Overview

On 24 November 2021, Kelly J of the Federal Circuit and Family Court of Australia (Division 2) made parenting orders in proceedings between Mr Little (“the father”) and Ms Thornton (“the mother”) concerning their child, X (“the child”) who was born in 2019. Whilst the child had previously lived with the mother, Kelly J ordered that the father was to have sole parental responsibility for the child and, accordingly, that the child should live with the father.

Kelly J, the primary judge, found that there should be a change in residence because:

• The father was better placed to support the child to have a relationship with both parents and their extended families.
• The child would have the opportunity to live in a more stable and settled environment.
• The mother was more likely to pursue a desire to obscure, sabotage and undermine any relationship between the child and her father.
• There was evidence that the child had not been well socialised because significant amounts of time were spent with her mother or maternal grandmother.

These findings were informed by Dr C, who the parties visited twice in early 2021. Dr C said that the child “spends very little time away from her mother” and that there is a “disturbed attachment between this child and her mother” based on observations from their visits.

Appeal

The mother appealed the judgment, seeking to challenge Kelly J’s acceptance of Dr C’s opinion that the child was not thriving in the sole care of the mother.

On appeal, Aldridge J held that “these findings were sufficiently influenced by the acceptance of the evidence of the single expert psychologist which was, in part, based on assumptions which were not consistent with the evidence in the proceedings.” Aldridge J further held that the assumption Dr C relied on to draw his opinion, that the child was not socialised, was demonstrably wrong and that “Dr C was not in a position to give evidence as to the child’s attendance at playgroup and the like because he had no direct knowledge of it.” Therefore, any opinions of Dr C so based were not admissible.

In contrast to Dr C, it was Region BB Health’s view that there were no attachment issues between the mother and the child and that the child’s regression was caused by the toxic behaviour of both her parents and the conflict in which the child was now involved.

The original orders were set aside and the matter was remitted to Division 2 of the Federal Circuit and Family Court of Australia for rehearing. Until then, Aldridge J found that the best interests of the child would be met by returning the child to the mother.