Federal Circuit and Family Court of Australia (Division 2) Family Law

  • Campi and Ferrin [2022] FedCFamC2F 1621 (24 November 2022) – Federal Circuit and Family Court of Australia (Division 2)
    Application in a proceeding’ – ‘Best interests of the children’ – ‘Family law’ – ‘Family report’ – ‘Interim hearing’ – ‘Parental alienation’ – ‘Psychologist evidence’ – ‘Reportable intensive family therapy’ – ‘Significant risk of psychological harm

    Matter: Mother’s application in a proceeding, seeking orders for reportable intensive family therapy to be conducted by Dr B. to address alleged parental alienation of the mother by the father.

    Facts: The children resided with the father and there was evidence the children’s relationship with the mother was fractured and the children had been resistant to contact with the mother since March 2022 when they last had supervised contact with the mother at a contact centre. It appeared the children had refused to participate in contact pursuant to a consent order made September 2022 that the younger child have unsupervised contact with the mother from after school until 7 pm each Friday afternoon which the older child could join if he desired. The court was unable to consider the mother’s allegation that the father had alienated the children from her in the interim hearing.

    Newbrun J considered proposals for children to attend intensive family therapy in the context of mother’s allegations of parental alienation by father:

    [9] The Court has a real concern that the children may be exposed to a significant risk of psychological harm if they participate in the intensive therapy Reportable Intensive Family Therapy (“RIFT”) model proposed by the Mother to be afforded by the psychologist Dr B. And further, the Court has a real concern that should the children be required to participate in the proposed intensive therapy RIFT model that they may well become even more resistant to spending time with the Mother; if this risk comes to pass, then the prospect of restoring the children’s relationship with the Mother may become even more difficult.

    [38] As to the Mother’s proposed order that Dr B be permitted to conduct intensive four day family therapy RIFT model [Reportable Intensive Family Therapy], and provide an expert report in relation to the issue of parental alienation, the Court is of the view that such an order would not be in the best interests of the children, and nor would such an order be in the interests of justice, and in reaching these views, and in summary, takes into account the following matters having regard to rule 7.04 and section 13C(1)(c) Family Law Act 1975 (Cth):

    1. The Court’s concern that the children may be exposed to psychological harm if subjected to the proposed intensive four-day family therapy RIFT model;
    2. The lack of material before the Court relating to risk screening of the children prior to participating in the proposed intensive family therapy;
    3. The lack of material before the Court relating to the nature of the proposed intensive family therapy;
    4. The lack of any independent evaluation of the proposed intensive family therapy;
    5. The content of the Family Report does not suggest that expert evidence from a clinical psychologist such as Dr B and/or further family therapy is required to elucidate the issue of parental alienation;
    6. The Family Report writer, appointed under section 62G of the Family Law Act 1975 (Cth) to provide a Family Report, is well able to provide appropriate evidence and opinions in relation to the issue of parental alienation (the Family Report writer, refers to and/or discusses the issue of parental alienation in paragraphs 76, 100, 102, 104, 108, 111, 112, 113 albeit she does indicate that the Court needs to conduct a further assessment of this issue). The Court is of the view that it is not necessary in this case for it to have a range of opinion on the issue of parental alienation;
    7. The content of the Family Report does not refer to and/or support Dr B’s proposed intensive four day family therapy RIFT model.
  • Wylder v Wylder [2022] FedCFamC2F 1366 (9 November 2022) – Federal Circuit and Family Court of Australia (Division 2)
    Best interests of child’ – ‘Child abuse’ – ‘Coercive control’ – ‘Covert recording’ – ‘Manipulation’ – ‘No contact order’ – ‘Parenting’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘People with mental illness’ – ‘Selective misrepresentation’ – ‘Social media’ – ‘Suicide threat’ – ‘Systems abuse’ – ‘Technology facilitated abuse’ – ‘Threats to kill’ – ‘Unacceptable risk’ – ‘Victim as (alleged) perpetrator’ – ‘Weapons

    Case type: Appeal against parenting order.

    Facts: The father was an Australian resident who met and married the mother in Country B. They moved to Australia where their daughter was born in 2017. The father made repeated notifications to the Department of Child Safety alleging that the mother used corporal punishment to discipline the child contrary to Australian standards [44], [68]. From videos posted on social media by the father, it was evident that the father did not listen to the child and coached her to make allegations of violence against the mother [56], [111]. The mother did not speak English well and she yielded to the father’s demands to agree to his unsupervised contact with the child in consent orders [26]-[30].

    In previous proceedings the Court ordered the father be assessed for drug and alcohol use but he refused to participate [19]. In a search of the premises executing a recovery order for return of the child, police found weapons at the father’s house and charged him with offences under the Weapons Act [36]. In 2015, the father was self-medicating with anti-anxiety drugs when he admitted himself as an inpatient in a mental health unit. He said he had daily intrusive thoughts about killing the mother [124]. He discussed with other inpatients a plan to stalk his treating psychiatrist with intent to harm him and his family [129]. The father’s mother (ie the child’s paternal grandmother) applied for a domestic violence order against the father in 2019 [143]. The Court considered that there was ‘ample evidence’ that the father had engaged in family violence towards the mother [149].

    Issue: The best interests of the child.

    Held: The Court ordered that the mother have sole parental responsibility for the child, that the child live with the mother and that the mother be permitted to relocate with the child. The Court ordered that the father should have no time and no communication with the child.

    The mother did not pose a risk to the child [116]. After an intervention by police and a social worker, the mother changed her approach and reduced her reliance on physical discipline [67]. The child was happy living with the mother [290].

    The father was assessed by a forensic psychiatrist as being a high risk of suicide and murder-suicide, including kidnapping and absconding with the child, and an even higher risk to others generally [234]. He was also assessed as having a narcissistic personality and an anti-social personality disorder [219]. His postings on social media and abusive threats against his wife were in breach of a court order and he demonstrated contempt towards the Family Court and legal processes [305].

    Although the father claimed to be the victim of physical violence from the mother, what concerned Judge Vasta was the father’s coercive control of the mother:

    1. However, it is not the spectre of physical violence that concerns this Court; rather, it is the spectre of coercive control. Whilst it had been documented that the parents had separated on occasions, the mother said that the father spoke to her in such a way that she felt compelled to return to the relationship. The father denies any such conduct.
    2. What has been of concern is the documented history of the litigation. It is incongruous that the mother would make the complaints that she made during the previous filing in this Court (BRC 11666/2019); have a Court make an order that mandated supervised visits between the father and the child; and, then choose to ignore that and, instead, come to a compromise solution with the father that gave him unsupervised equal time with the child.
    3. There seems to be no other rational explanation for this other than the father implementing coercive control over the mother to the extent that she felt that she had no other choice but to comply with the father’s demands. The judicious use of covertly recorded conversations with one parent by the other parent and then referring to selective excerpts is a feature that is often found in cases of coercive control.
    4. In this case, the father did give to the Court such selective recordings. The father pointed to one particular recording where the mother made an “admission” that the father was the favoured parent by the child. In another recording, the mother “admitted” that the father treated her like a queen. In another recording, the mother is said to convey that she arranged custody arrangements for her financial benefit. In a further recording, the mother has “conceded” that she was “not going back to court again”. And in a final recording, the mother “admitted” that the father would never hurt his daughter.
    5. These recordings were used by the father to intimidate the mother into not pursuing any parenting matter because these recordings would be used against her, as if they were repudiations of her stance. Of course, they have little evidentiary value as they are excerpts from a larger conversation upon which the Court has no information, and therefore, no context.
    6. The behaviour in making constant notifications to the Department of Child Safety can also be seen as a manifestation of the coercive control. Further, posting the videos to social media can also be seen as a manifestation of coercive control. One such video records a “Tik Tok” dance that the mother had uploaded to social media. The father recorded himself watching the video where the father made derogatory comments suggesting that the manner of solo dancing in the video was not befitting that of a woman who had a boyfriend, let alone a woman who was a mother.
    7. ….
    8.  The father will attempt to draw the child into his world; a world where the mother is evil and cannot be trusted and a world where institutions such as the police and the Courts are malevolent and must be resisted. This was perfectly illustrated by the manner in which the father dealt with the child when making the videos. He ignored what the child was saying and imposed his own version of the facts and would not brook any variation to that. The child will never be truly free under the care of the father and she will not have the opportunity to grow and experience life because she will be made to conform to his world view.
    9. And this is just part of the danger that the father represents. The evidence that the father planned to do harm to his treating psychiatrist because that psychiatrist would not support his application for a pension is concerning enough. But when this is added to the father’s manipulation of the mother to avoid having to endure supervised visits with the child, the reaction of the father to police attempting to serve him with the police protection order, the obsessive determination with which he wished to expose a “rapist” at the school, his Facebook comments to a Member of Parliament as to his capacity for violence and the nonchalance with which he violated a Court order and injunction about posting on social media, the jeopardy at which he places X cannot be overstated.
    10. There are absolutely no safeguards that the Court could put in place that would allow the father to have any form of contact with X and yet keep the child safe.
    11. It is never an easy task for a Court to make orders that prohibit contact between a parent and child, however there are those rare cases where such an order is the only order that can be made in the best interests of the child. This is one of those cases.
  • Ramzi & Moussa [2022] FedCFamC2F 1473 (4 November 2022) – Federal Circuit and Family Court of Australia (Division 2)
    Application that child spend no time with a parent’ – ‘Arranged marriage’ – ‘Children’ – ‘Coercive control’ – ‘Cultural and spiritual abuse’ – ‘Culturally and linguistically diverse backgrounds’ – ‘Deprivation of liberty’ – ‘Economic and financial abuse’ – ‘Exposing children to domestic violence’ – ‘Fear’ – ‘Following, harassing and monitoring’ – ‘Forced marriage’ – ‘Harassing’ – ‘Humiliation’ – ‘Impact on mother's parenting capacity’ – ‘Injunctive orders’ – ‘Isolation’ – ‘Mitigation of risk’ – ‘Monitoring’ – ‘No time ordered’ – ‘Parenting arrangements’ – ‘Physical violence’ – ‘Poor literacy skills’ – ‘Protection orders’ – ‘Sexual abuse’ – ‘Social abuse’ – ‘Sole parental responsibility’ – ‘Threats’ – ‘Unacceptable risk

    Proceedings: The proceedings were for the determination of parenting arrangements for a five-year old child (X) of the two parties.

    Issue: The parties agreed that the child should live with the mother. However, at issue was:

    1. Whether the mother should be ordered to return to Melbourne with the child;
    2. How parental responsibility for the child should be exercised;
    3. Whether the father poses a risk of harm to the child;
    4. If the child is to spend time with the father in Melbourne, how much time should be allowed and should it be supervised

    The alleged risks posed by the father were that:

    1. X had been exposed to and would be exposed to family violence;
    2. He had engaged in coercive and controlling behaviour;
    3. Orders allowing contact may pose a risk to the mother’s caring capacity.

    Facts: The mother left her home country at a young age for another foreign country for an arranged marriage with the father and the couple later moved to Australia. The mother had only a basic level of education and spoke very limited English.

    The parties separated after living together in Melbourne for two years. The mother applied for a protection order and the child (X) lived with her. Pursuant to an interim parenting order, X spent a few hours of supervised contact with his father each week. Subsequently, unsupervised contact was ordered with changeover at a supervised contact centre. The mother was late to changeover on several occasions and eventually stopped bringing X altogether before moving with the child to Sydney.

    The mother made extensive allegations of family violence against the father which occurred over the course of their marriage and afterwards. These included coercive and controlling behaviour, physical abuse such as choking and beatings, sexual assault, threats and humiliation (both from the father and family/community members), monitoring her movements, denying her economic autonomy and depriving her of liberty.

    The alleged risks posed by the father were that:

    1. X had been exposed to and would be exposed to family violence;
    2. He had engaged in coercive and controlling behaviour;
    3. Orders allowing contact may pose a risk to the mother’s caring capacity.

    Reasoning: Beckhouse J accepted the mother’s account, finding that:

    • family violence was established (Family Law Act 1974 (Cth) s4AB(1)); and
    • the risk of X being subject or exposed to violence outweighed the benefit of having a meaningful relationship with his father (s60CC).

    Beckhouse J stated that it was not necessary to make factual findings about the occurrence of each alleged individual incident ([202], s4AB(1)). The lack of eye-witnesses, inconsistencies and delayed reporting were not an impediment, particularly given the cultural barriers to disclosure. The mother’s evidence was detailed and specific, corroborated by external agencies and was understood in the context of the cyclical nature of family violence and her cultural and personal background. The father’s ‘blanket denials’ offered no plausible explanation or alternatives.

    Beckhouse J found that this risk could not be ameliorated. The father had displayed a lack of responsibility for his conduct and demonstrated no desire to change. His extensive familial and community support network was viewed as a ‘double-edged sword,’ as the paternal family potentially helped conceal his conduct and he failed to understand how ongoing communication with the maternal family impacted the mother.

    It was determined that contact orders would cause the mother stress and anxiety, to the detriment of her parenting ability. Given this and the risk that X would be leveraged as a weapon, both supervised time and video communication were deemed unviable.

    Orders: The child reside with the mother and she have sole parental responsibility. The child have no contact or communication with the father, the child be removed from the international travel watchlist and the mother be permitted to obtain a passport for the child and travel overseas without the father’s consent.

    Additionally, the father was permitted to send X a birthday message every year.

    Backhouse J noted at [243] that in establishing whether a person is ‘fearful’ under s4AB(1) : “fear can arise from a culmination of events and patterns of behaviour”.

    Backhouse J observed at [202]:

    …There are some specific individual characteristics in this matter that lead me to place less weight on inconsistent versions of events given by the mother. English was not the mother’s first language. She was poorly educated. She spoke through an interpreter. I cannot be satisfied she would have understood how domestic and family violence is defined in Australia.