Bonamici & Bonamici
[2021] FedCFamC1F 58
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bonamici & Bonamici [2021] FedCFamC1F 58
File number(s): MLC 2542 of 2018 Judgment of: McGUIRE J Date of judgment: 4 October 2021 Catchwords: FAMILY LAW – CHILDREN – Parenting – highly autistic 12 year old twin boys – have been living primarily with the mother since separation in 2017 – mother unable or unwilling to effect changeover for children to spend time with the father – evidence of violent refusals of children to transit to the father contrary to independent evidence of a close and loving relationship between the children and the father absent the mother – mother aligning vulnerable children with her own views – evidence of skilful and insightful father – problems and impact of change of residence for children aligned with and dependent on their mother – outweighed by emotional benefit of father being the only parent able to offer the children a relationship with both parents Legislation: Family Law Act 1975 (Cth) ss 60BB(1) and (2), 60CC(1) and (2), 65DAA(1),(2) and (3) Cases cited: Champness v Hanson [2009] FamCAFC 96
Re: David [1997] FLC 92-776
Sampson & Sampson (1977) 90-253
Briginshaw v Briginshaw [1938] HCA 34
Fitzwater & Fitzwater [2019] FamCAFC 251
M v M (1988) CLR 69
Division: Division 1 First Instance Number of paragraphs: 260 Date of hearing: 4, 5, 6 May 2020; 20, 21, 22, 23 July 2020; 17, 18, 19 August 2020; 29, 30, 31 March 2021; 6, 7, 8, 9, 23, 27, 28, 29 April 2021; 14 May 2021; 12 and 13 July 2021 ORDERS
MLC 2542 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BONAMICI
Applicant
AND:
MS BONAMICI
Respondent
: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
4 OCTOBER 2021
THE COURT ORDERS THAT:
That all previous orders in respect of the children X and Y both born in 2008 ('the children') be discharged.
That the father have sole parental responsibility for the children provided that he engage and consult with the mother in respect of any issues of parental responsibility prior to confirming any decisions.
That the children live with the father.
That the father be entitled to enrol the children in any primary and secondary schools of his choice but that from the commencement of the 2022 school year the mother be able to participate in any and all activities and roles normally accorded parents by schools but ultimately at the discretion of the relevant school Principal but where the father has leave to provide a copy of these orders and reasons to the Principal of any school at which Y and X or either of them may be enrolled from time to time but where such Reasons or the contents therein not be further disseminated by the Principal within or outside of the school.
That the children spend no time with the mother for a period of four (4) weeks from the date of these orders but be able to communicate with the mother by telephone during this period each Monday and Thursday at 6.00PM by the mother initiating such calls to the father's designated number and the father ensuring and assisting that the children accept such calls provided that each such communication not occupy longer than twenty (20) minutes total duration.
Thereafter and until the end of December 2021, the children spend time with the mother on one day each weekend nominated by the father such time to be supervised by a Contact Centre or professional supervisor nominated by the father and for up to three (3) hours on each occasion and with the parents to equally share the costs, if any, of the supervision and for these purposes the parents prudently sign any documents and/or complete any preliminary interviews necessary for such supervised time and to take place at a Contact Centre.
Thereafter, and until the commencement of the second school term of 2022, the children spend time with the mother on each weekend on either the Saturday or the Sunday as nominated by the father between 10.00AM and 4.00PM such time to be unsupervised and with the mother to collect the children from and return the children to the father's residence at the designated times.
Thereafter the children spend time with the mother as follows:
(a)each alternate weekend during school terms from the conclusion of school or 3:30PM on Friday to 5.00PM on Sundays and with the mother to collect the children from school at the commencement of such time on the Friday and return the children to the father's residence at the designated time on the Sunday;
(b)for one half of all term school holidays as agreed between the parties and failing agreement then for the first half of such holidays with the father and the second half of such holidays with the mother and with changeovers to occur at 12.00 noon on the second Saturday of the holidays and where changeovers do not occur at school then the mother to collect the children from and/or return the children to the father's residence at the appointed times;
(c)
for one half of the summer school holidays commencing 2022/2023 on a
week–about basis with the changeovers to occur on Fridays at 5.00PM and with the children spending the first week of such holidays with the father in 2022/2023 and in each alternate year thereafter and the first week with the mother in 2023/2024 and in each alternate year thereafter with the father to deliver the children to the mother's residence at the designated commencement times and the mother to return the children to the father's residence at the conclusion of each such time.
(d)that weekend time for the children with the mother be suspended during all school holidays;
(e)such variations of the above and other times as agreed between the parents from time to time in writing including on special days.
That the father be able to collect the children from their school this day and for this purpose:-
(i)the Independent Children’s Lawyer immediately provide a copy of these orders to the Principal of the children’s school;
(ii)the mother by herself, her servants or agents be and is hereby restrained by removing the children or either of them from their school or from the father’s care except for the specific operation of these orders; and
(iii)the mother be and is hereby restrained from entering onto the premises or property of any school attended by the children or either of them except as specifically provided by these orders.
That the children have telephone communication with the parent they are not otherwise with on each Monday and Thursday at 6.00PM with the parent not having care of the children on that particular day to initiate the call to the other parent and the other parent to assist and ensure that the children accept such calls and for such calls not to exceed the twenty (20) minutes total duration on each occasion such communication alternatively to take place by FaceTime or similar medium if appropriate and available.
That each of the parents be and are hereby restrained from recording any telephone calls, FaceTime calls or communications by other medium between the children and the other parent.
That the father forthwith attend upon a General Practitioner with the children for the purposes of obtaining a mental health plan to enable the children to attend upon a Child and Family Psychologist with appropriate autism expertise as recommended by the General Practitioner or nominated by the Independent Children's Lawyer and that the father facilitate the children attending such Psychologist until such time as the psychologist directs otherwise and for these purposes the father have leave to provide a copy of these Reasons and Orders together with the reports of Mr C dated 3 December 2019 and 4 May 2020 and the family reports of Ms D dated 2 July 2018 and 25 June 2019 to the relevant Psychologist.
That the father prudently advise the mother, and keep the mother advised, of the relevant Psychologist’s address and telephone number and if necessary provide authority for the Psychologist and the mother to communicate in respect of the children's therapy but all such communications ultimately be at the discretion of the psychologist.
That each of the parents by themselves, their servants or agents be and are hereby restrained from:
(i)denigrating the other parent or extended family in the presence of or within the hearing of the children or either of them;
(ii)recording any changeover or supervised time between the children and either of the parents
That the mother be and is hereby restrained from taking the children or either of them to any Psychologist or other behavioural scientist or from permitting any other person to do so on her behalf.
The parties each keep the other informed of their residential address, mobile telephone numbers, and email address.
That the appointment of the Independent Children's Lawyer be extended for a period of twelve (12) calendar months from the date of these orders.
That pursuant to s 62B of the Family Law Act 1975 (Cth) information about counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
That pursuant to section 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Pursuant to rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
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 a pseudonym Bonamici & Bonamici has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGUIRE J
Applications
These are parenting proceedings in respect of twin boys, X and Y both born in 2008 (aged 12 years). X and Y both suffer diagnoses of high-level autism, Y more so than X.
The father is the applicant and commenced these proceedings by an application filed in the Federal Circuit Court on 8 March 2018 seeking inter-alia interim and final orders for the children to spend time with him, but then delegating primary care to the mother.
He then asked for an order for ‘joint (sic) parental responsibility' in respect of the X and Y.
By the time of the commencement of the trial on 4 May 2020 the father's position had changed significantly. He then sought the following orders:
(1)That the parties have joint (sic) parental responsibility for X and Y;
(2)That the children live with the father;
(3)That the children spend no time with the mother for a period of six weeks, but thereafter on a graduated time regime each second weekend between Friday and Sunday, and half of school holidays together with specific issues orders including ‘that the mother engage with a clinical psychologist for cognitive behavioural therapy sessions for a minimum of 12 months’ and ‘that each parent continue to facilitate the children attending upon Psychologist Ms E and Paediatrician Ms F …’.
By the conclusion of the trial in July 2021 the father was seeking an order for sole parental responsibility vesting in him for X and Y. He joined the Independent Children's Lawyer (‘ICL’) in urging for a moratorium of three months for face-to-face time for the children with the mother followed by a period of supervised time before progressing to more traditional weekend and school holiday time.
The mother’s position also changed during the course of the proceedings and somewhat dramatically by the time of her counsel’s final submissions. In her response filed 9 April 2018 the mother sought the following:
(1)That the parties have equal shared parental responsibility for Y and X.
(2)The father continue to attend upon Ms G of B Therapy located at H Street, Suburb J, Victoria on a monthly basis with the children.
(3)That the mother be relieved from any obligation to further particularise the Final Parenting Orders sought by her pending the release of a Family Report and such further or other reports.
(4)That (sic) such further or other Final Parenting Orders as the Court deems appropriate.
The mother filed a case summary on 27 April 2020 in anticipation of the trial commencing 4 May 2020. She sought the following orders:-
(1)That the parties have equal shared parental responsibility for Y and X;
(2)The children live with the mother;
(3)The children spend time and communicate with the father as follows:
(a)Each Sunday from 10.00am (or the conclusion of football or soccer) until 5.00pm, such time to continue during all school holiday periods;
(b)On the children’s birthday from 12.00pm until 5.00pm;
(c)On Christmas Day each year from 12.00pm until 5.00pm;
(d)By telephone or FaceTime each Wednesday from 6.00pm until 6.30pm with the father to make the call and the mother to facilitate such call; and
(e)Such further time as may be agreed in writing between the parties (including via text message).
At times during the trial and in particular, during her evidence, the indication from the mother was that she would only agree to supervised time for the children with the father. Nevertheless, throughout her evidence I gleamed the mother’s position to be that she did not expect or contemplate any continuing time-with relationship for Y and X with their father because of their severe opposition and behaviour and refusal to changeover to the father all of which was without contribution by her but with the implication that she believed time-with would not happen. However, by the time of final submissions, the mother's position had softened considerably. She now asks for the following orders inter-alia:
(1)That the parents have equal shared parental responsibility for Y and X;
(2)The children live with the mother; and
(3)The children spend time with the father each second weekend from Friday until Sunday together with time on special days and for half of school holidays.
The ICL continues to support X and Y living with the father, as she did at the commencement of the trial. She proposes a moratorium on direct time for the boys with the mother, followed by a further period of supervised time leading to the a traditional regime of time for the boys with the mother each second weekend and half of school holidays conditional upon various specific issues orders, including the mother obtaining psychiatric or psychological assistance.
THE ISSUES
There is a primary issue as to with whom X and Y live.
The father broadly argues that the mother has alienated the boys from him; enmeshed them in her own negative, critical, and angry views of the father following his decision to separate from her; or encourages the boys’ alignment with her and hence actively discourages their relationship with him.
The mother says that she has been the primary carer for the children since their births and importantly, since the parties’ separation including attending to their complex needs associated with their diagnoses of autism with the implication being that the father may not have the capacity or skills to attend to the children's specific and general needs.
The mother argues that she has acted on the advice of her medical practitioners and behavioural scientists in dealing with the children’s high-level autism including her responses of ‘validation', ‘mirroring’, and calming of the children when they have been resistant to or denying of contact with their father.
The father argues to the contrary, however, that the mother has 'weaponised' various medical practitioners and counsellors together with 'cherry picking' selective and partial advice from those practitioners to suit her own ends.
The father argues that the Court should be cautious and accepting of the mother’s apparent revelations near the end of the trial to the effect that she now acknowledges the needs of the boys to have a relationship with him and that she could and would encourage and facilitate that relationship.
The father urges the Court to find that the mother’s positional change is strategic and revealed only when faced with the real possibility of the children being placed into his primary care. The implication of that argument is that the Court should not be satisfied that the mother is able or willing to positively encourage and facilitate a relationship with the children and the father into the future.
RELEVANT BACKGROUND
The father was born in 1964 and is 56 years of age. The mother was born in 1971 and is 49 years.
The parents met in 1988 and commenced cohabitation in December 1989. They were married in 1989.
X and Y were born in 2008.
In 2010 both children commenced consultations with Dr F, Paediatrician.
In 2011 Y was diagnosed with autism level I and 2. In May 2011 the mother commenced training in Applied Behaviour Rule Analysis Therapy (‘ABA’), which is defined and described in the mother’s case summary document as:
A therapy based on the science of learning and behaviour which applies our understanding of how behaviour works to real situations. The goal is to increase behaviours that are helpful and decrease behaviours that are harmful or affect learning.
In 2012 X was diagnosed with autism level I.
In October 2013 the children commenced consultations with Mr K, Psychologist, including ABA therapy which was altered to 'standard psychological therapy' by Mr K in February 2017.
The parents separated on 17 December 2017.
From the date of separation until January 2018 the children spent time with the father on a flexible and informal basis. The mother alleges that the father and the paternal aunt were aggressive towards her. The mother says that the father threatened to ‘kill you and the kids’ on or about 28 January 2018
On 30 January 2018 Victoria police made an application for an intervention order on behalf of the mother and the children. On 1 February 2018 the father made an application for an intervention order against the mother for 'protection of him and the children’.
The applications for intervention orders were consolidated and an interim order was made on the mother’s application, but with agreement for the children to spend limited time with the father.
The father commenced proceedings in the Federal Circuit Court by application filed 8 March 2018 in respect of both parenting and property matters.
The father did not spend time with the children between 20 March 2018 and mid-April 2018 when interim orders were made on 17 April 2018 for the children to spend limited time with the father pending a family report by Ms D.
On 31 May 2018 the parents agreed to mutual intervention orders out of the Magistrates Court of Victoria.
On 17 July 2018 further interim orders were made for the father to spend time with the children each Saturday between 2.00pm and 7.00pm as well as telephone communication each night.
A first family report authored by Ms D was released and dated 2 July 2018 recommending inter-alia that X and Y live with the mother but spend time with the father building up to alternative weekends by January 2019.
In early September 2018 the mother alleges that the children reported that they are 'confused and scared' after returning from time with the father.
On 7 September 2018 interim orders were made in accordance with Ms D's recommendations. The father’s time with the children did not occur on 15 and 22 September 2018.
On 7 December 2018 the children commenced spending block periods of two nights with the father in accordance with the orders of 7 September 2018.
The children ceased spending overnight time with the father on 4 January 2019. On 8 January 2019 the parents engaged Ms L for therapeutic counselling as nominated by Ms D.
In mid-January 2019 the children's time with the father was altered on the recommendation of Ms L to occur each Tuesday from 5.00pm until 6.00pm and on alternating Saturdays from 1.00pm until 5.00pm and Sundays from 10.0am until 5.00pm. The father says that his time with the children did not progress consistently and his time with them was cancelled on 26 February, 3 March, 5 March and 12 March 2019.
On 16 April 2019 orders were made for the appointment of an Independent Children's Lawyer. Further interim orders were made on that day for the children to spend time with the father each Tuesday from after school until 6.00pm and on each Saturday from 11.00am to 6.00pm with the paternal grandmother to be in substantial attendance.
The father says that time did not occur pursuant to these orders save and except on Tuesday 7 May 2019.
An updated family report by Ms D was released on 25 June 2019. She recommended inter-alia:
1.That the children live with mother; and
2.That the children spend time with the father in accordance with the interim orders of 7 September 2018 and during school holidays and as agreed between the parents, but that if [the father] was to live more than 30 minutes travel time from the children’s school then X and Y to spend alternate weekends with him between Friday and Monday.
On 10 May 2019 Mr K voluntarily stopped providing psychological therapy for the children.
On 30 May 2019 the former matrimonial home at City M was sold with a part property settlement distribution to each of the parties.
On 17 June 2019 the children commenced therapy with ‘N Counselling' on a fortnightly basis.
In June 2019 the father relocated to Suburb O to live in a home owned by his brother. He continues to live there. The mother lives at City M. The parents estimate the travel time to be at least 90 minutes between their respective homes.
On 26 July 2019 further interim orders were made providing for the children to spend time with the father each Saturday between 11.00am and 6.00pm. The father says that the time did not continue or continue consistently. Orders were also made on that day for Mr C to provide reportable family therapy/counselling for the parents and children. The matter was listed for trial in the Federal Circuit Court at Melbourne to commence 29 June 2020.
On 21 August 2019 further interim orders were made for the children to spend time with the father in accordance with the orders of 26 July 2019 or ‘as otherwise directed by Mr C commencing on 24 August 2019 with changeovers to occur at the practice of Mr C, P Street City Q’.
Between 24 August and November 2019 the children spent time with the father in accordance with the interim orders albeit at times with the assistance of Mr C and on other occasions without his assistance.
On 4 December 2019 further orders were made for the children to spend time with the father each alternate weekend from after school Friday until 5.00pm Sunday together with each Tuesday from after school until 6.30pm. These orders were made contemporaneously with the release of Mr C's first report of 3 December 2019 and in accordance with his recommendations. It is agreed by the parties that when making those orders, her Honour delivered a stern warning to the mother that if she did not facilitate the boys’ relationship with the father then her Honour would have to consider a change of residence from the mother to the father.
On 10 December 2019 a notification was made to the Department of Health and Human Services (‘DHS’) following the children disclosing that the father had a gun at his home. The father denied the allegations. They were not substantiated as to risk and the interim orders of the Court remained in full force and effect.
The children continued to spend time with the father between December 2019 and late January 2020 whereupon at a changeover on 31 January 2020 the children took approximately 90 minutes to attempt the transition and Y allegedly threatened to stab the father with a knife.
The mother alleges that the children returned to her on 2 February 2020, telling her that the father had called her a 'fucking arsehole and a mother fucking … ' and that the father had grabbed Y by the throat. The children were taken by the mother to their general practitioner and a referral was made to the R Hospital, together with notifications to DHS and Victoria Police. Time for the children with the father ceased.
On 10 February 2020 the children's psychologist made a notification to DHS. On the same day the father filed an application in a case seeking orders that the children live with him and spend no time with the mother for a period of six weeks and then such time be professionally supervised. Abridgement of that application was refused and the application was listed before the Court on 13 July 2020.
Time for the children with the father ceased as from February 2020 except for one occasion on 18 February 2020. It is alleged that Y ran away from school. The mother alleges that the children told her that they want to kill themselves. The mother says that to Y refused to attend school.
On 24 February 2020 Ms E, Psychologist, was engaged to provide therapeutic assistance to the children.
The children then spent time with the father between 25 February and 27 March 2020, except for 24 March 2020 when Y took a knife during the attempted changeovers whereupon the mother telephoned police who attended with an ambulance.
Y was taken to the R Hospital with a further notification to DHS.
On 29 March 2020 the children returned to the mother with Y alleging that he had been hit to his back, bottom and legs by the father. The mother made a report to the police and Y was again taken to the R Hospital on 31 March 2020.
On 3 April 2020 Ms E made a referral to the R Hospital for Y to have a psychiatric assessment.
On 7 April 2020 DHS recommended that the children spend time with the father pursuant to the December 2019 orders, but with the paternal grandmother to supervise. However, time did not occur due to the grandmother being unwell.
On 8 April 2020 Y attended a telehealth appointment at the R Hospital. The following day DHS conducted a home visit at the mother's home. The following day being 10 April 2020 the children did not transit to the father despite an attempt for one hour.
A similar failed attempt occurred on 11 April 2020 and again on 14 April 2020.
Due to unfortunate to personal issues for her Honour Judge Bender, the carriage of the matter was transferred to my docket at a call-over before the Chief Judge on 30 March 2020, and the trial was listed to commence on 4 May 2020. Also ordered was an updated report by Mr C to be provided within 14 days of the trial date of 4 May 2020.
It eventuated that Mr C's report was not received until the weekend prior to, or indeed on the morning of the commencement of the trial on 4 May 2020 whereupon counsel for the mother made an oral application for an adjournment of the trial. That application was opposed by the father and the ICL. The application for an adjournment was refused by orders made 5 May 2020, which resulted in a notice of appeal and stay application being filed with such appeal ultimately being dismissed on 22 May 2020, but which in reality gave the mother the desired adjournment.
The matter was then allocated a further trial to commence 20 July 2020. The matter then continued for much longer than allocated or reasonably expected and ran for some 33 days including the initial application for an adjournment, but where some sitting days were shortened due to difficulties with the technology with the trial being substantially conducted by Microsoft Teams during the period of the COVID-19 Pandemic together with the unavailability of witnesses or, in the case of Mr C, not having materials at hand, by reason of illness or unavailability; and in August 2020 because of an interim trial arrangement agreed between the parties.
The trial of this matter was complex and cumbersome and was undoubtedly a difficult and at times traumatic experience for both of the parents and, I expect, vicariously for their children
The evidence was not completed until 12 July 2021, and was followed by addresses.
Both parents and the ICL were represented by counsel throughout the lengthy ordeal of this trial and it was my experience and observation that the representation and advocacy was to the highest standards with both parents being well served by their solicitors and counsel.
It is proper to note in this respect that the mother's finances were apparently exhausted prior to the completion of the evidence which resulted in an application to withdraw by her solicitor, such being granted, but with the direction by the Court to Ms Southey of counsel to continue to represent the mother on a form of 'direct brief'. It is to the great credit of Ms Southey that she continued to act, and again, from my observations, in a most thorough and professional manner and in accordance with the highest standards and traditions of the Victorian Bar.
On 19 August 2020 and after a number of days of the mother being cross-examined, I interjected with a preliminary view suggesting to the mother that on the evidence to that time, it seemed that she either ‘could not’ or that she ‘would not allow’ the children to transit to the father and that this was the fundamental essence of the dispute for the Court’s determination. The matter was then stood down and, with the assistance of the ICL and counsel, interim orders were agreed and in anticipation of an eventual final resolution.
Those orders occupied some six pages and twenty eight paragraphs inclusive of notations, but provided inter alia that in the interim:
(1)The parents have equal shared parental responsibility for X and Y;
(2)That X and Y continue to live with the mother;
(3)That X and Y spend time and communicate with the father as follows:-
(i)For a four-week period commencing 10.00am 22 August 2020 and concluding at 5.00pm on 19 September 2020;
(ii)Thereafter each alternate weekend from after school at 3.30pm Friday to 5.00pm Sunday commencing 16 October 2020;
(iii)On Father’s Day, the children’s birthday and Christmas;
(iv)For half of all term school holidays and week about during the forthcoming summer school holidays.
(4)Within fourteen days the ICL have leave to provide copies of the reports of Ms D and Mr C to the children’s therapist, Ms E.
(5)The parties and the ICL have liberty to apply but that the matter be otherwise adjourned for mention, directions and if necessary the setting down of further hearing time, on Monday 1 February 2021.
The anticipated transition of the children on 22 August 2020 was unsuccessful with Y in particular, being resistant, abusive and threatening to the father. The children did, however, go to the father without issue on the next day being 23 August. X and Y then spent four weeks with their father with only FaceTime/telephone contact with the mother.
X and Y were next to spend block time, pursuant to the interim orders, with the father during the October 2020 term school holidays. Only X was able to transit to the father's home. Y did not attend. X spent a week with his father without apparent incident.
It followed that no further time was spent by the children or either of them with the father until the recommencement of the trial in April 2021. As a consequence, and despite the interim orders, the children did not spend time with the father for Christmas 2020. They did not spend time with the father on their twelfth birthdays. They did not spend time with the father during the long summer school holidays. Attempts at changeover were unsuccessful and, on the evidence, traumatic for all concerned. As such, the father notified through his solicitors on 17 December 2020 advising that he would not pursue time under the interim orders, but would ask for the matter to be listed for continued hearing. Hence there was no were contact between the children and the father between December 2020 and April 2021 including no telephone or written communications.
Further evidence was taken over eight days in April 2021 and then by reason of court commitments was further adjourned. Prior to the adjournment I made further comments in respect of my preliminary view that the children should be spending time with the father. It followed that they did spend two weekends with the father and with the mother seemingly able to transfer the children to him and the father’s evidence being that the visits took place without incident and proved enjoyable for the children.
When the matter resumed yet again for the taking of evidence it eventuated that the children had spent some five or six occasions with the father leading up to the resumption of the trial. The inference I took was that the mother had been able to transit the children without the difficulties and traumas of previous times and that the times with the father proceeded enjoyably and without incident.
THE FATHER’S CASE
The father says that the only means by which the children can maintain a relationship with both of their parents is if they live with him. He says that he has the insight, facilities, skills and a support network to be the primary carer for the children. He says that his insight extends to being able to foster a relationship with the children and their mother.
The father says that the mother has actively discouraged the children’s relationship with him. He says that she has done so for personal and selfish motives and he denies any criticisms by the mother of his capacity to parent the children. He says that the mother has alienated/enmeshed/aligned the children such being compounded by their autism diagnoses and where accordingly they easily align, support and are dependent upon their mother.
The father says that the mother has enlisted and 'weaponised' professionals who she sees as being sympathetic to her cause and where she has disingenuously, but selectively relied on the advice of those professionals where such advice has been rendered on occasion by reason of the mother’s untrue or selective instructions.
The father says that the mother’s attitude to the responsibilities of parenting is further impeached by her tendency towards conflict with those who advise contrary to her own views, including the children's school teachers and other professionals, such as Ms D and Mr C.
The father argues that the mother's capacity is still further impeached by her inability to have the children consistently attend at school and to socially isolate them where the children's diagnosis of autism suggests routines of attendance at school, and social interaction to be for their benefit.
The father says that there is an unacceptable risk of psychological and/or emotional abuse of the children if they remain in the primary care of the mother.
THE MOTHER’S CASE
The mother’s position has varied significantly throughout the trial and during the period leading to trial. This in itself is problematic. The mother now says that she supports the children having an ongoing relationship with their father. She says that she can and will encourage and facilitate that relationship which she says is evidenced by the relatively calm transitions and consistency for the children spending time with their father during the past months. The implication is that the mother has gained the requisite insight and, presumably, the skills to transfer the children to their father without the extreme traumas of the last few years.
The mother says that she is and has been the primary carer for the children and that they understandably look to her for support and dependency in circumstances where they are both highly autistic and where their sense of need and dependency is similarly high.
She says that she has completed courses in respect of dealing with autistic children and that she has the skills and experience to attend to the children's needs.
Significantly, the mother does not to any great degree criticise the father. Her previous criticisms have been circumstantial and situational. She has claimed simply that the children have refused to go to their father and have done so vehemently and violently.
The mother says that she is culpable in the past only of accepting the advice and direction of professionals who specialise in autism and that she was advised to ‘validate’ any resistance or refusal of the children to go to their father and where such advice was not to admonish or compel the children against their wishes.
The mother has previously said that the children are ‘fearful' of spending time with their father and had the potential to react violently either to harm him or self-harm. She says that the children have been both homicidal and suicidal. She has made allegations against the father of him being physically violent to the children. She appears to have resiled form these positions.
THE ICL’S CASE
The ICL supports the children living with the father. She says that the Court should be cautious to accept the late revelations of the mother that she now has insight into the children's need to have a relationship with their father. She says that the Court should be suspicious of the mother’s motives for her later position
The ICL says that the evidence supports the father having the capacity, insight and skills to be the primary carer for the children.
The tenor of the ICL’s case is that the Court should find that the mother’s motives are borne out of mala fides and personal and selfish anger towards the father and that she has embroiled these vulnerable and needy children in this adult dispute thereby aligning them to her cause.
THE RELEVANT LAW
Section 60CA of the Family Law Act 1975 (Cth) ('the Act') provides the fundamental platform for judges determining parenting orders that the paramount consideration is the best interests of the children.
The process of determining those best interests of children is by referencing the proposals of the parties and the probative evidence before the Court to the numerous and mandatory considerations set out in s 60CC(2) and (3) of the Act against the background of the objects and principles of the legislation at s 60B which relevantly for the matter now before me provides as follows:-
60BObjects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CC(2) offers two ‘primary considerations' which often assume critical importance, in their balancing, as they do in this matter. They are:
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Later amendments to the Act oblige trial judges to place 'greater weight' on the protective considerations in subsection 2(b). Significantly, and despite the relevance of the primary considerations, they are not singularly or cumulatively determinative of the Courts decision as noted by the Full Court in Champness v Hanson[1] where their Honours considered a submission by counsel as follows:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make orders most likely to ensure the children had a ‘meaningful relationship' with both parents. This is an incorrect assumption. The court’s obligation is to make orders most likely to promote the child's best interests. In seeking to achieve that objective, s60CC(2)(a) directs the court to consider ‘the benefit of the child' of having a meaningful relationship with both parents. Even if such a benefit is established it must still be weighed along with all of the other relevant factors. … (Original emphasis)
[1] [2009] FamCAFC 96 at 103.
The additional considerations at subsection (3) oblige the Court’s reference of the evidence to pragmatic and empirical considerations such as the children's views; the nature of the relationship between children and parents; the impact of anticipated changes for the children; the practical and logistical implications; matters of family violence; and the attitudes of the parents towards the responsibilities of parenting.
The consideration of ‘a meaningful relationship' is one not limited by specific definition, but is both qualitative and prospective in its relevance.[2] In McCall & Clark[3] the Full Court at [117] – [119] accepts the view of Bennett J in G&C[4] that the enquiry is a "prospective' one but where it is proper to consider the current and past relationships of children with their parents in making orders which are predictive in their effect. In this matter each of the parents variously emphasise the subsections under s 60CC(2). The father argues that his meaningful relationship with the children is thwarted by the mothers failure to permit the children to have such a relationship and, secondly, that her behaviour constitutes a form of emotional and psychological abuse of the children.
[2] Mazorski v Albright (2007) 37 FAM LR 518.
[3] [2009] FamCAFC 92.
[4] [2006] FamCA 994.
The mother emphasises that she is the primary parent and that the children's dependency and attachment rests with her. She has previously argued that the father is violent and that the children are fearful of him but appears to have resiled from those arguments in that the orders that she now asks for are unconditional in respect of the children’s time with their father.
Section 61DA(1) of the Act offers a presumption for the Court making an order for equal shared parental responsibility when making parenting orders. ‘Parental responsibility' is usually defined and manifested in the decisions and responsibilities of parents in respect of long-term and important issues in relation to their children such as education, religion, medical procedures and the like as opposed to the more mundane day–to–day decisions that parents habitually make for their children. Section 61B defines parental responsibility as the ‘duties, powers, responsibilities and authorities which, by law, parents have in relation to children’.
The presumption, however, does not apply if there are reasonable grounds for the Court to believe that a parent, or another relevant person, has engaged in abuse of a child or in family violence.[5] Alternatively, the presumption may be rebutted should the court be satisfied that it would be contrary to the best interests of the child for parents to have equal shared parental responsibility.[6]
[5] Section 60DA(1)(2) of the Act.
[6] Section 61DA(4) of the Act.
The mother here now asks for an order for equal shared parental responsibility whereas the father argues for sole parental responsibility to vest in him and he is supported by the ICL.
Should the presumption of equal shared parental responsibility apply, not be rebutted, or such an order be made at the discretion of the Court, then a course of statutory and intellectual consideration follows. Firstly, the Court must pursuant to s 65DAA(1):
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time which each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
If the answer to either of the questions above is in the negative then the Court moves at s 65DAA(2) to:
(c)consider whether the child spending substantial and significant time with each of the parents would be the best interests of the child;
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (all including the provision of the order) the child to spend substantial and significant time with each of the parents.
'Substantial and significant time' is defined in the Act[7] as:
[7] Section 65DAA(3).
(a) the time the child spends with a parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays;
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine;
(ii)occasions and events that are of particular significance for the child; and
(iii)the time the child spends with the parent allows the child to be involved in occasions and events little special significance to the parents.
In practical terms, however, neither of the options at ss 65DAA(1) or (2) are relevant in this matter where the parties live some ninety minutes apart and where the children are of school age and where such practical limitations dictates that the children live primarily with one parent and spend time with the other parent during weekends and school holidays.
Both the father and the ICL refer me to the well-known decision of the Full Court in Re: David.[8] The father here argues that the mother actively thwarts the children's transition to him denying them the opportunity to spend meaningful time with him. The Full Court was confronted with a similar factual platform in Re: David where it was argued that the mother was opposed to a six year old child's relationship with the father. It was alleged that the child’s refusal to go to the father was a reflection of what he perceived to be the wishes of the mother and that the mother permitting him to act that way produced the inevitable result that the child would refuse to have contact with the father. The trial judge removed the child from the primary care of the mother and placed him with the father. As the Full Court observed at p 84,573 and following:
As is made clear by s. 60B of the Family Law Act, which was inserted by the Family Law Reform Act 1995, a child has a right to know and have contact with both parents, subject always to his or her best interests …
While it is obviously a very serious step to alter a Residence Order in respect of a young child which has the effect of removing him from his principal carer, there are some situations, and we think that this is one of them, where the Court has no option but to do so.
Where a parent is the residence parent pursuant to a Residence Order, they have a clear obligation, not only to comply with the order, but to take all reasonable steps to ensure that a child is made available to the other parent for the purposes of contact in accordance with the order. All too often, such parents behave as this mother has done, and rely upon a child’s purported refusal or stated lack of desire to see the other parent, as a justification for denying contact.
However, in high conflict situations such as this one, it is frequently the case that the child is doing no more than seeking to adopt the position that he or she thinks will be the one desired by the parent concerned, because of the powerful position that such a parent occupies. To permit such a situation to continue is extremely damaging to such a child and should not be countenanced.
The first difficulty is to identify that this really is the situation and that there is not some more significant basis for the child's attitude, such as a genuine complaint of ill treatment or abuse. In the present coast, this process has been undertaken in the trial Judge has concluded that there is no such basis. Moreover, as mentioned earlier in this judgement, the mother through her counsel effectively conceded that the sexual abuse allegations were ill-founded.
The second difficulty is to achieve a positive solution. In the present case there were exhaustive attempts to bring about a situation were previously satisfactory contact regime could be resumed, all of which were thwarted by the mother and her husband …..
Where there is implacable opposition by the resident parent, the making of any one of these orders may, in many cases, have a most destructive effect upon the welfare of the child in question and achieve little or nothing in relation to bringing about meaningful contact. If compliance does result, the manner in which contact thereafter occurs and the attitude of the resident parent to it, may in some cases, , be more damaging to the child than if it does not occur.
The option of a change of residence must therefore be seriously considered in cases such as this one as being the only way in which contact with the other parent can be preserved
[8] [1997] FLC 92-776.
As long ago as 1977 in Sampson & Sampson[9] Fogarty J sitting at first instance was also confronted with a similar situation. His Honour considered the broader perspective in respect of the child's best interests and stated:
[1]…The test in respect of access is, as is the case with custody, the welfare of the child as the paramount consideration … Although one frequently sees it referred to as ‘right’ of a parent to access of the child, a parent has no such right as such (see M.v.M Supra at p 85). Nevertheless, common experience shows that in the vast majority of cases the child is very much benefited by as close an association with both parents as possible. Parents themselves may divorce each other and go their separate ways but they cannot divorce themselves as parents. A child will normally gain considerable value from continued association with both parents in those cases where unfortunately the parents are separated and the child cannot enjoy the companionship, love and affection in the one household. Further, consideration which may cause a court to refuse to grant to a particular parent the custody of the child may not necessarily lead the court to refuse or unduly restrict periods of access to the child by that parent.
[2]The fact that the custodial parent is opposed to access or does not desire the other party to have access to the child is in itself irrelevant. The matter has to be determined having regard to the interests of the child, not the wishes as such of the custodial parent. That is, her wishes are irrelevant, but her reasons must be given proper weight …
[3]Where the continuation of access has a detrimental effect upon the child, the Court must weigh that detriment against the other advantages to the child of the continuation of access where it concludes that, considering the whole matter, to continue access would be to the real detriment of the child, the Court is required in the performance of its duty to terminate or suspend access.
[4]The option then open to the Court is either to continue the existing custody and at the same time terminating or suspending access, or alternatively changing the custody and determining access in the light of the changed situation.
[5]In many cases this problem arises because the custodial parent quite irrationally and wrongly creates such difficulties about access that its continuance has a demonstrable detrimental effect upon the child. Even in cases where the situation is brought about in this way the same considerations apply. The matter is to be determined having regard to the welfare of the child, not by considerations of either sympathy for the innocent non-–custodial parent or feelings of frustration or annoyance with the custodial parent.
[6]In such a case, the question of the future custody of the child again must be determined upon a test of the welfare of the child. It ought not to be determined by unconscious feelings of punishing the custodial party who appears to have brought the situation about or rewarding the innocent non-custodial party….
[7]In cases where the attitude of the custodial party is genuinely and unreasonably held, the relevance, and in my view, the only relevance, of that attitude of the custodial parent, is that such wilful or irrational behaviour may indicate that such a defect or personality or character as to indicate that that person may not be a suitable custodian for the child. Similarly where the non-–custodial party is prepared and able to assume the duties of a custodian and is prepared to agree to access to the other party that circumstance may be of such overall advantage to the long-term welfare of the child, that it may, taken with all the other relevant factors, justify the Court in altering the custodial position.
[9] (1977) 90–253.
I respectfully agree with his Honour. The task for the Court is fundamentally to attend to the best interest of the child. This is not in any sense a punitive court. It is not a court which acts upon sympathies to one or other of the parties.
Counsel for each of the father and the ICL alerted the Court to numerous authorities where courts have removed children from one parent into the primary care of the other parent. A common theme is an inability or unwillingness by the primary parent to facilitate and/or encourage a relationship for the children with the other parent hence exposing children to distress, confusion, loss and grief all of which pose an unacceptable risk of potential psychological and emotional damage to the children.[10]
[10] See Ralton & Ralton [2017] FamCAFC 182; Goldman & Goldman [2018] FamCACF 65; Lankester & Cribb [2018] FamCAFC 60; Mallory & Mallory [2018] FCCA 2335; McGregor v McGregor [2012] FLC 93-507; Seabrook & Seabrook [2018] FCCA 2311; Malave & Ratcliffe (No.3) [2018] FCCA 3287; Bunt v Charring (No.3) [2019] FCCA 3452.
Subject again to the proper considerations as observed by Fogarty J, and although she appears to no longer prosecute such a case, the mother in this matter originally, and until just before the final addresses, held a position that the children were fearful of the father; that they may have been harmed in his care; that they are or have been homicidal or suicidal in the care of the father; and that there may be no benefit to the children in continuing ‘time-with’ given the problematic nature of their relationship. The authorities also make it clear that the Court will not and ought not make orders for ‘time with' a non-primary parent without there being some benefit for the children from the relationship.[11]
[11] Parsons & Punchon [1978] FLC 90-490 per Wood S J.
The father argues ‘unacceptable risk' of psychological or emotional abuse of the children by the mother on the basis of her alienation/enmeshment/and/or alignment of the children with her negative views of the father.
The notion of unacceptable risk has attracted much judicial consideration and particularly in matters involving alleged sexual abuse of children, but where such considerations are applicable to allegations of abuse of any type.
The definition of 'risk' is of itself a prospective and predictive one albeit where appropriate findings are commonly based on previous factual findings. It may be that a court is unable to make a positive finding of fact as to an allegation to the appropriate standard of proof, but may still be of the view that a parent poses an unacceptable risk to a child.
Where one parent, as in this matter, makes an allegation that the other has engaged in abuse of the child whether that be physical, sexual or emotional abuse, it is the person making the allegation who has an onus to prove the assertion. That is, it is not for the recipient of the application to prove his or her 'innocence'. The standard of proof is that set out in the well-known decision of Briginshaw v Briginshaw [1938] HCA 34 where Dixon J stated at [361] – [362]:-
When the law requires the truth of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as result of a mere mechanical comparison of probabilities independently of any belief in its reality… It is enough that the affirmative or allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
The standard of proof in Briginshaw is now enshrined in the Evidence Act (Cth) 1995 at s 140 as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceedings; and
(c) the gravity of the matters alleged.
The issues here are serious and the consequences of my determination are grave in that a change in the children's primary residences is contemplated by the father's application. The standard of proof is to be viewed accordingly.
In Fitzwater & Fitzwater[12] Austin J succinctly summarised the role of the trial judge in matters involving unacceptable risk where his Honour observed at [138]:
The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities. (Emphasis added)
[12] [2019] FamCAFC 251.
Further, the High Court in M v M[13] at 76 observed and perhaps consistent with the views of Fogarty J in Sampson (supra):
… the ultimate paramount issue to be decided in proceedings for custody or access to, a child is whether the making of the orders sought is in the interests of the welfare of the child. The fact that that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
[13] [1988] 166 CLR 69.
The relevance here is in respect of the father’s allegations of emotional abuse perpetrated by the mother on the children. Nevertheless, it is open for me to find, that the mother, albeit only at the conclusion of this matter, has had some revelation and insight into her behaviour. The Court must therefore examine the veracity of the mother’s evidence. However, the emphasis remains on the predictive and prospective aspect of ‘unacceptable risk' and the Court would certainly fall into error if the focus was simply on alleged past behaviour towards some form of punitive response.
THE EVIDENCE
Both parents provided numerous affidavits, gave evidence, and were cross-examined at length over a number of days for each of them. Not unusually, issues of credit have been placed at the forefront of the Court’s consideration albeit perhaps tempered to a degree by the mother’s somewhat surprise revelation towards the end of the trial and now evidenced in the more altruistic proposals put by her counsel in final submissions. Each party makes serious allegations against the other which in the main are denied and therefore enlivening the issues of credit.
Broadly speaking, the father asserts that the mother has entered into a course of manipulation of the children for her own selfish ends. She denies that this is the case and says that she has always acted in accordance with the instructions and advice of professionals and ultimately in the children's best interests. The implication from this argument is that she has always been, and remains, supportive of the children's relationship with the father but has for various reasons beyond her control, been unable to transit the boys to the father. That is, as I understand the mother’s argument she refutes the proposition that she has been ‘unwilling’ to transit the children to the father but says that she has been ‘unable’ to do so due to the boy’s vehement and violent refusals to go to their father.
The mother argued initially and gave evidence that the children are fearful of the father and report to her issues which would do reasonably give rise those fears. She says that the children reported assaults by the father and that she accepted what they said as being factual. She says that the children report the father denigrating her.
Whilst the Court has a variety of corroborative and collateral empirical evidence to assist in making findings of credit, it also has the considerable advantage of seeing and hearing the parents and their witnesses give evidence in Court. In Galea v Galea[14] Kirby A-JC noted the advantages available to trial judges in respect of credit issues, including the following:
(a)The hearing the evidence in its entirety;
(b)Hearing and seeing all evidence in context, chronologically and logically advanced;
(c)Having time during adjournments and during the running of the case to reflect upon the evidence and to weigh such evidence against all other evidence whilst fresh to mind;
(d)Hearing and seeing interruptions, hesitations and delays in the giving of testimony; and
(e)observing body language, sometimes important for interpreting communication.
[14] (1990) 19 NSWLR 263.
In these courts trial judges assume the role of juror in making findings of fact and assessing the veracity of witnesses with the advantage of seeing the demeanour of the witness. Nevertheless, it is trite to observe that the Court should be aware of the potential pitfall of giving too much credence solely to the demeanour of a witness when considering the veracity of the evidence.[15] Participants in trials are in an unfamiliar environment of a court room. They are likely to be nervous, often restrained, and usually careful in the giving of their evidence in case they fall into error or imprudent disclosure.
[15] Fox v Percy (2003) 214 CLR 118.
The father
The father was overall an impressive witness. He presented as softly spoken and of a calm and considered demeanour. He gave his evidence in a child focused fashion. He was knowledgeable as to his children's personalities and needs. He was frequently emotional in the witness box and, from my observations, in the back of the Court particularly when confronted with the evidence of problematic changeovers for the children between the mother and himself.
The father was responsive in a long and difficult cross-examination. Notably, he was objective and informed rather than subjectively emotional in any criticisms he made of the mother. Where appropriate, he was able to acknowledge the mother’s skills as a parent, her love of the children, and the benefits that she does give to them. At times he seemed almost naïvely sympathetic to the mother rather than critical of her. His focus remained on his children rather than towards the mother. His responses and demeanour in the witness box were consistent with his evidence that he wishes only to have a relationship with these children and indeed initially sought orders for time with, but extended his application out of frustration in being denied any relationship with them.
The mother
The mother was not so impressive a witnesses as was the father. She gave her evidence in a cold and emotionless fashion. She was rigid in her responses and seemingly unable to make admissions against interest. Any concessions that the mother made came with reluctance or accompanied by a deflection of the blame towards the father. She was keen to criticise the father but slow to concede any positives in respect of his skills as a parent or his personal character. Any changes in the mother’s position and demeanour came only at the end of her evidence and apparent only then in her instructions to her counsel prior to final submissions. I am cautious, therefore, as to the motives for any changes in the mother’s positions and the legitimacy of them being unaccompanied by any evidence or rational for such an apparent quantum move by her from the position she held during her own evidence.
The tenor of the mother's evidence was consistently one of entitlement and empowerment in her parenting of the children with little or no positive acknowledgement of the father either personally or as a parent.
Audio tapes
The mother adduced evidence in the form of numerous audio recordings of attempts to transit the children from herself to the father. She voluntarily provided the majority of these recordings but with others under call from the father's lawyers. The recordings are many and lengthy and occupied considerable court time in their playing into evidence. They are entirely excruciatingly sad and disturbing in the picture they paint. They are graphic in demonstrating the children's behaviour at changeover attempts which is abusive, threatening and violent towards the father.
The recordings are made both for attempted changeovers at the mother’s home and also outside the father's home. There are further recordings of telephone conversations between the mother and the children during the boys’ limited time with their father.
Significantly, it is the mother who adduced this evidence. She undoubtedly did so to give the Court evidence as to the extreme reluctance and violent reactions of these boys when changeovers are attempted. In this aim she has been successful. Nevertheless, the recordings also support the father's argument that the mother is not positively and actively supportive and encouraging of the children's changeovers but rather that she is passive and validating of the children's refusals. There is no admonishment of the children. There is no show of parental authority. There is little or no positive comment to the boys about their father or the benefits of possible enjoyment with him. Such comments or attempts that are made seem equivocal and simply ‘lip-service’ without conviction or sanction. Indeed, the recordings disclose comments from both boys that strongly indicated them supporting what they understand to be their mother’s preference that they do not go to their father and that they must reinforce their mother’s anger or upset towards the father, or as counsel for the father puts it, the creation of an ‘unholy alliance’. They boys are heard to speak of “we” being inclusive of their mother. Their rejection of their father seems to be a reinforcement of their relationship with their mother as if the two are mutually exclusive or that relationship for them with both parents is incomparable.
The recordings corroborate my observations of the father's general demeanour when he gave evidence. They show a man of remarkably calm disposition and one who is child focused and directive to his children when confronted with their violent and threatening behaviour. Similarly, and despite what must be his immense frustration, he is courteous towards the mother. Contrary to the implications from the mother’s evidence, he does not present as being of angry disposition even in circumstances of what must be high provocation. These recordings show a man with considerable skill in sympathetically dealing with two boys who suffer high level autism and whose behaviour towards him is confronting.
Ms D
Ms D is a Regulation 7 family consultant. She provided two family reports dated 2 July 2018 (‘the first report’) and 25 June 2019 (‘the second report’). She has had no later involvement with the family.
Ms D was not required for cross- examination. Her family reports were read into evidence.
In her first report Ms D recommends that X and Y continue to live with the mother, but that they spend time with the father 'on alternate weekends, between Sunday and Tuesday and each Wednesday evening’. Logistical factors have since intervened in that the parents now live some 90 minutes drive apart and Ms D’s recommendation is no longer practical pursuant to s 65DAA(2).
Whilst the interviews for this report took place as long ago as May 2018, Ms D’s observations, opinions and recommendations remain relevant.
Ms D reports in respect of the father:
[42]While [the father] expressed the view that [the mother] is particularly competent as a parent, he did express concern that she does not acknowledge his value as a parent, noting instead that 'she's said that she wants the kids and that I will never have them…' [The father] noted, however, that 'as a mother to those kids, you couldn't find anyone who could do more than [the mother]…'
[48]While [the father] suggests that [the mother] is overly involved with the children and unlikely to manage their separation from her, particularly in spending time with him, the report by Ms G, applied behaviour analyst to the children, indicates that [the mother] has acquired considerable knowledge and skill in managing children with such conditions. The approach of Applied Behaviour Analysis [ABA] apparently requires intensive input on a daily basis and Ms G notes that [the mother] has provided this with positive effect for X and Y over a period of years. …
[94]In summary, X and Y demonstrated equally strong and positive bonds with both parents.
[95]They were particularly delighted to be with [the father]. For example, when [the mother] and I returned to the waiting area following her individual interview, X and Y were seated beside [the father], intently involved with his iPad. Additionally, at the end of the observation of the children with the mother, I informed [the mother] that I would bring [the father] to the room. Y excitedly said, 'he's my Dad ! He’s broken his leg!' …
At [96] - [98] Ms D’s observations are consistent with those of mine currently in respect of these parents where she says:
[96]As already noted in this report, [the father’s] capacity to meet the additional needs of caregiving two children on the autism spectrum is questioned by [the mother], while he is overall supportive of her capacity.
[97]There continues to be a level of distrust in the other’s support of the children's relationship with each parent, but notably, in the interviews for this report, [the father] and [the mother] acknowledge the strength of X and Y's bond with the other parent. …
[98]The immediate risk to X and Y's ongoing development is their separation from [the father] for relatively extended periods of time. It was apparent at the appointment for this report that X and Y were delighted to be with the father, a reunion that indicated very strong bonds with him. Unlike their interactions with [the mother] in which they were more verbally engaged with her, X and Y sought frequent physical proximity and contact with [the father], who was consistently and appropriately responsive.
Ms D evaluates the mother in 2018 as follows:
[136][The mother] is a competent parent, mindful of the obligations and responsibilities of parenting. She also presents with the ability to provide for X and Y's welfare, development and safety when they are in her care. She has demonstrated commitment to providing for the children's development and has utilised the resources of professionals and community support to ensure that X and Y's needs are met.
[137][The mother] has been creditably devoted to meeting the children's developmental needs. Her capacity is highly regarded by specialists in the field of autism treatment. The risk for the children, however, is for [the mother] to consider herself as the most, even only, competent parent who can provide for X and Y. (Emphasis added)
[138] While she acknowledges that the children have a close relationship with their father, [the mother] must also support this meaningful relationship, by, for example, allowing him unfettered access to treating professionals and inter-alia fostering positive communication with each other.
Ms D’s second report of 25 June 2019 was prepared after interviews with the parents and the children during May 2019. Her recommendations remain unchanged from the previous year being that the children continue to live with the mother and spend weekend and school holiday time with the father. By this time the mother was reporting that the children were reluctant and refusing of time with the father. A number of health professionals including Dr F and Mr K had become involved, but consistently recommend continuing time for the children with the father albeit perhaps on a graduated basis.
The mother appeared to be relying on the advice of the children's therapeutic counsellor, Ms L, who was described as ‘heavily involved' is supporting the children's time with the father. Ms L did not give evidence in the proceedings before me.
By the time of this second report the father had amended his application to seek orders that the children live with him. The mother was arguing for a reduction of time for the children with the father, and on the advice of Ms L, down to one night per fortnight or perhaps daytime only.
In the interviews for this report the mother stated that the children were fearful of the father and his purported volatility [66].
At [71] Ms D observed the father with the children as follows:
In the observation with X and Y, [the father] was warm, calm and firm. Despite the extent of separation, X and Y presented as delighted and comfortable to be with their father. They spontaneously sought physical proximity to [the father] and embraced and kissed him, maintaining contact and physical proximity.
Ms D describes the mother thus:
[73]In the assessment for this updated report, [the mother] presented as a competent caregiver, but again with a level of over-investment in her role that seemed to preclude the possibility that [the father] might be just as competent.
Ms D had the advantage of again interviewing the children and says:
[131]As noted already, while both children indicated a preference to either retaining the current time arrangement with their father or to even reduce it [Y said inter alia that he would prefer not to see his father at all], the responses at interview suggest considerably mixed feelings about [the father’s] role as their father as well as the likelihood of feeling aligned with their mother (emphasis added).
Nevertheless, in those same observations Ms D reports:
[132]In the observation with [the father], however, X and Y presented as delighted to be with him and not uncomfortable or anxious in their interactions. Indeed, they demonstrated the strong and positive bonds that were noted in the first family report.
[133]The children's presentation suggested that they are anxious about leaving [the mother] rather than being with [the father] …
X was reported in interview as follows:
[145]Notably, when I asked X if he ever felt that his mother doesn't love him, he said 'Y thinks that when we’re with Dad she gets upset… It does feel weird when we're with him…’
[148]With regard to overnight time with his father, X said ‘it felt really different because Mum wasn't sleeping with us in the middle … the blankets and mattresses feel different… at Mum’s we sleep two nights in her bedroom and two nights in our bedroom …’
Y was observed to be more wary than X to attend the interview with Ms D. He was reported and observed as follows:
[155]Y rated his mother as always understanding and helpful and interested most of the time.
[156]When I asked Y for positives about his father, he said, 'there is not much, he does give us kisses, hugs and cuddles, but not much …’ If his father is cross, at first Y said, ‘I don’t know [what he does]’ and then he said ‘he wacks me in the face with a book …’ Y said that he could not remember the reason for this response from his father.
…
[159]If he did not see his father at all … Y said 'good! Because Dad’s mean, he swears at us and tells us to hit Mum. She says that’s bad…’
[160]Y's intellectual and language impairment along with the ASD condition has contributed to more difficulties in social behaviour than X. Mr K noted that Y's belief was that if he spends any time with his father he will be permanently separated from his mother, is also fixed and resistant to treatment.
Both parents were observed with the children and the observations with the mother appear to be unremarkable as is to be expected with the primary parent. The observations of the children with the father, however, are reported as follows:
[172]At the time the observation was scheduled, the children had not seen [the father] for some five months. [The father] expressed some concern that X and Y might be anxious in his presence.
[173][The mother] did not acknowledge [the father] when he greeted her as he walked across to X and Y who stood drawing with concentration. [The mother] kissed X as she folded the children's jumpers with her back to [the father] and then left the room.
[174]Y excitedly said, ‘hi Dad!’ and X spontaneously moved to embrace [the father]. [The father] kissed Y as the child smiled, and leaned into his father.
[175] X and Y excitedly engaged [the father], who was warm and interested, joining them immediately in conversation about the team members for an 'all Australian Team’.
[176]The children enthusiastically engaged [the father] in discussion as they co-operatively drew on the whiteboard. [The father] led the children, asking questions and quietly guiding them in turn taking.
…
[178][The father] managed the children's competing demands with calm and good humour as he played Monopoly with X and chatted with Y about his 'food'. Y leaned against [the father] as he chatted about his ‘menu'… Y referred to [the father] as 'Daddy’…
[179]The atmosphere was warm, focused and active with [the father] engaging the children and following their lead as well. Despite the separate activities of X and Y, [the father] conveyed equal interest with calm and good humour.
…
[181]The children walked with [the father] to the waiting area and they spontaneously and warmly greeted the paternal grandmother. X and Y stood talking with her as [the mother] prepared to leave and they again embraced the paternal grandmother before leaving happily with [the mother]. (It is notable from the evidence of the older tape recordings of the attempted transitions for the children that the boys, and in particular Y, are abusive and threatening towards the paternal grandmother as they were to the father)
[182][The father] again demonstrates competent parenting. The strength of the emotional bond was apparent in the ease with which X and Y moved back into what was a familiar and affectionate interaction with [the father].
[183][The father] was focused on the children and attuned to their emotional and intellectual needs. He guided the children with verbal instruction, affection and physical proximity, managing their sometimes competing demands and developmental differences with calm and playful humour as well as firm and clear verbal instructions.
Later amendments to the Act as s 60CC(2A) obligate trial judges to place ‘greater weight' on this subsection in the balancing process.
The force of the consideration here is in respect of psychological or emotional abuse of the children alleged by both parents. The mother says her that she makes every reasonable effort to have the children transfer to the father. She says the children are fearful of him. She alludes to physical violence perpetrated by the father on the children and generally a violent atmosphere in the father's home where, on occasion, Y has taken a knife to threaten the father. The mother describes the children as homicidal and suicidal. The mother reports the children claiming to have been ‘choked', ‘suffocated' and 'hit' by the father. The father denies the allegations and gives plausible explanations to suggest that there is no veracity in these claims. The mother argued that to otherwise force the children to the father against their vocal resistance is to perpetrate emotional and possible physical harm on them. Significantly, however, on the last day of taking evidence in this matter, it became apparent that for the previous six or so weeks there had been the relatively little, if any, resistance by the boys to the transitions which had previously, on the evidence before me, been, extremely problematic and violent. Importantly for these reasons, however, is that the evidence did not disclose exactly what had changed to bring about this sudden ease of transition.
The father claims the children have been subjected to emotional abuse by the mother. He says that she has deliberately and for her own self-interest manipulated the children and turned them against him. He uses terms such as ‘alienation'. He argues that the mother's behaviour has and does cause these boys, significant emotional and psychological harm.
Section 60CC(3)(a) any views expressed by the children and any factors (such as the children's maturity and level of understanding) that the court thinks relevant to the weight which would be given to the children's views
X and Y at times have voiced their resistance to spending time with the father. On the evidence as a whole, however, such resistance is contrary to the observations of them when with their father.
Both boys suffer diagnoses of high-level autism. It is reasonable to assume that they are highly dependent upon and supportive of their primary carer who is their mother. In the audio recordings of the attempted changeovers tendered to the Court, the boys are heard to voice their alignment with their mother. They speak as ‘we’ inclusive of the mother. She is described by Mr C as the boys’ 'rock'. I have little doubt, therefore, that given the free, and informed and voluntary choice, X and Y would elect to remain living with their mother. The question, however, for the Court whether such statements of preference are informed and voluntary or whether these are boys who have been manipulated, enmeshed, aligned and/or alienated as claimed by the father.
The mother’ case was that the boys do not want a relationship with their father. The evidence taken as a whole suggests, contrary to the case mounted by the mother for the majority of this trial, the boys do, in fact, want a relationship. The evidence of Mr C, Ms D, Ms EE and Ms A Bonamici is consistent and demonstrative in this respect.
Section 60CC(3)(b) the nature of the relationship of the children with:
(i) each of the children's parents; and
(ii)any other persons (including any grandparent or other relative of the children)
X and Y have high-level needs of support and dependency. The mother has been their primary parent. Their relationship with the mother has developed accordingly and they look to her for support. The question for the Court, however, is whether this relationship has developed a form of mutuality and an alliance where the mother herself is dependent upon the boys and where she enlists their support too.
The evidence of the boys’ relationship with their father is contradictory. They can be violent, vocal, abusive, threatening and resistant in transiting to him. The audio recordings tendered by the mother evidence a fractured relationship. Nevertheless, there is evidence from other sources that show a comfortable, enjoyable, warm and loving relationship. Indeed, that the evidence suggests absent the mother’s presence these boys are completely at ease with their father.
The issue for the Court, therefore, is whether this primary, mutually supportive and dependent relationship for X and Y with their mother is one that is also destructive of a relationship for them with their father? The father argues that the mother has manipulated these two emotionally vulnerable boys to the point they themselves cannot understand that they are to enjoy relationships with both their parents, but where a relationship with one excludes any relationship with the other.
Section 60CC(3)(c) the extent to which it each of the children's parents has taken, or failed to take, the opportunity;
(i)to participate in making decisions about major long – term issues risk in relation to the children; and
(ii) to spend time with the children; and
(iii) to communicate with the children; and
Section 60CC(3)(ca) the extent to which each of the children’s parents has fulfilled, or failed to fulfil the parent’s obligations to maintain the children
The father argues that the mother parents the children 'as of right' and so as to exclude him. He offers a motive that the mother remains angry and vindictive towards him because of him ending the marriage. He argues that the mother controls and emotionally manipulates the boys at changeover arming and empowering the children in their refusal to transfer. The father argues that the mother’s dealings with the children’s school where she is aggressively assertive in her relationships with the principal and the school teachers corroborates her parenting in an entitled way and for selfish motives.
The mother's evidence generally is that she has been the primary parent for these two children and it is she who has attended to their special needs. She says that the father was less than actively involved in the children's care prior to the parents’ separation. She argues that the children's high needs require her direct attention and that she has studied and obtained qualifications to address and attend to the special and complex needs of these two highly autistic boys. The implication of the mother's argument is that she has invited and encouraged the father's participation, but has not taken up these obligations to the same extent as herself.
Section 60CC(3)(d) the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:
(i) either of his or her parents; or
(ii)any other children, or person (including any grandparent or other relative of the children), with whom the children have been living;
This is a crucial consideration. The father proposes a change of primary residence from the mother to himself. The boys are autistic and dependent upon their mother. Mr C, whilst recommending a change of primary residence to the father, is not oblivious to the impact on the children of a removal from their mother. In this sense a period of ‘moratorium' is recommended so as to allow the boys to settle with their father without direct contact with the mother. Such a situation was trialled in September 2020, with consent orders that the boys would spend four weeks with their father without direct contact with the mother. The father says that the mother’s telephone calls to the children in their frequency and content was disruptive and distressful and an attempt by her to sabotage his relationship with X and Y.
The experts assisting these courts in respect of autistic children are unanimous in their advice that children suffering this condition require order, routine and certainty in their lives and that they do not easily deal with change. The relationship between the children and their mother is extremely strong and dependent. Historical evidence from the experts in this matter has consistently urged caution against dramatic changes in routine and stability for X and Y.
The father’s proposals would bring not just a change of residence but also a change from a school which, on the evidence is, despite some criticisms by the mother, insightful, engaging and encouraging of these children in respect of their autism diagnoses.
Section 60CC(3)(e) the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis
The parties live some 90 minutes travel time apart. As such, the options for the Court to structure orders are limited with no ability on a practical basis to order either equal time or substantial and significant time orders. The children will need to live in a primary residence with one or other of the parents and pursue their relationships with the other parent on the available quality time of weekends of school holidays.
Section 60CC(3)(f) the capacity of each of:
(i) the children's parents; and
(ii)any other person (including any grandparent or other relative of the children);
to provide for the needs of the children, and including emotional and intellectual needs
The mother’s ability to provide for the children’s physical needs is not impeached. The father himself has described the mother as a good parent. The issue here is her ability to attend to the children's emotional needs and, in particular, their need to have a relationship with the both of their parents. The father says that she is either unable or unwilling to give the children 'permission' to go to him. He evidences matters such as these two 12-year-old boys still substantially sleeping with their mother. He says that she, either directly or with subtlety, imbues X and Y with her own negative views of him.
The mother challenges the capacity of the father, in both physical and emotional senses, to attend to the children's needs. She says that he does not have her skills, learning and commitment to the children's special needs. She says that she was the primary parent prior to separation when she developed those skills and that the father effectively delegated the primary parent role to her. She says that she has completed courses and studies directed to addressing the boys' autism where the father has not shown the same commitment.
The reports and evidence of Ms D and Mr C, however, suggest that the father does have insight into the children's needs and the skills to attend to them. They described his calm demeanour and his ability to settle the children.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle culture and traditions) of the children and of either of the children's parents, and any other characteristics of the children that the court thinks are relevant
Both parents are of Italian origin and there is evidence of direct and important involvement in the children's lives by both extended families. Notably, the father's own mother, sister and brother habitually sat in Court throughout these proceedings. The evidence is that the mother’s sister is frequently at her home and teaches at the children’s school. It is generally accepted that positive interactions with extended families are beneficial to children.
Section 60CC(3)(h) if the children are Aboriginal children Torres Strait Islander children;
(i)the children’s right to enjoy his Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in these proceedings.
Section 60CC(3)(i) the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents
The father says that the mother parents out of entitlement and self–interest and a vindictive view of him. He says that the mother’s anger towards him removes her objectivity and she imbues the boys with her own attitude serving to alienate them from him and/or align them with her against the father. The mother denies that she acts otherwise than in her children’s best interests.
Section 60CC(3)(j) and (k) any family violence involving the children or a member of the children's family and any family violence orders
This is discussed elsewhere in these Reasons.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation the children
The father says that he now brings an application for live–with orders for X and Y only because he has been unable to secure reasonable time–with by negotiation with the mother. In his evidence the father frankly acknowledged that the changes in the children's living arrangements contemplated by his current application will bring some upset, distress and adjustment issues for the children who have habitually lived with the mother and, even on the father's case, are closely aligned with her. Consequently, the Court must give due consideration to the impact on these boys where on the father’s case they would move to live with their father and where a problematic transition could well lead to further litigation.
The mother claims, albeit only at the very end of the trial, that she has developed the insight and ability to transfer the children to the father. By the time of final addresses there had been perhaps five successful recent transitions. This must be seen against the history for these parents and children since separation and for the duration of these proceedings and including the trial which has continued since 4 May 2020. Until the very end of the trial and during her evidence my observations of the mother were consistently that she either ‘could not or would not' transit these children to the father for time–with. The mother was given and accepted an opportunity in August 2020 for the trial to be adjourned so as to allow a period of time for the boys with the father in circumstances where she claimed that she did want the children to spend time with their father, but the failure to make it happen was not in any way her fault but where the blame lay presumably with the father. The father argues with some merit that this trial period failed in its continuity because of the mother's attitude. Consequently, and despite to her recent revelations, the father urges the Court to continue to be suspicious of the mother’s motives and her self–interest where, he says, she parents the children as of right and therefore any orders which continue the status quo of the children living with the mother and spending time with the father are doomed to fail which in itself would be likely to lead to further litigation.
FINDINGS AND CONCLUSIONS
The mother has been the primary carer for X and Y since the parents’ separation in late December 2017. The father initially delegated this role to her, but has always sought a continuing relationship with the boys on a time-with basis.
X and Y suffer diagnoses of high level autism but with Y at an even higher level than the X. I accept that they consequently have serious social and behavioural problems. They have special and highly dependent needs.
I accept the evidence of Mr C and generally that the children look to their mother as the primary source of support and dependency. Mr C describes the mother as the children's 'rock'. I find, therefore, that any change in the children's primary residence and primary carer will present adjustment difficulties for them compounded by their special needs, established relationship with the mother, and high dependency on her.
I am satisfied that the evidence generally points to Y and X understanding that they are able to enjoy a relationship with one parent and to do so then disallows them a relationship with the other parent.
The evidence persuades me that the father is a skilful parent with a calm demeanour and with an insight and understanding into his children's special needs and an ability and willingness to address those needs all of which have not been acknowledged by the mother. The children’s school is extremely complimentary of the father's engagement. The evidence of Ms D, Mr C, Ms EE and of the father himself satisfy me, on the balance of probabilities, as to the father's skills and commitment to care for these children on a day-to-day basis and with the necessary competence and insight to attend to their autism and high emotional needs. The father's own evidence satisfies me that he does not prosecute his application naïvely as to the task that would confront him. He acknowledged the likely adjustment issues. I am satisfied that the father has a strong network of family support. The presence of his family members in Court throughout this trial was notable. Ms EE was able and willing to assist and support the father during the trial period in August/September 2020 when the children lived with him for four consecutive weeks. The evidence generally of those four weeks is corroborative of the father's skills and I am satisfied that any behavioural issues for the boys during that short time had a direct nexus to the mother contacting them.
On the balance of probabilities, I find that the mother has thwarted and failed to permit the children to go to the father for time–with. That the mother herself claims to have had some revelation or new–found insight during the last six weeks or so of the trial is in itself damning of her negative influences on these children until that time. That is, the mother's change of the attitude came only at the conclusion of evidence in this lengthy trial and where she was realistically confronted with the prospect of the children being removed from her primary care and placed with the father. Empirically nothing else had changed in the factual platform that has existed since the parties’ separation and where throughout these proceedings the mother has been unwilling to permit the children to go to the father. Put simply the mother offered no or no persuasive explanation as to either her change of attitude to now being supportive of time for the boys with the father or, perhaps even more relevantly, why and how these two previously violently oppositional children have been able to transit between the mother and father without any of the issues and reactions evidenced by the audio recordings put into evidence by the mother herself.
I am assisted in these findings by the striking evidence that the oppositional attitude of these boys only occurs in the presence of their mother but the force of all other evidence is of calm, contented children when with the father absent the mother.
The evidence of the numerous audio recordings is demonstrative. The mother tendered those recordings in support of her case, arguing that they show the children’s reluctance and refusal to go with the father. She is undoubtedly correct in this respect. Nevertheless, I also find those recordings to be revealing and elucidating in respect of the mother's negative attitude towards the father and her passive and at times active resistance to the children transiting to him. I am satisfied, as such, that the mother has manipulated these children or aligned them with her in her negative views of the father. The audio recordings show the children making remarks such as 'you make my mum so unhappy;'… 'I feel like mum is going to be sad'… 'you know you never loved our mum'. On another occasion, Y’s recorded as saying 'we won, we won’. after a changeover was aborted.
The audio recordings also markedly demonstrate the mother’s responses to the children's refusal to go to their father. She is consistently passive and validating. She provides no firm or assertive direction. The boys themselves view their resistance to the father as being loyal and supportive of their mother, remembering that these are two boys with complex needs and dependency on the mother.
I accept that the mother has received advice from various professionals such as Ms E and Dr V. I am satisfied, however, that she has taken this advice selectively or opportunistically and accept the submission of counsel for the father that she has 'weaponised' these professionals as a form of support. Even Ms E, psychologist, who was under qualified and lacked adequate experience both in family law matters and specifically in respect of autistic children, did attempt admirably at times to assimilate the children into a relationship with the father. I am that satisfied that the mother took and emphasised those parts of Ms E’s advice that suited her ends. Similarly, the mother accepted the advice of Dr V only as to 'validating' the children's responses but not so far as ‘re-directing’ them. All of this is consistent with Mr C’s opinion that the mother will take advice if she sees it as supporting or justifying her position but notably rejects such advice as ‘conspiracy’ if not supporting her.
I accept the evidence of Mr C that the mother has acted as ‘gatekeeper' with the children. She has utilised their reliance and dependency upon her to align them with her and enmesh them with her own negative views of the father. She has emphatically failed to positively encourage the children to spend time with the father or to be positive in respect of him.
I am satisfied on the evidence that the mother has placed her own needs, based on her own negativity and bitterness, before the children's best interests. Sadly, in a mother who has so much to offer her children, this demonstrates a crucial lack of insight into the need generally for children to enjoy relationships with both their parents and in particular a lack of understanding of the particular vulnerabilities of these two young boys.
I am satisfied on the evidence that the mother is implacably opposed to the children's rights to have a relationship with their father. She has actively discouraged a relationship for these boys with their father where the boys themselves are vulnerable and pliable to their mother’s enmeshment by reason of their very need to have a supportive and dependent relationship with her. Despite her late claims, I am not satisfied that she has developed the objective insight, contended by her counsel in final submissions. My observations of the mother in the witness box were of a person calculating and deliberate in her actions and motivated by her anger towards the father most prominently exhibited in her emotionless responses and reactions to the tortuous defiance and unsolicited negativity shown by her two sons towards their father. Her concessions at the end of the trial served only to highlight her entrenched viewpoint and manipulation of these vulnerable boys until that time. The mother has claimed to rely on the advice of professionals and therefore deflecting responsibility. She has deflected blame to the father or even impliedly rested responsibility on the shoulders of the children themselves, but through her evidence took no responsibility herself. She has been advised consistently throughout these proceedings that the children should have a relationship with the father. At various times the professionals from whom the mother gleaned support have advised as much, including Ms E, Mr K and Dr F. There have been independent assessments and recommendations, which the mother has failed to heed. Judge Bender made direct and prophetic statements to the mother after the provision of Ms D's first report putting the mother on notice that the Court must seriously consider a change of primary residence for the children. She had available to her the reports of Ms D and Mr C prior to this trial where both experts emphasised the dangers to the children and the mother’s entitled and ‘gate keeping’ parenting style and, in the case of Mr C, that a change of primary resident parent was a necessary intervention. The mother has been armed with this advice but continued throughout this long trial to imbue and enmesh Y and X with her negativity towards the father and to thwart their relationship with him. She has validated and empowered these boys in their overt opposition to their father but failed completely to recognise or acknowledge that, in her absence, the evidence is of a loving and comfortable relationship between father and sons. She has simply disregarded these observations of the experts in their reports. The confusion and conflict for Y and X in understanding their relationships with each of their parents must be actually and potentially psychologically and emotionally damaging, as it would be for any children caught in this vortex but where the experts are unanimous on benefits of certainty, routine and support for children suffering autism.
The question is whether this Court can now accept the mother’s apparent “road to Damascus” revelations or whether this is simply another act of self-interest? Regrettably I think the latter where the timing and lack of rationale of such dramatic changes cannot leave this Court with confidence in the mother’s bona fides.
On the evidence I am persuaded that the mother parents X and Y in an entitled and empowered fashion to meet her own ends and not prioritising their best interests. She has created allies in her children. Her confrontations with the children’s school are evidence of the same including a period when the school’s quest to obtain additional funding and individual support for the children was thwarted by the mother's confrontational attitude. Her evidence in this Court was almost entirely negative and critical of the father, personally and as a parent. Her apparent bitterness towards him was palpable. My observations were of this mother giving her evidence completely devoid of emotion in circumstances where the evidence, especially in the numerous audio recordings tendered, was harrowing and confronting even for the most hardened veterans of this Court. Whilst exposing the best interest of her boys, I saw a person consumed by bitterness and anger.
There remains the question as to whether the mother’s undoubted influence on Y and X may simply be misguided altruism or some naïve belief that only she has the skills, knowledge and ability to attend to their special needs but where she has only now come to a completely different realisation. However, in doing so, she has conveniently packed away the very argument which occupied this Court for months of litigation; the violent oppositional behaviour of two autistic sub-teenage boys; the insistence of some inherent inadequacy of a father with violent tendencies; the claim of children who are homicidal and suicidal. Unfortunately, this quantum change of position has not come with any mea culpa. There has been no acknowledgment of error of judgment. There has not even been a revelation that the evidence in this trial has caused a salutary re-think. Rather the mother offers no rationale for either her change of position or the apparent change in the demeanour of Y and X such they are now apparently able to go to their father without any of the dramatic reactions which, after all, was the very and fundamental crux of this litigation. I am therefore, not satisfied as to the mother’s motivation for her late change of position and accept the submissions of counsel for the father and the ICL that such motivation remains self-interest.
Undoubtedly, Y and X are dependent upon their mother. She has been their primary parent and source of support since the parents’ separation in December 2017. They express a preference to be with their mother. A removal from her primary care will bring adjustment difficulties compounded and complicated by their diagnoses of autism. Regardless of the Court’s findings as to the mother’s behaviour and motivations, it is ultimately the best interests of Y and X which is the Court’s primary focus in this complex balancing process and not in any way “punishing” the boys because of the sins of the parent. In this sense, however, my observations accord with the opinions of the experts in that this father has a considerable insight and skill-set to assist him in assimilating Y and X into and through such significant changes contemplated by his application and which he prosecutes fully informed as to the potential difficulties but where the empirical evidence of his time with the children absent the mother’s influence suggests a likely successful transition for the children. I find the father to be bona fide in his desire for the children to continue a relationship with their mother and where, unlike the mother, he is likely to be able to achieve this result for Y and X. Having had the considerable advantage of seeing and hearing his evidence over many days and viewing his demeanour in the gallery of the Court, I am assisted in my conclusions by the father presenting as a man calm and altruistic of character.
I am satisfied on the evidence that the children are more likely to enjoy relationship with both of their parents into the future if they live with their father. I accept Ms D's evidence that the father was observed to be 'warm, calm, firm with the boys’. Similarly, I acceptance Ms D’s evidence, and in accord with my own observations and findings, that 'the mother's devotion to meeting the children's developmental needs is now presenting as a risk to the children relationship with her father and to the children's healthy individuation as they move towards adolescence’…
Taking all of these matters into account I am of the view that the best interests of X and Y are served by them moving to live primarily with their father. I also accept submissions of counsel for the ICL and the father that there should then be a moratorium period of no direct contact for the children with their mother. I say this on account of the boys’ obvious devotion to and alignment with their mother. These are children with special needs and high dependency. The evidence, particularly that of the telephone communications between the mother during the trial period of four weeks for the boys with the father in August/September 2020, satisfies me that Y and X will settle more easily into their father’s care without undue negative intervention from the mother. I also accept the submissions of the ICL as to a graduated and supervised return for the children into direct time-with the mother sympathetic to them also assimilating into the primary care of the father. I do not accept that the mother has yet developed the necessary insight and objectivity in respect of the children's needs to have a relationship with their father. I am not confident that she could refrain from influencing the boys towards her own views. I do, however, propose a less stringent regime than the ICL noting the mother’s newfound claim to objectivity and understanding. Suffice to say, however, that should it become apparent that the mother is continuing her course of influence on these children then their particular vulnerabilities will almost irresistibly call for a consideration of a reduction of time to only supervised visits, or alternatively, to no time at all. This wold be a tragedy for two children who clearly love their mother and for a mother who has so much of a positive nature to offer Y and X – but where, to this end, she is on notice.
Given my findings above and, in particular, my finding that the mother has consistently harboured a high degree of negativity towards the father and that she has not yet developed any bona fide insight and objectivity, I am of the view that the children's best interests are served by the father having sole parental responsibility for the children. In making this finding I am again influenced by the evidence of the principal of the children's school as to the historical confrontational attitude exhibited by the mother towards the school and its staff. Y and X have directly experienced and suffered from their parents’ conflict. I am not satisfied that the mother can compartmentalise her own obvious anger towards and her dislike of the father so as to objectively prioritise the children’s best interests. The father is less confrontational than the mother. He is, however, altruistic of the boys’ need to have a relationship with their mother. Consequently, I am confident that he would engage with the mother on matters of parental responsibility but should ultimately have the ability to make those decisions.
I also make necessary injunctive orders generally consistent with my findings herein. The ICL urges me to make an order for the mother to undergo psychological and psychiatric treatment for a period. On reflection I am not inclined towards such an order where I am of the view that such assistance is more likely beneficial for a person who acknowledges the need for some support rather than having it imposed. The mother here says that she has had revelation and insight and I suggest only that she might therefore seriously consider obtaining professional assistance in getting through what will understandably be difficult times for her and perhaps thereby show the father that she legitimately has achieved a degree of insight and that then hopefully these boys will have available to them that which has been denied them for a number of years – the licence to have a relationship with two parents.
I certify that the preceding two hundred and sixty (260) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire . Associate:
Dated: 4 October 2021
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