ALBURN & ALBURN

[2015] FamCA 126

FAMILY COURT OF AUSTRALIA

ALBURN & ALBURN [2015] FamCA 126

FAMILY LAW – CHILDREN – Where the matter has been designated Magellan – Where the Independent Children’s Lawyer seeks that consent orders be amended for the child and mother to undergo further therapy in an attempt at reunification with the father – Where there has been a professional opinion expressed as to the existence of parental alienation – Whether further therapy is in the child’s best interests – Where there is expert evidence that further therapy would be of no benefit – Where the application of the Independent Children’s Lawyer is dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Alburn

RESPONDENT: Ms Alburn

INDEPENDENT CHILDREN’S LAWYER: Lyrene Wiid

FILE NUMBER: BRC 2384 of 2010

DATE DELIVERED: 16 February 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 16 February 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Clear Legal Solicitors

SOLICITOR FOR THE RESPONDENT: Clement & Co Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Lyrene Wiid Lawyer & Migration Agent

Orders

it is ordered that:

1. The Independent Children’s Lawyer’s Application in a Case filed on 30 January 2015 be dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2384 of 2010

Mr Alburn

Applicant

And

Ms Alburn

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These parenting proceedings concern the child B born in 2008 who is now 6 years of age.  The parents married in 2004, the child was born in 2008 and the parents finally separated in 2009.  Most significantly the father last saw the child in or about October 2009 when the child was just 13 months of age. 

2. The mother’s case is that the child is at a risk of sexual abuse by the father.  Her case is that the father has sexually abused all of her children, including the child.  Those allegations were pursued to a criminal trial and it is the fact that the father was acquitted in the criminal proceedings, albeit, of course, on the criminal standard of proof.

3. Having not seen the child since October 2009, the father instituted these proceedings in 2010.  In the shadow of these proceedings, in or about 2013, the mother relocated with the child from Queensland to Perth putting that obviously significant geographical distance between the child and the father. 

4. On 30 June 2014, orders were made by consent of all parties including the Independent Children’s Lawyer (“the ICL”) appointed pursuant to s 68L of the Family Law Act 1975 (Cth) (“the Act”) to independently represent the child’s interests in the proceedings. Those orders provided for, inter alia, the mother and the child to engage in a course of therapy.

5. The orders identified the therapist to be Mr C, a clinical psychologist located in Western Australia.  Thus it is that the mother consented to orders that would see a male psychologist undertake the therapy referred to.  I mention this because the mother now raises that the failure in therapy might have something to do with the fact that it was conducted by a male rather than a female.  It should be observed that the therapy came against the background of the other expert reports, including that of Ms D and Mr E.

6. The affidavit of Mr C filed on 28 November 2014 sets out in some considerable detail Mr C’s involvement and, in particular, his attempts at undertaking the therapy identified in the orders which involved, as contemplated, attempted reunification between the child and her father.  At page 3 of his report, Mr C sets out in some considerable detail the consultations he undertook and the family therapy process he attempted to employ.  At page 6 of his report, at paragraph 260, Mr C expresses this opinion:

   In my opinion, the child’s behaviour has no direct link to her father or   has no relevance to how she has experienced her father in the past 5   years.  Her behaviour is irrational.  One can also state that her behaviour             is rather an extreme reaction which is totally out of context of reality.  It   was interesting to observe that her reaction starts immediately when the   concept of “father” is introduced, and equally as quickly, stops when the                    concept of “father” is changed to another subject. 

7. He thereafter sets out examples of what can only be described as troubling behaviours by the child and he, in his report, expresses the opinion as would seem to be obvious that the child could not, at the age of 13 months, have any entrenched memories of her father herself and that clearly her reactions to him are the product of influence of the mother and her older siblings.  Without detailing the contents of Mr C’s report, it is a troubling report to read from the perspective of the obvious influence upon, and anxieties exhibited by, the child in being engaged in that process.

8. At paragraph 340 on page 8 of the report, Mr C records this:

   The mother was resistant to any reunification as she questioned me for the purpose of the therapy despite this being Court ordered and she, being well aware of the reasons for referral and the purpose of the counselling sessions.  The mother was anxious, resistant and defensive when I asked the father to send a letter and presents to me for the child and argued it was against the Court order.  When I asked the mother and MGM [maternal grandmother] to play with the toys and toy people she argued and did not want the father’s wife and his parents to be represented in play.  The mother therefore shows strong gatekeeping behaviours towards the child.  [Mr F] [that is a reference to the maternal grandmother’s partner] told me the mother was distressed each time she returned from these sessions.  the child is exposed to all of these behaviours and models on her mother’s behaviour and expresses similar behaviours.

9. At page 9 of his report Mr C sets out the reasons why the counselling and reunification process did not work.  In the first dot point he identifies:

   The mother is not motivated to encourage a relationship between the child and the father as she has formed a belief in her own mind that the father sexually abused all of her children.  The mother was defensive and wanted to protect the child from the father at all cost.  The mother’s views of the father seem to be all negative.  The MGM [maternal grandmother] and [MrF] hold the same view.

10. Mr C sets out the extent of the mother’s reluctance and defensiveness in engaging in any process he attempted to employ.  On my reading of his report Mr C, acted reasonably in attempting to engage the mother in the process, explaining at every point its purpose and what was sought to be achieved. 

11. At paragraph 390 on page 9 Mr C expresses two important opinions:

    [The child] has learned and modelled her behaviour and perceptions of the father from her mother and extended family.  [The child’s] behaviour thus mimics the mother’s behaviour.  One could also state that the mother has a vested interest for [the child] to behave in this manner.

    In my opinion the mother has alienated [the child] from the father.  I therefore conclude that the counselling and reunification process did not obtain the desired result due to Parental Alienation.

12. After discussion by reference to relevant research of the dynamic of parental alienation Mr C expresses the further opinion on page 13 of his report as follows:

    As the reported reunification shows, counselling or re-unification [sic] therapy does not work and is not the recommended treatment in these severe PA [parental alienation] family matters.  It has been my experience over a period of 30 years in practice that all psychological methods used in these reunification matters in most part do not work, with some incremental changes in others.  This is also supported by research as highlighted earlier in the report.  The main reason it does not work is due to the direct and indirect influences of the alienating parent.  The alienating parent is not motivated to encourage a relationship with the target parent, on the contrary they are motivated in the opposite due to their formulated belief of the target parent being evil, dangerous and the children need to be protected from them at all cost.  I can say that the alienating parent has formed a fixed belief system about the evil target parent, which in turn makes her/him protect the children against this evil and in the process the child acts the same way towards the target parent.

13. Mr C then sets out his opinion in terms of the only possible solution for the child having a relationship with her father would be to place the child with the father and there be a no contact period with the mother. 

14. I emphasise in these reasons that the opinions of Mr C as contained in the report have not been tested in cross-examination.  Moreover, it needs to be emphasised that Mr C expresses his opinions against the background (as he identifies) that the mother raises serious allegations of sexual abuse against the father, which in themselves are yet to be tested in this Court albeit that the father successfully defended himself from those allegations in criminal proceedings. 

15. The application of the ICL is in effect that there be yet a further attempt at a therapy process between now and the trial set down to commence on 4 May 2015.  It is submitted by the ICL that a reason that the subject therapy may not have been successful was that it was undertaken by a male rather than a female.  However, I do not find any merit in that argument in circumstances where Mr C’s opinions do not support the proposition that the therapy failed simply because it might have been successfully undertaken by a female rather than him.  His opinions are very concerning in relation to the reasons for the failure and more fundamentally his reasons and descriptions of the child’s behaviour and the obvious influence she was subjected to in the process. 

16. On behalf of the mother the position was reached in the course of the argument that she is prepared to pay all of the costs of the therapy proposed.  Submissions were made to the effect that the mother now sees the error of her ways in terms of making sure that such further therapy or reunification process works.  As her solicitor put it, the mother has “one last roll of the dice” in terms of meeting the matters raised by Mr C in his report.

17. It seems to me that the application falls to be determined having regard to the child’s best interests.  Whilst on the one hand it might be said that even if an order is ultimately made at the end of a trial for the child to be placed in her father’s full-time care and that any attempts at reunification between now and then might assist that process, the fundamental concern is that the mother has steadfastly maintained her views for a long time now and has acted in a way, in particular including her relocation to Western Australia from Queensland, that effectively sabotaged the father having even supervised time or communication with the child.

18. The mother cannot have been in any doubt, given the contents of Mr C’s report as to the processes he sought to employ, as to the reasons for the things that Mr C suggested and the means by which those were sought to be achieved.  Throughout the process the mother was resistant and oppositional to the efforts sought to be made by Mr C to put in place anything in a meaningful way.

19. Against that background, I am not persuaded even in the face of the mother’s proposition that she will meet the costs of counselling to which she refers, that the mother is, in fact, motivated to ensure that she supports the child in the process.

20. There is at least the risk that this will be yet another exercise in the mother influencing the child in some demonstration of the child’s own opposition to having anything to do with her father.  There is nothing to persuade me that it is more likely than not that the mother will, in fact, support any further therapeutic process or any attempts at reconciliation.  For those reasons, I dismiss the application.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 16 February 2015.

Associate:

Date:  16 February 2015