Worth and Worth

[2019] FamCA 788

FAMILY COURT OF AUSTRALIA

WORTH & WORTH [2019] FamCA 788

FAMILY LAW – CHILDREN – Interim proceedings – Where interim orders were made previously for the child to spend time with the father supervised by a psychologist – Where the child is resistant to having a relationship with the father – Where the facts infer that the mother is alienating the child from the father – Where the father seeks that his proposed clinical psychologist be appointed as a single expert witness – Where the mother opposes the appointment of the psychologist – Where a single expert may be appointed in circumstances where they have previously, or are currently, undertaking a therapeutic role – Order that the clinical psychologist be jointly appointed by the parties to undertake intensive family therapy.

Family Law Act 1975 (Cth) ss 60CA, 64B
Family Law Rules 2004 (Cth) r 15.45

CDJ v VAJ (No 1) (1998) 197 CLR 172
Worth & Worth [2018] FamCA 482

APPLICANT: Ms Worth

RESPONDENT: Mr Worth

INDEPENDENT CHILDREN’S LAWYER: Ms Taifalos

FILE NUMBER: CSC 614 of 2016

DATE DELIVERED: 29 October 2019

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 16 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Eylander
SOLICITORS FOR THE APPLICANT:	National Legal

SOLICITORS FOR THE RESPONDENT: MK Family Law

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Cheryl Taifalos

Orders

1. That Dr J, Clinical Psychologist, be jointly appointed by the parties, to undertake intensive family therapy to the parties and the child.

2. That the solicitors for the father provide Dr J the Reasons for Judgment of Tree J of 27 June 2018 and 29 October 2019.

3. That the parties are to comply with all reasonable directions or requests given or made to them by Dr J.

4. That Dr J thereafter provide a full report to the court to include, but not limited to;

   (a)Her findings as to the resistance of the child to spend time with the father;

   (b)Whether there is any maladaptive behaviours or alienation by the mother to the child spending time with the father;

   (c)If any maladaptive behaviours or parental alienation has occurred, the impact that this may have upon the child;

   (d)Any recommendations as to the treatment that may be required by the parties and/or the child with a view to progressing matters and rebuilding the relationship between the child and the father;

   (e)In circumstances where it is found that there is evidence of maladaptive behaviour or alienation, the impact that a change of living arrangements, namely to reside with the father, may have upon the child;

   (f)The recommendations as to suitable treatments that may be required to assist the child to adapt to a change of living arrangements; and

   (g)Any other matter she deems necessary to be addressed.

5. That until, and subject to any further order, the father is to be, in the first instance, responsible for the payment of Dr J’s fees.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 614/2016

MS WORTH

Applicant

And

MR WORTH

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. On 27 June 2018, for reasons then given,[1] I determined that until further order, the parties’ only child, X (“the child”) presently nine years of age, should spend time with Mr Worth (“the father”) for periods of two hours, on such times and dates as may be able to be supervised by Ms B, a psychologist.  The reason for supervision related to concerns that stemmed from the father’s conviction in June 2011 for possessing child exploitation material, as explained in the first reasons.

   [1]Worth & Worth [2018] FamCA 482 (“the first reasons”).

2. At the hearing which resulted in the first reasons, Ms Worth (“the mother”) had opposed the father ever spending time with the child again, a position which by then she had espoused for some time.

3. Pursuant to my orders, Ms B undertook four periods of supervision, before she declined to continue to do so.  I will discuss the reasons for her so declining in due course.  Subsequently, although the parties agreed on a substitute supervisor, the child’s apparent response to the reinstitution of spending time with the father has not seen time in fact re-commence.

4. On 30 May 2019, the father filed an Application in a Case seeking for the appointment of a clinical psychologist, Dr J, to “undertake intensive family therapy to the parties and the child.”  It was anticipated that such therapy would result in a report to the court from Dr J.

5. That Application in a Case was made returnable on 17 July 2019, however events overtook it.  Particularly, on 13 July 2019, without warning the mother relocated with the child from E Town to Darwin.  That prompted the father to file an application on 16 July 2019 seeking a recovery order for the child.  It was made returnable on 22 August 2019.  However on the preceding day, the father filed yet another Application in a Case, seeking that specified material be provided to Dr J.  On 22 August 2019 orders were made by consent for the provision of that material, and in due course the father’s Application in a Case filed 30 May 2019 was re-listed.  On 16 October 2019 I heard that application and reserved my decision.  This is that decision and the reasons for it.

BACKGROUND

1. At paragraphs [4] to [20] of the first reasons I set out relevant background as follows:

   ...

   4. The mother was born in 1979, and hence is presently 39 years of age.  She was born in Europe and travelled to Australia in 2004 when 25 years of age.  She is a qualified professional.

   5. The father was born in 1980, and hence is presently 38 years of age.  He grew up in North Queensland, and appears to have had a variety of occupations during his life.

   6. In 2005 the parties commenced a relationship, and married in 2006.  Later that year the parties relocated from North Queensland to Darwin, and whilst they were living there, in about 2009, the police executed a search warrant at the father’s work place and the parties’ house.  Child exploitation material in the form of unillustrated books of accounts of sexual activity, mostly between adults and young teenage children, was located and seized. It appears as though most, if not all, of the seized material was heterosexual in nature.  The father was charged in due course in relation to the possession of that material. 

   7. In 2010 the child was born. 

   8. In late May 2011 the parties separated.  After separation, on 16 June 2011, the father was found guilty by a jury of possessing the child exploitation material, and since the relevant legislation required actual imprisonment, the Judge, in view of the fact that the matter was, according to his Honour’s evaluation “very much towards the lower end scale of such offences” sentenced the father to only one day imprisonment, which was suspended on condition that the father be of good behaviour for 12 months.  However by virtue of that conviction, the father was also placed on the Sex Offender Register for a period of 8 years.

   9. In June 2013 the parties reconciled, but they finally separated (albeit remaining for a period living under the one roof) in November 2015.  The father, with the mother’s agreement, continued to spend time with the child, including overnight time in the father’s home.

   10. However on 8 June 2016 the mother unilaterally determined that the child’s time with the father should cease, and thereafter, apart from a couple of brief visits in 2016 to the child’s school, the father has not again spent time with the child.

   11. These proceedings were commenced by the mother on 12 September 2016 in the Federal Circuit Court, and in her application the mother sought that the child live with her, and spend no time with the father.

   12. On 15 November 2016 a Child Inclusive Conference was conducted which supported interim orders for the father to spend time with the child, albeit strictly supervised.

   13. On 18 November 2016, an interim hearing was conducted by a Federal Circuit Court Judge.  Consent orders were made that the child live with the mother, but the parties were unable to agree (it seems) whether the father would spend time with the child.  It appears as though the court was satisfied that it was in the best interests of the child that the father spend supervised time with him, and interim orders were made permitting the father to spend time with the child on either Saturday or Sunday of each weekend for a period of up to three hours at the E Town Contact Centre.  Although no reasons for that determination appear to have been given, or at least transcribed, it is obvious that the court must have been persuaded that such orders were in the child’s best interests.

   14. Notwithstanding the orders, on 22 November 2016 the father again attended at the child’s school in an attempt to see the child.  He claims that the visit had been pre-arranged and he did not understand it to be in breach of the orders.  He was not permitted to see the child.

   15. In due course, the mother brought a Contravention Application which, on 6 March 2017, was found established by a Federal Circuit Court Judge, who slightly varied the 18 November 2016 orders to specifically prohibit the father spending time with the child other than as set out in those orders.

   16. On 10 March 2017 interviews for the Family Report commenced, and in due course, on 4 April 2017, the Family Report was released.  On the assumption that the court was of the view that there was sufficient risk to the child arising from the father’s historical possession of child exploitation material, the Family Report writer recommended that the child’s time with the father be supervised “until he is old enough to safely articulate and understand the situation.”

   17. On 23 August and 27 September 2017, a psychiatrist, Dr H examined both the mother and father.  He formed the view that the father was “perfectly capable of supervised contact” but concluded that he “simply cannot see that it is appropriate to allow him to have unsupervised contact with the child.”

   18.On 11 October 2017 a forensic and clinical psychologist, Mr G, undertook a sexual risk assessment of the father.  He concluded that the concerns which he identified in relation to the father were “sufficient to elevate his risk to a point if contact between [the father] and [the child] were to proceed, then it ought be supervised.  The boy’s age is such he is very vulnerable and whilst the risks to him may be low – they are not nil.”

   19. For reasons which are not clear on the evidence, notwithstanding the orders of November 2016 and March 2017, the E Town Contact Centre refused to undertake supervision of the father’s time with the child.  The father was formally advised of that on 1 September 2017.  Consequent upon that advice, the father’s solicitors from time to time made other proposals to the mother’s then solicitors as to alternative supervisors, however they were all rejected.

   20. On 23 May 2018 I conducted the Trial Management Hearing of this matter, in anticipation of listing it for trial.  On that occasion counsel for the father foreshadowed an application would be shortly brought seeking to have the child spend time with the father supervised by a psychologist.  Given that the father has not seen the child since 2016, it was said that the listing of the matter for trial should await the resolution of that application, and that course was not opposed.…

2. Later, at paragraph [38] of the first reasons I identified the agreed or uncontested relevant facts as follows:

   …

   38. In traversing the background facts I have already set out a number of uncontroversial matters.  However the uncontested facts relevant to this application appear specifically to be as follows:

   ·The child in question is male and presently eight years of age;

   ·In 2011 the father was convicted of the possession of child exploitation material, however that material was narrative in form, and at most, if there was any, only contained one image.  No actual prison time was served by the father;

   ·At the time of the father’s conviction, the parties were separated, but the relationship resumed again in June 2013, although finally terminating in November 2015.  The child lived with both parties during the resumed relationship;

   ·Thereafter the father has spent time (including blocks of overnight time) with the child until 8 June 2016, apparently without any issue arising;

   ·Since then (with the exceptions I have discussed) the father has not spent time with the child;

   ·On 18 November 2016 interim consent orders were made for the father to spend supervised time with the child at the E Town Contact Centre.  Those orders were not made by consent, and no appeal was brought from that determination;

   ·For reasons that are not altogether clear, the E Town Contact Centre has refused to supervise the father’s time with the child;

   ·At some point in time, seemingly around about November 2016, the mother has told the child something in relation to the father’s conduct, most likely something to the effect that the father has seen images of naked children;

   ·All relevant experts acknowledge the father presents some risk of sexual harm, albeit low or moderate, to the child;

   ·All relevant experts recommend, at least initially, supervised time with the child, in view of the risk which the father poses;

   ·Given the length of time since the father has seen the child, a trial in these proceedings may not be able to result in final orders, unless the court is satisfied that the father is such a risk of harm to the child that no means of adequately mitigating the risk exists.

   ...

3. Since I pronounced the orders on 27 June 2018, the matter has not proceeded smoothly.  Relevant events are as follows.

4. On 4 August 2018, Ms B undertook her first supervision of time between the father and child.  The mother brought the child, and after she had departed, according to Ms B’s notes which were in evidence, “whilst we were gathering the various articles which we were going to use [the child] stated several times that he doesn’t call [the father] “dad” and said that he wasn’t going to talk to him as he was not a nice person and he looked at naked pictures of children.”

5. Notwithstanding that ominous utterance by the child, in fact the reintroduction to the father proceeded well, to the point that Ms B’s notes concluded “[the father] said goodbye to [the child] and commented that he was looking forward to their next visit to which [the child] replied, “me too.””  However only 30 minutes later the mother returned to collect the child, and Ms B’s notes record as follows:

   [The mother] arrived back at the office and it was evident from her face that she had been crying and was very distressed.  In the reception area [the mother] launched into a huge tirade raising her voice and yelling at me saying that it was the “worst two hours in my life” and accusing me of not keeping [the child] safe by allowing him to stay with his father for that long.  I explained to [the mother] that [the child] was not left alone with his father, and that he had enjoyed the time he spent with him and that she should not speak this way in front of [the child] and we should talk in my consulting room.  I asked my husband, Dr B who is a Clinical Psychologist, if he would keep an eye on [the child] as it was very obvious that the more his mother was crying and yelling, the more he was becoming upset.  [The mother] and I went to my consulting room and [the mother] continued to cry, yell and be accusatory about [the child] being allowed to mix with a bad person who is not safe around children, who looks at children naked, and is not a person who should be allowed to be near [the child].  [The mother] went on in this vane for some 60 minutes, and at that point I advised [the mother] that the conversation was not getting anyone anywhere but reassured her that I had indeed looked after [the child’s] safety and would continue to do so when further visitations took place.   

6. A little later in her notes, Ms B recorded further:

   Later when [the mother] and [the child] departed Dr B advised that during the time [the child] was in the reception area the more his mother yelled and cried that he became very upset so Dr B said he found some chocolates for [the child] and directed him into another room in the office where he put the television on in the hopes that it would drown out the yelling from [the mother] and distract him enough to enable him to calm down.

7. It appears as though the mother may not accept that version of events, because at paragraph 77 of her affidavit filed 21 August 2019, she said “in relation to the supervised time with Ms B she was initially nice to me but then changed and became very argumentative and hostile towards me.”  At [79] she continued:

   …

   79. After the initial session, Ms B spoke to me and asked me if Country K was a Hague Convention country.  I did not know what she meant.  She also asked my lawyer the same question.  She told me that it may be better for me in the circumstances to leave the country with [the child] on the basis that if Country K was not a Hague Convention country, I would be beyond the reach of the Family Court.

   …

8. On 24 August 2018, an incident involving the child occurred at his school.  The school records have been subpoenaed by the Independent Children's Lawyer and were tendered as an exhibit before me.  The entry for 24 August 2018 reads as follows:

   [The child] became upset at lunchtime after being asked to eat his lunch.  [The child] was given several options to eat a reduced amount, to wait and eat later which he refused.  [The child] escalated very quickly, hitting the hand rail, throwing his dress-up props and refusing to move into the classroom or office to calm down.  CM sought assistance from DL (teacher on duty) to move [the child] to the office – [the child] refused and was shouting and crying “I don’t like to be forced to do things – I want to go home.”  CM called for PG who spoke to [the child] and took him to the office to lie down in sick by.  After 30 minutes in sick by, [the child] rejoined the class.

   CM called [the child’s] mother.  [The mother] explained, further to an email and prior conversation with CM that [the child] was upset over a friendship issue the day prior, and that [the child’s] father is seeking visitation with [the child] after a long period of not seeing him.  CM emailed [the mother] to let her know that [the child] had calmed down and rejoined the class.

   (Exhibit No.2, 16 October 2019)

9. The following day saw the second supervised visit of the child with the father.  That commenced at 9:45am, when the mother arrived with the child, and a dispute took place between Ms B and the mother as to the events that had occurred on the last supervised occasion.  The child was involved in that conversation as well.  Eventually the mother left. 

10. At 10:00am the father arrived, but four minutes later the child asked to leave the consulting room, and Ms B’s notes record “when we were in the kitchenette [the child] told me that [he] didn’t want to stay, was starting to cry, and started to use his mobile phone to call his mother – this was contrary to what I had requested of the parents prior to the visitations commencing…”  Although Ms B was able to cajole the child back into the consulting room, he refused to interact with the father, and at 10:10am the mother collected him.

1. Ms B’s notes continue:

   Whilst I do not believe [the child] was emotionally distressed about being in the presence of his father and could have insisted he stay, I am of the opinion that he was emotionally distressed from the conversation his mother had with me on arrival at my office, and from the small amount of conversation I had with [the child] that it was also very obvious he had been coached about not staying as he said “my mother said I don’t have to stay when I feel uncomfortable and I can ring her to get me.”

2. The third visit was scheduled for 8 September 2018, however by mistake, the mother instead brought the child to Ms B’s rooms on 1 September 2018.  During the course of the mother’s mistake being explained to her, Ms B’s notes record that the child “realising that he wouldn’t be staying [said] “oh that’s good I’m on my mum’s side anyway.””

3. The next episode of supervision was on 8 September 2018.  The mother and the child arrived at 9:35am.  Ms B’s notes then record:

   [The mother], [the child] and I were standing in the reception area of my office when [the child] announced that he didn’t want to stay as he felt uncomfortable.  I told [the child] that he would need to stay and that I would make sure he was comfortable and reminded him that we had things in place throughout the session if he needed to talk to me then.  [The child] was pulling faces and looking at [the mother] to see what her reaction was to my comment.  [The mother] said, “he has said he is uncomfortable and he shouldn’t have to stay,” to which I replied that if [the child] became uncomfortable after spending some time then I would let her know.  [The mother] wasn’t happy about this and she told [the child] he was to call her to come and get him when he needed to.  To this comment I then told [the mother] the [the child] was not to have his mobile phone and she should take it with her.  [The mother] became very aggressive raising her voice telling me that it was for “her child’s safety” that he has the phone so that he could call her.  I told [the mother] that I was looking after [the child] and was very [aware] of “safety issues” and my understanding to the Court had been on the basis that I would “ensure [the child’s] safety at all times.”  [The mother] became even more aggressive insisting the [the child] was to have the mobile phone to which I then said that it was part of my agreement and had been stated in all correspondence to both parties’ legal representatives that [the child] not bring any iPad, iPhone or any digital games to the access visitations.  [The mother] was continuing to be verbally aggressive and [the child] was becoming very upset walking around the reception area and breathing very fast.  [The mother] then started accusing me of upsetting [the child] and causing him to have an anxiety attack, to which I said her behaviour was upsetting [the child] and she [should] stop speaking and yelling in such a loud voice and she should leave immediately.  [The mother] continued to accuse me of upsetting [the child] so I told her I was going to call her legal representative in order to speak to him so that he was aware the her behaviour was unacceptable to me and left the reception area to get my mobile phone.

4. Ms B then spoke with the mother’s solicitor, and the mother also had a conversation with him.  Ms B’s notes record that at the conclusion of that conversation “[the child] had calmed down and [the mother] said goodbye to him.”

5. The father arrived at 10:00am, and it appears as though initially the visit went reasonably well, as Ms B’s notes record “father and son discussed topics such as fishing, the dogs that had been their family pets when the family was together with [the child] informing his father that one of the dogs had died and that he had a new cat now which he said was about four months old…”  However at 11:00am the child commenced saying that he wanted to leave, and ultimately, because “it was quite obvious that [the child] was not going to settle down and participate any further” the mother was asked to come and collect the child.

6. The next visit was scheduled for 22 September 2018, however on the preceding day a second incident occurred at the child’s school.  From the subpoenaed records in evidence, there appears as follows:

   [The child] came in from first lunch, and began hitting himself on the forehead during mat instruction.  I (CM) spoke to him but he did not respond.  I monitored [the child] as he was not harming himself and I felt doing anything more would inflame the situation.  After 10 minutes, I sent [the child] to the office on a pretend job, in an effort to circuit break the behaviour.  [The child] came back calmer but wouldn’t explain why he was upset.  Coincidentally, [the mother] came in at the same time to drop off his water bottle, and explained that [the child] was due for a scheduled visit with [the father] that coming weekend, and that this was upsetting him.  [The mother] also explained that [the child] has been getting upset about being ‘forced’ to do things (generally).  [The child] finally totally calmed down and finished the school day.

7. The 22 September visit commenced at 9:45am, with the mother arriving at Ms B’s office with the child.  Ms B’s notes record that when the mother had been saying goodbye to the child, she winked at him, and the child gave his mother a hug and grinned at her. As soon as the mother had gone, the child started saying that he didn’t want to stay and “was smirking and laughing out loud for no apparent reason…”

8. At 10:00am the father arrived Ms B’s notes record as follows:

   [The father] arrived and immediately he entered the consulting room [the child] started saying that he wanted to go home and that he didn’t want to stay.  He did not acknowledge his father’s greeting and completely ignored him.  I informed him that he would need to stay for at least some time and we then discussed what we would do for the session.  During this time every now and then [the child] would again laugh out loud when nothing funny had been said or had transpired and kept looking at his father and myself and kept smirking at both of us.  A the same time [the child] kept doing some hand, arm and head movements, and was continually looking at his watch and fiddling around with it whilst giggling and laughing out loud.

9. At 10:45am the father was retrieving a snack and some drinks, when according to Ms B’s notes the child “jumped up from the chair and rushed out of the consulting room and ran down the corridor to the toilet.”  Thinking that he was ill, Ms B followed him, although it had transpired that he was not, but rather had commenced to play up.  Although Ms B was able to get him back into the consulting room, he ran back down the corridor again, and later ran to the front of the building and waited outside “all the time pulling faces and laughing at what appeared to be nothing.”

10. Ms B decided to terminate the session, and rang the mother, but went to her voice mail.  When she told the child that, her notes record:

    “[The child] laughed and said “that’s because I was ringing her.”  With that [the child] started pulling faces again and laughing uncontrollably at me while playing with his watch.  I asked [the child] how he could call his mother and to show me how as he indicated to his watch.  I got up and walked over to where he was sitting.  [The child] told me he could call his mother from his watch when I asked him to show me how, he proceeded to call his mother’s mobile phone and [the mother] answered it.  I then expressed to [the child] that’s a very special watch and asked him if it was new to which he replied, “yes my mum and I got it off the internet so I could ring her when you wouldn’t let me have my phone here…””

11. When the mother arrived to collect the child, there was a conversation between her and Ms B about the phone.  Initially the mother denied that the child had phoned her on his watch, but when Ms B explained to her that she had actually seen the child ring the mother, and had heard her answer the phone, the mother replied “she had every right to protect her child.”

12. That was the last occasion which was supervised by Ms B, and her records detail the reasons for her decision as follows:

    After much deliberation I came to the conclusion that continuing the fortnightly visitations between [the child] and [the father], was being undermined and sabotaged by [the mother] and it was becoming extremely detrimental in terms of [the child’s] emotional well-being.  [The child’s] behaviour deteriorated each time a visitation occurred and it is my belief that this behaviour was vigorously promoted by [the mother], given the fact that on the last occasion [the child] was laughing and saying once again that he doesn’t have a father, that he is on “his mother’s side” and that he would never stay at another visit with [the father] because [the mother] told him that he wasn’t safe, that I was not telling the truth and wasn’t keeping [the child] safe.  These facts were born out by [the child’s] behaviour which had significantly deteriorated from the first session which he thoroughly enjoyed with [the father] to not speaking to [the father], accusing [the father] of “looking at pictures of naked children”, not allowing [the child] and [the mother] to live in Country K, as well as accusing [the father] of stopping [the mother] from getting work so that they could live properly, and stating that [the child] was now having “Panic attacks” because I was making him see [the father].

    Those factors led to my belief that [the child] would be placed under more emotional turmoil and distress by [the mother’s] behaviours if the supervised access was to continue and therefore made the decision that they should cease.  In no way has [the father’s] behaviour and actions at fault, they were those of a caring father who wanted what is best for his son.  [The father] would have been happy for the access to be continued but could see that his position was being undermined and sabotaged and that it was having a very detrimental effect on [the child].  Left alone without any undue influence it is my belief that [the child] would have enjoyed spending time with [the father]. 

13. Ms B’s decision to no longer participate as a supervisor resulted in the parties negotiating an alternative supervisor.  It appears as though the identity of the alternative person (Social Worker, Ms F) was agreed by about 31 January 2019, as in an email of that date, the father’s solicitor wrote:

    [The mother’s solicitor] and I discussed a regime of three (3) hours each alternate Saturday to commence say the first weekend after the court mention, 16 February 2019.  Open to suggestions on that.  This regime will continue for a period of four (4) months whereby we can all then reassess the position at that time…

14. The evidence does not enable me to determine whether or not an actual date was agreed for the commencement of time, but at all events, before the father was to spend any further time with the child supervised by Ms F, a third incident involving the child occurred at school.  Whilst the subpoenaed records from the school do not extend to the date in question, it appears from the mother’s solicitor’s correspondence, which is in evidence, that:

    “On 20 February 2019 the school contacted the mother and informed her that the child had been involved in an altercation with another child, had become anxious and enraged when the teacher on duty had intervened appropriately to settle the child down, manage his emotions and ensure that he remains safe.”

15. That then led to an emergency attendance upon Ms M, a clinical psychologist (who had previously been administering therapy to the child up until December 2017) on 21 February 2019.  In her letter to the Independent Children's Lawyer dated 5 March 2019, Ms M said:

    During the appointment with [the child] on 21^st February 2019, I observed [the child] appeared agitated.  He reported feelings of sadness and anger.  During the session [the child] breathed very heavily, maintained little eye contact and angrily pulled apart the figurines he had selected to play with whilst he shared his thoughts with me.  He sat on the floor, eyes downcast and explained he did not want to see his father.  The following statements are a brief excerpt from the interview with [the child]:

    ·“I don’t want to see him [father]”;

    ·“I hate him”;

    ·“He was making my life way more terrible”;

    ·“He is torturing my life”;

    ·He is stopping me from doing things with my life”.

    [The child] explained he had to meet with [the father] and with “another lady watching”.  [The child] stated the “lady did not help me”; “she did not listen to me”.

    Discussion regarding school, his interest areas and extra curricular pursuits, friendships and his relationship with [the mother] did not seem to elicit the same emotional reaction from [the child].  [The child] reported he was not encountering any difficulties or problems in these domains.  The subsequent appointment on 4^th March 2019 confirmed his refusal to have contact with [the father].  He further stated he would “run away from that place” if required to attend again.

16. Ms M’s conclusion in her letter was that “since our last period of service [ie December 2017] there has been deterioration in [the child’s] emotional functioning.”  Further attendances of the child on Ms M then ensued.

17. In the father’s affidavit filed 30 May 2019 at [24], he notes that, although he had signed consent orders on 20 February 2019 substituting Ms F as supervisor, which were thereafter, on a date which is unclear, also signed by the mother, in light of the child’s incident at school on 20 February 2019 “no further action was taken to have the orders made by the court…”  Rather, seemingly in recognition of the child’s situation, the father identified that Dr J might be able to assist the parties, and on 9 May 2019 suggested that she be jointly retained by the parties.  However the following day the mother’s solicitors responded, rejecting that proposal, on the basis that “the advice she has received to date is that such intervention is likely to be harmful for the child.”

18. That then led to the father filing his application seeking the appointment of Dr J on 30 May 2019.  However as I have indicated earlier in these reasons, in July 2019 the mother obtained employment in Darwin, and moved there with the child on 13 July 2019.  On the previous day, the sale of the parties’ former home had settled from which she had obtained $14,334.00, which she says she used to assist to relocate and set up house in Darwin.  No forewarning to either the father or the Independent Children's Lawyer of the mother’s departure was given.

19. As at the time of the hearing before me, the mother remains employed in Darwin as a qualified professional, and says in her affidavit filed 21 August 2019 at [71] that living in Darwin provides “a good future for both me and [the child]…”

20. Further, in her affidavit filed on the day of the hearing before me, the mother deposed that her mother from Country K is now staying with her in Darwin, and may stay for up to 12 months.  The mother says that she “will provide ongoing help and support to [the child] and me.”  The mother is now under the care of a clinical psychologist in Darwin, a report from whom dated 15 October 2019 was in evidence.  She noted that during the time of her treatment of the mother “there has been an alleviation of stress and anxiety symptoms with [the mother] functioning in a healthy manner in social and occupational areas, and managing well with regard to associated day to day responsibilities.”

21. It appears as though the father has recently obtained new employment in the E Town district.

THE BIG PICTURE

1. For her part, the mother’s end goal still appears likely to be that the child should have no relationship with the father, or the paternal family generally.

2. For his part, the father’s position is a little less clear.  At paragraph 31 of his affidavit filed 30 May 2019, he said as follows:

   …

   31. In circumstances where [the mother] is extremely resistant to any form of relationship forming between [the child] and me, I am at a loss now as to where to go with this matter other than to secure the services of Ms (sic) J as a last resort to try and resolve the issues with [the child] and what appears to the [the mother’s] complete resistance to his spending any time with me at all.

   …

3. However since then, it seems as though the father’s strategy may have moved on a little.  Although not read in the application before me, as I identified with the parties at the hearing, recently the father has filed two affidavits from his sister and brother-in-law respectively.  In their affidavits, they both said that they are willing, able and equipped, to assume primary care of the child.  I infer that the father is contemplating that either those persons, or he, or both, might seek orders that the child go into their care, as being the only way in which the child may ever have a relationship with the father or the paternal family generally.  It appears as though the father might recognise that his conviction for the possession of child exploitation material would be a substantial impediment to the child going into his primary care.

4. If it is the case, as appears likely, that the child continues to be resistant to having a relationship with the father, and he seeks to have the child removed from the mother’s primary care, then the stakes in this litigation have been raised exponentially.  It is against that background therefore, that the father’s application for Dr J’s involvement needs to be considered. 

5. As I observed during the course of the hearing, in some respects the father’s application in relation to Dr J is pivotal.  If I refuse to make the order, then the prospect of him having a relationship with the child of any moment whilst he remains in the mother’s primary care, seems remote.  His only option would be to then seek to have the child placed with his sister and brother-in-law.  On the other hand, if I accede to the father’s application in relation to Dr J, but she is not able to effect the reintroduction of the father into the child’s life, then the father will likely use the ensuing report as further evidence of what he will likely tell me at trial, is the mother’s alienation of the child from him.  Again, the outcome for which he will therefore likely advocate, is that the child be removed from the mother’s care, and go to live with his sister and brother-in-law.

6. The third option is that Dr J’s involvement, if I order it, is successful, in which case the father will have achieved his desire of maintaining a relationship with the child of some moment.  In a sense therefore, the outcome of the father’s application will determine the likely battlelines between the parties come trial.

THE ISSUE THE FATHER’S APPLICATION RAISES

1. The issue for my determination may be simply stated by repeating the orders sought by the father in his Application in a Case filed 30 May 2019, namely whether or not “…Ms (sic) J, Clinical Psychologist, [should] be jointly appointed to undertake intensive family therapy to the parties and the child;” However the simplicity of that distillation disguises the complexities behind it. 

2. The father seeks that Dr J be appointed as a single expert pursuant to Rule 15.45(1) of the Family Law Rules 2004 (Cth). However the purpose of her engagement would be an attempt at administering therapy, seemingly with all parties in Darwin, over a period of four days. Dr J says this in relation to what she proposes:

   I advise that in addition to working as a single expert witness I also specialise in providing complex family therapy in family law cases particularly when children are resistant to seeing one of their parents.

   In these types of cases, the children are always my clients and the goal of my therapy focused towards the psychological well-being of the child or children.  I emphasise that I do not call the therapy reunification therapy nor conduct this type of therapy as this label contains an erroneous assumption about the goal of the therapy.

   The Form of the therapy can cover clinic based session over a period of time or a more intensive form of therapy over a few days (usually about four days).  In both instances, I am available for follow-up appointments and interventions as necessary.

   The therapy I provide involves parents, children and significant family members and with different configurations of sessions from individual session, joints parent sessions, parent-child sessions or all family meetings tailored to each specific family and as required.

   With the four day Intensive Family Therapy Model, on the first day of the therapy I usually conduct home visits with the children and the parent they usually live with and then a later appointment with the other parent and typically have some type of joint session.

   The subsequent therapy sessions and configurations will also follow on from discussions and agreement with family members but likely range from 11am until after dinner each day.

   I expect that family members will also decide on outings and activities to be undertaken in addition to formal therapy sessions.

   While I insist that the therapy is on a reportable non-confidential basis, a report is not always required.  I insist that the therapy is reportable to ensure that relevant information can be provided to the court to assist the court in making determinations about the children, but focus, during the therapy, on parents and children developing their own solutions to the family problems.  When this process is successful, no report is usually necessary.

1. Plainly such therapy does not easily fit within the notion of a single expert witness, in that the therapeutic component of it looms large.  However no point was raised by counsel for the mother that the court did not have power to appoint someone such as Dr J as a single expert, and in any event I am satisfied that, notwithstanding the professional difficulties that might ensue for Dr J, there is prima facie no disqualification to the appointment of a single expert if they have, or are, also undertaking a therapeutic role.

2. However, in the course of determining whether to make such an order, even if it is not a parenting order as defined in s 64B of the Family Law Act 1975 (Cth) (“the Act”) such that it engages s 60CA of the Act, it will nonetheless be a decision made in the “shadow of”[2] the paramountcy principle, and hence the child’s best interests are nonetheless relevant.

   [2]CDJ v VAJ (No 1) (1998) 197 CLR 172 at [191] per Kirby J.

CONSIDERATION

1. The basis for the mother’s opposition to the appointment of Dr J is essentially at two levels.  In the first instance she says that I should not make a determination without the recommendation, or at least opinion, of the child’s (now former) psychologist, Ms M.  When pressed, counsel for the mother said that, in effect, he was seeking to adjourn the proceedings in order that such evidence may be obtained.  However there is a practical difficulty, in that for some reason or other, Ms M refuses to provide the mother with a report, because she believes that she was court appointed, although she was not.  Since therefore the only way in which a report could be obtained is for the court to order it, the question of payment would then loom large.  In any event, time is marching on.  It is now over a year again since the father last saw the child.

2. The alternative would be to have Ms M subpoenaed to give oral evidence, but that is likely to be an ungainly method of getting her opinion, leaving aside the vexed question as to how she would be remunerated for the intrusion into her professional time.  In any event, Ms M’s opinion would not be determinative.  That is particularly so because she has now not seen the child for some months.

3. I decline to adjourn the hearing to attempt to get evidence from Ms M.

4. The second basis of the mother’s opposition is set out at paragraphs 72 to 74 of her affidavit filed 21 August 2019, as follows:

5. …

   72. In relation to the application to force me to attend “intensive family counselling” my understanding after reading information provided by Dr J is that it requires a high degree of cooperation between the parties.

   73. Because of my history with [the father] and suffering domestic violence and abuse by him I have no desire to ever be in the same place with him again and I don’t want to speak with him.  [The father] sexually abused me.  I do not trust him and I never will trust him.  I will always be scared of him.  I do not want to be forced to have contact with him or be forced to have counselling with him.

   74. When we attend the court in 2018 for the financial conference with the Registrar, [the father] was kept separate from me.  Even so, I felt very anxious, panicked, and scared.  I do not want to go through this again.

   …

6. Earlier in the mother’s affidavit filed 21 August 2019, she had set out in extensive detail, alleged sexual and physical violence between her and the father during the course of the relationship. However the Independent Children's Lawyer tendered into evidence material produced under subpoena from Queensland Police which relates to the mother’s attendance upon police both on 13 May 2011 and 19 January 2015.  In relation to the former date, it is recorded that the mother “stated that there is no physical violence however stated that the arguments are becoming more heated…” and on the latter date there appears the following longer passage:

   … Police question [the mother] as to whether she believed that she is at risk of any behaviour that would constitute DV such as physical violence.  She stated that she does not believe that she is at any risk and she was merely attending the station seeking advice with her current situation.  Matter is being recorded as no DV as [the mother] advised that there was no behaviour that warrants an application to be sought.  There was no damage to property or any physical violence by either party.  No threats were made by either party to commit an act of domestic violence…

7. Assuming that the mother would now contend that those reports made by her were untrue, it is difficult to understand why she was attending police to tell them lies, and to seek their advice based upon those lies.  It certainly casts considerable doubt over the veracity of the allegations that she now makes.  In any event, I note that the mother now has an intact therapeutic relationship with a psychologist in Darwin, with whom she has a long standing professional relationship dating from 24 November 2015, and who has managed to successfully alleviate the mother’s stress and anxiety symptoms.

8. For his part, the father says that the mother is intent on alienating the child from him.  As I observed to counsel for the mother during the course of the hearing, the facts certainly could support that inference, particularly:

   ·The mother’s longstanding position that the child should not have a relationship with the father;

   ·The mother’s allegedly argumentative behaviour with Ms B in front of the child;

   ·It seems as though the mother has told the child that the father has been “looking at pictures of naked children;”

   ·The mother’s concession in her 21 August 2019 affidavit that she “cannot hide the fact that I do not like [the father]” (although she does say that she does not discuss it with the child); and

   ·The mother’s move to Darwin without forewarning the father (or indeed the Independent Children's Lawyer, as I understand it), although it did see her obtain employment, and the parties do have a prior association with Darwin.

9. It is true that the child’s three incidents at school, and his statements to Ms M after the third incident, do tend to suggest that he is suffering some form of psychological distress from being in the middle of his parents’ conflict.  There are two potential explanations for that distress.  The first is that he may genuinely not wish to see or speak with the father, being a position which he has reached quite independently of anyone else.  The other option is that those views are not genuinely the product of his own independent thought, but have been substantially, and perhaps totally, influenced by someone else, most likely the mother.  At an interim hearing such as this, I cannot reach a conclusion either way, as the material is untested, but I am particularly troubled about the following:

   ·It seems likely that the mother has told the child that the father has been looking at pictures of naked children;

   ·The mother has argued about matters in the child’s presence with Ms B, and has been visibly distressed in doing so, to the point where it has significantly impacted upon the child’s own emotions;

   ·As it transpired, the first occasion when the child spent time with the father was an enjoyable one, and there were enjoyable aspects during another visit; and

   ·The child is only nine, and there is no reason in the evidence to suggest that he would have reached such an antipathetic view of the father without some external influence, likely the mother.  Particularly there is no suggestion that the father has physically or sexually abused the child, or that he has behaved in some other way which would likely see the child form the view which he espoused to Ms M.

10. Dr J appears, at least according to her own statements, to be an experienced specialist.  It would almost be inconceivable that she would not be aware of the prospect of the child becoming distressed, or indeed the mother experiencing anxiety, at the possibility and reality of again having contact with the father.  That would be even more likely in the event that she was provided with a copy of these and the first reasons, in both of which I have attempted to set out the countervailing considerations, and the risks involved.

11. In the first reasons, at [58] I identified that there was “nothing in the material which would cause me to think that the child is not likely to obtain some benefit from having a meaningful relationship with the father.”  That remains the case.  The engagement of Dr J furthers the prospect of the child having that relationship, and hence obtaining benefit from it.  Dr J’s engagement has some risk of emotionally disturbing the child, but as I say, I expect she will be very conscious of that.

12. Moreover, as I indicated when discussing the “big picture,” the inevitable consequence, so it seems, of not acceding to the father’s application, is that the litigation’s focus will change from the father to his sister and brother-in-law, with the prospect that, if the child were to be ordered to go into their care, there would likely be vast consequences for him, and probably the mother too.  Certainly the litigation would be nowhere near ready for trial, and the parties would be trapped in the litigious mode for, as I assess it, at least another year, and probably two.  Given that they have now been litigating since 2016 that would be most undesirable.

13. In effect, the appointment of Dr J represents the last opportunity for these parties to see whether or not, with professional assistance, they can contemplate, and effect, a relationship between the father and child.

14. There is no suggestion that the engagement of Dr J would expose the child to any risk of any sexual or other harm as I addressed in the first reasons, other than the prospect of the child’s resistance to, and likely distress at, again spending time with the father.

15. Weighing all of those matters in the balance, to my mind tells firmly in favour of the engagement of Dr J, and I therefore will make orders substantially in the terms of the father’s Application in a Case filed 30 May 2019, save that, given the mother’s poor present financial circumstances, the father should, in the first instance, be responsible for her costs, subject to any further order.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.

I certify that the preceding sixty two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 29 October 2019.

Associate:

Date:  29 October 2019