Blass & Blass (No 2)
[2021] FCCA 1588
•16 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Blass & Blass (No 2) [2021] FCCA 1588
File number(s): NCC 2831 of 2015 Judgment of: JUDGE TERRY Date of judgment: 16 July 2021 Catchwords: FAMILY LAW – Parenting – children aged 11 and almost 8 – second round of proceedings – where there have been ongoing difficulties with the mother complying with orders for the children to spend time with the father since they were made in 2018 – where the mother engaged the children in counselling without the father’s consent and where the counselling has been harmful – where the father has reached the point of applying for a change of residence – where the mother was unable to articulate the outcome she thought was best for the children but asked the court not to change their residence and said that she would use her best endeavours to comply with whatever order the court made about the children spending time with the father in the future – change of residence ordered – where unless this occurs the children will be exposed to ongoing stress and difficulty and may lose their relationship with their father – father to have sole parental responsibility for the children – mother to spend time with the children initially supervised but eventually each alternate weekend and for half of the school holidays. Legislation: Family Law Act 1975 (Cth) ss 60CC Cases cited: Blass & Blass [2018] FCCA 2474
Rice & Asplund (1979) FLC 90-725
Radley & Holder [2017] FCCA 2799Number of paragraphs: 229 Date of last submission/s: 28 May 2021 Date of hearing: 26 – 28 May 2021 Place: Newcastle Counsel for the Applicant: Mr Willoughby Solicitor for the Applicant: Parting Ways Law Counsel for the Respondent: Mr Rugendyke Solicitor for the Respondent: AW Simpson & Co Counsel for the Independent Children’s Lawyer: Mr Bateman Independent Children’s Lawyer: Emalene Gemmell Family Law ORDERS
NCC 2831 of 2015 BETWEEN: MS BLASS
Applicant
AND: MR BLASS
Respondent
ORDER MADE BY:
JUDGE TERRY
DATE OF ORDER:
16 JULY 2021
THE COURT ORDERS THAT:
1.All previous parenting orders concerning X born in 2010 and Y born in 2013 (“the children”) are discharged.
2.The father shall have sole parental responsibility for the children, provided that he:
(a)Notifies the mother of any proposed decisions relating to the long-term care welfare and development of the children, including but not limited to:
(i)Proposed decisions about which school(s) the children shall attend.
(ii)Proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the children.
(b)Ensures that any such notification is given to the mother in writing not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency.
(c)Takes into consideration any view expressed by the mother in respect of such proposed decision before making the decision.
3.The children shall live with the father.
4.The children shall spend time with the mother:
(a)Supervised by the D Contact Centre (“the contact centre”) at such times and frequency as directed by the contact centre, but no less frequently than once per fortnight for a period of three (3) months from the date of these orders (and not from the date on which the first visit occurs).
(b)Thereafter and for a period of three months each alternate Saturday from 9:00am until 5:00pm.
(c)Thereafter and for a period of three (3) months each alternate weekend from 9:00am on Saturday until 5:00pm on Sunday.
(d)Thereafter each alternate weekend from the conclusion of school or 3:00pm on Friday until the commencement of school or 9:00am on Monday.
(e)At such additional or alternate times as may be agreed between the parties in writing (by email or otherwise).
5.Until the commencement of the 2022 Term 2 school holiday period the mother’s time in accordance with Order (4) shall continue during the school holiday period.
6.Commencing with the 2022 Term 2 school holiday period as applicable to the school the children attend the children shall spend time with the mother:
(a)in even-numbered years in each of the Term 1, 2 and 3 school holiday periods for the second half of the school holiday period from 9:00am on the day which is the midpoint of the holiday period until 5:00pm on the day prior to the commencement of the new school term; and
(b)in odd-numbered years in each of the Term 1, 2 and 3 school holiday periods for the second half of the school holiday period from 9:00am on the first day of the school holiday period until 5:00pm on the day which is the midpoint of the holiday period.
7.Commencing in the 2022 Term 4 school holiday period as applicable to the school the children attend the children shall spend time with the mother:
(a)in even-numbered years for the second half of each Term 4 school holiday period from 9:00am on the day which is the midpoint of the holiday period until 5:00pm on the day prior to the commencement of the new school term; and
(b)in odd-numbered years for the first half of the Term 4 school holiday period from 9:00am on the first day after the conclusion of school until 5:00pm on the day which is the midpoint of the holiday period.
8.Notwithstanding any other order the children shall spend the Mother’s Day weekend with the mother each year and if Mother’s Day falls on a weekend when the children would otherwise be with the father the children shall spend the Mother’s Day weekend with the mother in accordance with Order 4(d) and the following weekend with the father noting for the avoidance of doubt that this will result in the children spending two consecutive weekends with the mother.
9.Notwithstanding any other order the children shall spend the Father’s Day weekend with the father each year and if Father’s Day falls on a weekend when the children would otherwise be with the mother the children shall spend the Father’s Day weekend with the father and time in accordance with Order 4 on the following weekend noting for the avoidance of doubt that this will result in the children spending time on consecutive weekends with the father.
10.Commencing on Christmas Day 2022 notwithstanding any other order the children shall spend time with each of the parents during the Christmas period as follows:
(a)In even-numbered years:
(i)With the father from 2.00pm on Christmas Eve until 2.00pm on Christmas Day; and
(ii)With the mother from 2.00pm on Christmas Day until 2.00pm on Boxing Day.
(b)In odd-numbered years:
(i)With the mother from 2.00pm on Christmas Eve until 2.00pm on Christmas Day; and
(ii)With the father from 2.00pm on Christmas Day until 2.00pm on Boxing Day.
11.Changeovers which do not occur at school shall occur by the father or his nominee delivering the children to the mother or her nominee at the commencement of such time and the mother or her nominee delivering the children to the father or his nominee at the conclusion of such time at McDonald’s Restaurant, City D.
12.The parties shall each promptly contact D Children’s Contact Centre and undergo all necessary intake procedures to enable supervised time to commence on the basis that the family are privately paying clients.
13.The mother shall contribute $50.00 per visit to the cost of the supervision and the father shall otherwise pay the cost of the supervision.
14.Each party shall promptly advise the other party of their residential address, telephone number(s) and email address and if any changes occur that the other party is informed within twenty-four (24) hours of such change occurring.
15.The parties shall communicate via email, unless in the need of an emergency, in which case communication shall occur via telephone or text message.
16.Each parent is restrained from denigrating the other parent to or in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other parent.
17.These Orders are sufficient authority to permit any medical practitioner, dental practitioner, hospital, or medical practice, that the children attend from time to time to provide to the mother at her expense any information and reports regarding the children.
18.Each party as soon as practicable telephone the other parent upon the happening of any of the following:
(a)The child/ren becoming seriously ill;
(b)The child/ren being hospitalised; and
(c)The child/ren becoming involved in an accident requiring medical attention.
19.Each parent may obtain from the school copies of school reports, newsletters, order forms for school photographs or other information normally provided to parents. Pursuant to s.68B of the Family Law Act 1975 (Cth), the mother be and is hereby restrained by injunction from:
(a)Attending any school or extra-curricular activity attended by the children during the period of Orders 4(a) – 4(d) inclusive without the prior written consent of the father.
(b)Having or attempting to have contact with the children other than as permitted by these Orders NOTING THAT this Order does not prevent the mother from greeting the children should she see them in a public location.
(c)Removing or attempting to remove (either directly or through a third party) the children from the care of the father or from any person who may be supervising the children at the father’s request.
(d)Attending or entering any home that the children may from time to time reside, without the prior written consent of the father.
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 under the pseudonym Blass & Blass (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TERRY
Introduction
This matter concerns parenting arrangements for X, who is 11, and Y, who will be eight in six days.
Final orders about the children were made on 12 October 2018. They provided for the parties to have equal shared parental responsibility and for the children to live with the mother and spend time with the father on alternate weekends from Friday to Sunday and for blocks of time in the school holidays.[1]
[1] Blass & Blass [2018] FCCA 2474
The orders about the parties having equal shared parental responsibility and the children living with the mother were made by consent at the start of a trial. The orders about the father’s time were made by the court.
On numerous occasions after the orders were made time did not happen. Weekend time frequently did not happen, and no holiday time occurred until the Christmas 2021 school holidays and even then it did not occur fully as the orders required.
The father filed two contravention applications, one of which I have heard and determined, and it has reached the stage where he is seeking an order that he have sole parental responsibility and that the children live with him.
It was the father’s case that unless the court did that then no matter what the mother now said about intending to comply with orders in the future the conflict and difficulty around compliance would continue and the children’s relationship with him may be lost.
The father does not accept that the children are reluctant to spend time with him, which was one of the reasons the mother gave for non-compliance. He said that they had a good time when they were with him and indeed the mother seemed to concede as much during cross-examination. He said that he was also concerned about the children’s emotional well-being if they remained with the mother. He said that she had fabricated a narrative that X was displaying problematic harmful sexualised behaviour after she returned from spending time with him. He said that this constituted abuse and that the children needed to be removed from that environment.
The father proposed that after the children commenced living with him they spend supervised time with the mother for two hours each fortnight and on special days. He did not propose any delay in that commencing. However in final submissions his counsel said that the father supported the order proposed by the Independent Children’s Lawyer which would require the mother to engage in counselling for two months before she commenced spending time with the children.
In a Minute of Order handed up at the end of the trial the Independent Children’s Lawyer proposed that the father have sole parental responsibility for the children and that they live with him. It was proposed that provided that the mother engaged in specialist counselling which focused on the benefit to the children of having a relationship with both of their parents and attended for two months then the children commence spending time with her, initially supervised, but in due course each alternate weekend and for half of the school holidays.
I have begun with the father’s proposal and then noted the Independent Children’s Lawyer’s proposal, but the mother is the applicant. Between the father filing his first and second contravention application she filed an application seeking to discharge the existing orders. She sought final orders that the children live with her and that she have sole parental responsibility. She made no proposal about the children spending time with the father and proposed that she have leave to amend her application upon the release of a family report or expert report. She proposed that on an interim basis the children spend supervised time with the father.
The mother has never filed an amended application and in her trial affidavit filed on 11 May 2021 she said that she did not objectively know what was in the best interests of the girls and did not know what orders to seek.
During final submissions the mother’s counsel urged the court not to change the children’s residence. He said that the mother had asked him to tell the court that she would use her best endeavours to comply with any orders the court thought best about the children spending time with the father and submitted that the court could rest assured that she would do so because she finally understood that if she did not there was a real risk that she would lose the care of the children.
Having heard the evidence I have absolutely no doubt that if the children continue to live with the mother there will continue to be problems with compliance with any orders the court makes for them to spend time with the father, and that they will be at risk not only of losing their relationship with him but perhaps of coming to have a distorted view of him.
I am also satisfied that the father is not hostile or antipathetic to the mother, and that if the children live with him he will not seek to undermine their relationship with her and is likely to facilitate them spending time with her time in excess of anything the court orders if he considers that the risk of her undermining their relationship with him has abated.
However the dilemma for me always in cases of this nature is that the children are in a no win situation.
If I make the orders the mother proposes they will continue to be exposed to conflict between their parents, will frequently not spend time with their father, may come to share the mother’s quiet hostility to him, and may perhaps eventually refuse to see him because it becomes easier to just fall in with the mother’s suggestion that they do not want to and will lose their relationship with him completely.
If I make the orders the father proposes they will have every opportunity to see both of their parents. However their parents separated when they were very young and their mother has always been their primary carer. A change of residence will require a significant adjustment for them, and while they may weather the change well experience suggests that not all children do so. An outcome which seems necessary from the perspective of an adult or from the perspective of a court endeavouring to comply with legislative requirements can seem wrong and unfair to a child, and in some cases may be unbearable for them.
There is also no guarantee that the matter will remain out of the court system if orders are made as proposed by the father and the Independent Children’s Lawyer. It might, but it could all too easily come back to court if the mother forms the view, correctly or not, that the children are not coping with the change and withholds them, or if the children, as young adolescents, vote with their feet.
I must grapple with the dilemma however. There are existing orders in place, and pursuant to the Rule in Rice & Asplund[2] I must be satisfied that there has been a sufficient change of circumstances to justify reconsidering the earlier orders, but that is not in doubt and no party argued that the court was constrained from making orders different to the 2018 orders.
[2] Rice & Asplund (1979) FLC 90-725
The evidence
In the father’s case evidence was given by the father, his friend Mr B and the paternal grandmother Ms C. Mrs C relied on a proof of evidence which was marked exhibit E, as well as on her affidavit.
The mother was the only witness in her case.
It was somewhat odd that the mother called no other witnesses. She alleged that the maternal grandmother had witnessed X’s problematic harmful sexualised behaviour. She said that the maternal grandmother was ill and that was why she had not asked her to give an affidavit but she also did not call her adult daughter Ms E. Ms E lives with the mother and the children and the mother told authorities who investigated allegations about X engaging in problematic harmful sexualised behaviour that Ms E had witnessed some of this behaviour. Ms E gave evidence on the mother’s behalf during the first trial and the mother offered no explanation for why she was not called this time.
A family report was prepared by Ms F, a Regulation 7 family consultant.
The father, paternal grandmother, the mother and the family consultant were cross-examined. Mr B was not required. His evidence was brief and it went to an incident on 26 September 2020 when the mother alleged the father became aggressive at a changeover. Mr B said that simply did not happen.
A tender bundle was prepared and the parties identified at the end of the trial the documents they wished the court to read.
I have considerable concerns about the reliability of the mother’s evidence. There was not a single mention in her affidavit about the children ever enjoying their time with the father. However during cross-examination she said as follows:
I think Mr Blass has something to offer the girls. They seem to enjoy spending time with him. He takes them to the dam.
She also referred to the fact that he played more “rough and tumble” games with them and when she was asked if he loved them she said yes, and said that she told the children that both of their parents loved them.
Another concern I have about the mother’s credit arose out of the evidence given by the paternal grandmother about something the mother said to her recently at a sports game. The mother denied saying it and one of them is not telling the truth. It is not a case which might come down to a difference of interpretation. Due to other issues in the case I prefer the evidence of the paternal grandmother about what happened on that occasion.
Another relevant credit issue is that the mother was asked whether her relationship with Ms G and Ms E’s father, with whom she is currently on friendly terms, involved domestic violence. She denied that was the case and when it was put to her that the family report writer who prepared a report in the first proceedings recorded that there had been domestic violence in that relationship she said it was not true and the father had given that information to the family report writer.
However notes from a counsellor, Ms H, were tendered. She saw the mother in 2016 and she recorded in some detail the things the mother told her about her first relationship and about how it involved family violence and about the necessity for her to obtain an ADVO against her former partner. Only the mother could have given that information.
I will need to assess carefully the evidence about any issues which are in dispute and I cannot prefer the father’s evidence or anybody else’s simply because of credit issues, but my findings about credit will be relevant to the decisions I make about issues in dispute.
Background
The mother and father were in a relationship from 2007 to June 2015. They have two children, X, or X, born in 2010 and Y, born in 2013.
The parties were 32 and 36 when they commenced cohabitation and the mother had two older children living with her, Ms G, was born in 1996, who was then about 11 and Ms E, who was born in 1997 and who was then about 9.
The father filed an application for parenting and property orders in late 2015, not that long after the parties separated, and ultimately both matters went to trial.
At the time of trial the children were seven and four. They were spending time with the father pursuant to interim orders but it was time during the day only.
The father proposed that the children spend time with him each alternate weekend during school terms from Friday to Monday, each Thursday from 4.00pm to 7.00pm and for half of the school holidays.
The mother proposed that the children spend time with the father each alternate weekend from noon on Saturday until noon on Sunday and each alternate Wednesday from the conclusion of school until 7.00 pm. She proposed that he spend three nights with the children in the term 1, 2, and 3 school holidays and seven nights in the Christmas school holidays each year.
The Independent Children’s Lawyer supported more time than the mother proposed but less than the father proposed.
The orders I made on 12 October 2018 were that the children spend time with the father each alternate weekend from Friday to Sunday and for block periods during the school holidays, beginning with four-night blocks and eventually becoming, by the Christmas school holidays 2020, a one-week block in the Term 1, 2, and 3 school holidays and two separate one-week blocks in the Christmas school holidays.
During the first proceedings the mother raised family violence as an issue. I accepted that it had occurred and said as follows in my judgment:
The wife loves the idea of being a mother. She was content to stay at home for a long period parenting Ms E and Ms G. After X and Y were born she was more than content and indeed considered it essential that she devote herself exclusively to her parenting role.
The husband had no experience as a parent prior to the birth of X and he did not cope well with parenting Ms G and Ms E. He also became increasingly resentful as time went on that he was the only income earner in the household and was paying all the expenses for the wife, his stepdaughters and when they were born X and Y.
The husband’s behaviour to the wife, to Ms E and to a lesser extent to Ms G became abusive and violent and there was an occasion when the husband kicked Ms G and the police were called.[3]
[3] Blass & Blass [2018] FCCA 2474 at [27] – [29]
The mother alleged that there had been some physical violence directed to her. I could not be satisfied of that but I made extensive findings about other forms of family violence perpetrated by the father. I said as follows:
I am satisfied that he minimised the extent of his abusive and violent behaviour. He does not see himself as a bad or abusive man, he sees himself as a man pushed to the limit by provocative behaviour by teenagers and his self-image may require that he makes few admissions about his behaviour. I am satisfied that he was harsh, abusive and violent to his stepdaughters and harsh, abusive, threatening and intimidating to his wife probably not throughout but certainly during the last three or four years of the relationship.
The husband showed no capacity to empathise with how the wife must feel about his actions. This issue between the parties is therefore never going to heal itself but the difficulty is how to factor the findings about what happened into the decision about time in light of the fact that the wife consented to an order for equal shared parental responsibility and proposed that the children spend regular time with the husband.
A major issue I need to consider is whether the husband’s behaviour to Ms E and Ms G means that X and Y are likely to be at risk of harm from him in the future. If there was a real risk of the husband acting out toward X and Y or of them not coping with orders for a particular length of time it would be preferable to make orders which were least likely to cause them not to cope which could result in a situation where the husband might be pushed beyond his limits and act out against the children because they irritated him.
I cannot find that there is an unacceptable risk of this at present because it does seem as if the husband’s behaviour arose out of the situation he found himself in. He does not have convictions for violence or a history of losing jobs because of his inability to keep his temper or a history of being violent or abusive in other domestic relationships.
To say this is not to excuse his violence. He is responsible for his behaviour; the wife and her daughters are not to blame and his minimisation of his behaviour is gravely concerning but I have to assess future risk to the children.
There is nothing to suggest that if the children spent alternate weekends from Friday to Monday with the husband as opposed to spending alternate weekends from noon on Saturday to noon on Sunday with him that he would be stretched beyond any capacity to cope with parenting his young daughters.
There is a question about how the husband may react if X and Y become challenging as teenagers but that is five years or more away and is not sufficient reason to restrict their time with their father now.
Another concern which arises from the husband’s behaviour is what sort of role model he is for his daughters given his failure to accept responsibility for his behaviour and the misogynist attitudes evident in his abusive comments to his wife and stepdaughters but it is a concern I may not be able to adequately factor in given that the wife proposed that the husband spend regular time with his daughters and did not propose that he be required to do any courses such as the ‘Facing Up’ or ‘Taking Responsibility’ course. Limiting the husband’s time with his daughters does not address this issue.[4]
[4] Blass & Blass (supra) paragraphs 95 to 102 inclusive
Taking into account the totality of the evidence, including X telling the family report writer that she “liked being at Daddy’s house because he plays with us” and the positive observations between the father and the children at the report interviews I made the orders outlined above.
The orders were not properly complied with from the very beginning. Time in accordance with the orders did not occur on the first designated weekend after they were made, although the mother agreed to the father spending time with the children during the day on the Saturday.
Some weekend time in accordance with the orders then happened, but no time took place during the end of the year school holidays and there were problems throughout 2019. No holiday time occurred and weekend time frequently did not occur because the mother picked the children up from school early on Friday or did not send them to school.
The father included in his affidavit a table of the occasions on which time had not occurred. The accuracy of that information was not substantially challenged and there are many references in the children’s counselling notes to the mother telling the counsellor that she had deliberately not facilitated time. On 28 June 2019 for example it was recorded that the mother had collected the children from school early last Friday to prevent contact occurring and that she did not plan to send them for the first week of the holidays. [5]
[5] Counselling notes 28 June 2019
The mother’s decision to make sure that the children did not go to the father by picking them up early from school caused some conflict between her and staff at the school who sometimes tried to stop her doing so, telling her that it was in breach of court orders.
On some occasions the mother simply did not take the children to school which meant that they missed out on activities that day.
In March 2019 the mother informed Ms J, a Brighter Futures case worker she was engaged with that X had begun displaying extreme aggression toward her and Y every time she returned from visiting the father and that the aggression she displayed toward Y was sexualised in nature and included taking her pants down and simulating sexual intercourse.
In June 2019, notwithstanding that there was an order for equal shared parental responsibility, the mother, without consultation with the father, organised for X to commence counselling to deal with her alleged problematic harmful sexualised behaviour. The mother told the counsellor that it was her belief that there was a link between X’s sexualised behaviour and having contact with her father. She said that she did not know what the children were exposed to in his care[6] and that he used to watch explicit and violent pornography.[7]
[6] Counselling notes 25 July 2019
[7] Counselling note 19 & 21 June 2019
The father was not informed about the counselling or about the allegations, either by the mother or the counselling service.
In September 2019 the father filed a contravention application.
The mother was eventually served with the application and on 13 January 2020 she filed an application seeking to discharge the 2018 orders.
In the affidavit she filed in support of her application she alleged that on multiple occasions the girls had either said they did not want to go or had engaged in concerning behaviour immediately after spending time with the father. She said that this had occurred between October 2017 and October 2018 as well as after the orders were made.
On 20 March 2020 the father filed a response in which he sought an order that the children live with him.
The mother’s counsel raised a technical issue with the wording of the 2018 orders which he submitted meant that the father could not succeed with his contravention application and on 6 April 2020 the father withdrew the application. The orders were varied to deal with the technical issue.
On 22 May 2020 the Court ordered the preparation of a family report.
On 3 July 2020 the father filed a second contravention application alleging four breaches of the orders between 11 April 2020 and 19 June 2020. I heard that contravention application on 19 August 2020. The mother claimed to have a reasonable excuse. In contravention proceedings the onus of proof lies on the party alleging reasonable excuse. I found that I could not be satisfied that the mother had discharged that onus, and I found that the mother had contravened the orders on all four occasions. She was placed on a bond for 12 months with a condition that she comply with the 2018 orders as varied on 6 April 2020.
X’s counsellor had made a notification to the Department of Communities & Justice about the behaviour X was allegedly displaying and shortly after the hearing of the contravention application the Joint Child Protection Response Team conducted an investigation. X had turned 10 in March 2020 and having reached the age of 10 she was held to be accountable for her behaviour and the investigation occurred.
Both girls were interviewed and they both denied that any behaviour as described by the mother had ever occurred. The JCPRT nevertheless substantiated the complaint based on the mother’s report, although they assigned no cause for the behaviour.
X continued counselling and counselling for Y also began.
The family report was released on 12 November 2020. The report writer made alternative recommendations depending on findings the Court might make about the allegations that X was engaging in PHSB.
The matter did not settle after the report was released and it was listed for trial in May 2021.
The mother entered into the bond as required but there were ongoing difficulties with compliance with the orders up to the date of the trial.
The father was due to have his holiday time with the children from 26 December 2020 to 2 January 2021 and that did occur. However he was also due to have a second seven days commencing on 12 January 2021 and that did not occur. The mother’s case at trial was that this was because the children said they did not want to go. She said as follows in her affidavit:
On 12 January 2021, the subject children and I arrived at McDonalds for changeover. At 9:30am Mr Blass said, “let’s go girls”. Y responded by saying “I’m not going Dad” and X said, “I’m not going either”. I encouraged the subject children to spend time with Mr Blass and said “you have to go to your Dad’s. You will have fun”. Mr Blass responded to these comments by saying words to the effect of “I don’t want to put any more pressure on you” and left. The subject children were visibly distressed from this interaction.[8]
[8] Mother’s affidavit paragraph 21(bb)
In her trial affidavit the mother alleged that prior to changeovers the children would often beg and plead for her not to take them either to school or to McDonald’s, the alternative changeover location. She said they would be visibly distressed and sobbing and say they felt sick. She said that she held concerns for the children’s physical, psychological and sexual safety and wellbeing in the father’s care due to the history of family violence and their abnormal behaviour upon return from spending time with him.
The allegations about the PHSB
The mother informed the Brighter Futures caseworker in March 2019 that X was engaging in this behaviour and that resulted in X being referred to counselling.
At the family report interviews the mother alleged that there was physical violence between the girls on their return from spending time with their father and harmful sexualised behaviour by X toward Y, and she also alleged that Y sometimes displayed problematic sexualised behaviour. She alleged that X was verbally and physically abusive to her and that the father sexually abused the girls.
The mother did not pursue at trial any suggestion that the father had sexually abused the girls and there is scant, if any, reference to that allegation in the copious counselling notes that were tendered to the Court. However the mother did raise the spectre both during the counselling sessions and in conversation with the family report writer that the children might have been exposed to pornography in the father’s care.
She was adamant during the counselling sessions, in conversation with the family report writer and in her trial affidavit that whatever was happening must be happening because of something that was occurring in the father’s home as that behaviour only occurred (save for one incident with a cousin of X’s) after they had spent time with him.
At trial the mother resiled from that allegation. She said that she had jumped to the conclusion that something harmful must be happening at the father’s house but she now believed she was mistaken. I need to consider however whether any problematic harmful sexual behaviour ever in fact occurred.
The mother alleged that the maternal grandmother and Ms E had witnessed some instances of it but they did not give evidence. Of the people who gave evidence at trial the mother was the only person who has ever seen it. The father has never seen it and nor has the paternal grandmother.
Both girls denied during the JCPRT investigation in September 2020 that behaviour of this sort had occurred and they have taken part in numerous counselling sessions and have made no disclosures about such behaviour having occurred and consideration of the counselling notes suggests that this has not been for want of extensive trying by the counsellors.
X agreed during the counselling sessions that she had acted out angrily in the mother’s home but she has never been anything to suggest that there was a sexual element to it or that it was associated with spending time with the father. The following appears in the counselling notes for example:
X again denied that her “angry volcano” explodes most often during the period after she returns from her dad’s home. She associated it with her sister Ms E teasing her or Y being “really, really” annoying. X did not state that she hits or punches when she explodes, despite me normalising this as a response other kids I work with might display. She instead said she yells, screams, sulks and slams doors. X was also able to talk about other situations that make her anger heat up, like friends at school having a secret from her and feeling that she isn’t listened to.[9]
[9] Counselling notes 8 April 2021
The mother’s counsel submitted that there was in fact one occasion during the counselling sessions where X made an admission about engaging in this behaviour[10], and it occurred at a session on 10 August 2020 about a month prior to the interviews with JCPR team. In that counselling record X appears to admit that she had touched Y, and there is a comment about her “feeling sick directly before the PHSB occurred.”
[10] Tender Bundle page 330
However this information is not convincing. The narrative is not in a “he said she said” form and it extremely unlikely that X used the acronym PHSB. It was said in a session where X was being pressed by the counsellor and her mother, who were both sitting with her, and who were clearly, from the content of the notes, trying hard to obtaining information in support of the claim that X had been engaging in problematic harmful sexualised behaviour. It is not beyond the bounds of possibility that X might have felt the need to confess to something and that the reference in the notes is only to benign behaviour.
X did not saying anything to suggest that any touching had taken place at the same time as physical aggression to Y, and she subsequently denied engaging in that sort of behaviour.
In the mother’s trial affidavit she said she believed the father was coaching the children and that this was why they were not disclosing anything.[11] There is not a shred of evidence to support this allegation.
[11] Mother’s trial affidavit paragraphs 25 and 26
Regrettably X’s counsellor, who later became Y’s counsellor as well, did not initiate any involvement by the father in the counselling.
In due course the father rang the counselling service and asked to be involved. During a subsequent session with Y the counsellor told Y, then 7, that she wanted to check with her before calling her father. Y is recorded as instantly saying that the counsellor could tell her father anything about the sessions and there was nothing she didn’t want the counsellor to tell him.[12]
[12] Counselling session 2 November 2020
The counsellor conferred with other people in her organisation and her notes record that she eventually made a decision not to meet the father in person. She did ring him, and he alleged the mother was fabricating the allegations. She did not suggest that he was aggressive or unpleasant.
The family consultant considered the allegations of PHSB at some length in her report. She is an accredited child sex-offender counsellor, a qualification she obtained in 2017, and her expertise to give evidence about this issue was not challenged at trial.
The family consultant said that the alleged problematic harmful sexual behaviour had some unusual features. One was that it routinely happened in the presence and sight of the mother, whereas children who engage in this behaviour are often secretive and furtive. She said that it was unusual for girls to engage in harmful sexual behaviour with aggression and threats to physically hurt the victim and that it more often occurred in the context of “care.” She also said that it seemed unusual that Y was not terrified of her sister if the assaults the mother described had occurred.
She also said that it was highly unusual for girls to continue to engage in harmful sexual behaviour once they had been sanctioned by an adult or authority figure.
She referred to the fact that the behaviour was static, in other words that the mother reported exactly the same behaviour every time. It was not the case where she reported something and then later on something of increased severity or of a different kind. The father did not deny that he sometimes viewed pornography but the family consultant said that in her opinion the fact that the behaviour was static meant that it was very unlikely that it was the result of being exposed to pornography.
The family consultant was also concerned that some of the mother’s behaviour was not consistent with her claims about what was happening for the children. At no time did she stop them sleeping together in the same room and playing together in a cubby and on one occasion she permitted them to bathe together, although she then complained about something X had done to Y while in the bath. This inconsistent behaviour was also referred to by the children’s counsellor.
The father’s counsel asked the court to find that the mother had fabricated the allegations. He submitted that she had a motivation to do so to justify not complying with the orders because it was very clear from other documents in the subpoena material that the mother had never been happy with the orders that were made in 2018. She had made enquiries about appealing them and she had indicated that she intended to complain about her solicitor to the Law Society. She told the Brighter Futures case worker who was working with her at the time that although she accepted the children continuing to spend time with the father, and although she would accept them spending time with him during the day, she was strongly opposed to them spending overnight time with him.
Counsel for the Independent Children's Lawyer went further and submitted that it was open to the court that the mother had maliciously invented the allegations.
I do not accept the mother’s evidence that the problematic harmful sexual behaviour has occurred. The witnesses who might have corroborated the mother’s version of events were not called and neither child has validated it, and the one alleged disclosure by X referred to by the mother’s counsel is not validation of the mother’s allegations.
The expert agreed that children who have engaged in this behaviour might not be willing to admit it, but there was also a complete denial by Y, the victim.
I cannot be satisfied on the balance of probabilities that X has engaged in the behaviour described by the mother and I cannot shy away from where that leads, namely, that the mother’s evidence about what she observed is untruthful.
It does not necessarily follow that I can be satisfied that she maliciously made up the allegations. That would require me to be satisfied to a very high standard, and there are other possibilities. One is that in order to justify her actions in not complying with the orders she overstated, embellished and exaggerated some of X’s behaviour, took advantage of the willingness of others to fall in with the story she was telling and then found that the whole situation had got out of control.
However regardless of whether the mother has been malicious or not, her actions have resulted in X being branded a perpetrator of PHSB when she is not and that has the potential to cause real harm for both girls. The family consultant said as follows:
It should be understood that the outcome of successful counselling is the sibling, (Y) receiving an account and apology from X about the physical and sexual harm she engaged in toward her sister. If the events are fictitious, the girls are being engaged in sexual assault counselling to achieve an outcome for the mother, at the expense of their own relationship and perception of reality. This scenario is likely to create immense psychological harm to both girls and fracture their sibling relationship.[13]
[13] Family Report paragraph 132
The behaviour of the counsellors the mother took X and Y to see has also caused real harm. They accepted the mother’s version of events unreservedly, and I stress that they accepted the mother’s version of events, not the children’s. They went to considerable lengths to dig and probe and try to elicit admissions from the children which aligned with what the mother had told them but they were unsuccessful in doing so.
The second counsellor lost all objectivity, never pausing to consider as any experienced professional must that there might be another side to the story and emotionally engaging with the mother’s version of events to the point of expressing sympathy to Y about the fact that she had to comply with the court orders and telling X that she had worried all weekend about the thought of her spending time with her father.
When the father finally contacted the second counsellor she agonised over whether to speak to him and would then only speak to him on the telephone. The mother was permitted to sit with X and Y throughout many of their counselling sessions.
Not only did the counsellors go to considerable lengths to try and get disclosures from the children which never came, they ignored all indications that the children were not in fact at any risk of harm from spending time with the father. One passage in the notes is as follows:
We spoke about her observations of other people’s angry volcanoes, classmates at school and her family. X spoke about her mother “not really having a volcano”. X felt Ms Blass doesn’t get really angry very often she might yell sometimes if the girls don’t listen or tidy up but this is rare. X spoke about dad’s angry volcano being different now to when he lived with them. X said dad’s volcano would explode more often when they all lived together, she associated this with Ms E “pushing his buttons”. X spoke about remembering dad living with them as she was 4 when he left. She said that dad’s angry volcano could be “scary” during those times. X didn’t elaborate on what happens now when dad gets angry and X and Y are staying with him. She said she isn’t there very often so “can’t really remember”.[14]
X repeated a number of times that she didn’t want to go to her dad’s that afternoon. At times she appeared teary and accepted a hug from her mum, when I suggested it. X struggled to elaborate on why didn’t want to go. She said she “didn’t feel like it today”. In trying to explore why it might be easier to go at other times, X could identify that if she knew what they were doing for the weekend, or if her MGM was present she felt more likely to want to go. X, Ms Blass and I discussed an idea X had had about me speaking to her father about her not wanting to go to his home for the weekend. I wondered with her how he might feel hearing this information and what he may do. X said she thought he would be hurt and that he may need some time to manage these big feelings before seeing X and Y again.[15]
[14] Tender Bundle Part 1, page 549
[15] Tender Bundle Part 1, page 542
The second counsellor allowed herself to be used by the mother in the dispute between the parents. When the mother was having difficulty collecting the children from school early because the school felt that they should not permit it to happen, she asked the second counsellor to ring the school and talk to them on her behalf.
The counsellor did so, and notwithstanding hearing from the teacher that staff had carefully considered the mother’s allegations about the children not wanting to spend time with the father and had reasons as a result of her own observations of the children with the father to distrust it, the counsellor did not question her own beliefs about the situation.
The mother continued to take the children to counselling up to the date of the trial. However due to the content of the counselling notes, at the end of the trial in May 2021 an order was made that she cease doing so pending the decision being handed down.
The mother has done considerable harm to the children. X has been branded a perpetrator of behaviour she has not engaged in and the children have been subjected to extensive counselling when they did not need it; and to a second round of court proceedings when compliance with the very modest orders was so easy.
The applicable law
The children’s best interests
Any order I make about the children must be determined by treating their best interests as the paramount consideration and to determine their best interests I must have regard to the matters in section 60CC (2) and (3) of the Family Law Act.
There are primary considerations in section 60CC(2) and additional considerations in section 60CC(3). I am going to start with the additional considerations and some of them are not relevant.
The ones that are not relevant are: the extent to which each parent has taken or failed to take the opportunity to spend time with the children, communicate with them or make decisions about them; the children’s maturity, sex, and background; and the practical difficulty and expense of the children spending time with a parent and whether that difficulty or expense might result in the children not spending regular time with one of their parents.
The first consideration that is relevant is the views of the children and the weight to be given to their views.
In the mother’s trial affidavit she maintained that the children did not want to spend time with the father. She said as follows:
I contravened the Orders because the subject children would plead with me not to take them to school or to McDonalds if Mr Blass was going to pick them up. Prior to almost every changeover, the subject children would become visibly distressed and begin sobbing. The subject children would tell me they felt sick or that they did not wish to go to Mr Blass’s. I believed my children when they voiced their feelings or concerns and acted in a manner that I felt was in line with their best interests at the time.[16]
[16] Paragraph 17 of the mother’s affidavit.
She maintained that this continued to be the case, saying as follows:
I have found the subject children are becoming more vocal about their desires not to spend time with Mr Blass. This has been apparent in the above statements to their schoolteachers, their psychologist, with me and more recently, directly with Mr Blass.[17]
[17] Paragraph 29 of the mother’s affidavit.
Her answers in cross-examination were quite different. There was this exchange:
Is it your evidence that the children don’t want to spend time with the father?
No.
Don’t want to spend overnight time with him?
No.
Is it your view that the children should only spend time with the father if they want to?
No, I’m not saying that. I feel I have lost all objectivity; I can’t get over the family violence. It is very hard to for me to know what is in the girl’s best interests. It is difficult to cope, and I feel a bit overwhelmed.
There are references in the counselling notes to the children saying that they do not want to spend time with their father but I am satisfied that they were under great pressure during the counselling sessions and I cannot place any weight on that.
When the children’s second counsellor rang the children’s school at the mother’s behest and spoke to a teacher at the school the teacher told her about an occasion when Y had said that she didn’t want to go to Dad’s house today but had not seemed distressed. The teacher said that she watched closely when the father picked the children up and saw Y run and jump into his arms. She said that she had observed Y down the street with the father that weekend and Y was skipping along holding her father’s hand and appeared happy. [18]
[18] Counselling notes 19 March 2021
There is also reference to X’s teacher saying that there was nothing about X’s presentation which indicated distress about her father collecting her each fortnight and that it was her view that family conflict and negative perceptions of the other parent on both sides was causing the problem. [19]
[19] Counselling notes 19 March 2021
The family consultant asked X in October 2020 if the time she was spending with her father, that is, the alternate weekends and the holiday time when it occurred, was enough, too much, or too little, and X said that it was enough.
Y also said that the amount of time she spent with the father was enough.
I must consider the nature of the relationship between the children and each of their parents and any other relevant person.
The mother has always been the children’s primary carer. They are content in her care and have a good relationship with her.
The children also have a maternal extended family, including their older sisters, Ms E and Ms G. Ms G is currently living in City K, where she is doing some study, but Ms E is still in City D. They also have a valuable relationship with their maternal grandmother.
The children also have a good relationship with the father.
In my 2018 judgment I said as follows:
The children were seen by the family report writer on 16 March 2017 when X was 6 and Y 4. Y was too young to be interviewed. X did not have any precise views about parenting arrangements but the family consultant did report as follows:
X said she liked ‘being at Daddy’s house because he plays with us’ and she likes to go there. She likes living with Mummy because ‘Mummy looks after me.’ She would like ‘Mummy and Daddy to live together’ so she would have a Mummy and Daddy together but somewhat reluctantly said they did not like each other.[20]
[20] Blass & Blass (2018) (Supra) paragraph 37
I also said as follows:
The children also have a good relationship with their father. I have referred to X’s views and the family consultant also said as follows:
When observed with their father X was clearly pleased to see her father and interacted well with him. Y was reticent at first but settled happily once she felt safe. Mr Blass had brought fruit for the girls and they were happy to eat it. He discussed school based activities with X and three year old related activities with Y in an appropriate age related way. He discussed their cousins in Town L with them.
X was somewhat distressed when leaving Mr Blass whereas Y did not demonstrate any distress. They interacted well with their mother and spent the observational assessment completing puzzles. There was limited verbal communication because of this.[21]
[21] Blass & Blass (2018) supra paragraph 41
The family consultant who prepared the second family report said as follows:
The father greeted the girls warmly and offered them snacks that he had brought with him. Y was highly animated in the presence of her father and hit him, rather firmly at least three times during the observation in a playful manner. The father did not respond. He later told the Family Consultant that he was unaware that she had hit him. Y giggled and spoke in baby talk on and off to her father.
X who was much quieter, waited for a lull in the conversation and softly told her father that she is being bullied at school. The father appeared concerned and asked her if she needed help to which X replied she did not know.
Y at this stage was sitting at her father's feet looking up adoringly at him. She appeared to enjoy her father's attention, but the father remained concerned about X’s comment and asked her more questions about the bullying. Y was frequently seen to interrupt the conversation between X and her father to get attention for herself. She spoke in a loud voice and wrote a note to her father saying, “I love you very much,” to which he responded he does too.
X offered little more conversation than her report of the bullying with her father. At the end of the observation both girls hugged their father tightly and said they looked forward to seeing him again.[22]
[22] Family Report paragraphs 113 - 116
These paragraphs contain wholly positive observations of the children’s interaction with the father, in fact loving observations, and include X consulting him about a problem she was having at school with bullying.
The children also have a relationship with the father’s extended family. The paternal grandmother lives in Town L, about two and a half hours from City D as do the father’s sister and her partner and their children. The father frequently visits his family in Town L on the weekends when the children are with him and over the course of their lives the children have spent quite a bit of time with these people, and they have a good relationship with them, and with the paternal grandmother in particular.
The paternal grandmother said that since 2016 the paternal grandparents had always driven to City D to attend Grandparents Day at the children’s school. The paternal grandfather, sadly, died in January 2021.
I must consider the financial support of the children.
The father pays child support at either $848.00 per month according to the mother or $948.00 per month according to the father. There was no suggestion by anyone that this case had anything to do with child support issues.
I must consider the likely effect of any change in the children’s circumstances including the likely effect of their separation from either of their parents or any other child or person including any grandparent or other relative of the children with whom they have been living.
The father proposes a very significant change but I cannot make findings about that until I complete all my other findings about the section 60CC (2) and (3) matters, and that is something that I will consider in the conclusion to the judgment.
I must consider the capacity of each parent to provide for the needs of the children, including their intellectual and emotional needs.
The father is well able to care for the children on a practical level. He has not re-partnered since his relationship with the mother ended. He lives in a three-bedroom rented home in City D and he has a bedroom set up for the girls.
If the children commenced living with him they will be able to continue to attend the same school, M School.
The father is a retail worker. He has been in that job for over 11 years, and he is required to travel and to spend some time away from City D each month. However he said that if the girls came into his full-time care he could make arrangements with his employer to change that, and he also said that he had some long-service leave and if the children were placed in his care he intended to take a period of extended leave so that he could help them settle into the change. I accept the father’s evidence about his intentions.
The father also said the paternal grandmother was prepared to come to City D and live with him for a while if a change of residence happened. The paternal grandmother confirmed this and I accept that evidence.
The father impressed as a pleasant and responsive witness, and the external evidence suggested that he was a pleasant person in his interaction with others. A few pages of the communication book which date back to 2019, which were all the father had, were tendered. The comments the father made in them were all pleasant and polite. Two of the pages pre-dated the recommencement of the litigation, so it was not a case of the father necessarily being engaged in image management, and he was polite notwithstanding the fact that prior to those dates there had been noncompliance with the orders.
The possibility exists, of course, of somebody other than the mother stepping in and doing the changeovers. The mother said that during the 2020 September school holidays she asked the maternal grandmother and her partner to take the children to the changeover. She said she thought it might be easier if she took herself out of the picture so the children did not pick up on her anxieties. However although the maternal grandmother and her partner took the children to the changeover, when they got there Y said she did not want to go and X shrugged, and according to the father, whose evidence I accept, the maternal grandmother said:
I am not sending the children with you in that state and turned around, and put them in the car and drove off.
The father also referred to an occasion in January 2021 when the mother and the maternal grandmother both attended at changeover and that one stood in front of and one behind the girl, and on that occasion also the children said did not want to go.
The Independent Children’s Lawyer proposed that the mother be ordered to attend counselling which focussed on the benefit of the children spending time with both of their parents. The family consultant did recommend that but it strikes me as being a little bit like sending someone to a re-education camp. I would not be prepared to make an order in those terms, but it would be beneficial for the mother to engage in counselling to assist her to deal with her anxieties about complying with any orders I make.
However she has not voluntarily done that to date and I can have no confidence that even if I made an order for her to do so it would work a miracle and result in an immediate change to her resistance to comply with orders about the children spending time with the father.
I am satisfied that the father has a very good attitude to the mother and to the idea of the girls spending time with her, and that if they live with him they will not be at risk of losing a relationship with one of their parents. There is no sign of the father being intent on cutting her out of the children’s lives. When he was asked by the mother’s counsel in cross-examination about what he would do if the children lived with him in terms of the children spending more time with the mother he said:
I will endeavour to speak to her and communicate with her and see if her attitude has changed.
He also said:
As the mother changes her views, there’s nothing to say the girls can’t spend any time with her. Time will determine that.
The second primary consideration is 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 the children are at risk of harsh treatment or abuse from the father. At trial the mother withdrew any allegation that he had sexually abused the children or that anything damaging was happening to them in his home. She said she believed she was mistaken about that.
I also cannot be satisfied that they are at risk of being exposed to or subjected to family violence in his care. I made findings in the first judgment that he had been violent to the mother, but there were no allegations that he had been violent to a subsequent domestic partner or even that he had had one and I do not accept that he has been violent to the mother in any form since the parties separated.
I cannot be satisfied that the father poses any risk of harm to the children and the mother did not run that case at trial.
The mother’s actions in engaging the children in counselling for behaviour which I cannot be satisfied occurred has been abusive of the children. I can prevent her by court order from taking them to further counselling, but if she has not had a true change of heart about the value of the children having a relationship with the father there is a risk that she could continue to perpetrate abuse by labelling X a perpetrator of problematic harmful sexual behaviour. She was still placing that label on her only two weeks before the trial commenced.
Parental Responsibility
Both parties sought an order for sole parental responsibility, and the mother’s counsel submitted that the primary resident parent should have sole parental responsibility.
That was also the view of the family report writer, and the Independent Children’s Lawyer proposed that the father, who she submitted should be the primary resident parent, should have sole parental responsibility, and I agree that should occur if the outcome is that the children live with the father.
If an order is made for the children to remain living with the mother that would be a dangerous outcome. In that event the parties should at the very least continue to share parental responsibility and consideration would need to be given to whether, notwithstanding that the children were living with the mother, the father should have sole parental responsibility for them.
I will return to that after I make a finding about the children’s living arrangements.
Conclusion
Absent any other issues the optimal outcome for the children would be for them to live with their mother and spend time with their father pretty much as the current orders provide.
The children are content with that arrangement. They have fun with their father and from the exchanges at the family report interviews have trust in him to look after them and give them advice, but their mother has always been their primary carer. She has done a good job looking after them in many respects. The father might be content with this outcome as well provided that there was no impediment to him spending time with the children. He could continue to do the work he is doing and he could spend regular enjoyable time with the children.
The mother’s counsel urged me to do something like that. He submitted that the mother had instructed him to propose that the children remain living with her and that the Court to accept her assurance that she would use her best endeavours to comply with whatever orders the court considered best about them spending time with their father in the future.
He submitted that a solution to the changeover problem would be to extend the father’s weekend time to Monday morning before school and order that the children spend the first half of every school holiday with the father. The mother’s only job in those circumstances, he said, would be to get the children to school, and she had recently shown that she could do that. On most occasions this year the children had attended school on the Friday and the father had been able to pick them up.
He submitted that the mother had been the children’s primary carer all their lives and their preference was to live with her and spend the alternate weekends with the father and the court should give that a chance to work.
The mother’s counsel said that the mother had heard the evidence at trial about the children enjoying time with their father, such as the independent evidence from the teacher. He said that it had also been brought home to her that if the orders were not complied with in the future a change of residence was possible. He said that it was only at the trial that it had finally dawned on her that this could happen and he urged me to give her another chance.
I observed after hearing his submissions that the mother could not have asked for more eloquent submissions to be made on her behalf, and I have carefully reflected on the possibility of doing that. Different judges approach their task differently but I always make orders for a change of residence in situations like this with a very heavy heart because they do result in loss as well as gain for the children.
However I cannot do what the mother’s counsel asked me to do.
The mother made concessions at trial that the children enjoyed their time with their father and that it was beneficial for them to spend time with him, but her affidavit, which was filed only a couple of weeks earlier, she continued to maintain that X was engaging in problematic harmful sexual behaviour although she said that her attempts had shifted to a more calculated/private setting and that she was managing to keep Y safe.[30] Her affidavit also contained extremely strong statements about the children not wanting to go with the father. She said as follows:
[30] Mother’s affidavit paragraph 23
I was optimistic that psychological intervention would assist the subject children more than it has. Whilst it has proved beneficial, X continues to engage in problematic sexualized behaviours, the ‘meltdowns’ (which include the subject children hitting, kicking, verbally abusing, throwing objects, pushing, and shoving me and one another) are ongoing, and X has also developed a tendency to seek solitude for some time, on returning from Mr Blass’s care.
……………………
All I can submit to this honourable Court is that the above submissions are what I have observed the subject children to say or do for several years without improvement despite psychological interventions. I fear the subject children will only take more extreme measures than they already have, to avoid spending time with Mr Blass in future. I understand the importance of the subject children having a meaningful relationship with Mr Blass. However, I do not wish to hear or see them suffer because they are being forced to do something they do not wish to do. I feel the subject children are old enough to have their feelings and concerns heard and acted upon accordingly. Or at least considered with some weight.[31]
[31] Mother’s affidavit paragraphs 22 & 31
The proposal by the mother’s counsel that the children’s time with the father be extended to Monday so that all the mother had to do was get the children to school, which her counsel submitted she had shown she could do, came from her counsel’s mouth in submissions. Nothing the mother said either in her affidavit or during cross-examination inspired confidence that it was a solution she embraced, or that if those orders were made she would be able to deal appropriately with a situation where the children said that they did not want to go to school. The children have been subjected to so much confusing information and must so strongly intuit that the mother does not support them spending time with their father that it might simply mean that the mother was faced a situation where they expressed a wish not to go to school and she could not bring herself to take them to school.
There have been constant problems with compliance with the orders since they were made in 2018. Often time has only occurred because the school has stepped in or because as happened on the weekend of in September 2019 the mother felt too depressed to “manage the situation.”[32]
[32] Counselling notes 3 September 2019
The mother has extensively engaged the children in counselling without the father’s knowledge, notwithstanding the order for equal shared parental responsibility. During that counselling, the children were relentlessly questioned about their wishes and their feelings and they have heard a counsellor, who has never reflected on whether there might be another side to the story, criticising the orders and sympathising with them about having to spend time with their father.
At trial the mother resiled from the allegations about the father sexually abusing the children or doing something which was causing the problematic harmful sexual behaviour she alleged X was engaging in but she was still asserting that she could not make the girls do what they did not want to do and that she did not know what to do to solve the problem.
If I leave the current situation in place further disruptions, court proceedings and possible loss of their relationship with their father are inevitable for the children and accompanying that will be the ongoing stress of having to deal with the mother’s anxiety every fortnight and at the beginning of every school holidays.
The proposal put during final submissions might simply shift the problem to one of school refusal, and the last thing these children need is to have their education disrupted. Without evidence that the mother has had a genuine change of heart her proposal is not an option and I cannot find she has had a genuine change of heart as a result of something her counsel said during submissions.
Added to that I would be leaving X with a parent who continues to maintain that she is engaging in problematic harmful sexualised behaviours.
The father’s proposal that the children live with him involves a huge change for them. It is not their wish and they may not be expecting it, but they have a good relationship with the father and the paternal grandmother.
They may have some adjustment issues. I cannot be absolutely sure about what will happen however. The children may feel some relief if they are not obliged to confront this conflict about whether they should go with the father every fortnight. They may settle well enough into his care. They will not need to change school. They already have a bedroom at his home. They have a good relationship with him and I accept that the paternal grandmother, with whom they also have a good relationship, will move in with him to assist the transition.
They are likely to miss their mother and they will require time to adjust to the change but I am satisfied that the father is capable and empathic. This is not a case where he has rushed into seeking a change of residence. His action in late 2019 in the face of the mother’s behaviour was to bring a contravention application, not an application to change residence. He has the capacity to assist the children to adjust to the change, and he has thought about the fact that they may need counselling and has made some inquiries about it.
It follows that it is appropriate to make an order that the children live with the father and that he has sole parental responsibility for them.
I then need to consider the orders which should be made about the children spending time with the mother.
The Independent Children’s Lawyer proposed that the mother be required to engage in a course of counselling and have counselling for two months before she commenced spending any time with the children. I can understand why that order was proposed but I am not going to make those exact orders.
I can see no utility in forcing the mother to have counselling to convince her of the benefit of the children spending time with the father. During cross-examination she agreed that there was a benefit in it but if that is not her true belief no amount of counselling is likely to change her mind.
I also cannot be sure when the mother would commence such counselling and it would not be in the children’s best interests if there was a lengthy delay between when they commenced living with the father and when they saw the mother again. If their time with her is professionally supervised she will be redirected if she says anything emotionally burdensome to them and it is likely to be comforting to the children if they are able to see the mother fairly promptly.
To the best of my knowledge City D Children’s Contact Centre will accommodate supervised time fairly promptly after orders are made if parties are able to pay for it and I intend to order that the parties engage with the Contact Centre on that basis. The father is in a stronger financial position than the mother and I intend to order that the mother pay $50.00 toward the supervision and the father pay the balance. The father may not welcome that but it will only be for three months at the most and if the children are to settle with him it is important that they are able to see their mother as soon as possible. I intend to order that the time occur once a fortnight rather than once a week to take account of the financial burden of organising it.
If for any reason City D Children’s Contact Centre cannot provide supervised time fairly soon I would strongly urge the parties to look for another paid supervisor who can bridge the gap until the children have settled into living with the father and unsupervised time can commence, even if they need to go to another town to find one.
The balance of the orders the Independent Children’s Lawyer proposed are sensible and I will add a few additional orders from the 2018 orders to ensure that both Mother’s and Father’s Day are covered and in due course Christmas Day.
The Independent Children’s Lawyer proposed that an order be made permitting the father to obtain passports for the children without the mother’s consent. I often like to make orders about passports and international travel when I make final parenting orders. It means that people do not have to come back to court later to obtain such orders, which is good for both the court and for parents. However the father did not seek such orders in his response and the issue was not referred to during the trial and I am therefore not going to make those orders in this case.
I certify that the preceding two hundred and twenty nine (229) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Terry. Associate:
Dated: 16 July 2021
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