Webb & Simpson
[2022] FedCFamC1F 732
Federal Circuit and Family Court of Australia
(DIVISION 1)
Webb & Simpson [2022] FedCFamC1F 732
File number(s): PAC 769 of 2017 Judgment of: ALDRIDGE J Date of judgment: 27 September 2022 Catchwords: FAMILY LAW – PARENTING – Where there is no possibility of meaningful communication between the parents regarding the child – Where the mother has difficulty in regulating her behaviour – Where the father has the greater parenting capacity – Where the child would benefit from a meaningful relationship with the mother but attempting to achieve that is fraught with difficulty and risk – Where the child would be at risk of harm if the current circumstances were to change and if the child were to live with the mother – Where the child has remained open to seeing the mother – Where the expert opined that a therapeutic reintroduction would be beneficial – Orders for the child to live with the father and the father to have sole parental responsibility – Orders for the child to spend time with the mother at the father’s discretion. Legislation: Family Law Act 1975 (Cth) ss 60CC Cases cited: Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Division: Division 1 First Instance Number of paragraphs: 116 Date of hearing: 5–7 September 2022 Place: Sydney Counsel for the Applicant: Ms Spain Solicitor for the Applicant: Somerville Legal Counsel for the Respondent: Mr Fantin Solicitor for the Respondent: SCB Legal Counsel for the Independent Children’s Lawyer: Mr Dean Solicitor for the Independent Children’s Lawyer: Kathryn Renshall Lawyers Pty Ltd ORDERS
PAC 769 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SIMPSON
Applicant
AND: MS WEBB
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
ALDRIDGE J
DATE OF ORDER:
27 september 2022
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The father have sole parental responsibility for the child X born in 2008 (“X”).
3.Within fourteen days of making any decision as to the long-term care, welfare and development of X, the father is to inform the mother in writing of such decision.
4.X live with the father.
5.X spend time and communicate with the mother at the discretion of the father.
6.The mother, her servants or agents, shall not :
(a)Remove or cause the removal of X from the care of the father;
(b)Attend and/or collect X from:
(i)B School Suburb C or any school at which X is enrolled to attend;
(ii)Any place or venue at which X undertakes social, sport or extracurricula activities.
7.X be permitted by these orders to travel internationally, as provided by s 11(1)(b)(ii) of the Australian Passports Act 2005 (Cth) and, for this purpose, the father is permitted to apply for an Australian passport for the child under the provisions of s 11(1) (b) (i) of the Australian Passports Act 2005 (Cth).
8.The father shall be permitted by these orders to do all acts and things and sign all documents necessary to apply for a passport for X pursuant to Order 7 and including any subsequent renewal of a passport for X and the mother’s consent to the issue of the said passport is dispensed with.
9.The father be permitted to retain X’s passport when X is not travelling outside of Australia.
10.The Court notes that X’s current passport is being held in the registry of the Court and the father shall be permitted to approach the Registry Manager of this Court to request the release of X’s passport.
11.The father be permitted to provide a copy of these orders to the Australian Federal Police and do all acts and things necessary to cause the removal of the child’s name from the Airport Watchlist; AND IT IS REQUESTED that the Australian Federal Police give effect to this order by removing the name, X born in 2008 from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
12.Within seven days of the date of these orders, the mother shall pay to the father the sum of $5,500 being 50% of the cost of the single expert report of Dr D and 50% of Dr D’s fees and charges for giving evidence at the final hearing of this matter.
13.Leave be granted to the father to provide the following documents to X’s treating psychologist:
(a)A copy of these orders;
(b)A copy of the reasons for judgment;
(c)A copy of the single expert report of Dr D dated 8 January 2020.
14.Leave be granted to the father to provide a copy of these orders to the principal of B School Suburb C or the principal of such other school at which X is enrolled to attend.
15.For the purpose of Order 3, the mother shall at all times keep the father informed of her current email address.
16.The mother shall be permitted to send to X a card and/or gift on the following occasions:
(a)X’s birthday; and
(b)Christmas; and
(c)Easter.
17.For the purpose of Order 16, the following shall apply:
(a)The father shall provide the mother with an address to which she can send the card and/or gift to X and
(b)The father shall be permitted to vet the card and/or gift to assess whether the mother’s written words and/or her gift may cause X distress or discomfort and if he determines that they will, he is at liberty to not forward the card and/or gift to X.
18.Within fourteen days of receipt, the father shall forward to the mother any interim and/or final school reports issued with respect to X by the school at which she is enrolled to attend.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Webb & Simpson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
Introduction
These proceedings concern the child X, who was born in 2008 and is now nearly 14 years old. Since early 2018, X has lived with her father, Mr Simpson. In these proceedings, the father seeks an order that he have sole parental responsibility for X, that she live with him and spend time with her mother at his discretion.
For her part, X’s mother, Ms Webb, seeks orders that X immediately come to live with her and that she have sole responsibility for her. The mother also seeks orders that X spend no time at all with the father.
X’s interests were represented by an Independent Children’s Lawyer (“the ICL”). At the commencement of the hearing, the ICL indicated that the orders she thought were in X’s best interests were that she live with the father, that he have sole parental responsibility for her but that she spend supervised time, monthly, with the mother. These proposed orders were in line with the recommendations of Dr D, the single expert family psychiatrist, who provided a report on 8 January 2020.
However, at the end of submissions, after hearing the evidence, the ICL indicated that she agreed with the orders proposed by the father and that such orders were in X’s best interests.
Background
In order to understand the parties’ positions, it is helpful to identify some of the relevant family history.
The parents commenced living together in early 2008. At that time the mother had a child, Ms E who was born in 1999, from a previous relationship. Ms E was in the primary care of the mother when the parties commenced cohabitation.
According to what the mother told Dr D, the relationship between the parties deteriorated in late 2013 and early 2014, but that she was too weak to leave the relationship. In her trial affidavit, the mother claimed that at some stage, possibly in 2014, she took Ms E took to a psychologist in City F where, according to the mother, Ms E was confirmed to be suffering from anxiety due to the father’s alleged abuse of the mother, Ms E and X and the heightened conflict between the parties.
The parties separated on 3 March 2015 and they agreed on a shared care arrangement pursuant to which the father cared for X five nights in a fortnight. In late 2015, Ms E left the home of the mother and returned to live with the father. According to the father’s evidence, in January 2016 the arrangements for X changed so that she was now in his care for six nights a fortnight.
The events of late 2017 to early 2018
These events were of some significance at the hearing and it is necessary to traverse them in some detail.
The mother moved to take up employment in G Town in late 2017. Although the parties could not agree as to how it came to be, the father travelled to City J in late 2017. For two days in late 2017, X was in the care of Ms E and on the subsequent three days in late 2017, the mother came to Sydney to care for her. According to the mother, when she arrived she observed that X had lost a lot of weight, could not eat, was having nightmares, became startled at loud noises and flinched when Ms E went near here (Mother’s affidavit filed on 29 August 2022, paragraph 40).
The mother returned to G Town and in late 2017, by arrangement, X went to G Town to spend holiday time with the mother. The mother stated that when X arrived she was “struck with fear and dread” at the sight of X’s physical deterioration (Mother’s affidavit filed on 29 August 2022, paragraph 41). The mother added that X had panic attacks at the thought of returning to the father and said that she had been physically abused by Ms E (Mother’s affidavit filed on 29 August 2022, paragraphs 41–42).
One of the difficulties in this matter is that the mother never said precisely what X disclosed to her about her alleged abuse by Ms E and when exactly it was said to her. The allegations in paragraph 42 of her affidavit filed on 29 August 2022 are broad and general. None of the primary documents from a number of investigating authorities with whom the mother raised the conduct of Ms E and the father were tendered. However, it emerged in the oral evidence that the nature of the complaint was that Ms E “hits her and pinches her or punches her” and had once inserted a pencil in her vagina (Transcript 6 September 2022, p.17 lines 20–33).
It emerges from Dr D’s report, who reviewed a number of primary documents which included documents from investigating authorities, that the Department of Family and Community Services (“the Department”) (as it was then known) received a report on 19 December 2017 that X had been psychologically and sexually abused by Ms E. On the following day, the father received a letter from the mother’s solicitor, presumably written on her instructions. The letter said:
In relation to [X’s] wellbeing there is evidence of physical and psychological abuse and she has been diagnosed by her doctor as suffering from anxiety and depression. The doctor has prepared a Mental Health Plan for the child.
The child has lost weight and there has been evidence of bruising, she has had stomach pains and constipation and is hypervigilant and in need of constant reassurance. These are widely acknowledged as being signs of possible trauma or abuse.
Today the child has had a confidential meeting, without our client being in the room, with a counsellor at [H Hospital]. During that meeting with the counsellor [X] disclosed that she has been slapped, kicked and physically abused by [Ms E], together with psychological abuse and bullying by [Ms E].
(Father’s affidavit filed on 18 August 2022, Annexure “A”)
It is the mother’s contention, variously expressed in her oral evidence, that the father was aware of Ms E’s abuse of X as described, but did nothing about it and, indeed encouraged it or manipulated Ms E into abusing X.
As is apparent from the letter, the mother took X to H Hospital in late 2017 and to the police in late 2017 (Single expert report of Dr D dated 8 January 2020, p.23). Dr D recorded that X disclosed to the police that Ms E had hit her approximately six times in three years and that the police believed that the incidents could be described as “typical sibling behaviour towards each other” (Single expert report of Dr D dated 8 January 2020, p.23). On 26 December 2017, the Department received a report raising concerns that X showed signs of post-traumatic stress disorder as a result of three years of abuse from Ms E (Single expert report of Dr D dated 8 January 2020, p.22).
The mother did not return X to the father as had been agreed and on 5 January 2018, the father filed an Initiating Application. On 22 January 2018, a judge of the Federal Circuit Court of Australia (as it was then known) made an order, by consent, requiring the mother to return to Sydney on 26 January 2018 and return X to the father at midday.
It appears the mother again took X to H Hospital on an afternoon in early 2018 which resulted in her being admitting to K Hospital on the following day. The father travelled to Suburb K to see X. It is plain that she was not happy to see him, turned her back on him and did not engage with him. The father was persuaded to return to Sydney without X because travelling home with him at that time was not in her best interests.
Dr L, who provided that advice, later wrote an email to the father, in response to a detailed email sent by the father pointing out that he was entirely unaware of any difficulties X may have been suffering, or that there was any abuse by Ms E, which said:
In my account I mentioned that all of [the mother’s] claims came from [the mother] alone and had not been confirmed to us by [X] or any other source. I noted that in discussion with the detective and the sexual assault counsellor, [X] had apparently made no disclosures. I mentioned the condition of Munchausen syndrome by proxy (now apparently known as ‘factitious reporting by another’) and this is a further cause for concern.
(Father’s affidavit filed on 18 August 2022, Annexure “E”)
In her oral evidence, the mother sought to explain these events by saying she was aware from X’s demeanour when she arrived in G Town for the Christmas holidays that there was something wrong with her and that she had clearly been abused. She said X made disclosures gradually over the next month or so. Again, the mother did not say what those disclosures were. The mother said that she herself was surprised that the sexual assault counsellor was engaged when they attended K Hospital because there had been no allegations of sexual assault. It seems much less probable than not, that a sexual assault counsellor would be engaged unless there was some reasonable basis for doing so, which casts a doubt over the acceptability of that evidence, particularly taking into account the reference to an assault with the pencil.
A Child Inclusive Conference was due to be held in Sydney on 30 January 2018, but neither the mother nor X attended. Despite the consent order, the mother had not yet returned X to the father. On the same day, the Department received a disclosure of sexual abuse said to have been made by X and that the mother attended Suburb K police station to report a similar disclosure.
According to Dr D’s report, a Joint Investigation Response Team was formed which investigated the complaints which were found not to be “not sexual in nature and that the victim is either hypervigilant to the actions of the POI or being coerced by her mother that the actions of the POI are more than just siblings playing around” (Single expert report of Dr D dated 8 January 2020, p.23). According to Dr D, when the mother was informed that the police were having difficulty establishing a criminal offence, the mother “retracted the information within the original report relating to a pencil being placed into the victim’s vagina by the POI” (Single expert report of Dr D dated 8 January 2020, p.23). The mother reported that X “stated she didn’t know if it had happened or she had dreamt it” (Single expert report of Dr D dated 8 January 2020, p.23).
X was examined by a paediatrician in early 2018, who found no evidence of abuse.
On 5 February 2018, on the application of the father, a recovery order was made as well as an interim order that X live with the father. The recovery was enforced by the Australian Federal Police and X had no further contact with her mother until mid-2018.
The mother continues to insist that Ms E serially abused X and that the father knew of it, facilitated it and that he has thereby abused, and continues to abuse X. Other than from the mother’s evidence, which is in the broadest of terms and never descends even to the recitation of X’s complaints to her, there is no evidence of such abuse. The mother’s vehement belief that the abuse has occurred and of the father’s acceptance of it or connivance in it, no matter how strongly felt, is not evidence on which the Court can act.
The mother made a number of calls to the police in early 2018 seeking welfare checks on X, insisting that the police speak directly to her.
The school incident
An incident occurred in early 2018. The mother attended X’s school at the time X and the father were leaving. Describing the scene as neutrally as I can, there is no doubt that the mother and the father ended up holding onto X at the same time, both trying to get her away from the other.
The mother said that she let go of X when she realised that the father was dragging her back into the school grounds, which would have caused difficulties for the mother. She asserted that she would have been arrested if she was dragged into the school grounds and that the father was attempting to do so for that precise purpose. The mother added that by grabbing X, the father thereby physically abused X, although apparently, her having done so, was not abuse.
Three matters arise from this. The first is, the mother acted contrary to the orders by trying to spend time with X on that occasion. Secondly, the mother agreed that she was at the school to take X, in complete defiance of the orders. Thirdly, the events led to a Provisional Apprehended Domestic Violence Order against the mother for the protection of X and the father which was made in early 2018. This led to an Interim Apprehended Domestic Violence Order being made by the Suburb M Local Court in early 2018. That order was made final a short time later in 2018.
Counselling
X commenced seeing a counsellor, Ms N, in 2018. Shortly after, in early 2018, X was reintroduced to Ms E. From early 2018, the father, Ms E and X all lived in the same household.
A set of interim orders were made on 26 April 2018, which included orders for the mother to have telephone contact with X, being conditional on the mother first engaging with Ms N. The mother did so and on 11 May 2018, Ms N sent an email to both parties setting out the instructions and guidelines to be followed during telephone calls between X and the mother. The calls were to be monitored by the father and he was at liberty to terminate them. Ms N indicated that a number of topics were to be “off limits” for the calls and if they were raised, would result in the immediate termination of the call. These topics included any negative mention of the father, along with questions and allegations of physical, emotional or sexual abuse or neglect.
Calls between X and the mother from May 2018 to June 2019
The calls commenced on 12 May 2018 and continued thereafter. The father has set out in his affidavits, statements made by the mother which he said breached Ms N’s guidelines. Nonetheless, he chose to not terminate the calls. He said hid not do so because he believed that course would be upsetting for X and that continuing the calls was the lesser evil.
There was no challenge to the father’s description of the calls. In the call on 12 May 2018, X did not respond or speak to the mother at all and appeared anxious and concerned. X again did not speak on the second call on 19 May 2018, when the mother said things such as “I will see you very soon”, “this will all come to an end soon”, “I will make up for not seeing you at Easter and Mother’s Day times ten” (Father’s affidavit filed on 18 August 2022, paragraph 59).
According to the father, X started speaking to the mother on the calls on 9 June 2018.
During a call on 30 June 2018, the mother said “I will be in Sydney in the second week of the school holidays, would you like to see me while I am in Sydney?” (Father’s affidavit filed on 18 August 2022, paragraph 64). The father said that he saw X immediately become anxious, quiet and still.
The mother ceased calling X between 18 August 2018 and 13 October 2018, some nine weeks. The calls resumed as before on the 20 October 2018. Again in these calls, the mother said things that suggested that X should or would be spending time with her in G Town or other places.
For reasons that are unclear, in mid-2018 the Apprehended Domestic Violence Order that was made in early 2018 was annulled and a Provisional Apprehended Domestic Violence Order for the protection of X and the father was made on that day. In early 2019, that order was made final for a period of two years.
The father became increasingly concerned about the content of the mother’s telephone calls in early 2019 with the mother having said things such as:
·“I’m saying a prayer for you especially when you’re not with your mother which you should be always” (Father’s affidavit filed on 18 August 2022, paragraph 77);
·“I’m doing everything I can to see you. You have a perfectly good mother despite some people thinking you don’t” (Father’s affidavit filed on 18 August 2022, paragraph 79) and
·“You should be with your mummy always; I’m doing everything I can to see you” (Father’s affidavit filed on 18 August 2022, paragraph 81).
By late May and early June 2019, the father observed a deterioration in X’s demeanour. He noticed signs of heightened anxiety, sleeplessness, disinterest in day to day activities and a reluctance to attend school and extracurricular activities.
In mid-2019, X did not want to attend school and was sullen and withdrawn. Concern about the content of the telephone calls escalated, with Ms N referring to them in a report on 28 June 2019. The content of the calls had become the subject of communication between the parties’ lawyers. Nonetheless, according to the father, and seemingly not challenged by the mother, the comments in relation to the mother/daughter bond, and that the mother would never stop trying to see X continued.
Supervised time
On 1 July 2019, orders were made which included orders for the mother to spend supervised time with X. These orders contained restrictions upon what the mother was permitted to say or discuss with X. That time commenced on 3 August 2019.
On 12 March 2020, the mother suspended the supervised time, saying that the court orders were invalid due to a typographical error and she did not intend to be bound to them or attend at the contact centre. This led to the contact centre suspending the services from 13 March 2020.
On the same day, the father’s lawyers received a letter from the contact centre which in addition to suspending time and in response to the email from the mother, said “I have reviewed the last few reports and note that comments were made during the last three visits that in my view are not appropriate particularly in light of the court orders” (Father’s affidavit filed on 18 August 2022, paragraph 179).
The COVID-19 pandemic then occurred. There was supervised video contact between the mother and X between May 2020 and June 2020.
The supervised time in person then recommenced on 11 July 2020. X refused to attend the following visit on 25 July 2020. The supervised visit on 15 August 2020 did not go well. According to the supervisors, X was seen to be wringing her hands very nervously with watery eyes and looking as she was about to cry. X informed the manager that she did not wish the visit to go for two hours and asked if she could just stay for an hour and 15 minutes. X was also reported to be reluctant to attend the supervised visit on the 5 September 2020, but did so. X refused to attend on 19 September 2020.
On 21 September 2020, the father was informed by the contact centre that the mother had cancelled further visits, notwithstanding that, the father instructed his lawyers to write a letter to the mother suggesting that he and X, in consultation with Ms N, resume supervised time. That time did not resume.
Generally speaking however, the reports from the contact centre show that X was pleased to see her mother and that they got on well during the visits. It was only towards the end of the supervised time that X became reluctant to attend and wished them to be shorter.
It is not entirely surprising that X became tired of the visits and I do not necessarily take this as a reflection of her relationship with the mother. There is force in the mother’s evidence that the contact centre was not ideal for pursuing a relationship. It is an unnatural environment and one not particularly suited to teenagers. I infer from X’s reluctance to attend that it is primarily a reflection of the fact that she did not find regimented supervised time of a prescribed length to be beneficial and she preferred a less structured and shorter time. That is all very understandable. Even so, X was not particularly upset by the termination of the supervised visits and did not propose or seek extended time or unsupervised time.
X’s school refusal
In late 2021, X told the father that she was not feeling good about school and was finding it difficult to return to school in person after the pandemic lockdown. That negativity continued throughout the rest of the term and the school holidays. In early 2022, in a telephone call with her mother, X said “I hate school”, to which the mother unhelpfully said “[d]on’t worry, you can come and go to a nice school with me in [City F]” (Father’s affidavit filed on 18 August 2022, paragraph 136).
X was due to commence school in early 2022 but she became anxious and upset, started crying and said “I can’t go back to school. I have trouble with my friends, the school work and the teachers, I hate it so much I can’t even stand the smell of it” (Father’s affidavit filed on 18 August 2022, paragraph 137). X refused to attend school on three days in early 2022. At a meeting in early 2022, the school proposed that X gradually return to school starting with one period a day and building to three periods, however she did not agree to return to school.
The father decided to seek the assistance of a psychologist as Ms N was no longer seeing clients. The father arranged for X to attend on Ms P on 16 February 2022. Ms P put in place some routines to encourage X to return to school, which was only partially successful because X only attended school for one period a day in the early weeks of school in 2022.
A short time after in 2022, the father managed to encourage X to return to school even though she was distressed by this and sulked for over an hour. X returned to school and attended on a staggered return to school plan over the next three weeks.
On the second day of the next term, X refused to get out of the car and go to school, but did attend most of the days of that new term for most of the time.
In mid-2022, the school put in place a plan with X that essentially required her to attend school full time on most days. Consultations with Ms P continued and on the 7 June 2022 she recommended a low dose antidepressant for X, as did her general practitioner, because X said she wanted to feel better about going to school. The father says that since X has been on antidepressants, her attitude to school has improved markedly and she has formed a positive relationship with the house leader and school counsellor.
Dr D explained that the effect of the low dose antidepressant is not so much to treat depression but to relieve anxiety. The mother was highly critical of this saying that it was the father’s behaviour that had led X to being on drugs and that this should not have occurred. On the contrary, the father seems to have behaved most responsibly, seeking out medical advice and, in conjunction with X, accepted it which has led to a good outcome. The mother’s complaint really goes to what she asserts is the underlying abuse and neglect of X by the father. As already stated, there is no evidence of such abuse or neglect other than the mother’s vague but vehement and strident accusations.
Recent calls between X and the mother
The telephone calls between X and the mother resumed in early 2022. The father described how the first call went in the following terms:
153.Before the [...2022] call I asked [X] how she was feeling about the call and she said: “A little bit nervous because I don’t want mum to say those things”. I said “Do you mean when Mum says things like you should live with her.” [X] said “Yes”. I said to [X] “We can hang up the call if Mum says those things to you” and [X] replied “I’m ok with that”.
154.On that call about 10 minutes into the call [Ms Webb] said to [X] “I’m doing everything I can to have you live with me permanently”. I hung up the call. I asked [X] how she felt about that and she said: “I’m ok”.
(Father’s affidavit filed on 18 August 2022, paragraphs 153–154) (As per the original)
The calls have continued fortnightly since that time, and the father says that X is happy with the calls when they include appropriate content and has asked him to remind her about the calls the night before or a few hours beforehand. The father has terminated the calls on three occasions and says that he was justified in terminating more, but chose not to do so.
Ms E moved out of the father’s home I early 2022.
The Primary Considerations
The task is to make orders that are in X’s best interests and in doing so, the Court is to have regard to the considerations set out in s 60CC of the Act. I shall discuss those considerations that are relevant to the outcome of these proceedings and which were raised in submissions.
Is there a benefit to the child having a meaningful relationship with both parents? (s 60CC(2) of the Act)
X has been in the sole care of the father since early 2018. Dr D described X as:
…an age appropriate eleven year old who has managed multiple, significant disruptions in her life and adapted well to the current living arrangements. I agree with the opinion of her counselling psychologist that she was thriving “in a stable school and home environment” and has positive relationship with her father and sister …
(Single expert report of Dr D dated 8 January 2020, p.26)
As described above, there have been further difficulties, particularly at school, since Dr D prepared her report. However, once again X appears to be doing well and benefiting from the relationship she has with her father. On the other hand, in the words of Dr D, the relationship between X and her mother, needs repair.
Whilst it would be desirable for X to have a meaningful relationship with her mother, if that can be achieved, a considerable doubt remains.
Whilst Dr D suggested monthly supervised time in her report, she was somewhat more cautious in her oral evidence, suggesting that if a process of attempting to repair the relationship between X and the mother was to be commence, it should be done in a therapeutic setting, with the therapist being someone other than X’s current psychologist. Dr D did not suggest that such therapy would necessarily lead to anything other than supervised time.
I have already discussed the difficulties with supervised time, both from X and the mother’s point of view and those difficulties are unlikely to reduce as X gets older. Dr D said that just going to a contact centre would be “totally unproductive” (Transcript 5 September 2022, p.6 line 17).
The second difficulty identified by Dr D is that of timing. Although, as will be discussed shortly, X is prepared to see her mother on an unsupervised basis, Dr D opined that considerable thought would need to be given as to whether this was the right time to commence a reintroduction. Dr D opined:
[Dr D]: … We certainly don’t want to push her beyond what she can manage, and we certainly don’t want to cause a regression in – she’s obviously an anxious child. I think the fact, your Honour, that she needed the medication to assist her to get to school is – is telling me that she has quite a high level or develops quite a high level of anxiety that then disrupts her functioning.
…
Perhaps now, in a very contained clinical setting – single and family therapy – with medication, perhaps she is able to manage it all now.
(Transcript 5 September 2022, p.21 line 42 to p.22 line 7)
As to whether now was the right time to add another therapeutic process to X’s life and who should make the decision for clinical reintroduction, Dr D said:
[Dr D]: It certainly is an important consideration. And again, my ignorance as to how stable [X] is at the moment is part of the critical things here, and how much – I mean, I think I started off my whole cross-examination by saying the important thing at the moment is to focus on her development, to ensure that her development is being shored up and her resilience is being promoted, and you certainly don’t want to undermine that at this point. It’s just too soon to really challenge her. Now, I can’t say whether she’s up to that challenge. On paper, it looks – well, you – you’ve got to go carefully. But probably, the best person to really know that, or the best people, because it would be her father but – as well – the – the [Ms P] – [Ms P]?
[COUNSEL FOR THE FATHER]: [Ms P]?
[Dr D]: Yes. … I wouldn’t like it just to be a – a big gloss-over or – you know, “we’re all fine” and so on. I would like to see some reflective movement happening on both parents’ part and on the child’s part. But timing is – is critical, and [Ms P] most likely would be able to say, “No, too soon to even think about that sort of work for the – she’s not there yet,” or might say, “Yes, that will be a nice adjunct, but we will do it slowly.”
(Transcript 5 September 2022, p.21 lines 15–39)
No challenge was made to these observations and I accept Dr D’s opinions.
Thus, it would be of benefit for X to have a meaningful relationship with her mother, if it could be achieved, but attempting to achieve that is fraught with some difficulty and risk.
The need to protect the child from physical or psychological harm (s 60CC(2)(b) of the Act)
The mother’s case is that the father poses such a serious risk of harm to X that she should be immediately removed from his care.
It is for the mother to adduce evidence that abuse has occurred or to persuade a court that there is a possibility that there is an unacceptable risk of harm in the future. The task was described by Austin J in Fitzwater & Fitzwater (2019) 60 Fam LR 212 at [133]–[138], as follows and as expressly approved in Isles & Nelissen (2022) FLC 94-092 at [50]:
133.In civil proceedings, s 140(1) of the Evidence Act provides the “case of a party” must be found proven if the court is satisfied of its proof on the balance of probabilities. For that purpose, the “case of a party” is defined (in the Dictionary to the Evidence Act) to mean “the facts in issue in respect of which the party bears the legal burden of proof”. The substantive law determines where the legal burden of proof falls in respect of facts in issue.
134.It must be borne in mind that proceedings in respect of children under Part VII of the Act, while civil in nature, are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access (M v M at 76; ZP v PS (1994) 181 CLR 639 at 647). The paramount consideration in Part VII proceedings is the child’s best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests, which gives the proceedings a different character (CDJ v VAJ at 188-189). The resultant orders represent the court’s discretionary judgment about how the child’s interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at 231).
135.The conclusion reached by a court in Part VII proceedings, as reflected in the decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence, but the law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 (“Malec”)).
136. In Malec, Brennan and Dawson JJ said (at 639-640):
…facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities…the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history…the court must form an estimate of the likelihood that the possibility will occur…
…
…To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation…
and Deane, Gaudron and McHugh JJ said (at 643):
…The future may be predicted and the hypothetical may be conjectured… Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring…
137.The High Court was there referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, but the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction (see Oswald & Karrington (2016) FLC 93-726 at [60]; Bant & Clayton (2015) 53 Fam LR 621 at [99], [107], [171], [172]). Such application of principle is consistent with M v M.
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
In her oral evidence, the mother variously described the abuse as:
·“She has been alienated from me. He hasn’t allowed contact for the last – since the recovery order, he hasn’t wanted contact. So parental alienation is child abuse. … It’s also domestic violence” (Transcript 6 September 2022, p.3 lines 11–15);
·“Well, he has kept my daughter away from me. He has abused my daughter, both of them. He has alienated me. So, yes, I think he’s a shit father” (Transcript 6 September 2022, p.5 lines 39–41);
·“I find really alarming that my daughter is so distressed she’s on antidepressants” (Transcript 6 September 2022, p.6 lines 6–7);
·“[H]e manipulated my older daughter into physically assaulting my younger daughter” (Transcript 6 September 2022, p.7 lines 15–16);
·“Like, he’s not going to physically assault [X] himself, so he made [Ms E] do it” (Transcript 6 September 2022, p.7 lines 37–38);
·“I thought it was all [Ms E], but I now realise that it was him. He was the master manipulator” (Transcript 6 September 2022, p.8 lines 18–19) and
·“I definitely think he’s capable of murdering [Ms E] and [X]” (Transcript 6 September 2022, p.9 line 19).
Ms E did not give evidence but when interviewed by Dr D, she forcefully denied all allegations.
To the contrary of abusing X, the father seems to have done what he can to support her. First, to have such a relationship as she could with the mother, by facilitating and seeking to resume communication in times of breakdown, both through telephone contact and supervised visits with the mother. The father also seems to have guided X through a difficult time at school when she refused to go and he has also maintained a home which both Ms E and X lived (until Ms E moved out recently). As far as I can see, the father has done his best to maintain a safe and loving home for X.
The mother has provided no evidence other than her assertions as to the alleged past abuse. The content of the mother’s evidence, especially given in cross-examination was extreme and florid making it difficult to accept. Her behaviour was poorly regulated, her evidence illogical, insulting and relentlessly dismissive of the father. Her evidence was very difficult to accept.
The independent evidence, such as it was, either did not confirm the mother’s allegations or spoke against them. Taking these matters into account, I am not satisfied that the father directly or indirectly abused X or that he poses any risk of harm to her. The lack of time with the mother is readily explained by the father’s reasonable reaction to the mother’s conduct.
Unfortunately, the same cannot be said of the mother. At page 28 of her report, Dr D found the mother to have significant mental health problems, as evidenced by:
·“Emotionally labile” on a number of occasions (which are fully set out in Dr D’s report);
·Overwhelmed by her emotions which have impaired her critical thinking;
·Disorganised in her speech and noted to be “jumping”;
·Overpathologising of X’s distress and her alleged symptoms, along with the father’s mental state, variously describing him as having Asperger’s syndrome or narcissistic personality disorder;
·Using immature defences including splitting devaluation, projection and blaming;
·Lacking in reflection and good child-focused judgement;
·Being markedly unempathetic towards her daughter Ms E and
·Behaviourally disturbed with others questioning her mental health.
Dr D said:
Whatever the likely multifactorial aetiology behind [the mother’s] disturbed and disturbing dealings with her daughters, she has not addressed them. She remains uncontained and is highly likely to not edit what she says to [X] if their time together becomes unsupervised. There is evidence she has not had insight into [X]’s needs and behaved inappropriately with her and in her presence.
…
As [the mother’s] presentation is consistent with a (“dramatic, erratic”) personality life adjustment, she may be assisted by working with a clinician experienced with Dialectical Behavioural Therapy (DBT).
(Single expert report of [Dr D] dated 8 January 2020, p.29–30) (Emphasis in original)
Such impressions were confirmed by the mother’s oral evidence, which included the following:
·When asked about the personality-like adjustment, the mother said “[a] bit of an adjustment disorder and not – like, not coping very well with a particular situation and probably highly expressed emotion. But I can’t remember displaying any of that in her office, so I really don’t know how she came to that conclusion” (Transcript 6 September 2022, p.4 lines 25–28);
·“The trauma is not over. I’m here. I’m in court. These proceedings are abusive and traumatic within themselves. So I’m not going to a trauma counsellor while the abuse and the trauma is still happening” (Transcript 6 September 2022, p.5 lines 11–14);
·“It’s not beneficial to [X] in any way to have any contact with [the father]” (Transcript 6 September 2022, p.10 lines 12–13);
·When asked what she would say to X if X was returned to her care, she said “Your daddy isn’t safe, and you will be living with me now” (Transcript 6 September 2022, p.11 line 9);
·When asked if she thought it was in X’s best interests to follow the guidelines as set out by X’s therapist, the mother said “I don’t think it was in [X’s] best interest to not say, ‘I miss you and I love you, and this will come to an end’. I wanted to give my daughter some hope” (Transcript 6 September 2022, p.30 lines 11–14);
·“She was already in a torn situation. She’s not stupid. Her father wasn’t letting her see me. She wanted to live with me. She was taken from my arms screaming. She’s not dumb. Like, she’s not this passive little dolly that doesn’t know. I’m not going to gaslight her further and pretend everything is okay. I’ve already told you I don’t agree with [[X’s] therapist]” (Transcript 6 September 2022, p.31 lines 23–27); and
·“The only thing that’s wrong with me is the fact that I went out with him and I – like, I’ve got a daughter with him and he alienated my other daughter and I’ve been through this bloody Family Court for four and a half years. They’re the only things that are wrong with me” (Transcript 7 September 2022, p.31 lines 18–21).
The mother said that rather than being upset about the police making repeated welfare calls at the request of the mother, X would be relieved.
The following exchange took place in the mother’s oral evidence:
[COUNSEL FOR THE FATHER]: And you said to [Ms V] at the contact centre:
I strongly believe that the insistence of the father to only have contact occur between my daughter and I at your centre is merely another clear example by which the father continues to perpetrate family violence against my daughters 30 and I, in this instance, in the form of parental alienation which clearly constitutes child abuse.
[THE MOTHER]: Yes. And I – I still believe that now. Yes.
[COUNSEL FOR THE FATHER]: And you thought that was appropriate to say that to [Ms V] at the contact centre?
[THE MOTHER]: Yes.
[COUNSEL FOR THE MOTHER]: The next day, the [O Contact Centre] suspended [X] spending time with you at their centre, didn’t she – didn’t they?
[THE MOTHER]: Yes
(Transcript 6 September 2022, p.36 lines 26–40)
I repeat my concerns as to the manner in which the mother gave evidence.
These matters support Dr D’s conclusion:
I cannot conclude [the mother] currently has capacity to meet [X’s] psychological and emotional needs in an ongoing way. Rather, on the available evidence, I believe she might well harm her in these domains. I cannot support her application to have [X] live with her and not spend any time with [the father].
(Single expert report of [Dr D] dated 8 January 2020, p.30)
Further, the mother continues to believe that X was abused by Ms E and that the father was aware, connived it or indeed manipulated it. Indeed, the mother has an extraordinarily low opinion of the father. When it was suggested to the mother that the father had managed to maintain X’s relationship with Ms E and several members of the maternal family, the mother said that he was pretending to be a good father and using a “cookie-cutter” approach to this matter before the Court, that it was “all superficial” and that this was all part of his manipulation of other people (Transcript 7 September 2022, p.25 line 23 to p.26 line 35).
Notwithstanding there are no allegations of physical violence, the mother expressed the view that the father would murder her if he could get away with it (Transcript 6 September 2022, p.8 line 32 to p.9 line 2).
A particularly concerning piece of evidence was the mother’s statement that if X returned to her care, the mother would explain that it was because the father was unsafe. Such a comment would clearly undermine the meaningful relationship between X and her father and is likely to be most harmful.
Finally, it is clear that the mother has difficulty in containing herself; that is evident in both the extensive evidence of the telephone calls and supervised time. The mother was unable to contain herself in the confines of a formal court setting, she disregarded the opinions and advice of Ms N because she did not agree with it, or simply because she is so uncontained that she cannot agree with it.
I am satisfied that if the mother was to spend unsupervised time with X, it is much more likely than not, that she would persist with her uncontained behaviour which would be abusive to X and likely lead to psychological harm. It follows that it is very difficult to see how the mother, having the full time care of X would be anything other than harmful.
The additional considerations
The views of the child (s 60CC(3)(a) of the Act)
As can be seen from the above chronology, X has remained open to seeing her mother and has persisted in doing so even though at the times she found the telephone calls and the supervised time burdensome, for reasons which included the behaviour of the mother. That being said, she did not appear to be terribly distressed by the termination of the calls or the suspension of time. Nonetheless, X indicated to Dr D that she would like to see the mother and shortly before the hearing, X also told the ICL that she would like to spend time with the mother and would be prepared to do so in unsupervised setting.
X is a mature enough 14 year old for her views to be accorded significant weight. The main factor to be weighed against giving effect to them is the risk of harm that the mother may pose to X if she spends unsupervised time with the mother and additionally, if now is the wrong time to try to repair the relationship.
The nature of the relationship of the child with the parents and other persons (s 60CC(3)(b) of the Act)
I have already dealt extensively with X’s relationship with her parents. The relationship between X and the father appears solid, secure and loving, whereas the relationship X has with the mother is tenuous and in need of repair.
The evidence establishes that X has a good bond with Ms E which continues notwithstanding that Ms E has moved out of the home to pursue her own life.
X has significant relationships with members of both the paternal and maternal families. Those relationships have been maintained by the father for the benefit of X, which is greatly to his credit. The relationship with each of these members of the extended family, including Ms E is likely to be at risk if X is returned to the mother’s care, because the mother is, to a greater or lesser extent, estranged from most, if not all, of those relatives.
In addition, X has formed friends at school and in extracurricular activities. She lives in Suburb Q and attends school in Suburb C. The mother’s proposal is for X to live with her in City R which would require a change in school. Whilst the mother said she would facilitate the three hour drive to enable X to maintain her friendships; that is simply not a reasonable prospect or expectation. Simply put, it is likely those friendships would for all practical purposes, be lost.
The likely effect of change in circumstances (s 60CC(3)(d) of the Act)
The change in circumstances in X changing from living with the father to living with the mother, would in my view, be devastating to her. X would suffer the loss of all those who are close and meaningful to her in her life, including the father, Ms E, members of the maternal and paternal family and her friends.
X would be placed with a person who has significant mental health issues and an unfortunate lack of appropriate parenting capacity to the extent that such a change would place X at a risk of harm.
The capacity to provide for the needs of the child (s 60CC(3)(f) of the Act)
It is clear from what I have written earlier that I am comfortably satisfied that the father has the capacity to properly care for the needs of X, including her emotional and intellectual needs.
He has attempted to engage appropriately with the mother, where possible. For example, on 25 March 2021 he sent, via his solicitor, the following letter:
[Dear Ms Webb],
Each week I remind [X] that you are calling and encourage her to take the call. Recently, she has not wanted to take some calls.
[X] has asked me if she could do phone calls with you fortnightly rather than weekly. She has said she will take a call this Sunday 28 March 2021.
[X] has also said she doesn’t want the calls to go for too long.
I observe that [X] will be less likely to want to take calls if you make statements that emphasise conflict. For example, on 21 February 2021, in relation to the previous week when the call did not go ahead, you said to [X] “if you don’t want to take the call, it’s not your fault and it’s not my fault”. The effect of this statement was to blame me for concealing the calls from [X]. Following this call [X] expressed some exasperation about this statement by saying to me “it’s not anyone’s fault about the call, I just didn't want to do it”.
As noted previously, other examples of your statements that emphasise conflict include “you should be and will be with your mummy always” and “this will all be over soon”. I observe that [X] finds these statements and those relating to missed calls make [X] uncomfortable and recommend that you do not make them.
I have told [X] I would communicate to you, her request for the calls to be fortnightly.
Please let me have your response by replying to this email address.
Regards
[Mr Simpson]
(Father’s affidavit filed on 18 August 2022, Annexure “Y”)
The same cannot be said of the mother. For example, her response to that letter was:
[Dear Ms S]
Your client is a compulsive liar.
There is absolutely no point in continuing to send me messages from your client as I do not believe one word that he says. I also find these direct messages upsetting and harassing.
I do not consent to phone calls been reduced to fortnightly and your client is in breach of current orders by not facilitating weekly calls between my daughter and myself.
Please do not send me any further direct messages from your client.
Regards
[Ms Webb]
(Father’s affidavit filed on 18 August 2022, Annexure “Y”)
In addition to what has already been said, it is worth noting that Dr D pointed out to the mother in her report that the mother would benefit from some therapeutic assistance. The mother has not sought any help and indeed is of the view that she does not need any help. The mother’s present view is that she may benefit from trauma counselling, but since she is currently experiencing a state of trauma, that being separated from her daughter, such counselling would be of no assistance. She further said that if X was returned to her care, she would then be able to assess if she needed such counselling. This is sadly a complete denial of Dr D’s opinion.
I should add here that Dr D opined that the mother’s complex aetiology was consistent with a personality disorder. Dr D was at pains in her oral evidence to say that she had not made an actual diagnosis to that effect because of the complexity of the matter, but any precise diagnosis in this case is not of great assistance. It is the mother’s behaviour that counts, not necessarily the psychological description, if any, of her personality.
Finally, it has to be said that the mother’s conduct towards X, by repeatedly raising matters that she should not raise with her, upsets X, which the mother either does not have the insight to see or if she does, proceeds regardless. Neither is in X’s best interests.
The attitude to the child and to the responsibilities of parenthood (s 60CC(3)(i) of the Act)
I will not repeat what I have said earlier. I will add that one of the responsibilities of parenthood is to be able to communicate reasonably with the other parent wherever necessary, particularly at times when parents have parental responsibility.
The following text message exchange from 25 September 2017, at a time where both parents have parental responsibility, is telling:
From [the father]: Hi, Can we speak about [Ms E]’s schooling further this week? When we last spoke about this you said you had reservations about [T School]’s approach; I do too. And you also considered other schools. I don’t rule it out (I see [T School’s] high academic results) but there other options too. It would be good to discuss and see how we can move to agreement on this.
From [the mother]: No You can’t have a normal conversation and discuss something because of your Aspergers. There is simply no point in trying to talk to you about anything. Shut the fuck up and stop trying to manipulate things that I’ve said in the past to suit your own fucked up needs. I’m sick of it. You1re an idiot You’re not open to anything. [Ms E]’s friend told [Ms E] about that school and [Ms E] mentioned it to you. Now you’re completely stuck on. Don’t try and pretend you want to “discuss” anything with me because you are incapable.
From [the father]: No I’m not stuck on it but it has benefits. They all have pros and cons. Remember we need to agree on [Ms E’s] education. So I’m offering proper discussion and I note and record above you are rejecting this. Pending proper discussion I don’t agree to [X] leaving [U School] or enrolment in any school we don’t agree on. I can’t be any clearer and am happy to discuss this with you anytime.
From [the mother]: Go fuck yourself [Mr Simpson]! Please note, record, highlight, underline and put in motherfucking italics you fucking Aspergers CUNT!!!!!
(Exhibit 2, p.1) (Emphasis in original)
This communication demonstrates two things. It is a graphic example of the difficulties the parties have communicating. It also indicates the mother’s view of the father, which is maintained in her oral evidence, where she continued to describe the father as a “shit father” and a “slimy piece of shit” (Transcript 6 September 2022, p.5 lines 36–42 and Transcript 7 September 2022, p.5 line 5).
Family violence (s 60CC(3)(j) of the Act)
Despite the mother’s assertions, I am not satisfied that any of the conduct of the father can be described as family violence.
A final Apprehended Domestic Violence Order was made against the mother in favour of the father and X on two occasions, with the most recent order only lapsing in early 2022.
What orders should be made?
The above discussion easily persuades me that X should continue to live with the father. He is by far the parent with the greater capacity to care for X including her emotional needs, and she is not at a risk of harm with him.
On the contrary, I have found that there would be a risk of harm if X was to live with the mother and that the change in circumstances would have a devastating and deleterious effect upon her.
The question then is what time should X spend with the mother. Despite X’s view that she would be prepared to spend unsupervised time with her mother, I am not satisfied that such time is in her best interests.
The mother has had difficulty regulating her behaviour, particularly as to things she says to X in settings where she is supervised by either the father or an independent supervisor. The mother has said things that have upset and negatively affect X in supervised sessions despite the restraints that have been imposed by the supervision. Absent those restraints, it is impossible to believe that the mother’s behaviour would be any better and more likely than not, the mother would be more inclined to give free reign to her negative views about the father.
As I have said, both X and the mother found supervised contact to be unsatisfactory, which is understandable. Long-term supervised contact is not ideal in any event.
Having said this, X has expressed a wish to see her mother. Dr D has opined that a therapeutic reintroduction would be beneficial. The father has, in the past, been supportive of X spending time with the mother and of obtaining appropriate psychological support for her. There is no reason to think that if he thought it was desirable that X spend time with her mother and that it would be beneficial, he would take the appropriate steps for this to happen in a safe and positive way for X.
This is confirmed by the father’s attitude, which changed during the course of the proceedings, from seeking an order that X spend no time with the mother, to seeking an order that X spend time with the mother at his discretion. Whilst the mother may see this as simply game playing, and that the father has no intention of ever permitting such time, that is not my view. The father struck me as a thoughtful person, doing the best he can in very difficult circumstances. The father is cognisant of X’s views to spend time with her mother and I am satisfied that it is more likely than not, that he will deal with her views in a sympathetic way, in consultation with her psychologist and not reject them out of hand.
I bear in mind that Dr D said he was in as good of a position as anyone to make such a decision.
It follows that there will be orders for X to live with the father and to spend time with the mother at his discretion.
There remains the question of parental responsibility. The mother has no respect whatsoever for the father and is completely dismissive of his views and opinions. There is no possibility of any sensible and meaningful communication between them as to major long term decisions regarding X. An order for equal shared parental responsibility is not in her best interests. It follows that as the father will have sole care of X, he should also have sole parental responsibility.
Costs
An order was sought that the mother pay one half of the costs of Dr D’s report, namely $5,500, and half her fee for attending to give evidence, which is presently not yet known. The mother has a rental property from which she receives approximately $100 net per week and has an income according to her of $120,000 a year. I accept that she pays a significant amount of child support to the father and I am satisfied that she has the means to pay half of Dr D’s fees and I will make an order to that effect.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 27 September 2022
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