Bernhardt & Christison
[2021] FedCFamC1F 326
•21 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bernhardt & Christison [2021] FedCFamC1F 326
File number(s): ADC 814 of 2013 Judgment of: BERMAN J Date of judgment: 21 December 2021 Catchwords: FAMILY LAW – CHILDREN – Parental Responsibility – Where the parties agree to equal shared parental responsibility – Where it is not beyond the ability of the parties to communicate to further the children’s interests – Where there is limited scope for disagreement as to long-term issues - Orders.
FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Best interests – Child’s views – Where final orders were previously made by consent for the children to live with the father and spend time with the mother – Where the mother has spent limited time with the children – Whether the father will support the children’s relationship with the mother - Where the parties agree the children should live with the father – Where the mother has a history of alcohol abuse but is now rehabilitated – Where the children are thirteen years of age and are aligned with the father - Where there is no risk to the children – Consideration of the weight which should be given to the children’s views – Where orders will be of limited duration given the children’s ages – Where it is in the best interests of the children that orders be made likely to foster the relationship with the mother – Orders.
Legislation: Family Law Act 1975 (Cth), ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3) Division: Division 1 First Instance Number of paragraphs: 227 Date of hearing: 27 – 30 September 2021 and 1 October 2021 Place: Adelaide Counsel for the Applicant: Mrs Read Solicitor for the Applicant: A K Reeves & Associates Counsel for the Respondent: The Respondent appeared in person Counsel for the Independent Children’s Lawyer Mr Child’s Solicitor for the Independent Children’s Lawyer Legal Services Commission of South Australia ORDERS
ADC 814 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BERNHARDT
Applicant
AND: MR CHRISTISON
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
21 DECEMBER 2021
THE COURT ORDERS:
1.That all previous parenting orders are discharged.
2.That the father and mother each have equal shared parental responsibility for X and Y both born … 2008 (collectively “the children”).
3.That the children live with the father.
4.That the children spend time with the mother as follows:
(a)From 10.00 am to 2.00 pm on 8 and 22 January 2022 with handover to occur at the B Park or such other place as the parties may agree;
(b)From 10.00 am to 4.00 pm on 5 February 2022 and
5 March19 February 2022 with handover to occur at the home of the maternal grandparents in C Town or at such other place as the parties may agree;(c)From 10.00 am Saturday to 4.00 pm Sunday commencing 5 March 2022 and each alternate weekend thereafter with handover to occur at the home of the maternal grandparents situate at C Town or at such other place as the parties may agree with such time to be suspended during any school holiday period;
(d)For the first week of all short term school holiday periods commencing at 10.00 am on the first day after the last day of school term until 3.00 pm on the following Friday;
(e)For each long term school holiday periods for weeks one, three and five from 3.00 pm on Friday until 3.00 pm the following Friday commencing December 2022;
(f)From 3.00 pm on 25 December 2022 to 3.00 pm on 26 December 2022 and each year thereafter.
5.That as and from 17 October 2023 the time that the children spend with the mother pursuant to paragraph 4 shall be subject to their wishes.
6.That each party keep the other informed of their current residential address, contact email address and contact telephone number.
7.That each party is authorised to obtain at their cost from the children’s school copies of school reports, photographs, newsletters and all other information in which parents are usually entitled.
8.That the father do all things as may be necessary to ensure that the children do not refer to the mother as “Ms Bernhardt”.
9.That each party is restrained by way of injunction from:
(a)denigrating or criticising the other parent and from allowing any other person to do so; and
(b)taking either child to any counsellor, therapist, psychologist, social worker or other mental health professional without the prior written consent of the other party save and except for the child Y in respect of the ordinary course of her treatment and management of Autism Spectrum Disorder.
10.That the Independent Children’s Lawyer shall be discharged within 7 days of having:
(a)explained these orders to the children; and
(b)forwarded a copy of these orders to the children’s school.
THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 Bernhardt & Christison has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Ms Bernhardt (also known as Ms T) (“the mother”) and Mr Christison (“the father”) are unable to reach agreement in respect of the future parenting orders for X and Y both born in 2008 (collectively “the children”).
The parties commenced a de facto relationship in October 2007. In July 2011, the parties separated leaving the children in the primary care of the mother in South Australia whilst the father remained living in Western Australia.
The father commenced a relationship with Ms D his current partner and together they moved to South Australia.
The relationship between the parties was marred by high conflict and upon the mother’s concession that her ability to parent the children was adversely affected by alcohol addiction, on 26 February 2014 the parties agreed final consent orders summarised as follows:
(1)That the parties have equal shared parental responsibility for the children;
(2)That the children live with the father;
(3)That the children spend regular time with the mother each alternate weekend and for half of the school holidays;
(4)That the mother communicate with the children when they are not in her care;
(5)That the mother be restrained from consuming alcohol immediately prior to and during the time the children are in her care;
(6)That the mother is to be the primary carer for the children whilst they are with her; and
(7)That the mother is authorised to obtain copies of school reports.
Between 2014 and 2016 the mother spent time with the children usually in the presence of the maternal grandparents.
The mother’s time and contact with the children ceased in or about January 2016. The mother concedes that her alcohol addiction was such that she was not able to provide adequate care for the children.
The maternal grandparents continued to spend time with the children at their home although the regularity of the visits was largely dependent upon the relationship between the maternal grandparents, the father and Ms D.
The mother contends that following extensive rehabilitation and a period of incarceration she abstained from consuming alcohol from June 2017 continuing to the present date.
The parties attempted to negotiate an agreed position however, such was the mistrust between the parties that on 20 August 2018 the mother filed an Initiating Application seeking compliance with the final consent orders made on 26 February 2014.
The commencement of the litigation likely caused the respective positions of each of them to be further entrenched.
It appears that upon the filing of the Initiating Application the father did not allow the children to see either the mother or the maternal grandparents.
It is also likely that the children displayed oppositional behaviour and expressed a reluctance to engage with the mother or her parents.
Orders were made on 15 October 2018 that provided for the children to spend time with the mother each third Saturday from 1.00 pm to 5.00 pm providing it was supervised by either of the maternal grandparents.
It is uncontroversial that the father did not comply with the orders.
The father filed his Response on 4 December 2018 but sought leave to particularise the final orders sought at a later date.
The father sought interim orders that a family consultant be appointed to prepare a family report directed to the method and manner by which the children could be reintroduced to the mother noting their overt resistance to do so.
On 18 March 2021, the Court ordered the trial be listed for hearing to commence on 27 September 2021. The Court also ordered that the mother spend unsupervised time with the children for four hours every third Saturday, with handovers to occur at the B Park or such other place as the parties may agree.
The parties are not in agreement as to the extent that the current interim orders have assisted in re-establishing the children’s relationship with the mother.
The children choose not to remain with the mother for the entire period of four hours, with their time spent with the mother lasting usually from thirty minutes to a little less than one hour.
The children are reluctant to leave the B Park venue given its proximity to the father’s home. The venue is problematic in that it was intended to be the handover venue rather than the location for the time spending to occur. The children’s time with the mother has been adversely affected by poor weather.
The mother contends that the children’s reluctance to more fulsomely engage with her is as a result of the father and Ms D either failing to promote the children’s relationship with the mother or more malevolently deliberately creating an environment in the father’s home where the children’s relationship with the mother is not encouraged.
For his part, the father denies the mother’s summary of his conduct and considers that he is prepared to facilitate the children’s relationship with the mother at whatever level they want. It is his current position that there are some positive signs that the children are prepared to better engage with the mother but that any attempt to force compliance is likely to alienate the children and reinforce their fear that they are not safe in either the care of the mother or the maternal grandparents.
It is a relevant observation that the children are 13 years of age. The parties agree that any orders that are made will have utility only until the children reach the age of 15 years whereupon their wishes are likely to determine the extent of the relationship they have with each of the parties.
DOCUMENTS RELIED UPON
The mother relies upon the following documents:
(1)Initiating Application filed on 20 August 2018;
(2)Trial affidavit filed on 30 June 2021;
(3)Trial affidavit in reply filed on 2 September 2021; and
(4)Trial affidavit of Ms E (“the maternal grandmother”) filed 30 June 2021.
(5)Exhibit “8” in the proceedings.
The father relies upon the following documents:
(1)Response filed on 4 December 2018;
(2)Trial affidavit filed on 25 August 2021;
(3)Affidavit filed on 13 November 2020; and
(4)Affidavit filed on 5 March 2021.
The Independent Children’s Lawyer (“ICL”) relies upon the following documents:
(1)Family Report of Ms F dated 9 May 2019, annexed to the affidavit of the ICL filed 14 May 2019;
(2)Update Family Report of Ms F dated 3 August 2021, annexed to affidavit of the ICL filed 3 August 2021; and
(3)Report of Ms G dated October 2019, annexed to the affidavit of the ICL filed 25 October 2019.
ORDERS SOUGHT BY THE MOTHER
The mother seeks orders as set out in her Case Outline document filed 23 September 2021.
She seeks orders summarised as follows:
(1)That the father and mother have equal shared parental responsibility for the children;
(2)That the children live with the father;
(3)That the mother and the children attend reunification therapy with Ms G or such other person as nominated by the Court;
(4)That the children spend time with the mother as follows:
(a)Until the commencement of December 2021 school holiday period each alternate Saturday from 10.00 am to 4.00 pm with handover to occur at the mother’s home;
(b)During the December 2021/January 2022 school holiday period each alternate weekend from 10.00 am Saturday to 4.00 pm Sunday with handover to occur at the mother’s home;
(c)From 3.00 pm on 25 December 2021 until 3.00 pm on 26 December 2021 with the mother to collect the children at the commencement of the time from B Park and Ms D to collect the children at the conclusion of time from the mother’s home.
(d)Commencing February 2022:
(i)During school term each alternate weekend from the conclusion of school Friday until 5.00 pm Sunday with the mother to collect the children from school at the commencement of time and Ms D to collect the children from the mother’s home at the conclusion of time;
(ii)For the first week of all short term school holidays commencing at the conclusion of school on the last day of school term until 3.00 pm on the following Friday;
(iii)For each long term school holiday period for weeks one, three and five from 3.00 pm Friday until 3.00 pm on the following Friday; and
(iv)From 3.00 pm on Christmas Day until 3.00 pm on Boxing Day each year.
For reasons that will be discussed, the mother concedes that “reunification therapy” is not a viable option and is not now sought.
ORDERS SOUGHT BY THE FATHER
The father’s first consideration of the orders that he seeks is set out at paragraph 38 of his trial affidavit in the following terms:
I propose that the mother continue to visit the children each frequency deemed in the best interests of either fortnightly, 3 weekly, monthly. That the handover point continues to be at the current place at the playground [at B Park]. So that the barriers with the children such as travel are overcome and the children attend visits relaxed as possible, with no set time frames, that they attend and allow the mother each time to show her efforts and build trust with the children. That the children keep me informed if they are extending their time with the mother beyond 4 hours, so I know what is happening and the children progress the relationship in their comfort levels with their time with their mother. …
(As per the original)
In broad terms, the father considered that the current interim arrangements are working well in that of more recent time the children appear to be more comfortable in the presence of the mother. The father remains pessimistic that if the children are compelled to see the mother other than on their own terms that will only further thwart any chance of the mother and the children reconciling their differences.
ORDERS PROPOSED BY THE INDEPENDENT CHILDREN’S LAWYER
The ICL supports the parties retaining equal shared parental responsibility. The ICL considers that the children should live in the primary care of the father but that they should spend time with the mother as may be ordered by the Court.
The ICL promotes ancillary orders concerning the exchange of information as to the current residential address of the children, an authority to the mother to receive school related material and that each party should be restrained from denigrating or criticising the other parent or from taking either child to any counsellor, therapist, psychologist, social worker or other mental health professional without the prior written consent of the other parent.
The ICL also supports that before their appointment is discharged, the ICL should explain the orders to the children and ensure that the children’s school receive a copy.
I expressed some surprise at the position adopted by the ICL, in not assisting the Court by nominating orders that provide the parameters for the children to spend time with the mother.
THE EVIDENCE
The mother
The mother’s evidence as set out in her trial affidavit and affidavit in reply was supplemented by the tender of an updated child support assessment notice that provides for an annual rate of $8,960, payable at the monthly rate of $746.67.
In addition, the mother gave evidence of the most recent time spent with the children on 25 September 2021. The children remained with the mother for 50 minutes before they decided to go home. The mother’s assessment was that the time went well and included the mother and children happily engaging in a game.
The father challenged the mother as to why he considered she made little or no effort to communicate with the children in between the three weekly visits. The father alleged that over a period of one year the mother had contacted the children on only two occasions.
The mother agreed that she did not regularly try to contact the children because she did not feel that phone calls would be supported by the father.
The mother acknowledged that despite her best efforts she has not been able to coax the children into her car.
The father’s evidence is relevant to this topic but prior to a more detailed discussion, it seems that the children have a false belief that they were passengers in a motor vehicle driven by the mother and involved in a motor vehicle accident.
The mother was cross-examined by counsel for the ICL as to her abuse of alcohol.
A police incident report in November 2016 sets out that the mother was a victim of a domestic violence incident with her then husband. The mother was frank in her admission that she could not remember the events surrounding the incident.
On 20 January 2017, the mother reported that there was a further altercation with her then husband which resulted in an intervention order naming him as the defendant and the mother as the protected person.
A further incident on 3 May 2017 involved the mother reporting to the police that her then husband had slapped her face during an argument over a credit card. The mother’s level of intoxication was such that she could not remember the details.
It appears that the mother’s former husband was violent and that the mother was the victim of sustained domestic violence. Following a sexual assault, the mother separated from her former husband.
The father and his partner were aware of the conduct of the mother’s former husband but it is agreed that the children never met him.
Counsel challenged the mother as to allegations made by the children concerning the following:
·The mother drinking alcohol to excess;
·That they were given inadequate food and nourishment; and
·That the children had been involved in a motor vehicle accident.
It seems that the children had a vivid memory of being involved in a car accident but at no time were they ever in the mother’s car.
The mother admitted that she had been involved in two accidents but denied that the children were with her.
As a result of the commission of various offences of larceny, albeit relatively minor, from 25 July 2016 and the commission of the offence of property damage from 31 January 2017, there was deemed to be a breach of the mother’s suspended sentence and she was required to serve a period of imprisonment from 28 August 2017 until 28 November 2017.
Upon her release the mother lived with her former husband and in January 2018 she was provided with temporary accommodation.
Consequent upon orders made for the mother and the children to attend upon Ms G to explore the reinstatement of their relationship, the first visit on 2 August 2019 was considered by the mother to have been quite successful.
The second visit on 9 August 2019 was notable because X tendered a letter to Ms G and the mother in the following terms:
Dear Everyone,
When I Meat Ms Bernhardt and Nanny and Pop I feel very unsafe because I havent seen them in so long. I have seen things shouldn’t have and I have heard things I shouldn’t have. I would like to put nanny and pop out of the Picture and Meat Ms Bernhardt With my family as a Whole. I don’t think Ms Bernhardt is telling the truth. Because if You arn’t Drinking you are on drugs. I Would like her Police report, doctors recedmition and the truth. I would like the full story of why she is still looking after another Drunk adict that she has married broken up and he has beaten her up. The cort says that Dad and Ms D can’t tell us what is going on. Wich I think is noncense. All the Pictures off of facebook (all social media) I know it is important that Y and I should have a relacion ship with Ms Bernhardt but Y and I think it would be best at a contact center. We did used to send E-mails but she thourght we wern’t getting them so know aparently we are going to Post stuff to each other. honestly 7 years is a long time that is Why I feel nerves. she is not on them but she would struggle every day.
FroM
X
P.S This is What I feel
PP.S Please listen to Me. [1]
(As per the original)
[1] Exhibit “5”.
The children also advised Ms G that they were fearful that the mother wanted to kill their stepsister Z.
The mother stated that trying to telephone the children had been unsatisfactory. Often the children would not answer or if they did, the call would be disconnected.
The evidence from the father is that X gained assistance from her school counsellor in preparing the letter to give to the mother and Ms G.
There is little doubt that if the father’s evidence is true, the involvement of a school counsellor in the preparation of the letter as allegedly written by X to give to Ms G was at best highly questionable.
As will be later considered, it is likely that each and every allegation contained in the letter is without substance.
The mother recognised that relationship counselling was not likely to be successful.
It is apparent that the mother was desperate to adopt any parenting proposal that would increase her chances of resuming a fulsome relationship with the children. There is little doubt that the mother would make herself available at a moment’s notice if it resulted in her spending even modest periods with the children.
It is an important consideration that no evidence was elicited from the mother contrary to her position that since her rehabilitation in 2017 following her release from prison, she has not relapsed into alcohol use and is able to maintain employment involving a responsible position of management.
The mother showed considerable insight into the needs of the children and in particular that they should not be overwhelmed by the parenting arrangements.
The mother has made full and frank admissions as to the devastating consequence of her relationship with the children arising from her alcohol addiction. She was frank in her admission that she was not able to properly parent the children during the period from 2014 to 2017.
Whilst there is some room to consider the cause of the mother’s resort to alcohol, she recognises that her earlier behaviour may well have impacted adversely on the children and whatever orders are made, a slow approach involving a steady transition to increase time has more chance of success.
The mother was self-deprecating in her evidence and I am able to find that when she used alcohol to excess her behaviour was damaging and likely placed the children at risk.
The maternal grandmother
The maternal grandmother relied upon her trial affidavit which sets out an unchallenged history of the relationship between the parties leading up to the 2014 consent orders and thereafter.
The maternal grandmother was frank in her observation that the mother consumed alcohol to excess from late 2011.
The mother’s state of health is best summarised in the following paragraph of the maternal grandmother’s trial affidavit:
8.Gradually the alcohol consumption got worse over time and when the father and his new partner kept the children in 2012 she was not in the best state. We had come to know the father’s partner Ms D by this time and thought that she would be a positive and stable influence for him and felt more comfortable about the children being with him.
The involvement of the maternal grandparents has been extensive. After the 2014 orders were made, the maternal grandparents supervised the mother’s time with the children each alternate weekend.
It is understood that the children hold a false belief that they were involved in a motor vehicle accident in a car driven by the mother. The maternal grandmother is categorical in her evidence that at no time were the children in the mother’s car. There was no circumstance where the children were involved in a motor vehicle accident.
The mother’s alcohol abuse presented a significant conundrum for the maternal grandparents. The maternal grandmother admits that she did not consider the mother could control her alcohol consumption and accordingly, they did not voice strong opposition to the father’s decision in 2016 to cease the children spending time with the mother. To some extent, the accord reached between the father and the maternal grandparents that they would see the children every two to four weeks for an entire weekend and for extended periods during school holidays ameliorated their concern arising from the mother’s removal from the children’s lives.
The relationship between the maternal grandparents and the father was such that in addition to the children, they would also host the children’s stepsister Z.
The mother returned to live with the maternal grandparents on 26 March 2018 and remained there until she obtained her own separate accommodation in August 2018. The mother’s presentation was such that the maternal grandmother was persuaded that the mother was sober and serious in her intention to remain alcohol free. It appears that the mother’s return to the home of the maternal grandparents and the likelihood that the children would thereafter come in contact with her was a catalyst for the father ceasing the children’s time with them.
The maternal grandparents, the mother, the father and Ms D entered into detailed discussions with the focus of the children spending more time with the mother.
This period is important in that it represents a transition from the greater involvement of the father in the discussions with the mother and the maternal grandparents as to the care arrangements for the children, to Ms D adopting the principle role.
As the maternal grandparents gained more confidence in the mother’s sobriety so it appears that they also were more supportive of her and less so of the father.
On the few occasions that the maternal grandparents came in contact with the children they noted that the children were derogatory of the mother and asked questions as to whether the mother was on drugs.
The maternal grandmother’s evidence is that thereafter relations with the father and Ms D deteriorated and their time with the children had affectively come to an end.
Exhibit “3” comprises annexures to the affidavit of the maternal grandmother, including email communication between the father and the maternal grandmother. The contents of the correspondence passing between the father and the maternal grandmother highlight the deterioration of what had once been a consensual arrangement providing for the children to spend time with the maternal grandparents.
On 24 September 2018, the father sent the following email:
On 24/09/2018 12:44 PM, Mr Christison wrote: I wanted to ask if you and Mr H could write a letter. I realise you support visits with Ms Bernhardt at the farm as you discussed on Friday, however given you also understand the anxiety this is causing the girls and agreed that starting at a contact centre considering the girls were more comfortable with this would be a good starting point, I would like it if you could put this in a letter.
I talked the girls yesterday afternoon and they were happy to see you both, they said it was good you coming here. We asked about time at your place in the holidays and they said it would be better if you came to J Town. It gives you some indication of how things are sitting with them right now.
Y wanted a picture of Ms Bernhardt’s eyes, which she sent by email and Y wanted this picture as said “sometimes when she takes her sunglasses off, one eye is up and one is down and I want to check they aren’t wonky” so seemed satisfied she didn’t have wonky eyes, but asked why her face “looked weird”.
There is much mistrust of her. Anyway if you could word something to support a start at a contact centre as per what you said sounded “a good start” on our phone discussion on Friday that would help.
As I have stated I am not confidant of Ms Bernhardt’s wellbeing, I do see progress given I’m not aware of hospitalisation in the last 6 months, but at a contact centre it seems the risk could be minimised and it’s all under supervision, and a good start for the girls where they will be and feel safe.
Thanks
Mr Christison[2]
(As per the original)
[2] Exhibit “3” page 11.
The maternal grandmother was not prepared to assist the father in the provision of a letter in support of the father’s proposal but rather considered that the involvement of an independent counsellor might be a good first step.
The father provided a prompt response which asserted that he and Ms D could no longer trust the maternal grandparents and considered that their support of the mother was disgusting.
Exhibit “4” comprises a lengthy email from Ms D to the maternal grandmother dated 2 August 2019.
Whilst not comprehensive of the entire content of the email, the following extracts adequately convey the level of antipathy between Ms D and by necessary implication the father and the maternal grandparents:
From: Ms D …
Date: 2 August 2019 at 5:03:34 pm ACST
To: [maternal grandmother’s email address]
Mr H and Ms E
I write as I voice on behalf of myself, Mr Christison, my parents and family and Mr Christison’s parents and family, the children’s teachers and all families that know us, sports clubs the children are involved in, even friends of yours that are appalled and disappointed, disgusted at what you have put your grandchildren through and what you continue to put them through.
The financial hardship you have caused this family through all your court proceedings since 2013 is horrendous. Both of you and Ms Bernhardt live off welfare and do nothing all day, while we work hard in jobs to support this family. You sponge off tax payers money, legal aid and get everything for free. We get nothing for free, we work.
Mr H and Ms E I realise you inherited money and this is what you live your lavish lifestyle on. I hope every holiday you have, every lunch you go to, the new car you drive, as you do your shopping what your grandchildren go without due to the financial pressure you and your addict daughter put this family through. Ms Bernhardt still is on on the dole, I thought she was in full health? Why is she still bludging off tax payers. A fine example to the children. I know you said she has to take long walks and bike rides to stay sober…could she not then get a job with pamphlets to hand out on these long walks and at least have an income to help support these children she so desperately wants to be involved with.
We are appalled that you all want to sit on your ass and expect us to take unpaid time off work to drive these children back and forth to Adelaide for therapy, to satisfy your needs. Or expect Mr K to drive 1.5 hours to J Town from Adelaide where he lives, then ferry the children 1.5 hours back to Adelaide for therapy, then drive the children another 1.5 hours back to J Town to take the children home, then drive another 1.5 hours back to his home in Adelaide, a total of 6 hours travel in a day…he is 77 years old, has cancer, and going through treatment and you expect that, you pigs. You can say I’m abusing you by calling you pigs, but what you expect Mr K to do is more abusive.
…
This amongst all else you have done makes me sick at the 3 of you.
Both girls expressed their hate for you particularly Ms E, X stating Nanny is a fucken bitch.
…
You people are not Grandparents, I know what Grandparents are..they are people like Mr K and Ms L and my parents Mr M and Ms N whom put their grandchildren ahead of themselves and make sure they have the best life they can have and protect them from the rest. They make sure the children’s needs are met.. they support the family that gives them a safe and happy life.
They are involved and positive, loving and supportive.
They are not people like you both wishing your own daughter was dead….you both continually expressing hate towards Ms Bernhardt, wishing she would die and leave you alone, because YOU can’t cope.
…
We want the girls to know, Ms Bernhardt’s life and your lives are not normal and not anything they should aspire to, your guys influence is worrying to children with a future.
Not once have any of you had the guts to face us to talk about what you have done. No you cut off all communication, we aren’t allowed to phone, email, nothing….it’s pathetic, how are you supposed to resolve anything when you wont communicate? You put it to a lawyer for us to go through, a lawyer whom does nothing but stick her stick in a wound and make that wound bigger. Ms O should burn in hell with you for what she’s doing, she’s done nothing to make any resolution, she is about creating a fight to create her income…it’s her job, she doesn’t give a shit, and your making her some good money. Put your faith in a creature such as Ms O, it shows what scum you all are.
I’ve had to put up with your shit for so many years. What about Ms Bernhardt’s threats about Zs life, how do I look at her the same after fucking threatening me with that? And tell her husband to stop calling and threatening, we’ve notified police. But they can’t do anything till he does something…so we sit in fear, tell Ms Bernhardt to stop it, clearly it comes from her.
…[3]
(As per the original)
[3] Exhibit “3” pages 14 – 17.
The maternal grandparents have had almost nothing to do with the children for the last three years. A difficulty arises in respect of orders made on 7 November 2019 which prevented the maternal grandparents from coming into contact with the children when they spent time with the mother. That order was discharged by consent at the conclusion of the trial.
The maternal grandmother impressed as having good insight as to the mother’s current state of health. The maternal grandmother was aware that the mother completed her rehabilitation in about 2016 and is satisfied that whilst the mother remains an alcoholic she has been sober for a number of years.
The maternal grandparents live on a small farming property in the P Region. The children are familiar with the property and the evidence supports a finding that when there was a good relationship between the maternal grandparents and the father, the children enjoyed their time on the farm.
The maternal grandparents acknowledge that the children have expressed a fear of both them and the farm but are not able to provide any explanation that would provide a foundation for the children’s fears.
I consider the evidence of the maternal grandmother to be reliable.
The father
The father relies upon his trial affidavit. He confirms that the mother was the primary carer for the children when they were young but he remained concerned as to the mother’s excessive alcohol consumption to the extent that he ceased his employment as a fly in fly out worker in preference for employment that enabled him to be closer to the children.
The father was concerned that the mother’s alcohol consumption rendered her unable to properly parent the children. His evidence confirms the evidence of the maternal grandmother that the mother’s behaviour was such that the children were not safe in her care.
There were multiple suicide attempts and the mother had undergone attempts at rehabilitation.
The mother’s marriage to a man who perpetrated significant domestic violence merely confirmed in the father’s mind that the mother was unable to make safe choices for the children.
It is a significant issue for the father that at a basketball game in September 2018, he alleges that the children were told by the maternal grandmother not to tell the father that it was intended they be taken to see their mother. The children reported the conversation to the father. That report was the catalyst for the father contacting the maternal grandmother leading to the cessation of any trust between them.
From 2018, the father asserts that he did all that he could to encourage the children to attend supervised visits with the maternal grandparents and the mother but that the children were highly resistive. The father’s assessment of the basis for the children’s refusal was that they recalled traumatic past events and were of the view that the maternal grandparents would not be able to properly supervise the mother.
The father states that he did all that he could to encourage the children to have a relationship with the mother. Ms D arranged a number of supervised outings and the father encouraged the mother to communicate with the children on a regular basis.
At paragraph 20 of his trial affidavit, the father considered that the mother had improved and appeared to have commenced a lifestyle that was consistent with the mother recovering from her alcoholic addiction.
The father asserts that for reasons not understood by him, the mother stopped attending visits with the children supervised by Ms D.
The father remains pessimistic that if orders are made that compel the children to spend more time with the mother than they want, that will only exacerbate the children’s reluctance to engage.
The father acknowledged that the children had not spent the entire periods as ordered with the mother but that he encourages them to do so.
The father was challenged as to the basis of his change of opinion regarding the maternal grandparents. Prior to the mother living with the maternal grandparents in 2018, the email communication between the father and the maternal grandmother confirmed that he thought highly of them.
The father also agreed that the mother commenced paying child support prior to August 2019.
On 7 June 2018, the mother sent a report from her general practitioner to the father and Ms D confirming that the mother was undergoing monthly blood tests in order to prove her sobriety. A brief report from the mother’s general practitioner confirmed, at least at that point, the mother’s claim that she was sober.
The father acknowledged that he had received numerous reports confirming the mother’s sobriety and now accepts that the mother was successful in her rehabilitation.
The admission of the father was important in that communication between the father, Ms D and the maternal family reference their mistrust of the mother’s assertion that she had successfully refrained from consuming alcohol.
The admission also has importance given it is apparent that the children were not told that the mother was unlikely to present as a risk to them.
The father was not able to explain the basis upon which the children did not spend time with the mother and the maternal grandmother up to the 14 March 2019. The father admitted that he had not complied with Court Orders and could not explain the basis for the children’s ongoing belief that the mother remained addicted to alcohol, drugs and had allegedly made a credible threat on their stepsister’s life.
The father was asked to consider the following extracts from the report of Ms F dated 9 May 2019 (“the first report”):
61.[The father’s] disdain for the grandparents was very apparent (“I don’t’ have much time for those people”), and he agreed that Ms D had been the primary communicator with them between 2016 and 2018. [The father] provided an inconsistent view about whether he shielded the children from his feelings about them, eventually concluding that “they know I don’t have the time of day for these people…they know why” but denied that this had an impact on the children.
…
63.Whilst X initially noted concerns about her mother, it seemed that these related to instances that had occurred when she was “really little” or a “baby” and it further appeared that her father and [stepmother] had told her about these events which “then…I remember…they told me a little, then I started remembering all the details”. ….
64.It seemed however, that discussion of these instances had begun to occur in the context of the dispute, as she noted “Ms D and Dad started telling me these things…I did not really want to see her”. She then indicated she “want(ed) to see Mum”, but was resistant to seeing her grandparents as she related at their last visit “they said Mum is 100%...they didn’t want Ms D and Dad to know”, and X felt that her grandparents were being disingenuous as “I know (mum is) not (100%)…we have doctor forms and police forms saying that…Dad and Ms D showed me”.[4]
[4] Affidavit of Ms Q filed 14 May 2019, annexure “Q-1”, page 17.
Ms F records that the children considered that their grandparents were lying about the state of health of the mother and Y spoke of being involved in a motor vehicle accident, the details of which are unclear.
The father alleged Y suffered from nightmares for months after their last visit with the maternal grandparents, fearful that they might take her from the father.
The father initially denied that either he or Ms D had shown the children any Court documents, medical or police reports. His response was that anything that the children were shown was what he considered to be age appropriate information.
The father was reminded that following the first therapeutic consultation with Ms G on 2 August 2019, in the published report of October 2019, Ms D is recorded as having reported to Ms G that the mother had threatened to kill the children’s stepsister. The evidence supports a finding that at all material times the father was aware from the various reports and information received by him that the mother was sober, employed, had stable accommodation and lifestyle.
There was no evidence to support the children’s belief that the mother had made a credible threat to the life of Z. I find that the father took no steps to correct the false belief that the children had of their mother’s then current state of health nor that she had ever threatened to harm Z.
I also find that the father was aware of the toxic communication authored by Ms D and took no steps to restrain or modify her behaviour. It is likely from the evidence given by the children to the various therapeutic practitioners that they had been shown copies of Court documents and other material emanating from the litigation.
I accept the father is genuine in his belief that significant weight must be given to the wishes of the children otherwise they may well refuse to engage with the mother and maternal grandparents at all. I also find that the father and Ms D have actively sought to reinforce in the children’s mind that there is a high risk the mother is still alcohol affected, that the maternal grandparents would not be able to protect them and may even seek to remove the children from the father and that they are at risk in the mother’s care.
The father’s own admission supports a finding that the father disengaged from the proceedings and gave his support to Ms D to conduct and manage the children’s engagement with the mother.
The father was an unreliable witness and his behaviour was influenced by his obvious dislike for the mother. Left to his own conduct, it is unlikely that the father could support the children’s relationship with the mother.
Ms G
By Court Order dated 20 May 2019, Ms G (“Ms G”) was instructed to engage the children and the parties in a reportable therapy for a total of three sessions as recommended by Ms F in her first family report.
At an appointment on 21 June 2019, the father and Ms D denied that the Court ordered therapy was to include the children. Ms G records the father’s statement that “they will just talk about the same shit they did”[5] with Ms F.
[5] Exhibit “8” page 2.
Ms G recorded the father’s presentation in the following terms:
[The father] presented as angry and frustrated at all the appointments he attended with the Therapist. His partner, Ms D, often chose to speak on [the father’s] behalf in order to manage his emotional regulation. At one appointment, the Therapist noted that Ms D appeared to purposefully tread on [the father’s] foot to silence him, due to him becoming emotionally dysregulated.[6]
[6] Ibid page 3.
Ms G considered that the father lacked the capacity to maintain emotional regulation in respect of the mother and the maternal grandparents and that it was likely to be difficult for the father to shield the children from his intense negative feelings towards the mother and her parents.
The children were seen together by Ms G due to their apparent distress at being involved in the therapeutic process.
Ms G found the following:
The children have clearly have been exposed to inappropriate conversations about [the mother] and her parents. They were using adult language and exact terms that [the father] and Ms D had relayed to the Therapist during appointments.[7]
[7] Ibid page 5.
Ms G recorded the children’s stated reaction following information that had been conveyed by Ms D to them:
According to the children, Ms D told them that their mother threatened to kill her daughter, Z. This made them very scared and they told Z (who subsequently wet her pants between therapy appointments). They also said that Ms D said that [the mother] said bad things about Z, and spoke to the about drugs, gaol and their mother being inappropriate with her life choices. The Therapist is clear, that if this transpired, then it is emotional abuse.[8]
(As per the original)
[8] Ibid.
A significant component of the intended therapeutic process was the observed interaction between the children and the mother. Ms G records her observations as follows:
Conversely, when the Therapist observed the children with their mother, they were relaxed, demonstrated proximity seeking behaviours to their mother and there was a presence of a warm, connected engagement. This was the same for the maternal grandparents. [The mother] demonstrated emotional maturity to be able to answer the children’s difficult questions and address their concerns about the cost of court to their father (for example they said that [the mother] only pays 3% towards the cost of the children), her drug use, her poor life choices etc.[9]
[9] Ibid.
Ms G had little difficulty in finding that the father and Ms D exposed the children to a toxic environment and unbridled anger towards the mother and the maternal grandparents. Ms G was concerned that “the children will experience a high level of internal distress which will psychologically compromise them”.[10]
[10] Ibid page 6.
Such was the concern of Ms G as to the presentation of the father and Ms D that she considered the following:
If the children had a stronger attachment relationship with their mother, and the mother had access to ongoing support, then the Therapist would make the recommendation that the children be reunified with the mother, and that [the mother] be the primary caregiver. However, the mother, currently does not have such a relationship with her children. Any significant changes to the children’s lives will have its own psychological impact.[11]
[11] Ibid page 7.
Given that Ms G was tasked to undergo a therapeutic engagement with the parties, it is a telling observation that she considered the father had little regard for the Court and any attempt to engage him in a beneficial therapeutic process designed to enhance and foster a relationship between the children and their mother was futile.
Ms F
Ms F’s first report was the catalyst for the therapeutic interaction by Ms G.
Ms F carefully recorded the mother’s stated history of alcohol abuse and the damaging consequences to the mother’s ability to properly parent the children.
She frankly admitted her failed suicide attempt and that when intoxicated she was a different person and understood that it was hard for people who experienced her behaviour to accept that she has made real progress and that change has been beneficial and positive.
Ms F noted that the father was not able to clearly elucidate how he had supported the children’s relationship with the mother but did record his view that whilst inadequate he had been trying. The same could not be said for consequences arising from the mother’s alcohol abuse from 2011 to 2017.
Consistent with his evidence, the father highlighted that the children were now frightened of the maternal grandparents because they feared that they would be withheld by them. The father was not able to explain how the children had formed this view. There is no evidence presented by the father of any threat by the maternal grandparents to remove the children from the father’s primary care. If the children have formed such a belief then it has either been engendered by the father and Ms D or at the very least they have taken no steps to dispel the children’s irrational fear.
Following interviews with the children Ms F considered that the children were aligned with the father and Ms D and whilst curious about the relationship with the mother, were concerned that if it occurred, it might destabilise their current family unit.
The observed interaction between the mother and the children was positive and Ms F records that whilst X was initially timid she “became more animated and confident as the session progressed and she began to direct shy smiles to the mother. By the end of the session, X was chatting in an animated fashion with her grandmother, about her house, her friends and school”.[12]
[12] Affidavit of Ms Q filed 14 May 2019, annexure “Q-1” page 19, paragraph 77.
Ms F noted that the father retained clear and evident malice towards the maternal grandparents which did not appear to be justified by any incident, fact or circumstance.
Similarly, whilst the father’s uncertainty as to the mother’s purported rehabilitation and current sobriety was reasonable, the father’s resistance to accepting that the mother may have been successful in her rehabilitation and the subsequent non-compliance with the Court Orders and agreements reached was not child focused nor in their best interests.
Ms F also expressed pessimism as to the utility of therapeutic intervention but ultimately considered that some targeted sessions by Ms G may well provide an appropriate basis for the mother to recommence spending time with the children each alternate weekend, gradually increasing to overnight periods.
An updated report was ordered on 12 April 2021. Ms F prepared her family report (“the second report”) dated 3 August 2021.
The report was prepared against the background of the mother now living in private rental accommodation, managing a business on a full-time basis, with the father and Ms D living in their previous residence at J Town.
The children were in year 7 at a local primary school and due to commence high school in 2022. Y has been assessed as having Autism Spectrum Disorder and has speech and occupational therapy support.
The consequence of Y’s diagnosis of autism is that she presents with heightened anxiety.
In interview, the father presented as biased against the mother and Ms F observed that the father’s anger remained. She considered that the father had ceased any effective involvement in the parenting arrangements and left all of the decision making to Ms D.
Ms F’s initial assessment was that the father appeared ambivalent in respect of the extent to which he should support the children’s relationship with the mother and he considered that their time with her should be subservient to other events in the children’s lives such as party’s and other family occasions. Consistent with his approach throughout, the father considered that any time spent with the mother should be subject to their wishes and that they should not be compelled to comply with an order.
Ms D acknowledged to Ms F that she had sent a distressing email to the maternal grandparents but that it was an indication of the extent of her anger at their conduct.
Ms F was able to contrast the children’s presentation both before they were observed interacting with the mother and after the interaction.
Initially the children spoke of frustration with their mother and spoke in derogatory terms such that they could not identify any positive feature of having a relationship with her.
They considered that their time with the mother “sucked”[13] and there was nothing about their time with her that was to their advantage or liking.
[13] Affidavit of Ms S filed 3 August 2021 page 17, paragraph 57.
Of concern to Ms F was that the children appeared to have reinforced as true, various incidents that did not occur.
The children stated that the mother had lied about her past and believed that she had been kicked by a horse, fallen into a bush and had been involved in a motor vehicle accident. It is an interesting observation that X understood the mother considered that the father and Ms D were promoting lies about her.
X remembered that the mother’s house was “smelly and gross”[14] even though on the father’s evidence the children had not entered the premises. For reasons that are not understood, the father and Ms D decided that they would drive the children from J Town to the mother’s home in Suburb R on the off chance that she would be at home. As matters transpired she was not.
[14] Ibid page 17, paragraph 60.
There was no evidence of the mother’s accommodation however, for reasons not supported by the evidence, the father considered that the mother lived in an undesirable location with people who were dangerous. The children formed the same view but without justification.
There is no evidence to support such a contention.
The comparison of the children’s negative presentation about their mother prior to the observed interaction was considerable.
Ms F records the following:
78.Y immediately engaged with [the maternal grandmother] in response to her questions about camp, with Y adding spontaneous information; X remained reticent initially, but soon began to join in discussion after [the maternal grandmother] enquired as to her progress on the guitar. Thereafter Y and X engaged in playful, animated and back and forth banter with [the maternal grandparents], sharing delight, giggling and volunteering information about school horses, shared people in common, pets, [the maternal grandparents’ house]. X was noted to challenge [the maternal grandmother] in a playful way. [The mother] shared in the back and forth chat, with Y inviting her verbal contribution (“Ms Bernhardt, do you live with Mr H and Ms E”), but it seemed more so lead by [the maternal grandparents] (who later expressed their worry that they dominated the interaction, but that their excitement about seeing the children was difficult to restrain).
…
80.To sum, Y appeared to instantly enjoy the interaction and after some initial reluctance, X soon joined in. The children’s affect remained animated, regulated and their body language nor comments did not indicate fear. At no time did Y indicate (via touching the specific toy) that she wanted the time to end. Both children contributed to the discussion and volunteered information as well as initiated questions. …[15]
[15] Ibid pages 20 – 21.
In her evaluation, Ms F considered that X in particular now presented as an alienated child evincing “persistent strong, negative feelings and beliefs relayed in derogatory tones, with these views seeming at times somewhat irrational (‘I don’t want to see her’ at the same time as ‘she does not come, so I am cross’), as well as ongoing referral to past events.”[16]
[16] Ibid page 23, paragraph 87.
Ms F concluded that the children would have developed a closer relationship with the mother but for the attitudes and negativity displayed by the father and Ms D.
The difficulty is that Ms F considered that even though the children are at an age when significant weight would ordinarily be given to their views, in the present circumstances in which the children find themselves, their views are not their own but rather a reflection of the views of the father and Ms D which are entirely opposed to supporting a relationship between the children and the mother.
In evidence Ms F considered that the way forward was difficult. She did not support any further therapeutic intervention and considered that it may well be adverse to the children’s best interests.
She did however consider that the children should initially spend less frequent but longer periods in the mother’s care and suggested that the home of the maternal grandparents may well be an appropriate venue at least initially. Her recommendation is as follows:
(1)Time reduced to one day per short school holidays (and at least two, one day visits during the summer holidays) at the property of the maternal grandparents.
(2)Indirect time spending (phone calls, messages) to continue on an ad hoc basis.
PRINCIPLES RELATING TO PARENTING
I consider it necessary that I approach the parenting component of the proceedings from a focus on the practical reality of the separate proposals of the parties. I bring to account the considerations of the primary and additional factors in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) that are applicable to the circumstances of each case.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interest test is to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I propose to adopt the following approach:
(1)Give consideration to the separate proposals put by each of the parties as they were identified to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act, namely the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm if applicable;
(5)Have regard to the additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced by each of the parties in respect of particular considerations pursuant to ss 60CC(2) and (3) of the Act are to be considered and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation or comment.
PARENTING CONSIDERATIONS
Parental responsibility
The parties are agreed that there should be an order made that they have equal shared parental responsibility for the children.
Whilst the evidence as to the ability of the parties to communicate effectively to further the children’s interest is scant, nonetheless I do not consider that it is beyond the ability of the parties to do so.
The children reside with the father and Ms D in J Town. They will commence at a local High School in 2022. The mother does not intend to interfere with the father’s plans for the children’s education.
Given the history of the matter, there is no evidence that the father has not appropriately cared for the children in terms of their physical needs. Y has been diagnosed with Autism Spectrum Disorder. The mother does not complain as to any aspect of the father’s management of the children.
Whilst the relationship between the parties remains highly conflicted there is likely to be limited scope for disagreement as to long term issues affecting the children.
The parties are also agreed that the weight of evidence would speak against orders being made for the children to spend equal time with each of the parties or even significant and substantial time for the foreseeable future. The mother is likely to remain in the metropolitan area of Adelaide and the distance alone limits the extent of time that the children could spend with the mother even were there to be no other impediment.
The very nature of the orders sought by the mother concedes that her time with the children will be limited and likely to apply only for the period until the children will reach fifteen years of age.
Meaningful relationship
The father’s overt position is that the children should have a meaningful relationship with the mother. He focuses on the evidence of the various attempts at both supervised and unsupervised time and highlights his assessment of the more recent unsupervised visits as being promising in terms of the children feeling progressively more comfortable in the presence of the mother.
The evidence arising from the report of Ms G and confirmed in the reports of Ms F opine that but for the tenuous and fractured relationship that the children have with their mother at present, their recommendation was that the children’s interest would be better served in the mother’s primary care.
I am entitled to find that it is in the best interests of the children that orders be made which are likely to foster the children’s relationship with their mother.
The uncertainty is not whether the children should not have a relationship with their mother but whether the father will promote the relationship and the extent to which the children can be made to feel more comfortable in the mother’s care.
The need to protect the children from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence
There is no evidence that either party presents as a physical risk to the children.
The father’s concern is that if the mother is not sober then it is likely she will repeat the history of neglect and inability to care for the children.
I accept the evidence of the mother, the maternal grandparents and the single experts that the mother has impressed as regaining control over her life and has totally abstained from alcohol consumption. The mother is able to live independently and holds down responsible full-time employment. Her relationship with the maternal grandparents has been repaired and for a number of years there has not been any evidence of hospitalisation or attempts at personal harm.
It is a significant issue that the children are now thirteen years of age and are able to voice complaint and raise a concern if they were placed in the circumstance of genuine risk of harm.
The evidence of the single experts is that if the Court finds that the father, both personally and/or in concert with Ms D, has encouraged the children to falsely believe that their mother still represents a risk, that they were some way involved in a motor vehicle accident driven by the mother or that she expressed an intention to harm their stepsister, that would constitute emotional abuse.
I have found that perhaps out of genuine but misguided belief that the mother constitutes a potential risk to the children, the father and Ms D have either fostered the wrong view of the mother or have done nothing to dispel the notion that the mother may still be a risk.
The children’s views
Given the age of the children, it is necessary to consider carefully any views expressed by them and then to attribute weight to those views.
I am mindful that Ms F considers that at fifteen years of age for good reason or bad, the extent to which the children engage with their mother should be at their discretion. As such, the orders that need to be considered are to regulate the arrangements between now and the children’s fifteenth birthday.
A further complexity is that Ms F considers the environment created by the father and Ms D to be so toxic in relation to the mother that the children present as alienated and such caution must be given to the weight to be attributed to their views.
I do not ignore that at thirteen years of age there is a reality, given the history of the matter and the mother’s ready acquiescence to the children terminating their time with her prior to the duration of the order, that it may be difficult to now compel the children to spend extensive time with her.
I am not able to divine the future. I am required to consider the various factors that are relevant to determining what is likely to be in the children’s best interests. It is conceded that the children’s interests will be best served by resuming a substantial relationship with the mother.
I bring to account the observations of Ms F and Ms G that the children’s interaction with the mother and the maternal grandparents is considerably more benign and pleasant than when the children discussed their relationship with their mother in interview.
There is no clear indication of the children’s expectations about spending time with their mother. The early termination of their time with the mother is not linked to any incident, fear, concern or anxiety engendered by the mother or the circumstances of the unsupervised time. True it is that the proximity of the current handover point to their home may well present an easy option for the children to terminate their time with the mother at will. The evidence is that the children are able to walk the short distance from the park to their home.
Whilst noting the reluctance of the children to get into a motor vehicle driven either by the mother or the maternal grandparents to travel elsewhere, again there is no justification for the children’s fears other than the father and Ms D have done nothing to dispel the children’s irrational fear.
It would be contrary to the evidence but also the practical reality of the circumstances which the mother and children find themselves, that the children’s views should carry no weight.
There is some good sense in the father’s proposal that at least in the short term, the relationship between the mother and the children should be permitted to take its course and the children should have some confidence that if they choose to cease time early then they should be allowed to do so.
It is open on the evidence to find that the process of transitioning to a more fulsome relationship with mother should occur over a period of time than overwhelm them.
The nature of the relationship of the children with each of the children’s parents and other persons including grandparents
The children are strongly aligned with the father and Ms D. They have been responsible in the physical care of the children and whatever history existed between the parties leading up to their initial separation and the children going into the care of the father, the mother’s addiction to alcohol was such that she was incapable of exercising a parenting role.
The evidence supports a finding that until September 2018 the children had a strong relationship with the maternal grandparents. The relationship was promoted by the father and Ms D and included the children spending regular time with the maternal grandparents, often taken at their farm in the P Region.
The change in that relationship is explained by the father’s change of attitude towards the maternal grandparents when he perceived that they were not prepared to support him as opposed to the mother.
The children’s relationship with their mother is complex. Whilst I accept that for the last four years the mother has been in a position to responsibly parent and care for the children, it is difficult to know what deep-seated impact the children may have experienced arising from their mother’s alcohol addiction and damaging behaviour.
The mother’s time with the children has been at best sporadic and even when regulated by Court Order, the longest time that the children have spent in the care of the mother has been about fifty minutes.
The evidence of the single experts is that there is significant benefit to be gained by the children in orders that would restore a relationship with their mother because it is meaningful, important and of substance.
The extent to which each of the children’s parents have taken or failed to take the opportunity to participate in making decisions about major long-term issues affecting the children, to spend time with the children or to communicate with them
The mother has had limited opportunity to participate in making decisions about major long-term issues and the evidence is clear as to the limited periods that she has been able to spend with them.
The father complains that the mother has been reluctant to communicate with the children and that is at least one reason why the children are now reluctant to engage with her.
I find that communication between the mother and the children has not been fostered nor is it welcome.
Ms D, with the consent of the father, has referred to the mother in the most derogatory of terms. Whilst that may well be considered as between adult to adult, the evidence is that the children are well aware of the low regard of which Ms D holds the mother.
It is hardly surprising that the mother would not feel comfortable to contact the children via the father’s household.
I bring to account that however regrettable, the mother has spent limited time with the children.
The extent to which each of the children’s parents has fulfilled or failed to fulfil the parent’s obligation to maintain the children
The father has undertaken the entirety of the children’s care. Whilst there has been some question by the father as to the extent to which the mother has paid child support, I am satisfied that at least as and from 2019 an appropriate and meaningful assessment of child support has been made.
A significant concern is that the children have formed a view that the mother’s conduct has had an adverse financial impact on the father and Ms D.
The children have indicated their understanding that the father complains that litigation has been costly both in terms of money but also a distraction for the father, preventing him from engaging in his employment.
The likely effect of any change in the children’s circumstances
It is not proposed by the mother that there is to be a change in the children’s primary care. Even on the mother’s most optimistic position, the children will remain in the primary care of the father and spend time with the mother. It may be that there will be some anxiety experienced by the children if it is the mother’s position that the children should remain with her for the entire time as provided by any order. Ultimately, those considerations will be a matter for the parties but in particular the mother.
The practical difficulties and expense of the children spending time with or communicating with the parent
The mother currently resides in the western suburbs and the father and the children reside at J Town. There is a considerable distance for the parties to travel however, there is the advantage of the home of the maternal grandparents in the P Region which is likely to slightly favour the father.
There is no good reason why each of the parties should not be made to share in the travel however, it is a matter for the mother as to whether she takes her time with the children at her parents’ home or whether it is merely a handover point and she takes the children elsewhere.
The maternal grandparents were enthusiastic about rendering any assistance possible. The evidence supports a finding that prior to the father’s change in attitude towards them, the maternal grandparents and the father had a cordial and cooperative relationship.
I find the maternal grandparents did nothing that should be seen as providing any basis for the father’s change of attitude towards them.
The capacity of each of the children’s parents or any other person including grandparents to provide for the needs of the children
The parties, Ms D and the maternal grandparents are all high functioning individuals. If the father and Ms D are able to put aside their dislike and mistrust of the mother and the maternal grandparents, there is no reason on the evidence why each of them would not be able to enhance and provide properly for the children’s emotional and intellectual needs.
The mother’s parenting proposal does not seek primary care and as such it is unlikely that there will be any change in the current care arrangement, particularly in respect of Y and the management of her Autism Spectrum Disorder.
Family violence
There was no evidence that any of the parties present as a physical risk either to each other or to the children.
As considered, there is no evidence that the mother presents as a risk to the children in terms of any overt physical conduct or engaging in risky practices or conduct.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
The evidence of Ms F was powerful in her opinion that whatever orders are made they will be of limited duration.
There is also the uncertainty as to whether the mother will seek to enforce compliance with orders that will be made or whether she will continue her practice of acquiescence in respect of any request by the children to return home at an early time.
CONCLUSION
At the conclusion of the evidence, the parties had reached some tentative agreement that the children would remain in the primary care of the father and that they would spend time with the mother on a regular basis.
The father’s concession that there was no substance to the allegations that the mother was still consuming alcohol and drugs and that she had made a threat to harm Z. But for those matters, it is likely that the children would have resumed a relationship with the mother and that the current proceedings would have been rendered unnecessary.
I propose to make orders that there be a slow transition to the children spending more time with the mother.
I propose that there be some further time spent at the current handover venue so that the children can be prepared for the next transition to handover occurring at the home of the maternal grandparents, with the mother having the option to spend time with the children there or elsewhere.
It is then intended that the time will be extended to include an overnight component and more extensive time during the school holidays. The orders will come to an end upon the children’s fifteenth birthday at which time they will determine the extent of time that they spend with each of the father and the mother.
Following an invitation from the Court, the ICL crafted what might be considered ancillary orders. They have merit and I propose to include those orders but in particular I will order that before the order for the appointment of the ICL is discharged, he will speak to the children for the purposes of explaining the order to them.
It is not intended that these children will undergo any further therapeutic intervention and indeed, the evidence of Ms F was that it would not be in their interests for them to do so.
This is a case where continued therapeutic intervention is likely to be adverse to the children’s best interests.
I make orders as appear at the commencement of these reasons.
I certify that the preceding two hundred and twenty-seven (227) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 21 December 2021
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