7 and 8 February 2022
[2] After providing a report dated 24 January 2021.
[3] Ms F's Report dated 22 August 2021 at 11-12.
9Against that background, by agreement Ms F gave evidence at the commencement of the first tranche of trial.
10She said that when the therapeutic process started, the children would not even agree to look at pictures of the husband. Child B then progressed to the point where she was happy to spend time with the husband, particularly in the presence of the wife or MrD. Child A's issues were more complex. She had significant issues with her physical health and would likely benefit from an Autism Spectrum Disorder ("ASD") assessment. She was 'hanging on' to beliefs that the husband had behaved in a sexually inappropriate way to her. Ms F was of the view that pressing her in therapy would be counterproductive.
11The parties then modified their proposals, after hearing that evidence and exploring it in cross-examination. They were unable to agree, and a determination was required. Their proposals, and that determination and the reasons for it, are set out in my judgment published on 9 February 2022[4] ("the first judgment"), which I incorporate in these reasons. In short, orders were made for Child B to spend time with the husband on a gradually increasing basis, initially with supervision, but then with support from [Ms G],[5] a person nominated by him. Child A was to join them to the extent she wished to do so and was to continue therapy with the husband facilitated by Ms F. The parties were also to facilitate Child A receiving trauma therapy, and the wife was to facilitate and encourage both children communicating regularly with the husband by video.
[4] [2022] FCWA 28.
[5] Referred to at times in the proceedings [by another name].
12The orders were expressed to be interim, and the trial was adjourned to resume on 23 June 2022.
Further developments and the vacation of the trial dates
13The husband's approach throughout supervised visits was patient, gentle and child focused, but Child B struggled. Those struggles intensified when efforts were made to progress both the nature and duration of her time with the husband, to the point where she appeared frightened of him, asked to go home, and refused to get into his car.
14Family therapy continued. Ms F reported that the husband persisted in his efforts to restore his relationship with the children and was initially very patient and remained calm in the face of their resistant behaviours. Unfortunately, the husband "seemed to have lost patience", with his frustrations mounting over time.[6] He was not prepared to slow down what Ms F regarded as a necessarily slow process. While she had initially observed a genuine improvement in the relationship between the husband and Child B, the struggles described above had intensified to the point where Child B became "overwhelmed and grew increasingly distressed".[7]
[6] Ms F' Report dated April 30 2022 at [5].
[7] Ibid at [15].
15Family therapy was discontinued on 16 March 2022.[8] Ms F did not recommend further family therapy, based on her view that it was likely that the same issues would arise.
[8] For the reasons described above: See the email of Ms F filed by the ICL on 22 April 2022.
16The husband sought to explore the possibility that [a family reunification program] ("[The Program]"): offered by [Dr H], might present a path forward. The Program involves three components, predicated on an immediate change of primary care, and a period of no communication with the previous primary carer. The first phase is the four-day Workshop, the second is an unstructured holiday period and the third is the After-Care Protocol. Without foreshadowing any view as to the outcome, I considered it appropriate to permit that possibility to be explored. I made orders to facilitate that, and for the preparation of an updated report by the SEW. Those steps could not be completed in time for the trial to resume as scheduled. It was rescheduled to resume on 7 November 2022.
17Those matters and the reasoning for the orders made are set out in more detail in my judgment published on 1 June 2022[9] ("the second judgment"), which I incorporate in these reasons.
The scheduled resumption of trial – 7 November 2022 and 23 January 2023
[9] [2022] FCWA 114.
18On 4 October 2022, the Independent Children's Lawyer ("ICL") filed an application to vacate the rescheduled trial listing. She was unavoidably scheduled to undergo surgery, would not recuperate in time to properly conduct the trial, and it was impractical (particularly in the time available) to transfer the conduct of the matter to another ICL. On 14 October 2022, the resumption of trial was rescheduled to 23 January 2023. Various supportive orders were made in relation to the updating of evidence.
19On 6 January 2023, the wife, her current husband and the children tested positive for Covid 19. The wife's symptoms were severe. On an application filed on her behalf by her husband on 16 January 2023, the trial was again vacated on 23 January 2023 after her health professional certified that she was unfit to participate in a trial for the remainder of that month. Orders were made to facilitate enquiries as to the availability of the expert witnesses. On 1 February 2023 the proceedings were re-listed for trial to resume on 26 June 2023.
The trial resumes – and the wife's position fundamentally changes
20The trial resumed on 26 June 2023. At that point, notwithstanding earlier progress, the wife still maintained her "grave concern" that the husband may have behaved in a sexually inappropriate manner towards one or both children in the past, and her belief that the children may be exposed to the risk of sexually inappropriate behaviour if they spent unsupervised time with him.[10] She sought sole parental responsibility for both children and that they live with her. She proposed that Child B spend supervised time with the husband for a period of up to three hours on one Saturday of each month, provided that she was willing and able. Child A would accompany her if she wished to do so.
[10] Transcript of Proceedings from 26 June 2023 at [39].
21The husband proposed that Child B, and Child A if she was deemed suitable, should participate in The Program, and move into his care. He proposed alternatives for Child A if she was assessed not to be a suitable candidate for the program.
22The husband, his partner Mr C, and another witness then gave evidence and were cross examined at some length. At the start of the wife's evidence on the next day, she said that having seen and heard the husband give his evidence, she no longer believed that he had ever behaved in a sexually inappropriate way to the children, and no longer held any concern that he posed a risk to them. She apologised to the husband for having held those beliefs.
23With the agreement of both parties and the ICL, the Court then made formal findings:
(a)that at no time has the husband ever behaved in a sexually inappropriate manner towards or in the presence of either child; and
(b)that neither child is at any risk of exposure to sexually inappropriate behaviour in his unsupervised care in the future.[11]
[11] Orders made 27 June 2023.
24That development changed the trajectory of the trial.
Further agreed interim orders
25The next day, the parties agreed to a series of interim orders. Those orders discharged all previous parenting orders and provided for equal shared parental responsibility and for both children to spend time with the husband on a gradually progressing basis, such that by late September 2023 they would be spending each alternate weekend with him from 6.00 pm Friday to 6.00 pm Sunday, and in the forthcoming summer holidays, would spend alternate weeks in his care. Orders were also made for regular video or other communication, and for the children to have the orders and findings explained to them by their therapist [Ms I] in the context of ongoing therapy. A précis prepared by me was provided to Ms I via the ICL. The trial was adjourned to a specific date, as from the husband's perspective it was essential to ensure that the wife maintained her expressed commitment to the changed trajectory. Both parties understood that no final orders were likely to be made at that hearing, which would proceed on the papers. The husband wished to keep the option of engagement with The Program open.
Progression and the resumed hearing
26There was then some progress. The children began spending time with the husband, but not without difficulty. Both parties tried to make the arrangements work, but some differences of opinion developed and resistance from the children was encountered. By the time of a further hearing on 22 September 2023, the parties reported that Child A struggled to spend more than a few hours away from home, and that the husband had been sensitive in his responses by allowing her to return from time with him when she felt she needed to. Child B was struggling, but said that she thought she could cope with spending up to three hours with the husband if she felt she had the option of going home if she felt overwhelmed. She was unhappy at the prospect of having no say in the progression of her time with the husband. She expressed frustration at the uncertainty as to where she would commence high school as despite her firmly expressed views, the husband had not agreed to her enrolment in her preferred school.
27Both girls recounted to Ms I their experiences of their time with the husband and expressed their views. Ms I's evidence at that point, and at the resumption of trial in February 2024, is set out in more detail below and in a judgment delivered on 9 November 2023[12] ("the third judgment"), which I incorporate in these reasons.
[12] [2023] FCWA 249.
28The orders made by consent on 28 June 2023 as to the children's time with the husband, were discharged. In their place, further interim orders were made for both girls to spend time with him on alternate weekends for a period of between four and eight hours, and in intervening weeks on either Thursday or Friday from 4.00 pm to 7.00 pm.[13] Orders were also made to resolve the schooling dispute.[14] The trial was scheduled to resume on 13 February 2024.[15]
The children's health issues
[13] Orders made 9 November 2023.
[14] Which permitted the wife to enrol Child A into [School B] for the upcoming school year.
[15] Orders made 22 September 2023.
29Before turning to the developments at the resumed trial, it is appropriate to summarise the health issues faced by both children. Those issues are complex, and an understanding of them informs what follows.
Child A
30Child A has suffered from physical health issues. She has required spinal surgery and has suffered from incontinence issues from a young age. Currently, she has to self-administer a catheter both for bowel and bladder relief and has to use a bag overnight. Using the catheter can be time‑consuming, difficult and painful and she not infrequently requires assistance from the wife.
31Child A has also encountered mental health issues. In late 2022, on referral from her paediatrician [Dr J], she was assessed for ASD by a clinical psychologist, [Ms K]. In referring Child A, Dr J noted that she had a range of difficulties with social communication, long-standing symptoms of social anxiety, long-standing difficulties with developing friendships, and avoidance disorder. She would engage in conversation only about topics which interest her, had a rigid thinking style, and engaged in a range of repetitive and ritualised behaviours. She presented with a range of sensory sensitivities and preferences.[16]
[16] See Ms K's Final Report dated 16 December 2022 (Exhibit 5).
32Ms K provided a report which was received into evidence.[17] She concluded that Child A met all assessment criteria for ASD. She noted that Child A exhibited "extreme levels of inflexibility, extreme difficulty in coping with change and has a wide range of restricted and repetitive behaviours that interfere with functioning in all spheres".[18]
[17] Ibid.
[18] Ibid at 29. See also the Transcript of Proceedings from 13 February 2024 at 34 when Dr E stated in cross-examination that she understood Child A to have been diagnosed with ASD at a level 3 (high) severity.
33Child A's physical and mental health issues present challenges, in most, if not all, aspects of her life. She can be very reluctant to leave home. She is highly intelligent but is continuing her education with the assistance of the School of Isolated and Distance Education. She receives ongoing funding and assistance through the National Disability Insurance Scheme.
Child B
34Child B has Brown Syndrome and is under the care of an ophthalmologist. She is currently being managed by her doctor for her asthma and by an immunologist for her allergies.[19] Ms I recommended that Child B should be assessed by a paediatrician for possible ASD, or Attention Deficit Hyperactivity Disorder ("ADHD"). The parties had different views on that. The wife accepted the recommendation, while the husband was concerned that behaviours on the part of Child B interpreted as being symptomatic of ASD or ADHD might simply be reflective of her mimicking Child A's behaviours, for whatever reason.
[19] Dr E's Report dated 15 January 2023 at [49].
35The parties and Child B met with Dr J. He suggested that Child B be referred to the Child and Adolescent Mental Health Service ("CAMHS") as a multidisciplinary service which could appropriately direct how best she should be assessed.
36The parties and Child B met with a clinician at CAMHS on 15 December 2023.[20] The clinician noted that the referral was for a neurodiversity assessment and management of Child B's anxiety. Child B was unable to articulate her feelings or mood, and demonstrated anxiety during the assessment. While the wife suspected that Child B is neurodiverse, the husband did not agree. The clinician noted further that Child B had swallowing and food sensory issues, and a history of disrupted sleep patterns.
[20] See the CAMHS Assessment Summary at Annexure C to the Wife's Affidavit filed 19 January 2024.
37The clinician did not identify any enduring moderate to severe mental health condition requiring a Tier 3 mental health service and recommended the continuation of Tier 2 private psychology in the community.[21]
[21] Ibid.
38In her oral evidence at trial, Dr E was unable to express an opinion as to whether Child B has ASD, as she had not undertaken the required comprehensive assessment. She acknowledged the possibility that Child B might not have ASD, but might be mirroring behaviours exhibited by Child A.[22]
[22] See Transcript of Proceedings from 13 February 2024 at 37.
39By the time of the conclusion of trial, the parties had agreed that Child B should be assessed by [Specialist Clinic A] for ASD and Dyslexia, and any other mental health issues, and that she should be screened for ADHD. Orders to that end were made by consent on 20 February 2024, when judgment was otherwise reserved. The consent orders also require the parties to use their best endeavours to comply with any recommendations made upon the completion of Child B's assessment.
The amended proposals of the parties and the position of the ICL
40As earlier noted, and understandably, the proposals of the parties shifted over the protracted course of the trial. Both parties confirmed their final proposals at the conclusion of the trial, and the ICL confirmed her position as to the orders she would press as being in the children's best interests.
41It is necessary to further review the evidence[23] only to the extent that it is relevant to the determination of the issues as finally defined; it is therefore convenient to summarise the final amended proposals of the parties and the position of the ICL at this point.
Common ground
[23] Noting the incorporation in these reasons of the earlier judgments referred to above.
42By the conclusion of the trial:
(a)it was common ground that all previous parenting orders be discharged, the parties should have equal shared parental responsibility for Child A, and that Child A should live with the wife;
(b)while the wife proposed identical timeframes for each child to spend time with the husband, they were expressed as being subject to "as much time as the children are able to manage".[24] In the end, the husband proposed simply that Child A spend time and communicate with him subject to her wishes.[25] That was a sensible and child focused shift in his position;
(c)the parties proposed that each should be kept informed in relation to the children's health issues, treatment and appointments, albeit the wording of their proposed orders differed, and additional specific differences arise depending on with whom Child B is to live;
(d)the parties each proposed non-denigration and similar orders, albeit expressed in different terms;
(e)the parties each proposed that they should be at liberty to travel overseas with the child or children living with them, again proposing orders expressed in different terms; and
(f)the parties each proposed that final rather than interim orders be made, so as to bring the proceedings to an end.[26]
[24] Wife's Minute of Proposed Final Orders filed 20 February 2024 at [3].
[25] While the husband's minute referred to that occurring once Child A turns 18, he confirmed that was in fact his proposal from this point forward.
[26] Although the husband did make an oral application for interim orders pending delivery of judgment.
43In addition to the orders just noted, the parties also consented to a number of orders in relation to steps to be taken if a scheduled visit does not occur, communication in relation to medical issues, and access to information from health practitioners and educational institutions. The orders to which the parties expressly consented are included in the draft proposed orders set out at the conclusion of these reasons.
44While not expressly included in the joint minute of agreed final orders, a number of other orders can clearly be made without opposition, by reference to the final minutes filed by each party.
Matters requiring determination
45For clarity and concision, the minutes of final orders sought by each party appear as annexures to this judgment rather than being paraphrased by me.[27]
[27] See Annexures A, B and C attached.
46Apart from matters of detail in certain proposed specific issues orders, the central issues requiring determination relate to Child B.
47The husband proposes that Child B should live with him with immediate effect, making use of The Program. That process would involve a structured workshop involving Child B and the husband, an unstructured holiday period, and completion of an uninterrupted period of 90 days in which Child B would have no contact or communication the wife. That prohibition on contact and communication would extend to Child A, Mr D, and as yet unnamed other persons "whose influence is likely to interfere with Child B's progress in effectively repairing [her] damaged relationship with the father" except as directed by the professionals facilitating the program.[28]
[28] Husband's Minute of Proposed Final Orders filed 20 February 2024 at 7.
48Part of the process proposed by the husband is the making of orders requiring the wife to "engage in behaviour change" by participating in the The Program After-Care Protocol, and family therapy facilitated by after‑care practitioners nominated by The Program.[29] On the completion of that protocol and therapy,[30] Child B would commence spending limited professionally supervised time with the wife for a period of eight weeks, increasing to unsupervised time each alternate Sunday from 9.00 am to 5.00 pm for a further eight weeks, before progressing to an arrangement whereby Child B would live equally with each parent on a week about basis.[31]
[29] Ibid [26].
[30] The protocol and therapy would only be completed once the practitioners deemed that "the goals had been adequately met".
[31] See the Husband's Minute of Proposed Final Orders filed 20 February 2024 at [35].
49The husband proposes that he should have sole parental responsibility for Child B with immediate effect, but that the parties should "revert back to equal shared parental responsibility" upon the wife completing the protocol and therapy, and Child B's time with her subsequently becoming unsupervised.[32] He envisages that Child B would progress to living equally with each parent.
[32] This proposal runs contrary to the evidence of Dr H that "[f]or the [w]orkshop to proceed, it is also required that the Court has ordered full parental responsibility and care on a final basis to the rejected parent": see Dr H's Affidavit filed on 12 August 2022 at [26]. That might call into question whether the family would be accepted into the program if orders as sought by the husband are made, but as will be seen that point need not be determined.
50Many of the contentious orders sought by the husband are predicated on the The Program process being adopted. If it is not adopted, those proposals self-evidently fall away.
51The husband also seeks that he be at liberty to enrol Child B into [School A].[33] He says that school falls "somewhat equidistant between the mother's and father's houses".[34]
[33] Or an alternate school as nominated by the father on the condition that he provide the mother with notice of the change of enrolment within 14 days: See Husband's Minute of Final Orders Sought filed on 20 February 2024 at [52].
[34] Husband's Minute of Final Orders Sought filed on 20 February 2024 at [52].
52The wife proposes that the parties should have equal shared parental responsibility for Child B, and that Child B should live with her. She proposes that Child B should spend time with the husband each alternate week on either Saturday or Sunday for between four and eight hours or as much time as she is able to manage, and each intervening week on either Thursday or Friday from 5.00 pm to 8.00 pm subject to the same caveat. She proposes that Child B spend such additional time, including potentially overnight time, as may be agreed. She further proposes that the husband have liberal telephone and/or video and/or SMS communication with Child B not less than twice per week.[35]
[35] Wife's Minute of Final Proposed Orders filed 20 February 2024 at [2], [3] and [6].
53Again, various of the contentious orders sought by the wife are predicated on those orders being made and would otherwise fall away.
54The wife says the ICL should be discharged. The husband says that the ICL should "remain appointed in this matter for a further 12 months following the Final Orders being made".[36]
[36] Husband's Minute of Final Proposed Orders Sought filed 20 February 2024 at [69].
55After briefly summarising the relevant legal principles, it is appropriate to first address the question of whether Child B should participate in The Program, with all that entails.
The legal principles
56The parties were married. The proceedings fall to be determined pursuant to the Family Law Act 1975 (Cth) ("the Act"). As the trial commenced prior to 6 May 2024, the amendments to the Act effected by the Family Law Amendment Act 2023 (Cth) do not apply; references below are to the legislation as it stood prior to those amendments and are expressed in present tense for clarity.
57The Court must be guided by the objects of Part VII of the Act and the principles underlying them.
58Parental responsibility is defined in s 61B as meaning all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Pursuant to s 61C, subject to any order of a court, each of the parents of a child who is not 18 has parental responsibility for that child.
59Section 61DA requires the Court, when making a parenting order, to apply a presumption that it is in the best interests of the child for his parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or another relevant adult, has engaged in abuse of the child or family violence. If the presumption applies, it may still be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
60If an order for equal shared parental responsibility is to be made, I am required to consider whether the relevant child spending equal time with each of her parents would be in her best interests, and whether such an arrangement would be reasonably practicable. If so, I am then required to consider making such an order. Of course, that consideration may simply be in passing where (as in the case of Child A) neither party proposes such an arrangement.
61Again, against the background of an order for equal shared parental responsibility being made, if I do not make an order for the relevant child to spend equal time with each parent, I am required to consider whether spending substantial and significant time (as that term is defined in the Act) with each parent would be in her best interests and reasonably practicable. If so, I am required to consider making such an order. The observation already made in relation to Child A is again apposite.
62In determining what is in a child's best interests, the Court must consider the matters set out in s 60CC of the Act. While those matters are divided in the legislation into primary and additional considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations. The issues that are joined between the parties will dictate which s 60CC factors are relevant.
63The requirement to consider each matter set out in s 60CC does not mean that each factor must be expressly discussed in a judgment, where the factor in question has no sufficient relevance to displace the determinative significance of factors specifically discussed.[37]
[37] Banks & Banks (2015) FLC 93-637; Bielen & Kozma (2022) FLC 94-123.
64Ultimately, the making of a parenting order involves the exercise of judicial discretion. The primary considerations set out in the legislation are "matters to be borne in mind as consistent with the objects" of Part VII of the Act.[38] The additional considerations set out in the legislation:
… require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.[39]
The evidence in relation to The Program
Overview of the evidence prior to trial
[38] Bondelmonte & Bondelmonte (2017) 259 CLR 662, [32].
[39] Bondelmonte & Bondelmonte (2017) 259 CLR 662, 77,094 [32].
65Dr H is the director and principal consultant at [Company A] and the administrative services director of The Program.[40] The letterhead of Company A contains a heading [redacted].[41]
[40] Dr H's Affidavit filed 12 August 2022 at [1].
[41] For example, see Dr H's Affidavit filed 12 August 2022, Annexure [DH]-2 dated 27 July 2022 ("Suitability Assessment Report").
66The husband relied on an affidavit of Dr H filed on 12 August 2022 annexing his Suitability Assessment Report[42] in which he expressed his opinion as to the suitability of the family for the The Program and After-Care Protocol. Appropriately, the affidavit exhibited Dr H's curriculum vitae,[43] an explanation of the The Program and After-Care Protocol, and what was described as a "non‑exhaustive list of references"[44] which informed his opinion. The Suitability Assessment Report listed the materials reviewed by Dr H and provided by the parties, including various affidavits and reports.[45]
[42] Ibid.
[43] Ibid Annexure DH-4.
[44] Ibid at Annexure DH-3 at [25]-[28].
[45] Suitability Assessment Report at [3].
67The husband also relied on an updating report of Dr H dated 24 June 2023 which was received into evidence at trial and confirmed by Dr H in his oral evidence.[46]
[46] Marked for Identification 1 dated 26 June 2023, accepted into evidence during Dr H's evidence-in-chief on 13 February 2024, see Transcript of Proceedings from 13 February 2024 at 47 ("Updating Report").
68In his affidavit, Dr H stated that his assessment was "not an independent, single expert report", and that it "should not be used as an assessment or diagnosis of alienation or child psychological maltreatment or abuse", acknowledging that it relied solely upon the information the parties had provided pursuant to court orders.[47] He expressed the opinion that both children and the husband "meet the criteria for [The Program], subject to further assessment of [Child A] as discussed herein".[48] He said that:
Due to [Child A]'s age and stage and current rigid adherence to the fixed false belief her husband abused her and her sister, and where her mother is silencing this narrative, she presents a danger to [Child B]. The evidence suggests that [Child A], annoyed at being silenced on the allegations by her mother, has stepped into the parental leadership void left by her mother's insistence on silence about the girls' main and most serious complaint about their father. [Child A] exerts parenting influence over [Child B] under her mother's implicit authority delivered in a sibling disguises.[49]
[47] Suitability Assessment Report at [3].
[48] Ibid at [11.5].
[49] Ibid at [8.13].
69He described the required further assessment in the following terms:
[Child A] needs to be assessed in person when the intervention is imminent for her capacity to adequately suspend her judgment and maintain enough of an open mind to enable her to re-engage and develop her critical thinking capacity so she might examine how she forms the views she espouses. The pending SEW report and her ASD assessment outcome might further inform this assessment.
Suppose [Child A] is assessed as suitable for [The Program] and does not pose an unacceptable risk to [Child B] recovering her authentic relationship with her father. In that case, she might arguably be allowed to participate. She must however, agree to the workshop conditions and accept the Court's authority to place her there.
If [Child A]'s presence at [The Program] is assessed as an unacceptable risk to recover her ability to consistently and authentically relate to her father again, at any time before or during the intervention, she would be assessed as unsuitable, and her involvement suspended at once. In that case, the [After-Care Protocol] would be recommended for [Child A].[50]
[50] Ibid at [8.15]-[8.17].
70In his updating report dated 24 June 2023, Dr H expressed his opinion that "if a structural change in the family system is ordered, [Child B] and [the husband] are suitable candidates for [The Program]", but that [Child A] "does not meet the criteria".[51]
[51] Updating Report at [6.1]-[6.2].
71At paragraph 9.6 of his Suitability Assessment Report, Dr H expressed his opinion that "on the currently available material, [the wife] is an excellent candidate for the [After-Care Protocol], given her reported ability and willingness to consider alternative viewpoints and interpretations".[52] He did so against the background of noting the report of Ms F, as to the wife's changing attitudes and beliefs about the husband in August 2020,[53] and the view of Dr E expressed in October 2020 that it was difficult to judge whether that change would be sustained, or will "be enough to make a difference [to the children's appraisals and attitudes to their husband..[54]
[52] Suitability Assessment Report at [9.6].
[53] Ibid at [9.3].
[54] Dr H interpolated parts of the opinion expressed by Dr E. In fact, Dr E's statement was in reply to a question as to whether the wife was likely to promote the children's relationship with the husband in the future. Her full response was "while there appears to have been some changes in her attitude, it is difficult to judge whether it will be sustained into the future or enough to make a difference. The history of the negative attitude has been significant": See Dr E's Affidavit filed 23 October 2020, Annexure B at [Question 3].
72Dr H expressed the opinion just described, having said this at paragraph 9.4 of the same report:
Maintaining a passive silence about unsubstantiated allegations instead of leading active positive counter narratives to change the abnormal, untrustworthy, duplicitous and dangerous things is evidence that [the wife] likely maintains her original derogatory beliefs. Any professed change is likely to be tactical and purposive.[55]
[55] Emphasis added; Suitability Assessment Report.
73How that opinion sat with his assessment two paragraphs later of the wife as an "excellent candidate" given her "reported ability and willingness to consider alternative viewpoints and interpretations" was not explored at trial.
74The opinions expressed by Dr H are critical to the husband's case in support of the orders proposed in relation to Child B as summarised earlier in these reasons. Those opinions accordingly warrant careful consideration and scrutiny.
The relevant legal principles – expert evidence
75It is convenient to note at this point the relevant principles as summarised by Heydon JA in Makita:[56]
In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded.[57]
[56] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.
[57] Ibid 743 [85].
76In giving opinion evidence, experts should not stray outside the parameters of their expertise, as it is that expertise which renders the opinions admissible and potentially of value.
77True independence of opinion, even if instructed by one party to litigation, is an essential component of expert evidence. That independence must extend not only to the formulation of relevant opinions, but to ensuring that those opinions are reached after access to all relevant material, rather than a strategic selection. Self-evidently it must extend to the preparation of the relevant report. Input of parties or lawyers must be both transparent and limited to that necessary, to ensure that relevant information is available to the expert, relevant issues are addressed, and the report is in admissible form.[58]
[58] See the discussion in New Aim Pty Ltd v Leung [2022] FCA 722, [67]-[78].
78Independence and objectivity are intertwined. The expert witness must not only be independent of the parties but must maintain objectivity at all times. A failure to do so necessarily undermines the credibility of the witness, and the utility of the evidence.
79An open mind is essential to objectivity. For expert opinion to be of value, the witness must maintain an open mind throughout the process – and most critically, a genuine willingness to revisit previously expressed opinions when presented with facts not previously available to the expert. The expert witness who clings doggedly to an expressed opinion in the face of previously unavailable information which, on any objective view, would at least prompt reconsideration, risks devaluing that opinion.
Expertise of Dr H
80Appropriately, Dr H's curriculum vitae and resume were in evidence.[59] He has been the principal of Company A since 2009, having been employed from 2007 until 2012 as a counsellor at a community care and counselling centre. In 2006, he obtained a Graduate Diploma of Counselling and Human Services from [University A]. He obtained a master's degree in Counselling and Human Services at the same university in 2008. He is registered as a clinical counsellor with the Psychotherapists and Counsellors Federation of Australia, and the Australian Counsellors Association and a professional affiliate member of the Australian Psychological Association.[60]
[59] Dr H's Affidavit filed 12 August 2022, Annexure DH-4.
[60] It is unclear whether by this reference Dr H refers to the Australian Association of Psychologists, the Australian Clinical Psychology Association or the Australian Psychological Society.
81Dr H developed an interest in parental alienation. He became a member of the [a related NGO, ("The NGO")] in 2014 and became an accredited facilitator of the The Program in the same year. In 2015 he became the founding editor-in-chief of [The Publication], published by The NGO. He was accepted as a doctoral student at the [University B] in 2016, confirmed as a doctoral candidate in 2018, and obtained a Doctorate in Sociology in 2021.
82Sociology is the study of society. It involves investigation and analysis of social issues, and the social causes and consequences of human behaviour. It is by its nature a broad social science, generally exploring systems, structures and society. Dr H appropriately notes that his research leading to his doctorate explored parental alienation "as a social and public health issue".[61]
[61] Dr H's Affidavit filed 12 August 2022, Annexure DH-4 at 1.
83Dr H is not a psychologist. Psychology is, in broad terms, the study of mental processes and behaviour of individuals.
84Appropriately, in his evidence at trial Dr H acknowledged that he is not "an expert in neurodivergence" and is "certainly not qualified to assess it".[62]
[62] Transcript of Proceedings from 13 February 2024 at 59.
85The question of whether Dr H is appropriately qualified to express the opinions contained in his reports and evidence, such that those opinions would be admissible absent the operation of s 69ZT, and otherwise of potential probative value, was not explored at trial either by the wife or by the ICL. For reasons which will emerge, it is unnecessary for me to determine that question, and I expressly leave it open.
Status of The Program and After-Care Protocol
86Dr H describes The Program as "an evidence-based means of adjusting to a court ordered reversal of care for children from their formerly favoured residential parent to a previously functional parent they unreasonably reject", incorporating a "no contact order between the children and the favoured residential parent".[63] The After-Care Protocol is "typically ordered with [The Program] to offer the former residential parent a reportable process to change their harmful behaviour", with the "timing and manner of the former favoured residential parent spending time with the children [being] contingent on satisfactorily meeting its goals".[64]
[63] Dr H's Affidavit filed 12 August 2022, Annexure DH-3 at [4].
[64] Ibid [6].
87Dr H says that The Program has been operating in various countries for about 15 years and is "facilitated by independent practitioners, senior in their related professional fields, who require specific further training and participate in ongoing supervision".[65]
[65] Ibid [10].
88He says that The Program has been "evaluated and the findings published in peer reviewed, refereed professional journals and remains the subject of ongoing research".[66] He says further that two peer reviewed studies "dedicated to the reporting of [The Program] outcomes were published in 2010 and again in 2019", and "establish the high likelihood of [The Program] achieving its proposed outcomes".[67]
[66] Ibid [64].
[67] Ibid.
89Dr H cites a 2010 study of "a sample of 83 severely alienated children and adolescents" who participated in The Program. He reports "statistically significant and large improvements in [those] children's behaviour towards the rejected parent". He says further that "the children's contact refusal with the rejected parent dropped from a pre-workshop rate of 85% to a post workshop rate of 6%" and that "depending on the outcome measure, between 75% and 96% of the children overcame their state of alienation".[68]
[68] Ibid [65].
90Self-evidently, that 2010 study cannot have included review of any workshops conducted by or under the guidance of Dr H, who became an accredited facilitator in 2014.
91At trial, Dr H acknowledged that the "theory and practice" of The Program was described in his affidavit, before saying that "we have done this a few times now in Australia".[69] When that was explored further, by direct questions from me, Dr H said that to date his organisation had undertaken The Program with four families. Of those, one family's involvement ceased "after about the second day"; Dr H said that was because "the orders establishing the workshop were incorrect and the transition process was not done properly".[70] None of the cases he had dealt with involved separating one sibling from another, as is proposed in this case.[71] When asked whether all of the programs conducted in Australia had been successful, he referred to one specific case in 2020, and acknowledged the case just described. He did not indicate whether the other two cases in which he had been involved had successful outcomes.
[69] Transcript of Proceedings from 13 February 2024 at 61.
[70] Ibid 65.
[71] Ibid.
92He said that The Program had most recently been run in [City A] in January 2022.[72]
Evidence upon which Dr H's opinions were based, and his methodology more generally
[72] Ibid 75.
93Dr H did not meet with either party, nor with either child. He explained that when undertaking an assessment of suitability for The Program, such interviews are not conducted, saying that:
the children have typically been overexposed to therapeutic and assessment processes by this stage of proceedings. Further involving the children in such processes is more likely to harm them and entrench their unrealistic views.[73]
[73] Ibid.
94It is entirely appropriate for professional witnesses in a parenting case to be alert to the risk of overexposing the children to interviews with multiple adults, and to the court process more generally. That appropriate awareness in the circumstances of individual cases, however, is readily distinguished from a "blanket" approach whereby interviews with children are never undertaken. There is nothing to suggest that Dr H made any enquiries with the parties, the ICL, or the professionals involved with Child A and Child B as to whether interviewing the children to assess suitability for the program was, in their view, contraindicated.
95I note further that in his initial affidavit, Dr H said that Child A needed to be "assessed in person when the intervention is imminent" to assess her suitability for the The Program, as distinguished from the After-Care Protocol.[74] At that point at least, it appears that what was proposed was that the Court should make all necessary orders for Child A to participate in The Program and allocate responsibility for the payment of associated costs,[75] before Child A's suitability for participation was actually assessed. While the husband no longer proposes that level of participation for Child A, the approach then proposed by Dr H was problematic.
[74] Ibid at [8.15].
[75] Including non-refundable deposits.
96No explanation was proffered as to why it was not considered necessary to meet with either parent when assessing suitability for the program. The wife raised that question directly with Dr H in cross-examination, asking whether it would be "a good idea" to speak to the parents "just to get a clear understanding of what happened". Dr H's response was:
Well, it would be a good idea if the single expert had done that, and then I could rely on the single expert's assessment of that, okay, given the scope and the protocols we use to do a suitability assessment. A suitability assessment is not a family assessment in the sense that it's understood in the Family Court.[76]
[76] Ibid 71.
97Of course, the single expert witness did meet with both parents and with the children, and her reports were provided to Dr H. Dr H's response missed the point of the question.
98Dr H's initial assessment states that it is "not an independent single expert report" and "should not be used as an assessment or diagnosis of alienation or child psychological maltreatment or abuse". Nevertheless, the assessment contains the following statements:[77]
[77] Selected examples only.
(a)the observation of a therapist who told the husband that in her view, the wife retained "a lot of resentment and anger" about the separation and would not likely forgive him, was said by Dr H to "[go] to the underlying motivations for [the wife] to vilify [the husband] in front of the children and therefore set the scene for them to scorn and hate him and ultimately allege he abused them";[78]
(b)"In January 2020 [Child A] and [Child B] present unambiguous evidence to [Dr E] of being psychologically abused by alienation" by reference to various examples then listed";[79]
(c)"[The husband's] photographic evidence submitted under affidavit belies the wife's inference that the children's relationship with him has been historically difficult";[80]
(d)Child A's "reported difficulties motivating a current investigation into possible [ASD] might arguably be related to the loss and vilification of [her] normalised relationship [with the husband]";[81]
(e)"[Child A] and [Child B]'s behaviour [towards the husband] goes beyond aversion and estrangement to scorn and hatred" and "it is more likely that the children learned a hatred response from their [mother], then it being realistically related to any action/s from [the husband]";[82] and
(f)after noting Mr D's evidence that he had not permitted the husband to verbally discipline Child A through the car window on a particular occasion, and that he had reviewed Child A's messages on her mobile phone to check for inappropriate content at a time when she was in hospital, Dr H said:
Replacing a parent with a stepparent is an alienating and harmful parenting behaviour that deletes the biological parent's identity from the children's social and psychological landscape and so, from their lives. There is no reasonable, reality-based justification for replacing [the husband] in the children's lives, especially since neither Child Protection investigation substantiated the children's claims against him.[83]
[78] Ibid [6.6.4].
[79] Ibid [7.2.1].
[80] Ibid [7.3.2]. Of course, "happy snaps" of children with their parents do no more than demonstrate momentary happiness. While it is understandable that self-represented litigants might place evidentiary weight on them, it is surprising that a professional witness would do so.
[81] Ibid [7.2.5].
[82] Ibid [7.2.11].
[83] Ibid [7.6.5].
99In addition, he expressed the view quoted earlier in these reasons that "any professed change [in the wife's beliefs about the husband was] likely to be tactical and purposive".
100In his updated report, Dr H expressed the opinion that the wife's "persistent behaviour suggests underlying traumatic factors influencing her".[84] On that basis he asserted that a pre-requisite for her participation in the After-Care Protocol or other "behaviour remediation such as specialised family therapy" should be that she "completes personal therapy to uncover historical precedents and her motivation for duplicitous behaviours".[85]
[84] Updating Report at [13.1].
[85] Ibid.
101The basis upon which a sociologist, as distinct from a psychologist, purports to express that "professional" opinion about a person he has never met, and without even the benefit of having discussed the matter with psychologists who have actually engaged with her, is not readily apparent.
102The examples just cited, among others, call into question Dr H's objectivity and professionalism. That in turn undermines the utility of his evidence and the credibility of his strongly expressed opinions. Nothing in his presentation at trial for cross examination alleviated the concerns so raised.
Dr H's oral evidence at trial
103Dr H's updated written report was dated 24 June 2023. On 27 June 2023, findings were made by consent that at no time had the husband ever behaved in a sexually inappropriate manner towards or in the presence of either child, and that neither child was at any risk of exposure to sexually inappropriate behaviour in his unsupervised care in the future. Given the factual matrix upon which Dr H's opinions in his affidavit and updated written report were based, at the commencement of his oral evidence I sought to confirm that he had been made aware of those findings; he said "yes, I have".[86]
[86] Transcript of Proceedings from 13 February 2024 at 48.
104Later in his evidence, after Dr H had reiterated his opinions, the ICL referred in a question to those findings. Dr H's response was to say "I think you've given me a piece of information that I have not been previously aware of". When the ICL questioned that, he replied "His Honour made me aware of that". In response to a follow-up question from me, he said that he had not been aware of the findings before entering the witness box. He said that he had been "confused" in his response to my initial question, which had been simply and clearly put. The husband later confirmed that he had directly informed Dr H of the findings by email shortly after they were made.[87]
[87] See Transcript of Proceedings from 13 February 2024 at 65-66.
105I then explained to Dr H that the genesis of those findings being made by consent was that on commencing being cross examined, the wife told the husband that having seen his evidence the previous day she now accepted that he could not have abused the children, and she apologised to him. Dr H said that he had not been aware of that. He went on to say this:
… what would materially change my recommendation would be in conjunction with that information, your [H]onour, [i]f Mum had – if been (sic) – if there had been some report here that Mum had made concerted efforts to change that view in the children, [a]nd that's a piece of information I do not have. So, in its absence, and given the information I do have, it would appear to me that although she has apologised - and you've made the findings you've made your [H]onour -that there is no material change in Mum's behaviour towards the children, other than she's not saying anything (indistinct).[88]
[88] Ibid 77.
106Dr H drew that conclusion and expressed it without having heard or been informed of any of the other evidence as to the wife's behaviour since the findings were made.
107At the commencement of his oral evidence, I sought to confirm with Dr H that he had received copies of the various reports of Ms I dated 12 June 2023, 17 October 2023 and 5 February 2024. He said that he was "quite certain that [the report of 12 June 2023] would have been dealt with in [his] report of 24 June 2023".[89] When I directed him to his own report, in which he appropriately listed the materials he had reviewed, he corrected his evidence to acknowledge that he could not see the relevant report of Ms I referred to in his report, nor could he find it in his files.[90]
[89] Ibid 48.
[90] Ibid 49.
108He confirmed that the individual reports of Ms I about Child A and Child B dated 5 February 2024 did not cause him to alter the opinions expressed in his most recent report of June 2023 "in any substantive way".[91]
[91] Ibid.
109That was somewhat surprising.
110In her report about Child B,[92] Ms I said that Child B reported continuing to struggle with visits with the husband, described difficult interactions, and frequently asked to leave visits early. She expressed her opinion (having observed Child B in 46 sessions of therapy) that it would be beneficial for her to be assessed for neurodivergent conditions, noting that a formal diagnosis would open up avenues of additional support for her. She confirmed too her unchanged opinion that the progression of Child B's relationship with the husband should progress "much more slowly than the schedule put forward",[93] that ideally Child B would be included in discussions as to the speed of progression, and noted that Child B had said that she was "able to attend visits a few hours a week provided she is able to return home without conflict or delay if she feels she needs to".[94]
[92] Dated 5 February 2024.
[93] By which she referred to the interim orders made by consent; see Ms I's Updated Report of Child B dated 5 February 2024 at 2.
[94] Ibid.
111Dr H was uncertain as to whether he had seen Ms I's report dated 17 October 2023. Child B's negative observations about visits with the husband were detailed in that report, but she had adjusted well to her new school and was happy there. The wife reported that Child B was "appearing a bit more relaxed approaching the time spent with [the husband]".[95] Ms I reported that on 8 September 2023 Child B had brought up a comment Ms I had made in their previous session, where she had suggested that "if contact was [Child B's] choice, she would likely choose no contact". Ms I reported that Child B said:
You're wrong about what you said last time. I would choose to see my dad and I can do a few hours at a time and maybe if it was my choice I would do this every second week". She went on to say "I would literally kill myself if I had to do 50:50.[96]
[95] Ms I' Updated Report of Child B dated 17 October 2023 at 1.
[96] Ibid 2.
112When asked by the ICL whether that information caused him to adjust his expressed opinion that the children's views had not changed, and if anything had become more entrenched, Dr H responded by drawing attention to the negative comments Child B had made, describing her later comments as "bargaining her way out of a difficult situation".[97] He said further that "it doesn't really add up. It comes back to the starting presumption that the children think he's a bad dad for a number of reasons". In response to a question from me he confirmed that view saying "there's kind of a dealmaking you see in these situations when children are trying to manage what they envisage the outcome is going to be".[98] He went on to say:
It doesn't fundamentally change the issue that – the idea that dad is bad and sexually deviant has not fundamentally changed in – I don't see any evidence in front of me from any of the reports that they have changed their views and I've not been provided any information that suggests mum has taken the reins and tried to undo that view.[99]
[97] Transcript of Proceedings from 13 February 2024 at 58-59.
[98] Ibid 59.
[99] Ibid.
113He saw no significance in the fact that, since his affidavit and report, the children had (by agreement) commenced spending limited unsupervised time with the husband. He apparently saw no significance in the fact that Child B's assertions just quoted were not expressed in response to questions from Ms I, but were proactively raised by Child B.
114Dr H confirmed that, along with her age, Child A's diagnosis of ASD was of itself a contraindicator to her participating in The Program. He explained that what he described as the "strength of her [ASD] traits", and the rigidity with which she holds her ideas, meant that the program was not suitable for her.
115At the time of his written report, Dr H was unaware that the possibility of Child B being assessed for ASD had been raised. As earlier noted, in her report of 5 February 2024, Ms I (who is a clinical psychologist) had "observed ongoing indicators that lead [her] to suspect Child B may be neurodivergent".
116Against that background, the ICL asked Dr H whether he would prefer that Child B be assessed for ASD "before even thinking of taking her into [the] program". Dr H's initial response was to say that based on "some of the research and some of [his experience]…children subjected to the similar processes [sic] that Child A and Child B have been, can sometimes mimic what people might assess as ASD-like traits".[100] After going on to acknowledge that he is not an expert in neurodivergence, and is unqualified to assess it, he said "my question would be if [Child B] were assessed, would that be a false positive if the assessor was not aware of how alienation processes work on children, so I'm not sure that an assessor would actually tell [us] anything that we don't already know".[101] In answer to follow-up questions from me, he said that he would question "whether there is a possibility of a false positive and whether [the assessment] would be a distraction at the end of the day".[102]
[100] Ibid.
[101] Ibid.
[102] Ibid 60-61.
117Dr H describes The Program as an educative process to support children in developing the critical thinking skills required to reflect on their beliefs and opinions and understand how adults can shape people's perceptions and beliefs. There is an emphasis on maintenance and development of empathy and prosocial behaviour. It is accordingly understandable that Child A's ASD would contraindicate participation in the program. Why, in those circumstances, Dr H was resistant to the proposition that an assessment of Child B for ASD would have any utility in considering her suitability for The Program is harder to explain.
118Frankly, the explanation lies in an overall consideration of the written and oral evidence of Dr H. He approached the construction of his opinions from a position based on a number of assumptions, and selective extraction from the reports of others of information and opinions consistent with those assumptions. He was resistant to reconsideration of his expressed opinions when presented with information not previously available to him. The possibility that the characteristics displayed by Child B which may be indicative of neurodivergence represent mimicking of Child A's behaviour, rather than being genuine, presented as consistent with his overall narrative – hence he embraced that possibility, and raised the spectre of a formal assessment in respect of which he acknowledged he has no expertise, leading to a "false positive" which would "be a distraction".[103]
Conclusion as to the evidence of Dr H
[103] Ibid.
119For all those reasons, I place no weight on the evidence of Dr H.
120As earlier indicated, in the absence of cross examination on the point I make no finding as to whether by reason of specified training, study or experience he has become an expert in a relevant field of specialised knowledge. Nevertheless, the methodology he adopted to reach his conclusions is flawed. He did not make all necessary or appropriate enquiries. He demonstrated an unwillingness to be deviated from, or to reconsider, previously expressed views when presented with information that would objectively require their reconsideration. He presented as holding strong beliefs, not specific to this family, which influenced his approach, analysis and conclusions consistently with a broader agenda. He sought to express limitations on the parameters of his assessment and the purpose for which it could be relied upon, but drew conclusions and expressed firm opinions well outside those self‑imposed parameters.
121Critically, the evidence of experts who have actually had contact with these children supports a conclusion that separating them would be detrimental to their wellbeing. Indeed, in the report of Dr E cited by Dr H, she cited observations of the children's therapist,[104] who had expressed the view that if the children were separated, Child B would be "traumatised and devastated" and the separation would "have a critical impact [and be] very traumatic for her".[105] Dr H's response was to simply state that:
Implementing Family Court orders for placing [Child B] into her father's care and responsibility is not harmful or traumatising. The research and literature in this field support the view that children in [Child B]'s situation want a relationship with the parent they are coerced to reject but cannot safely express their wishes. Their compromised empathy and critical thinking prevent them from doing so.
Adherence to the protocols required for transfer to the [The Program] and her father's care is required. The induction process will rely on judicial reasoning that placing [Child B] in her father's care and conditionally separating [Child B] from her mother and her sister is in her (and [Child A]'s) best interests and on an aspirational goal that [Child B] will spend time with her mother and [Child A] when her mother addresses her issues as described [in the report].
Research and practice support the notion that children in [Child B]'s situation may exhibit temporary anxiety at the prospect of a structural change to their family setting. [Child B] will likely quickly adapt, engage with the [The Program] process and complete it with a relationship with her father. She will want to continue a relationship with her mother and [Child A].[106]
[104] Dr E's report attributes the quote to "the children's therapist", so it is unclear if Ms F or Ms I made this statement. In any event, it does not matter given the context in which it is used.
[105] Dr E's Report dated 15 January 2023 at [25].
[106] Emphasis added; Dr H's Report filed 26 June 2023 at [7.6].
122Again, those views were expressed by Dr H without having met either party or either child, and without conferral with the professionals who actually have established relationships with them. Again, Dr H's views are expressed strongly, and inconsistently with his initial assertion as to the limited parameters of his report.
123Given those findings, it is unnecessary to further analyse practical difficulties which present with the proposed involvement of this family in The Program and the After-Care Protocol. Those difficulties include but are not limited to the potential cost, at least some of which is in the form of a non-refundable deposit. On Dr H's evidence the husband would be responsible for costs in the range of $40,000 to $50,000, and the wife would be responsible for costs slightly exceeding $30,000.[107]
[107] Dr H's Affidavit filed 12 August 2022 at [73]-[80].
124I note further the lack of precision in the proposed arrangements were the family to participate. The proposed facilitators are not named, nor are their qualifications in evidence. Professional supervision of the initial transition is said to be essential; on Dr H's evidence it would be for the husband to arrange that. No specific supervisory arrangements are proposed.
125That lack of information about the proposed facilitators draws attention to a further fundamental problem with the method by which the husband proposes the parties should be involved with The Program and After-Care Protocol.
126As earlier noted, the husband joins with the wife in seeking that final rather than interim orders be made. Against that background, he proposes that the period in which Child B is to have no contact with the wife is to be for a "minimum" of 90 days,[108] with reportable family therapy to follow after the wife has been "assessed as meeting the goals" of the After-Care Protocol. That assessment is to be undertaken not by the court, but by the unnamed facilitators.[109] Until the After‑Care Protocol is completed to the satisfaction of those facilitators, it is proposed that the wife and Mr D be restrained by injunction from "having any contact whatsoever with [Child B]", and that a further order be made that "in the event premature contact with [Child B] is attempted or achieved by any person [in breach of that order] the count to 90 days of uninterrupted no-contact resets to zero and commences again".[110]
[108] See the notations made in the Husband's Minute of Proposed Orders filed 20 January 2024.
[109] Paragraph 31 of the Husband's Minute of Proposed Orders filed 20 January 2024.
[110] Ibid [22], [24].
127The resumption of Child B spending time and communicating with the wife would accordingly occur at the sole discretion of the facilitators of the program.
128Those orders, if made, would impermissibly delegate to the unnamed facilitators the power of the court to make parenting orders.[111] They would potentially represent a failure to properly exercise discretion by making orders to quell any controversy within jurisdiction;[112] the uncertainty as to whether they would lead to that failure simply reinforces the point.[113]
Conclusion as to the husband's proposals for engagement with The Program
[111] See Pinson & Pinson (No 2) [2020] FamCAFC 111.
[112] See Fencott v Muller (1983) 152 CLR 570 at 608 and Harrington v Lowe (1996) 190 CLR 311 at 325.
[113] As to which, see the discussion by Austin J in Ajit & Thuvaragesh [2022] FedCFamC1A 80.
129For all those reasons, I readily conclude that it is not in Child A or Child B's best interests, nor otherwise appropriate, to order the proposed engagement of this family with the The Program and After‑Care Protocol. I would hold grave reservations about any such engagement even if I concluded that it was in Child B's best interests to move to the care of the husband, which I do not.[114]
[114] That is consistent with the acknowledgement by Dr H that the program is “not suited” to “families in which the Court finds that a child’s relationship with a rejected parent is severely damaged but that overall, it is in the child’s best interests to remain with the favoured residential parent": see Dr H's Affidavit filed 12 August 2022 at [21].
130In reaching that conclusion I wish to emphasise one further point. I am not critical of the husband for advancing the proposals described. The potential questions as to the relevant expertise of Dr H, the obvious difficulties with his evidence, and the uncertainties and fundamental problems just described are clear to the objective observer, but it would be unfair to expect dispassionate objectivity from the husband. It is understandable that he would grasp at any promoted "solution" advanced by a person who expresses unbridled confidence in it, and claims relevant expertise and experience.
The legislative considerations as they apply to Child B - discussion and disposition
Parental responsibility
131The statutory presumption favouring equal shared parental responsibility applies in this case. The evidence does not rebut it. Both parents have important contributions to make in decision-making about major long-term issues affecting Child B. While they have not been able to agree on some significant matters, including the approach to be taken in the assessment of Child B for ASD, and the unfortunate dispute about her school enrolment, that must be viewed in context.
132The husband's concern that Child B might simply be mimicking Child A's behaviour traits was not unreasonable. Orders have now been made by consent to facilitate the appropriate expert assessment in that regard.
133The interim dispute about schooling occurred in the context of the pending trial, and the husband's proposal for the engagement of the family with The Program, an immediate move of Child B into his care, and a progression towards equal time. It was on that basis that he resisted the proposition that Child B should be enrolled in a school close to the wife's home and advocated for her to be enrolled in a school roughly equidistant between the two homes. While objectively that proposal was without merit, and did not properly acknowledge Child B's views, it was not advanced in bad faith.
134The parties have agreed that they should have equal shared parental responsibility for Child A. The husband's proposal that he should have sole parental responsibility for Child B was largely driven by the balance of his proposals, and his adoption of the recommendations of Dr H.
135I comfortably conclude that the parties should have equal shared parental responsibility for Child B.
The updated expert evidence
136It is common ground that it is in Child B's best interests to have a meaningful relationship with both parents.
137That said, in her report dated 15 January 2023, Dr E said this:
[Child B], with support, can be inched towards the father, but they do not have the strength of a relationship for a quick change in care. Sadly, I think the father needs to set his sights low as the most favourable outcome will be that he is seeing [Child B] for short visits up until she is around 15, at which time she will have greater abstract reasoning and may seek him out for more time or may give up contact with him. Individual therapy and supervised contact will help keep it going. There is no magical fix, and a change of residence for [Child B] (with or without [The Program]) is not going to work for [Child B], or the family.[115]
[115] Dr E's Report filed 15 January 2023 at [65].
138In her evidence at trial on 13 February 2024, Dr E confirmed that she had read the more recent affidavits of the parties, the various reports from Ms I, the CAMHS assessment, and the report of Dr H. She confirmed that her view had not changed from that just quoted. She expressed the firm view that if Child B was to engage in The Program or to have a "change of residence", it would be harmful both to her and to Child A.[116]
[116] Transcript of Proceedings from 13 February 2024 at 8.
139Dr E noted that Child B's emotional bond with Child A is "quite strong". She regarded the relationship between Child A and the wife as having been enmeshed from an early stage, which while not generally healthy is actually what Child A needs at this point because of her medical issues.[117] She confirmed her earlier view that the husband's relationship with the children "is progressing very, very, very slowly", noting that Child A's physical and mental health issues had "hindered that process", as had the emotional bond between the children and the impact of Child A's reactions on Child B.[118]
[117] Ibid 20-21.
[118] Ibid 24.
140She expressed the firm view that it would be beneficial for the husband to participate in autism education offered by Ms K, and that both girls should continue therapy with Ms I. She had considered the opinion of Dr H that a different therapist should be engaged. She firmly disagreed, noting the children's established rapport with Ms I, and that both would find it difficult to "start all over again in building trust" with a new therapist.[119] That said, she thought additional therapy with a practitioner with particular expertise in dealing with children with ASD, working collaboratively with Ms I, would be beneficial.
21.The Father have sole authority to consent to [Child B]’s travel.
22.The Mother is restrained by injunction and an injunction is granted restraining the Mother from having any contact whatsoever with [Child B] from the day these orders are made, and for a further period of no less than 90 uninterrupted consecutive days, or such other period as is required for the Mother to complete the After-Care Protocol, following [Child B] and the Father’s return to their residence upon completion of Phase 2, the unstructured holiday, or from causing or allowing any other person to do so on her behalf including [Mr D], save and except in accordance with these Orders.
23.The parties do all things to ensure that [Child B] does not have any contact with [Mr D], [Child A], nominated relatives, friends, and associates of the Mother and parents of [Child B]’s friends or any other nominated person whose influence is likely to interfere with [Child B]’s progress in effectively repairing the damaged relationship with the Father except as directed by [The Program], or the After-Care professional.
24.In the event premature contact with [Child B] is attempted or achieved by any person as per paragraph 22, the count to 90 days of uninterrupted no-contact resets to zero and commences again.
25.For the purposes of the preceding paragraphs
a. "contact" includes all forms of contact and communication including but not limited to face-to-face contact, telephone contact, text messages, letters, contact via computer and/or any electronic device through any social media or messaging service, in-person contact, any form of carriage service and communication via third parties; and
b. the duration of the non-contact order be no less than for the duration of Phases 1 and 2 of the Program and no less than a further 90 consecutive days from return of the family to the home of the Father or other designated post-[The Program] residence after the successful completion of the structured [The Program] workshop and the post workshop vacation period, or such other period as is required for the Mother to complete the After-Care Protocol ("the no-contact period").
26.The Mother is to do all things to engage in behaviour change with [The Program] After-Care protocol and Family Therapy with [The Program] After- Care protocol professional ("the after-care practitioners") in accordance with the direction of the after-care practitioners, for the purposes of the facilitation of the After-Care protocol and family therapy as required by [The Program].
27.The goals of the After-Care protocol and family therapy are as follows:
a. Assisting the Mother to address her behaviours with respect to her attitude towards the Father;
b. Educating the Mother about the consequences of her past behaviours and the detrimental effects of alienation;
c. Assisting the Mother to implement a parallel parenting model; and
d. Educating and assisting the Mother to understand and adjust to the new family situation.
e. After completing the minimum 90-day no-contact period and assessing the Mother as meeting the goals of the ACP herein,
i. assisting [Child A] and [Child B] with their sibling relationship, and
ii. Assisting the Mother and Father’s relationship with [Child A] and [Child B] respectively according to Paragraph 35 herein.
28.The Mother is required to follow all directions of the after-care practitioners including but not limited to:
a. Attending scheduled appointments;
b. If requested to do so by the after-care practitioners, making changes to her behaviour to facilitate the goals of the After-Care protocol; and Paying all invoices promptly.
29.The after-care practitioners are at liberty to exchange whatever information is required with [The Program] in order to give effect to the After- Care protocol, including but not limited to the documents referred to in paragraph 48 of these orders.
30.In the event that the after-care practitioners determine that it is necessary and appropriate in consultation with [The Program] for the After-Care protocol to involve [Child B] spending time with [Child A] and the Mother or communicating with the Mother during the course of the After-Care protocol, the Father is required to follow all directions of the after-care practitioners to facilitate [Child B] spending time with or communicating with [Child A], the Mother in accordance with the directions of the after-care practitioners.
31.The After-Care protocol will be completed upon the after-care practitioners determining if the goals in paragraph 24 have been adequately met.
32.In the event that completion of the After-Care protocol is anticipated to extend beyond 90 days from commencement, the after-care practitioners provide an update in writing to the Mother, the Father, the Independent Children’s Lawyer (if appointed) and [The Program] as to the estimated time for completion by no later than 80 days after commencement.
33.In the event that the Mother withdraws from the After-Care protocol or the after- care practitioners determine the Mother is unable to complete the After-Care protocol, the After-Care practitioners provide an update in writing to the Mother, the Father, the Independent Children’s Lawyer (if appointed) and [The Program] as to the date of the Mother’s withdrawal and any reasons (if known) for the withdrawal and/or non-completion.
34.At the completion of the After-Care protocol, the after-care practitioners provide a report in writing to the Mother, the Father, the Independent Children’s Lawyer (if appointed) and [The Program] addressing the following:
a.The Mother’s engagement with the protocol;
b.Whether, in the opinion of the after-care practitioners the Mother has achieved the goals of the After-Care protocol; and
c.Any recommendations for further therapy, counselling, treatment or parenting programs that in his or her opinion may benefit the Mother.
35.After the expiration of the no-contact period and the Mother’s completion of the After-Care protocol, including its supervised time component the parties revert back to equal shared parental responsibility for [Child B] and [Child B] spends time with the Mother as follows:
a.For 8 weeks up to 4 hours on either Saturday or Sunday each alternate weekend such time to be supervised by a supervision agency eg [Supervision Agency A] with the Mother to pay for the cost of supervision;
b.For the next 8 weeks for a period of 8 hours on each alternate Sunday from 9am until 5pm;
c.Thereafter:
i. [Child B] live with the Mother and Father on a week about basis from school pick up on a Friday, commencing first friday following completion of details set out in paragraph 35b.
ii. Any changes time spent during school holidays can be made by agreement by the parties. Where an agreement cannot be met the time spent defaults to the week about arrangement above with drop off by the residential parent at 4pm on the Friday.
36.Further to the preceding paragraph [Child B] spend special occasions with which ever parent she is with on the days they fall, except as follows:
a. On the Mother’s Day weekend with the Mother from 5pm on Saturday until 5pm on Sunday;
b. On the Father’s Day weekend with the Father from 5pm on Saturday until 5pm on Sunday;
c. At Christmas in 2024 and each odd year thereafter, with the Father from 9am on Christmas Eve until 12noon on Christmas Day and with the Mother from 12noon on Christmas Day until 5pm on Boxing Day;
d. At Christmas in 2025 and each even year thereafter, with the Mother from 9am on Christmas Eve until 12noon on Christmas Day and with the Father from 12noon on Christmas Day until 5pm on Boxing Day.
37.In the event that [Child B] is not otherwise spending time with the Mother, [Child B] communicate with the Mother by way of phone call to the Mother’s mobile phone between 6pm and 6.30pm on the following special occasions:
a. [Child B]’s birthday;
b. [Child A]’s birthday;
c. the Mother’s birthday.
38.The Father have liberty to provide a copy of these orders, if required, to facilitate the travel to Western Australia or to any state or territory of [The Program] providers, including but not limited to [Dr H].
39.The Father be permitted to travel to any state or territory with [Child B] for the purposes of participating in [The Program].
40.The Father be permitted to take [Child B] out of school for the purposes of participating in [The Program].
41.The cost of [The Program] be met as follows:
a. Phase 1 shared cost. The Father shall pay for all portions of the workshop attended with [Child B]. The Mother will reimburse the Father 50% of the costs associated for Phase 1 to a bank account nominated by the Father at a rate of no less than $30 per week commencing no later than 8 weeks from the date of these orders, rather than pay a portion of the funds directly to [The Program] team leaders.
b. Phase 2 and Phase 3b– by the Father;
c. Phase 3a
i. ACP by the Mother,
ii. Family Therapy to be equally shared by the Mother and Father.
42.In the event [The Program] (Phase 1) cannot go ahead as planned due to the Mother not complying with the Orders, and/or the child [Child B] not being available to commence the workshop, the Mother bear the cost associated with the delay.
43.During the no-contact period, the Mother and/or her husband [Mr D] shall stay at least 3 kilometres away from the Father and "his partner" [Mr C], [Child B], the Father’s residence, the Father’s and "his partner’s" motor vehicles, the Father’s and "his partners" place of work unless seeking medical attention save and except that when [Child B] is attending school the distance be reduced to 500m of the school boundary.
44.The Mother and/or her husband [Mr D] must not harass, attack, strike, threaten, assault, hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, or block movements of the Father, "his partner" and [Child B], nor enlist any other person/s to do so.
45.The Western Australia Police and/or other law enforcement agencies are requested and hereby authorised to lend all necessary assistance to facilitate and allow the Father to maintain sole responsibility, residence and care of [Child B] in the terms of this order. In accordance with these orders, and if necessary the father be permitted to make an enforcement application and/or recovery order in the usual terms. This will be made immediately upon the Father or his lawyer notifying Chambers of the presiding judicial officer in writing;
46.The Father have sole authority to pursue whatever remedy he deems necessary and/or appropriate including, but not limited to [The Program] to enable and assist [Child B] in adjusting to living with him.
47.The Father be at liberty to conceal from the Mother the location of any intervention sought for [Child B] (e.g. educational or mental health intervention) in the interests of protecting [Child B] and intervention from intrusion, interruption, and harassment subject to paragraph 35.
48.Both parties will sign any consents to release information, as required by the intervention/treatment professionals, within 24 hours and should the Mother not do so the Father be authorised to sign on her behalf.
49.The Father is authorised to provide a copy of any Single Expert Witness report, Family Therapy report, Psychologist report and Autism Assessment report, the Reasons for Decision of these proceedings and other psychological assessments/reports of the children and all other relevant information to any professional with whom the Applicant engages to assist with [Child B] including [The Program] team leaders.
50.The Father has the authority to confiscate and prevent [Child B]’s use of mobile phone, smart watch, pagers, computers and/or other communication devices even if the Mother provides such equipment.
51.The Parties and the Independent Children’s Lawyer or any other person be restrained and an injunction is hereby granted restraining each of them making a complaint concerning the conduct of [The Program] team, or issuing a subpoena for information from [The Program] team, without first obtaining leave of the presiding judge.
52.The Father be at liberty to enrol [Child B] into [School A] which falls somewhat equidistant between the mother's and father’s houses or an alternate school as nominated by the Father on the following condition:
a. The Father provide the Mother with notice of the change of enrolment within 14 days of the change occurring, subject to paragraph 43.
53.Commencing four months following the date of these Orders, the Father keep the Mother informed of all medical practitioners and educational facilities attended by [Child B].
54.Commencing four months following the date of these Orders, the Father keep the Mother informed of all significant health issues for [Child B] including but not limited to:
a. Updates on treatment recommendations, medications and diagnoses within 7 days of the same;
b. Any medical or health emergency requiring hospitalisation or emergency medical treatment;
c. Any health issue requiring hospitalisation, whether day surgery, overnight or emergency; and
d. Any assessments required by [Child B]
such notice to include the name and contact details of the treating medical professional, medical practice and/or hospital.
55.Commencing 3 months following the date of these Orders, the Mother is authorised and these Orders serve as authority for the Mother to be provided by any medical practitioner and educational facilities attended by [Child B], with any information she requests in relation to [Child B]’s health, education, wellbeing and development which is usually provided to parents and subject to the consent of the provider.
56.The Mother be restrained by injunction from taking [Child B] to any medical appointments, education facility appointments and appointments with any other professional save and except with the prior written consent of the Father subject to paragraph 35.
57.Subject to conditions set out in paragraph 35, In the event of a medical emergency for [Child B] while in the care of the Mother:
a. the Mother forthwith notify the Father of the medical emergency and whether medical treatment is being obtained for [Child B] and the name and contact details for the emergency medical treatment provider;
b. in the event that immediate medical treatment is not required, the Father forthwith organise and facilitate medical treatment for [Child B] and the Mother’s time with [Child B] for the duration of the medical emergency is suspended, with make-up time to be agreed within 3 months following the suspension of time;
c. in the event that immediate medical treatment is required, the Father be at liberty to attend the medical facility providing emergency medical treatment and upon the Father’s presentation at the medical facility the Mother’s time with [Child B] is suspended for the duration of the medical emergency, with make-up time to be agreed within 3 months following the suspension of time; and
d. in the event of [Child B] requiring hospitalisation as a result of the medical emergency, the Mother be at liberty to visit [Child B] on each day of her hospital admission for a period of up to 2 hours during visiting hours as agreed between the parties and failing agreement from 2pm until 4pm each day of [Child B]’s hospitalisation with the Father to ensure that he is not present during the Mother’s visit with [Child B].
e. Both parties be restrained by injunction from:Denigrating, criticising or otherwise insulting the other party to or within the hearing or presence of [Child B] or permitting any third person to do so;
f. Discussing these Court proceedings, Orders, parenting arrangements or dispute to within the hearing or presence of [Child B] or permitting any third person to do so; and
g. Showing [Child B] any document associated with the parenting dispute or these proceedings or permitting any third person to do so.
58.Both parties have liberty to provide a copy of these Orders to:
a. [Child B]’s school;
b. The Department of Education;
c. Any medical professional attended by [Child B].
59.The Father be at liberty to travel outside of the State of Western Australia or outside of the Commonwealth of Australia with [Child B], subject to the following conditions:
a. Providing the Mother with no less than 14 days written notice of the intended travel such notice to include dates and destinations of travel;
b. Subject to the Mother having contact with [Child B], each period of travel must not exceed 28 days by agreement. Any contact scheduled with the Mother and [Child B] during the period of travel is to be rescheduled within 3 months of the planned contact and except as agreed otherwise.
60.Following paragraph 35c being met the Mother be at liberty to travel outside of the State of Western Australia or outside of the Commonwealth of Australia with [Child B], subject to the following conditions:
a. Providing the Father with no less than 14 days written notice of the intended travel such notice to include dates and destinations of travel;
b. Subject to the Father having contact with [Child B], each period of travel must not exceed 28 days by agreement. Any contact scheduled with the Father and [Child B] during the period of travel is to be rescheduled within 3 months of the planned contact and except as agreed otherwise.
61.The Father be at liberty to obtain a citizenship certificate and passport for [Child B], and the requirement for the Mother to sign any passport application or renewal be dispensed with subject to 35c being met.
62.Upon the Mother spending unsupervised time with [Child B], handover take place as follows:
a. On a non-school day or outside of school hours, by the Mother delivering and collecting [Child B] from the Father’s residence, with the Mother to remain in her motor vehicle and the Father to remain inside and [Child B] to walk between; and
b. On a school day, by delivery or collection of [Child B] from or to [Child B]’s school.
MISCELLANEOUS
63.The communication between the parties occur through email. The mother be permitted to request updates from the father via email not more than once per week.
64.The Mother and Father keep each other informed as to their current residential address, phone number and email and shall inform and keep each other informed as to any changes within 24 hours of the same.
65.[Child A]’s passport held with the WA Family court be released to the Mother.
66.[Child B]’s passport held with the WA Family Court be released to the Father.
67.The mother be permitted to seek additional therapy she deems appropriate to support [Child A] whilst [The Program] takes place.
PROCEDURAL
68.Subject to their consent, an Independent Children’s Lawyer remain appointed in this matter for a further 12 months following the Final Orders being made.
69.All outstanding applications be dismissed.
Annexure 2
[Ms Isaacs]
MINUTE OF PROPOSED FINAL ORDERS
1.All previous parenting Orders be discharged.
2.The parties have equal shared parental responsibility for the children [CHILD A] born 3 September 2007 and [CHILD B] born 22 May 2012 ("the children").
3.The children live with the respondent [MS ISAACS] ("the mother") and spend time with the applicant [MR VENNO] ("the father") as follows:
3.1Each alternate week on either Saturday or Sunday, for between
4 and 8 hours or as much time as the children are able to manage.
3.2Each intervening week on either Thursday or Friday, from 5pm to 8pm or as much as the children are able to manage.
3.3Such further days and times, including overnight, as may be agreed in writing (to include, email and SMS) between the parties.
with the parties to agree exact times and days no later than 3 days in advance of each spend time period.
4.For the purposes of collection and delivery, the father shall collect the children from the mother’s home at the commencement of the father’s weekend time and the mother will collect the children from the father’s home at the conclusion of the father’s weekend time, unless agreed otherwise.
5.The mother shall deliver the children to the father’s home at the commencement of the father’s weekday time and the father will deliver the children to the mother’s home at the conclusion of the father’s weekday time, unless agreed otherwise.
6.The father have liberal telephone and/or video call and/or SMS communication with both children, not less than twice per week with each child.
7.In the event that a scheduled visit cannot take place, due to illness or other reasonable excuse, the parties will discuss whether make- up time is practicable.
8.In the event that either child is seriously ill or injured and/or is admitted to hospital, the party with the care of the child notify the other party forthwith and both parties be at liberty to attend any hospital to which either child is admitted.
9.Each party keep the other party advised of any non emergency health practitioner appointments for either child, in sufficient time for the other party to attend such appointment, except in relation to the child [CHILD A], that attendance by the other party be subject to [CHILD A]’s wishes, and, upon the child [CHILD B] attaining the age of 16 years, that attendance by the other party in relation to such appointments be subject to [CHILD B]’s wishes.
10.Both parties be authorised to obtain information about either child from any medical practitioner or other health practitioner (including therapists) Both parties be authorised to obtain information from any educational institution, including online, attended by either child, including but not limited to school reports and newsletters and online information forums for parents.
11.Both parties be at liberty to attend school events normally attended by parents.
12.The parties take all reasonable steps to have the child [CHILD B] assessed by [Specialist Clinic A] (subject to availability), for ASD and Dyslexia, and any other mental health issues, and screened for ADHD, and keep the other party advised at all times.
13.The parties share equally the costs of such assessment over and above any Medicare and/or private health insurance rebates.
14.The parties be at liberty to provide copies of the Single Expert Reports and the Family Therapy reports and the child [CHILD B]’s therapy reports and the CAMHS assessment dated 18 December 2023, and any other document which the assessment team agrees is relevant, to any health practitioner for the purposes of assessing the child [CHILD B].
15.All requests for documents and supply of documents to [Specialist Clinic A], to be in writing, with both parties included.
16.Upon the assessment being complete, the parties use their best endeavours to comply with any recommendations made in such assessment.
17.The parties continue to facilitate the children attending therapy and only cease each child’s attendance upon a therapist or mental health practitioner should the same instruct that further therapy or mental health treatment is no longer necessary. The parties share equally the costs of such therapy over and above any Medicare and/or private health insurance rebates.
18.The parties have leave to provide a copy of these Orders to any health practitioner (including therapist) or hospital or educational institution attended by either child.
19.All subpoenaed documents to be returned to source or destroyed as relevant.
20.Travel . The Mother have liberty to take the children on a holiday once each year missing up to 1 visit with the father.
21.The mother be permitted to take the children from the Commonwealth of Australia or from the state of Western Australia for the purpose of a holiday or a family emergency. For a period up to 3 weeks each year.
22.The Mother to provide,
a)Destination
b)Copy of any health insurance required for travel.
c)Dates of travel.
23.Both parents do all things and sign all documents necessary to renew the children’s passports,
24.The Mother retain the children’s passports.
25.In the event that the children wish to travel with the Father, for the purpose of a holiday then the Mother is not to unreasonably withhold her consent.
26.Both parties agree not to denigrate the other party at any time in any context.
28.The Independent Children’s Lawyer be discharged.
28.All applications and responses otherwise be hereby dismissed.
Dated: 20th February 2024
[Ms Isaacs]
Annexure 3
INDEPENDENT CHILDREN'S LAWYER MINUTE OF PROPOSED FINAL ORDERS
1.All previous parenting Orders be discharged.
2.The parties have equal shared parental responsibility for the children [CHILD A] born 3 September 2007 and [CHILD B] born 22 May 2012 ("the children").
3.The children live with the respondent [MS ISAACS] ("the mother") and spend time with the applicant [MR VENNO] ("the father") as follows:
3.1Each alternate week on either Saturday or Sunday, for between 4 and 8 hours or as much time as the children are able to manage.
3.2Each intervening week on either Thursday or Friday, from 4pm to 7pm.
3.3Such further days and times, including overnight, as may be agreed in writing (to include email and SMS) between the parties.
with the parties to agree exact times and days no later than 3 days in advance of each spend time period.
4.For the purposes of collection and delivery, the father shall collect the children from the mother's home at the commencement of the father's weekend time and the mother will collect the children from the father's home at the conclusion of the father's weekend time, unless agreed otherwise.
5.The mother shall deliver the children to the father's home at the commencement of the father's weekday time and the father will deliver the children to the mother's home at the conclusion of the father's weekday time, unless agreed otherwise.
6.The father have liberal telephone and/or video call and/or SMS communication with both children, not less than twice per week with each child.In the event that a scheduled visit cannot take place, due to illness or other reasonable excuse, the parties will discuss whether make-up time is practicable.
7.In the event that either child is seriously ill or injured and/or is admitted to hospital, the party with the care of the child notify the other party forthwith and both parties be at liberty to attend any hospital to which either child is admitted.
8.Each party keep the other party advised of any non emergency health practitioner appointments for either child, in sufficient time for the other party to attend such appointment, except in relation to the child [CHILD A], that attendance by either party be subject to [CHILD A]'s wishes, and, upon the child [CHILD B] attaining the age of 16 years, that attendance by either party in relation to such appointments be subject to [CHILD B]'s wishes.
9.Both parties be authorised to obtain information about either child from any medical practitioner or other health practitioner (including therapists), subject to privacy requirements.
10.Both parties be authorised to obtain information from any educational institution, including online, attended by either child, including but not limited to school reports and newsletters and online information forums for parents.
11.Both parties be at liberty to attend school events normally attended by parents.
12.The parties take all reasonable steps to have the child [CHILD B] assessed by [Specialist Clinic A] (subject to availability), for ASD and Dyslexia, and any other mental health issues, and screened for ADHD, and keep the other party advised at all times.
13.The parties share equally the total costs of such assessment over and above any Medicare and/or private health insurance rebates.
14.The parties be at liberty to provide copies of the Single Expert Reports and the Family Therapy reports and the child [CHILD B]'s therapy reports and the CAMHS assessment dated 18 December 2023, and any other document which the assessment team agrees is relevant, to any health practitioner for the purposes of assessing the child [CHILD B].
15.Upon the assessment being complete, the parties use their best endeavours to comply with any recommendations made in such assessment.
16.The parties continue to facilitate the children attending therapy and only cease each child's attendance upon a therapist or mental health practitioner should the same instruct that further therapy or mental health treatment is no longer necessary.
17.The parties share equally the costs of such therapy over and above any Medicare and/or private health insurance rebates.
18.The parties have leave to provide a copy of these Orders to any health practitioner (including therapist) or hospital or educational institution attended by either child.
19.All subpoenaed documents to be returned to source or destroyed as relevant.
20.The Independent Children's Lawyer be discharged.
21.All applications and responses otherwise be hereby dismissed.
Dated: 20th February 2024
[Signature]
Independent Children's Lawyer
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate
9 MAY 2024
0
10
0