Bruce & Bruce
[2023] FedCFamC1F 936
•3 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bruce & Bruce [2023] FedCFamC1F 936
File number: NCC 4120 of 2020 Judgment of: AUSTIN J Date of judgment: 3 November 2023 Catchwords: FAMILY LAW – PARENTING – Best interests – Where both parties seek residence of the two children – Where the father seeks sole parental responsibility – Where the mother seeks shared parental responsibility save as to medical and educational decisions reserved to her – Where the children currently live with the mother – Where the children have not spent time with the father since January 2023 – Where the mother’s allegations of abuse and family violence by the father were unsubstantiated – Where the father and Independent Children’s Lawyer allege the children are susceptible to emotional damage caused by the mother’s conduct – Where the single expert reported the elder child is at risk of developing a psychological disorder if she remains living with the mother – Where the single expert reported the younger child’s relationship with the father is likely to be entirely severed if he remains living with the mother – Where the single expert evidence is accepted – Where the Court is satisfied the children have sustained serious psychological harm by reason of their subjection and exposure to the mother’s emotionally abusive behaviour – Where the presumption of equal shared parental responsibility is rebutted – Ordered the father have sole parental responsibility and the children live with him – Mother restrained from any form of contact with the children for two months – Ordered the children spend defined time with the mother thereafter. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4, 60B, 60CA, 60CC, 60CG, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
RCB v Forrest & Ors (2012) 247 CLR 304; [2012] HCA 47
Division: Division 1 First Instance Number of paragraphs: 145 Date of hearing: 16, 17, 18 & 19 October 2023 Place: Newcastle The Applicant: Litigant in person Counsel for the Respondent: Ms Smith Solicitor for the Respondent: Dawson & Gardiner Solicitors Counsel for the Independent Children's Lawyer: Mr Alexander Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
NCC 4120 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BRUCE
Applicant
AND: MR BRUCE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
3 NOVEMBER 2023
THE COURT ORDERS THAT:
1.All former orders concerning the following children are discharged:
(a)X, born 2010.
(b)Y, born 2013.
2.The father shall have sole parental responsibility for the children.
3.The children shall live with the father.
4.For two months from the date of these orders, for the personal protection of the children, the mother is restrained from:
(a)initiating conversation with the children and from causing a third party to engage in conversation with the children;
(b)communicating with the children via telephone, text message, email, or internet social media; and
(c)attending at, entering onto, or loitering upon the grounds of the school attended by the children, save for the limited purpose of delivering or collecting her child (B, born 2016) to and from the school.
5.Upon expiration of Order 4, the parties shall take all reasonable steps to ensure the children spend time with the mother as follows:
(a)for an initial period of three months, for not more than two hours once per fortnight under supervision at a contact centre.
(b)for a further period of three months, for not more than two hours once per week under supervision at a contact centre.
(c)for a further period of three months, each alternate weekend from 9.00 am on Saturday until 5.00 pm on Sunday, commencing on the second weekend after the expiration of Order 5(b).
(d)thereafter:
(i)each alternate weekend during school terms from the conclusion of school (or alternatively 3.30 pm) on Friday until the commencement of school (or alternatively 9.00 am) on Monday, commencing on the second weekend after the expiration of Order 5(c);
(ii)for two contiguous weeks in the Summer school holidays, concluding at 12.00 noon on the last Saturday before school resumes in the new academic year, commencing in January 2025.
(iii)for the first week of the Autumn, Winter and Spring school holidays from 2025 onwards, commencing at 3.30 pm on the last day of school term and concluding at 5.00 pm on the second Saturday thereafter.
6.Orders 5(c) and 5(d) are suspended:
(a)between 9.00 am and 5.00 pm on each Mother’s Day and Father’s Day, during which periods the children shall spend time with the mother on Mother’s Day and with the father on Father’s Day.
(b)from 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the children will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years.
7.For the purpose of implementing Orders 5(a) and 5(b):
(a)the supervisor of the time spent by the children with the mother shall be the staff at “[C Family Services]”, “[D Family Services]”, or “[E Family Services]”, in that order of preference (“the supervisor”);
(b)the parties shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor;
(c)the venue at which the time is to be spent by the children with the mother shall be designated by the supervisor;
(d)the times of the supervised visits shall be designated by the supervisor;
(e)the parties shall bear the cost of the supervision in equal shares;
(f)the father shall ensure the children’s delivery to and collection from the venue at the beginning and end of the supervised visits;
(g)the parties shall comply with all reasonable directions of the supervisor; and
(h)the parties may furnish a sealed copy of these orders to the supervisor.
8.For the purpose of implementing Orders 5(c) and 5(d), the parties shall ensure the children’s exchange at:
(a)school, whenever the children’s time with the mother is to commence following the conclusion of school or end before the commencement of school during school term; or
(b)otherwise at the McDonalds Restaurant at Suburb F, NSW.
9.Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.
10.Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.
11.Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party.
12.The father shall authorise and request the principal of any school attended by the children to provide to the mother, at her expense, copies of all school reports and school photograph order forms relating to the children.
13.Each party shall forthwith inform the other, and keep the other informed, in writing of their respective mobile telephone number and email address.
14.The father is authorised to furnish a copy of these orders to the principal of the school attended by the children.
15.The father is authorised to furnish to any doctor or therapist administering treatment or therapy to the children copies of:
(a)these orders;
(b)the reasons for judgment; and
(c)the single expert reports dated 19 December 2022 and 31 July 2023.
16.The mother shall forthwith leave and is restrained from returning to and entering upon the premises of the City G registry of the federal courts complex for the remainder of Friday 3 November 2023.
17.The father shall forthwith ensure the children’s delivery into the custody of the Senior Court Child Expert of the Court Children’s Service at the City G registry of the Court to have explained to them by a Court Child Expert the effect of these orders and, if deemed appropriate by the Court Child Expert, the reasons for such orders.
18.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth) (“the Act”), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
19.The Independent Children’s Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.
20.Save as to costs, any and all other outstanding applications are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bruce & Bruce has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
These proceedings concern a dispute between parents under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of their two children.
Primarily, the dispute entailed the selection of the parent with whom the children should live. Given the elevated level of the parties’ antipathy, it was common ground the residential parent should have sole parental responsibility for the children, at least until the mother belatedly made an amended proposal to share some aspects of parental responsibility with the father. The subsidiary dispute concerned the conditions under which the children should spend time with the non-residential parent.
For the reasons which follow, the children should live with the father, he should have sole parental responsibility for them, and their contact with the mother should be re-established incrementally to consolidate their settlement into the father’s residential care.
That outcome is consistent with the proposals of the father and the Independent Children’s Lawyer (“the ICL”) and also with the expert opinion evidence given by the single expert psychologist (“the single expert”).
BACKGROUND
The parties began cohabitation in 2009 and married in 2010. There was controversy over when the parties finally separated which need not be resolved, as it is certain they finally ceased living in the same household by September 2013.[1] The mother said in cross-examination that the marital separation occurred earlier on or about 26 January 2013.
[1] Mother’s affidavit at [105]
The children were born in 2010 and 2012 and are now nearly 13 and 11 years respectively. They have lived primarily with the mother since the parties’ separation.
Following their physical separation in September 2013, the parties were commendably able to negotiate the time the children would spend with the father without external interference. They negotiated a parenting plan in 2015, providing for the children to spend three nights per fortnight with the father, but it was implemented loosely and generously. From September 2015, the children spent about four and sometimes five nights per fortnight with the father. By 2019, the children began living with the parties in a shared-care arrangement, which was tantamount to an equal time regime.[2] In early 2020, the children even stayed with the father for several consecutive weeks while the mother was ill.[3]
[2] First Single Expert Report at [17]–[18]
[3] First Family Report at [19]; Father’s affidavit at [128]
The mother commenced these proceedings in November 2020, at which time she sought orders for the children to live primarily with her, but allocating the parties equal shared parental responsibility for the children, and requiring them to spend substantial and significant time with the father on alternate weekends, during school holidays and on other special occasions.
However, the spirit of compromise the parties had ably demonstrated for many years between 2013 and 2020 began to unravel in 2021. Puzzlingly, the evidence did not convincingly explain why that happened. The father told the single expert he could discern “no reason for the escalation” of tension between he and the mother,[4] though he suspects she reacted adversely to sentiments expressed by the children about wanting to spend more time with him.[5]
[4] First Single Expert Report at [176]
[5] First Single Expert Report at [177], [180], [414]
Regardless of the reason, in May 2021, to address the parties’ developing antipathy, the ICL was appointed, they were ordered to complete a post-separation parenting program, and they were restrained from denigrating one another.
In August 2021, the mother advised the father by email that she was withholding the children from him, saying:[6]
After today’s court session and there being no formal interim orders in place, which were confirmed by the registrar today, due to the present and increasing issues of concern for the kids safety and well-being I will not be sending the kids back to your home.
[The children’s] mental health, exhibited concerning behaviours and their own voiced concerns and distress is at the foremost of my priorities and therefore I will be keeping them in my care full time until interim orders can be discussed and agreed upon through our lawyers. …
[6] Father’s affidavit at Annexure R
The father remonstrated with her decision, but the mother replied (in part):[7]
Had I been more confident and certain of my legal standing and the effects associated with keeping the kids, I would have done much sooner. The possibility of sexualising abuse is not my only reasoning for keeping the kids nor is it my only concern. As I have stated on multiple occasions, the children’s mental health, stress, anxiety, behavioural changes and not wanting to go back to yours based on a multitude of issues and incidents that I have tried to discuss with you in the reason I am keeping the children. …
…
I am happy to facilitate an agreed amount of supervised visits by your mother. …
[7] Father’s affidavit at Annexure R
As can be seen, the mother’s stated reasons for her action were broad-ranging, abstract, and lamentably lacked specific detail. Inferentially, she was concerned about the elder child’s aberrant behaviour, which she attributed to the nature of her relationship with the father.[8] The mother seemingly lacked the insight to consider there were other feasible explanations for the elder child’s behaviour, such as the rapidly escalating parental conflict.
[8] Mother’s affidavit at [164]; Father’s affidavit at [344]; First Single Expert Report at [338]
Shortly thereafter, the mother applied for interim orders to sever the children’s contact with the father and restrain him from contacting her or the children, to which the father responded by seeking the reversal of the children’s residence and the supervision of their time with the mother. The competing applications were resolved by interim consent orders made in November 2021, providing for the children to live with the mother and to spend substantial time with the father, subject to supervision by the paternal grandmother during overnight stays.
In February 2022, those interim orders were replaced by others, due to an allegation of the father’s physical assault of the younger child in late 2021,[9] not long after the former orders had been made. The allegation was denied by the father.[10] Nonetheless, as a precaution, the new orders required the children to spend time with the father for not less than three hours each alternate weekend under professional supervision.
[9] Mother’s affidavit at [202]–[206]
[10] Father’s affidavit at [224]–[230], [234]–[240], [308]
The professional supervisor was changed in February 2023 but, otherwise, the February 2022 orders prevailed until trial in September 2023. The need for variation arose, at least in part, because the mother criticised the professional performance of the initial supervisory service and the service was unwilling to prolong its services to the family.[11]
[11] Second Single Expert Report at [156]–[157], [163]; Exhibit ICL5; Exhibit F3; Exhibit M14; Father’s affidavit at [199], [369]
Despite the operable interim orders requiring the children to spend supervised time with the father each alternate weekend, the mother concedes they have not done so since January 2023.[12] She confirmed the concession in cross-examination, but did not satisfactorily explain why she has been unable to implement the orders. Her attempt to blame the father or the new supervisor for the impasse is rejected. The mother tendered a sheaf of business records of the new supervisor,[13] which she contended would show she had done all she could to facilitate the new supervisor’s engagement. The documents do not prove the mother’s point. Most probably, the orders have not been implemented because she has been obstructive, as the former supervisor found. Neither the father nor the new supervisor had any motive to frustrate the orders.
[12] Mother’s affidavit at [356]; Father’s affidavit at [199]–[204], [370]–[380]
[13] Exhibit M9
ADJOURNMENT APPLICATION
Before the trial commenced, the mother applied for an adjournment, which was opposed by both the father and the ICL. The adjournment was refused, the trial proceeded, and the mother was self-represented.
At a procedural hearing just days before the trial was due to start, the mother terminated the retainer of the solicitor who had acted for her for most of the time the proceedings have been on foot. The mother said she understood she would have to represent herself at the trial in the following week if her foreshadowed adjournment application failed. At the trial several days later, she asserted the solicitor had unexpectedly withdrawn her representation, but that was contradictory to and irreconcilable with the admission she made at the procedural hearing of it being her decision to terminate the retainer, as was confirmed by the solicitor.
The premise of the mother’s adjournment application was that she would be disadvantaged without legal representation during the trial, but that situation arose by her exercise of personal choice. She need not have sacked her solicitor. If she did so because of dissatisfaction with professional performance, she had plenty of time within which to gauge her dissatisfaction without leaving it to the last few days before the trial. The disadvantage the mother suffered through the lack of legal representation was ameliorated by her being able to rely upon all of the evidence prepared for her by her solicitor in readiness for the trial.
Any adjournment of the trial would have occasioned much greater prejudice to the father than was suffered by the mother in having to represent herself. She claimed her poor financial circumstances would preclude her from paying for the legal costs thrown away by the father as the consequence of any adjournment, so he would have been forced to incur that financial burden through no fault of his own. In addition, an adjournment would only prolong the children’s current estrangement from the father and serve to consolidate the mother’s apparent intention to keep them apart. Any delay would damage the viability of the father’s case and be passively advantageous to the mother’s case.
PROPOSALS
The mother’s proposals have vacillated markedly during the course of the litigation.
When she commenced the proceedings in November 2020, her proposal was for the parties to share parental responsibility for the children, for the children to live with her, and for them to spend substantial and significant time with the father.[14]
[14] Initiating Application filed 9/11/20
When the mother conferred with the court child expert in May 2021, she still proposed that the children spend substantial time with the father.[15]
[15] Exhibit ICL1 at [1]
However, when the mother amended her application three months later in August 2021, her revised proposal was for her to have sole parental responsibility for the children, for the children to live with her, and for the children to neither spend time nor communicate with the father.[16] Just beforehand, she sent an email to the father telling him she was withholding the children from him,[17] and then acted accordingly.
[16] Amended Initiating Application filed 24/8/21
[17] Father’s Affidavit at Annexure R
When the mother later conferred with the single expert in November 2022 and June 2023, she confirmed her view that the children should not spend any time with the father.[18]
[18] First Single Expert Report at [47], [49], [60], [122], [485]; Second Single Expert Report at [18]
Several weeks before the trial, on 5 September 2023, the mother filed an Application in a Proceeding seeking leave to file an amended application, which the registrar refused, noting that any applications for relief from the procedural directions made in August 2023 would need to be made at the trial.[19] The mother’s intended Amended Initiating Application, dated 21 September 2023, proposed the children gradually expand the time they spend with the father, beginning with visits of two hours per fortnight under professional supervision and culminating (a year or so afterwards) with unsupervised visits on alternate weekends, for periods of school holidays, and on other special occasions. However, the mother did not renew her application for leave to rely upon the amended application at the trial.
[19] Orders and Notations made on 18/9/23
The mother’s position as the trial began, as articulated in her Case Outline document filed on the first day of trial, was unsatisfactorily unspecific about the nature of the children’s future interaction and communication with the father. She contemplated the chance of future supervised visits by the children with the father during daylight hours, but did not positively propose an order to that effect.
Just before final submissions were commenced at the end of the trial, the mother tendered a minute of the orders she proposed.[20] Her application for the children to continue living with her was unchanged. However, save as to medical and educational decisions reserved to her, she proposed the parties share parental responsibility for the children. She also proposed the children spend time with the father for two hours each alternate Sunday for the remainder of their minority under professional supervision at a contact centre.
[20] Exhibit M17
The mother’s final proposal for the children to indefinitely spend supervised time with the father was most probably only made to try and shore up her fast-eroding position, because she said in cross-examination earlier in the trial how she believed the children would still be emotionally harmed by the father, even under professionally supervised conditions. She did not attempt to explain why she proposed an order she had already asserted would cause the children harm. The mother seemed entirely ignorant of the paradox of her proposing orders for the children to spend supervised time with the father when the current interim orders already require the children to spend supervised time with him and they are being breached. There is no point perpetuating a regime which demonstrably does not work.
The father began the trial seeking the orders set out in the Final Amended Response he filed on 16 August 2023, but ended it by seeking the orders set out in a minute of orders he tendered.[21] He sought that the children instead live with him, thereby reversing their current residence with the mother, together with his allocation of sole parental responsibility for them. He foresaw no chance of the children being able to recover and maintain their important relationships with him unless they are removed from the mother’s influence. He proposed the suspension of any interaction between the children and the mother for two months, followed by their graduated re-introduction to her.
[21] Exhibit F6
The ICL abstained from proposing any orders at the outset of the trial. He only foreshadowed an order for the residential parent to have sole parental responsibility for the children. After the evidence was closed, the ICL tendered a minute of orders he proposed,[22] which proposal closely resembled that of the father.
[22] Exhibit ICL12
Broadly speaking, the mutual proposals of the father and the ICL coincided with the recommendations of the single expert.
EVIDENCE
The mother was required to file the affidavit evidence upon which she relied by 15 September 2023,[23] but did not do so. She sought and was granted leave to rely upon her affidavit sworn or affirmed on 20 September 2023,[24] the annexures thereto,[25] and the maternal grandmother’s affidavit sworn or affirmed on 20 September 2023.[26] Although served late, the father and the ICL had the affidavits within sufficient time to be well prepared to deal with the evidence of the mother and maternal grandmother, so they consented to the mother’s reliance upon the two affidavits.
[23] Orders 4 and 5 and Notation A made on 7/8/23
[24] Exhibit M1
[25] Exhibit M2
[26] Exhibit M3
The mother did not renew any application to call evidence from another witness she originally nominated at the procedural hearing, which permission was initially refused on the submissions made at the time.[27]
[27] Notation A made on 7/8/23
The father relied upon two affidavits filed on 15 September 2023 – one by him and the other by his wife. As these affidavits (and the annexures thereto) were filed, they were not marked as exhibits.
The parties and the ICL also relied upon:
(a)the Child Inclusive Conference Memorandum dated 3 May 2021;[28]
(b)the single expert’s first report dated 19 December 2022;[29] and
(c)the single expert’s second report dated 31 July 2023.[30]
[28] Exhibit ICL1
[29] Exhibit ICL2
[30] Exhibit ICL3
Multiple other documents were tendered by the parties and the ICL as exhibits during the trial.
LEGAL PRINCIPLES
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC) and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
BEST INTERESTS – PRIMARY CONSIDERATIONS
Section 60CC(2)(a)
The single expert contended the children appear attached to the mother, though the security of their attachments and the existence of appropriate boundaries within their filial relationships was not established to the single expert’s satisfaction at the time.[31] The children will not derive a full measure of benefit from their relationships with the mother if their attachments with her are not secure or if they tend to be treated by her as being more mature than they actually are. There is some evidence to suggest that is so. The single expert agreed with the ICL’s proposition that the elder child was displaying signs of “parentification”, the responsibility for which lay with the mother, who was not observing appropriate boundaries in their filial relationship.
[31] First Single Expert Report at [475]
The father accepts the children do derive benefit from their relationships with the mother, but contends they are unable to derive benefit from their relationships with both parents whilst ever they live with the mother and she retains control of the situation. Section 60CC(2)(a) is concerned with the benefit the children are likely to derive by maintaining their meaningful relationships with both parents, not just one of them.
On the evidence, the children had perfectly happy relationships with the father until 2021, to which point they had been living with him for equal time. However, the situation has changed since the mother unilaterally withheld the children from the father in August 2021.
The elder child is now described as being “conflicted around the topic of her relationship with [the] father” and suffering anxiety due to “significant loyalty binds”. Nonetheless, the single expert concluded the elder child still finds “benefits in her relationship” with him.[32] The supervision report from one of the most recent supervised visits in December 2022 shows the elder child was effusive about seeing the father.[33]
[32] First Single Expert Report at [422], [458], [477]
[33] Exhibit ICL4
The younger child’s relationship with the father has deteriorated. He is resistant to the father, though it is difficult to tell whether the resistance is genuine or feigned because he remembers happy times with him. The single expert concluded their relationship was complex, but capable of repair,[34] which seems plausible given how the maternal grandmother described the younger child as being “happy as Larry” to see the father at a supervised visit in September 2022.
[34] First Single Expert Report at [456], [476]
The mother’s evidence equivocated confusingly. On the one hand, she contended she did her best to comply with the interim orders and to ensure the children enjoyed their meaningful relationships with the father. On the other hand, she admitted she did not believe the interim orders were protective of the children and, for their safety, they had to be kept from the father. When asked in cross-examination to clarify the apparent inconsistency in her attitude, the mother only compounded the confusion by saying it was “a bit of both”. She told the single expert the father should “not be in [the children’s] lives in any capacity”, since she believes he will harm or abuse them.[35]
[35] First Single Expert Report at [49]; Second Single Expert Report at [18], [43]
One thing is highly probable. Whilst ever the children remain living with the mother, they have no chance of having relationships with the father, let alone meaningful relationships. That is particularly so for the younger child.[36] The elder child is approaching an age where she might have the courage to defy the mother, but that is unlikely due to her timidity.
[36] Second Single Expert Report at [185]
Of course, if the children do require protection from the risk of harm posed to them by the father, as the mother alleged, then that objective must be prioritised (s 60CC(2A)). But if they do not require such protection, then their current alienation from the father must be rectified. That could only be achieved by the reversal of their residence because the mother will not genuinely countenance them spending time with him while they live with her.
The single expert said, and I accept, that if the mother’s allegations of misconduct against the father are unfounded then she is infringing the children’s rights by preventing them from enjoying meaningful relationships with him.[37] Consequently, it is necessary to scrutinise the multiple allegations made under the rubric of s 60CC(2)(b) of the Act.
[37] First Single Expert Report at [471]
Section 60CC(2)(b)
Both parties contend the other poses a potent risk of harm to the children, from which they must be protected. The mother’s allegations against the father will be addressed first, followed by consideration of the father’s allegations against the mother.
The mother’s allegations against the father fall into several categories: physical abuse of the children; the risk of sexual abuse of the elder child; and the children’s exposure to family violence perpetrated by the father upon her.
The mother claimed to the single expert that the children had been hit in the face, whipped with a belt, and hit across the back by the father.[38] At trial, her evidence of those incidents omitted any allegation of them being whipped with belts.[39] The most significant allegation was of the father assaulting the younger child in late 2021.[40] Acting on the mother’s allegations, the police issued a provisional family violence order against the father to protect both children.[41] It was common ground that afterwards, with the father’s consent but without his admission of any misconduct, a final family violence order was made against him for a period of six months, commencing in late 2022 and expiring in early 2023. The order did not preclude the children from spending time or communicating with the father.[42]
[38] First Single Expert Report at [370]
[39] Mother’s affidavit at [199]–[206]
[40] Exhibit ICL13
[41] Mother’s affidavit at Annexure R
[42] Exhibit F1
The children were interviewed by the child welfare agency in relation to those allegations of physical abuse in December 2021, at which time the youngest child complained of his back being hurt, but the child welfare agency accepted the father later plausibly explained the child’s slight injury, which was described by a doctor as being a “graze”.[43] The investigation was terminated without the father being charged with any offence.[44] The father expressly denied he caused those injuries and contended any injury sustained by the children in his care was merely childhood misadventure. [45]
[43] Mother’s affidavit at Annexure Q
[44] First Single Expert Report at [380]; Exhibit ICL11
[45] Father’s affidavit at [224]–[240]
Later, in June 2022, the child welfare agency found the elder child contradicted other accounts given by the younger child of being pushed and force-fed by the father. The younger child’s subsequent reports of those same incidents to the single expert in December 2022 were found wanting.[46]
[46] First Single Expert Report at [438], [439], [440], [468]
The mother suspects, but abstains from expressly alleging, that the father has sexually abused the elder child. The basis upon which she asserts the father poses a danger of sexual abuse is difficult to identify with any precision. When discussing the issue with the single expert in June 2023, the mother confined her allegation of the elder child being at risk of sexual abuse by the father due to the paternal family containing “a convicted paedophile”,[47] of which there is no evidence at all. Her evidence at trial, however, was different and more expansive.
[47] Second Single Expert Report at [36]
In her trial affidavit, the mother said her suspicions of the father’s propensity to sexually assault the elder child were based on her past observations of him sometimes having an erection when nursing the elder child as an infant, the elder child experiencing urinary tract infections and vaginal rashes when staying with the father, her discussion with the father about the elder child developing breast buds, and her belief in the father’s “sex addiction”.[48] Importantly, she conceded the elder child had never expressly complained of sexual abuse.[49]
[48] Mother’s affidavit at [140], [142], [143], [145]
[49] Mother’s affidavit at [144]
In cross-examination about the issue, the mother confessed her belief the father may have “groomed” the elder child for sexual abuse. She articulated how her fears were largely based on past statements made to her by the elder child about her privacy not being respected within the father’s home. However, she additionally alleged she exchanged emails with the father about the onset of the elder child’s puberty, during which exchange the father admitted he had touched the elder child’s breast buds. The father recalled the exchange, but said it occurred by way of text messages, which were then tendered in evidence. Inspection of them reveals no such admission by him at all.[50] They instead show that, in January 2021, the mother claimed to the father she had checked the elder child’s breast buds with her consent. The mother made the same allegation against the father to the court child expert in May 2021,[51] but did not allege the father’s admission in her affidavit. It is unlikely she would have omitted it if it had actually happened.[52] Most likely, the allegation of his admission was fabricated by the mother to accentuate the seriousness of the danger in the face of the otherwise relatively benign allegations of privacy deprivation. The father credibly denied making any such admission.
[50] Exhibit ICL10
[51] Exhibit ICL1 at [8]
[52] Mother’s affidavit at [143]
No documents seen by the single expert,[53] or adduced in evidence at trial, reveal any concern expressed, let alone frank allegation made, of sexual abuse against the father by the elder child. The asserted risk of harm hinges entirely upon the mother’s evidence of statements made to her by the elder child, which are equivocal at best. The single expert considered it noteworthy that the elder child has made no form of sexual complaint against the father even though she has “good and trusting” relationships with her psychologists.[54]
[53] First Single Expert Report at [380], [467]
[54] First Sing Expert Report at [421]
The mother’s evidence about the father’s commission of family violence was also confounding. She told the single expert in December 2022 that the violence took the form of “psychological and emotional abuse”, “gaslighting”, and him speaking to her in disrespectful ways.[55] She confirmed how frank physical violence was “not his form of abuse”,[56] which statement she clarified in cross-examination to mean outright physical violence was not how the father ordinarily reacted. She articulated to the single expert only one incident of a physical struggle between them at an unidentified time in the past.[57]
[55] First Single Expert Report at [88]
[56] First Single Expert Report at [92]
[57] First Single Expert Report at [92]
In her trial affidavit, however, the mother pejoratively deposed:[58]
My relationship with [the father] was characterised by severe incidents of domestic violence and one instance of sexual assault. During the relationship and post-separation [the father] has been controlling, coercive and manipulative and verbally abused me every day.
[58] Mother’s affidavit at [70]–[71]
Such generic statements, although admissible under Pt VII of the Act, are not probative because they are not factual accounts of past events, but rather unverifiable opinions.
The father conceded the parties had engaged in heated arguments from time to time, but alleged both parties were as much to blame for that situation. Both parties have reason to regret their verbal and written exchanges in the past when they could not suppress their exasperation and resorted to personal denigration. The mother is not immune from such criticism as she called the father’s wife a “fat fuck”.[59]
[59] Affidavit of the father’s wife at Annexure C
The allegations of actual physical violence were few. The mother gave evidence of one physical struggle she had earlier described to the single expert,[60] and evidence of another incident when the father pushed her in the chest.[61] She also gave evidence of the father sexually assaulting her once,[62] which incident she said in cross-examination happened in late February 2013.
[60] Mother’s affidavit at [100]
[61] Mother’s affidavit at [102]
[62] Mother’s affidavit at [83]
There are several reasons why the mother’s evidence of family violence lacks the necessary probative weight to prove the allegations.
First, her past conduct is impossible to logically reconcile with the current allegations. The mother relies upon these allegations (at least in part) to justify withholding the children from the father. Yet she has only adopted that position since August 2021. Until then, from years before when the parties separated in 2013, she acted as if the father was a responsible and reliable parent. She willingly allowed the children to spend substantial time with him and eventually acceded to them living with him for equal time, which she would hardly have allowed if she honestly believed the father posed a risk of harm to the children. Her veiled attempt to suggest such arrangements were not voluntary and her will was overborne by either her lawyers or the father over all those years is rejected as being false.
In late 2016, the mother even wrote to thank the father for his emotional support, saying to him “thank you again for being there for our babies and me xx”.[63] It is difficult to accept the mother would have sent a message of such warm gratitude to the man who had sexually assaulted her as recently as a few months beforehand, as she alleged had happened in late 2015 or early 2016. The sentiment expressed within the message is quite inconsistent with the loathing the mother describes feeling as a consequence of her sexual assault by the father. In another text message sent to a third person on an unknown date, the mother said neither the father nor his wife were “abusive type[s]”.[64] The mother was not confronted with the apparent inconsistency between that concession and her allegations.
[63] Father’s affidavit at Annexure H
[64] Father’s affidavit at [222] and Annexure Y
The mother’s behaviour up until she withheld the children in August 2021 is entirely inconsistent with her current professed fear and apprehension of the father on account of his past misdeeds. Even if all of her allegations about the father’s past misconduct are true, for many years she demonstrated the willingness and capacity to put that behind her for the benefit of the children. She again demonstrated such capacity by belatedly proposing at the end of the trial that she was willing to share some aspects of parental responsibility for the children with him.[65]
[65] Exhibit M17 (Order 3)
The mother conducted the trial in a manner which suggested she believed that proof of the father’s commission of family violence – of any sort at any time – automatically triggered his disqualification from further participation in the children’s lives, but the determination of orders which promote the children’s best interests is not such a superficial and one-dimensional process. The issue of past and prospective family violence is only one of numerous factors which must be considered in an assessment of the children’s best interests (s 60CC). So far as the mother is personally concerned, the Court is only exhorted to make orders in respect of the children that do not expose her to an unacceptable risk of family violence (s 60CG(1)(b)). The orders will achieve that objective.
Secondly, the mother’s evidence about the father’s commission of family violence is inconsistent in fundamental respects. Despite deposing in her affidavit there was only “one” instance of sexual assault,[66] which she confirmed occurred in late February 2013, she told the single expert of a quite different second sexual assault in late 2015 or early 2016,[67] which was not mentioned in her affidavit. When she was cross-examined about the second allegation, she said the father had “tried” to penetrate her vagina with his fingers, whereas she told the single expert he had succeeded. The inconsistency was not explored any further, but it is difficult to imagine how the mother could have honestly forgotten the more recent alleged assault, or how it happened, when she prepared her trial affidavit.
[66] Mother’s affidavit at [70]-[71]
[67] First Single Expert Report at [100]
Thirdly, the mother did not report her complaint about the father’s violence to the police until about late 2022. There is still no evidence as to the precise nature of her complaint against him, though it inferentially concerned the alleged sexual assault in 2013. Save in two respects, there is no evidence of the mother making contemporaneous complaints to third parties of her sexual abuse by the father. The mother alleged telling a friend and the maternal grandmother of the sexual assault in 2013,[68] which the maternal grandmother confirmed in cross-examination. Those two timely complaints tend to buttress the mother’s allegation of the 2013 sexual assault, but are still not direct proof of it. Telling a third person of an event does not necessarily mean the event occurred, either at all or in the manner described to the third person.
[68] Mother’ affidavit at [84], [91]
There was no evidence of the mother’s reports of any physical assaults to third parties. The mother said in cross-examination she told her treating doctors of the abuse and she later tendered her medical records covering the period from 2013 to 2020,[69] presumably expecting they would corroborate her allegations, but they do not – either in relation to physical or sexual assaults. The doctors’ notes do refer to the mother twice describing the father as “abusive” during appointments in 2020, but do not record any specific allegations being made by her of any form of abuse by the father either before or after their separation.
[69] Exhibit M13
Fourthly, the father consistently denied all forms of abuse alleged by the mother. He did so to the court child expert in May 2021,[70] to the single expert in December 2022,[71] to the police when they approached him in January 2023 when investigating the mother’s complaint,[72] in his trial affidavit,[73] and in cross-examination. His denials were no less credible than the mother’s allegations. As a suspect, the father was entitled to decline any interview with police, but he voluntarily submitted to their interrogation. The police have since terminated the investigation and the father was not charged in respect of the mother’s allegations.[74] Most likely that is because the police do not believe they have sufficient evidence to prove the father committed any offence.
[70] Exhibit ICL1 at [9]
[71] First Single Expert Report at [173], [176], [466]
[72] Second Single Expert Report at [160]
[73] Father’s affidavit at [10]
[74] Father’s affidavit at [241]-[244]
During the trial, it was revealed the mother and both children have received small awards of compensation, supposedly to compensate them for their physical or psychological injuries sustained by reason of the father’s conduct.[75] The mother thought such awards were definitive proof of the father’s past abusive behaviour towards her and the children, by which findings this Court would be bound. She was mistaken.
[75] Exhibits ICL9, M5, M6
The determination of any application for compensation lodged by an applicant with NSW Victims Services (“the Service”) is an entirely unilateral procedure. The Service decides whether an award of compensation ought be made to the applicant in respect of injury said to arise from the perpetration of criminal conduct by an offender. The decision is made on the basis of material submitted by only the applicant. The alleged offender is not afforded procedural fairness, as no opportunity is given to adduce evidence or make submissions in rebuttal of the application. Once compensation is awarded to the applicant, reparation might later be sought from the offender by the Service. Here, the father was not charged, let alone convicted of any offence, and he knew nothing of the awards of compensation. He has not heard from the Service. Although the Service may have been satisfied in 2022 of the mother’s and children’s entitlement to compensation, any ancillary finding of misconduct by the father is not binding in these proceedings because he was not privy to those conducted by the Service. The doctrine of issue estoppel does not apply.
The mother told the children’s psychologist by email in July 2022 that the children told her they “finally feel validated” by the awards of compensation.[76] The mother tried to recant in cross-examination and say it was really her who felt validated, but it only serves to show how the mother’s evidence must be approached cautiously. Either the children did tell her that, as she related to the psychologist, in which event she has been discussing matters with them that are way beyond their maturity, or alternatively, what she told the psychologist was false because the children said no such thing. Her previous email correspondence with the psychologist has the flavour of her trying to make the psychologist an ally in her campaign against the father.[77]
[76] Exhibit ICL8
[77] Exhibit ICL7; Exhibit F5
On the evidence adduced, none of the mother’s allegations of child abuse or family violence are established to the requisite civil standard of proof on the balance of probabilities.
Nor is the evidence sufficiently strong to establish the father poses a future risk of harm to the children on account of his subjection or exposure of them to abuse or family violence.
The first retrospective factual enquiry and the second prospective risk enquiry are different and should not be conflated (Isles & Nelissen (2022) FLC 94-092 at [1]–[7], [50]–[53], [70]–[74] and [81]–[86]).
Conclusions to that same effect were urged by the ICL and are also consistent with the views expressed by the single expert, who did not believe the allegations against the father were substantiated by the documents she was asked to review.[78] Of course, any fact-based finding in respect of the mother’s allegations falls beyond the purview of the single expert’s specific psychological expertise, but her concurrence is an added assurance when making such findings independently. The mother’s insistence about the danger posed by the father and the need to eliminate him from the children’s lives makes the single expert’s opinion about her “catastrophic thinking” and “oversensitivity” resonate.[79]
[78] First Single Expert Report at [467]
[79] Second Single Expert Report at [41]
The single expert offered this opinion about the mother, which I accept to be accurate:[80]
399.The mother exhibited a tendency to see, and describe people and situations in black and white or all good/all bad. Such dichotomous thinking limits appreciation of alternatives or nuance in relationships. In such situations there is the possibility that an individual will interpret motivations or situations in a distorted fashion to fit their preconceptions. …
…
480.If the mother is found to have fabricated or embellished her claims about the violence issues, traits of personality pathology noted in her presentation may have contributed. If this is the situation, specific psychological treatment addressing personality pathology would be strongly recommended for the mother. If the mother is found to have been less than truthful and appropriate treatment is not engaged then the children will likely be vulnerable to the effects of further allegations and the other risks that accompany such personality dysfunction in a parent.
[80] First Single Expert Report
By comparison, the father and the ICL alleged the children are susceptible to emotional damage caused by the mother’s conduct, from which they need protection. Their case was that the mother’s conduct amounts to “abuse” as defined in the Act (s 4(1)) because it causes the children to suffer “serious psychological harm” and thereby engages s 60CC(2)(b) of the Act as a primary consideration. Their case enjoyed the strong support of the single expert.
The single expert concluded the boundaries in the filial relationship between the mother and particularly the elder child had been blurred and the elder child had become “parentified”, feeling the need to emotionally support the mother.[81] The elder child is caste in the role as the mother’s peer, rather than her child.[82] The elder child impressed as being “under stress and feeling anxiety” about trying to maintain her relationship with the father when she perceives the mother does not want her to do so.[83]
[81] First Single Expert Report at [399]
[82] Second Single Expert Report at [114]
[83] First Single Expert Report at [430], [433]
The single expert reported the younger child feels the mother supports his decision to reject the father and she opined his relationship with the mother may now be enmeshed, which interdependence carries with it the danger that the younger child’s full emotional development will be hindered.[84]
[84] First Single Expert Report at [443], [445]
The single expert said, and I accept, the mother’s polarised opinions and emotions are likely to have been transmitted, either overtly or covertly, to the children.[85] The single expert observed how the behaviour of the mother and maternal grandmother transmitted their anxiety to the children.[86] There cannot be any real doubt about it because the mother readily agreed to the proposition in cross-examination. In answer to a question posed about the likelihood of her contribution to the children experiencing anxiety about seeing the father she said “Absolutely. Children are perceptive”. In answer to another question she said “I am sure the children would be aware of my dislike for [the father’s wife]”.
[85] First Single Expert Report at [452], [484]
[86] Second Single Expert Report at [138]
The situation for the children has reached the point where the mother said in cross-examination “The children were begging me to fight for them so they didn’t have to go to their father’s”. Even if the allegations of the father’s ill treatment of the children are hypothetically accepted as being true, they are not such as to rationally explain them having such a high level of fear and loathing of him. Assuming the mother gave truthful evidence about what the children said to her, the most likely explanation for it is they have become aware of the mother’s resistance to their retention of relationships with the father and the path of least resistance for them is to tell the mother what they expect she wants to hear from them.
Nothing would likely change if the children remain living with the mother. The single expert said, and I accept:[87]
485.At this assessment the mother gave no indication that she would willingly facilitate a meaningful relationship between the children and the father. She did not see any conditions that may occur which would alter her position. She attributes this position to the need to protect the children.
…
495.If the allegations made of violence/abuse are not accepted as accurate then the mother has failed to place the childrens’ need to have a relationship with their father above her own need for an exclusive relationship with the children.
[87] First Single Expert Report
The single expert concluded the mother lacks insight and is attempting to negatively influence the children’s relationships with the father.[88] However, it hardly matters whether it is intentional or inadvertent. If it is intentional, the mother gave no indication of her contrition for it or of her commitment to desist. If it is inadvertent, she is likely not conscious of the destructive dynamic and is powerless to stop it.
[88] Second Single Expert Report at [174], [175]
The elder child is at risk of developing a psychological disorder if she remains living with the mother.[89] The younger child is likely to have his relationship with the father entirely severed if he remains living with the mother.[90]
[89] Second Single Expert Report at [187], [188], [189]
[90] Second Single Expert Report at [185]
The single expert said this, which I accept:[91]
190.Although the Mother maintained that she has not been parenting from an anxious stance and is protective in her focus, unless the Court determines that the allegations she has made against the Father have substance, then it is respectfully suggested that the Mother’s parenting approach as it affects the children’s ability to form and maintain relationships is increasing the potential for [the children] towards developing significant anxiety.
191.A continuation of the present experience of parental conflict for the children is considered likely to come with consequences to their social development as they are considered to be at risk of developing attitudes of mistrust in others. The information available suggested this may have been the case not just in the children’s relationship with their father, but also schools and services.
…
193.Additionally, the information available suggested that the children’s relationships with extended family, such as one set of grandparents/aunts/uncles and their relationships with their paternal step siblings is at risk of becoming permanently disrupted.
194.Unless the Court determines that the evidence indicates the children have been subject to abuse from their father, the subject children are at significant risk of developing relationship approaches in which they will struggle with forming and maintaining productive, trusting and supportive relationships with others going forwards in their lives. In the absence of established violence and abuse it would appear that their views and emerging relationship styles are at risk of being predicated on emotional dependence.
[91] Second Single Expert Report
I am satisfied the evidence demonstrates the children have sustained emotional harm, properly described as “serious psychological harm”, by reason of their subjection and exposure to the mother’s emotionally abusive behaviour and, further, they are at risk of suffering more harm of that type if they remain living with her. The children require protection from such harm. That can only be achieved by changing the children’s residence.
Even if the evidence does not engage the operation of s 60CC(2)(b) of the Act, the mother’s conduct is still so reprehensible that it reflects adversely upon her capacity to adequately provide for the children’s emotional needs and her attitude to the duties of parenthood, in which event it is still a salient and persuasive feature of the evidence which activates the application of s 60CC(3)(f) and s 60CC(3)(i) of the Act.
BEST INTERESTS – ADDITIONAL CONSIDERATIONS
Not all additional factors under s 60CC(3) were eventually addressed, so it is only necessary to deal with those which are meaningfully engaged by the evidence.
Section 60CC(3)(a)
Contextually, any views expressed by the children should be evaluated cautiously because of the environment of high parental conflict to which they have been exposed. Both children have been assessed by a psychologist to be suffering from “psychological distress, in particular anxiety”. The elder child’s plight was such that, in April 2021, she made suicidal threats following a fight at school.[92] The younger child suffers from some degree of autism, which most probably reduces his capacity to cope with stress.
[92] First Single Expert Report at [338]
Given the parental conflict, the hearsay evidence given by the parties about views expressed to them by the children, while admissible, is given no probative weight. It is well accepted that the expressed views of children are liable to be influenced by the parent with whom they live (Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [34]–[41]; RCB v Forrest & Ors (2012) 247 CLR 304 at [52]). Only the views expressed by the children to third parties in the parents’ absence, like the single expert, are prone to carry any probative weight.
The children conferred with the court child expert and the single expert on three occasions. The first was in May 2021. The second was in December 2022, but only by electronic means. The third was in June 2023, but face-to-face.
At the first interview, the elder child told the court child expert that she liked the current arrangement and did not want it to change.[93] At that time, the children were living with the father for equal time.
[93] Exhibit ICL1 at [31]
At the second interview, the elder child was very apprehensive. She was ambivalent about spending time with the father. She professed not wanting to spend time with the father, but conceded she could potentially have a good relationship with him. She concluded by saying she would like short visits with the father if she felt safe.[94] Those views can be contrasted with the view she expressed to her school counsellor in February 2019 about her enjoying living with the father for equal time,[95] and those she expressed to the court child expert in May 2021. The evidence shows the elder child first independently expressed opposition to living in the equal time arrangement in November 2021,[96] not long after the mother had withheld the children from the father.
[94] First Single Expert Report at [274], [277], [278], [284], [294], [423], [430]
[95] First Single Expert Report at [367]
[96] First Single Expert Report at [371]
The single expert felt the adverse comments made by the elder child about the father “fell far short” of the range of allegations made against him, which the mother asserted explains the children’s resistance to relationships with him. The single expert also said the elder child’s comments were “exaggerated accounts”, which now aligned with those made by the mother.[97]
[97] First Single Expert Report at [421], [427], [429]
At the third interview, the elder child was again “highly anxious”.[98] She professed feeling scared of being around the father, for which she could give no rational explanation.[99] She admitted “nothing bad” had happened at supervised visits,[100] which had ceased some six months beforehand. She first said she did not care if she had no relationship with the father, but then later said she would like to see him on weekends.[101] When observed in the father’s company she was interactive, but not tactile.[102]
[98] Second Single Expert Report at [98]
[99] Second Single Expert Report at [104], [105]
[100] Second Single Expert Report at [106]
[101] Second Single Expert Report at [106], [111]
[102] Second Single Expert Report at [148], [149]
At the first interview, the younger child denied having any worries in the father’s home, but expressed his preference for the mother’s home.[103]
[103] Exhibit ICL1 at [37], [38]
At the second interview, the younger child vaguely articulated some apprehension about the father due to being disciplined when naughty, the father possessing laser guns and handcuffs, and the mother being “in court”.[104] His criticisms of the father in the interview did not match the seriousness of the allegations made against the father.[105] He admitted his belief that the mother supported his resistance to interaction with the father and he felt rewarded for doing so.[106] The younger child’s stated resistance to seeing the father contrasted starkly with the evidence given by the maternal grandmother in cross-examination, when she said he was as “happy as Larry” to see the father at the supervised visit on Father’s Day in September 2022. The younger child told the single expert he could remember times in the past when he enjoyed the father’s company.[107] The single expert noted how the younger child’s asserted strong resistance to any contact with the father was not commensurate with his facial expression or body language.[108]
[104] First Single Expert Report at [316], [318], [319]
[105] First Single Expert Report at [438]
[106] First Single Expert Report at [443]
[107] First Single Expert Report at [476]
[108] First Single Expert Report at [320]
In contrast, the younger child said “everything is good” at the mother’s home.[109] Despite those sentiments, the younger child admitted he would still be happy to see the father on conditions.[110] The single expert opined how the younger child’s thinking and expression, in absolute terms and without subtlety, was a function of his age and autism. More specifically, it was easier for him to express rejection of the father than to navigate the difficulty of maintaining a relationship with him.[111]
[109] First Single Expert Report at [322]
[110] First Single Expert Report at [326]
[111] First Single Expert Report at [436], [437]
At the third interview, like the elder child, the younger child was “highly anxious”.[112] As before, his thinking was concrete and literal.[113] He expressed hatred for the father, even though they had not seen one another for quite some time, but then confessed he would like the father to separate from his wife and return to live with the family unit. He was angry because the mother had informed him of the father’s infidelity.[114] When observed in the father’s company, the younger child was more reserved than the elder child, but did not overtly reject interaction.[115]
[112] Second Single Expert Report at [98]
[113] Second Single Expert Report at [118]
[114] Second Single Expert Report at [131], [136]
[115] Second Single Expert Report at [148], [149], [167]
In summary, the single expert said this about the children, which evidence I accept as being correct:[116]
169.Children who resist and refuse a relationship with one parent without sufficient justification can exaggerate innocuous incidents to explain their rejection stance. This most often occurs in high conflict cases where children feel that they cannot continue a relationship with the rejected parent due to the influence of the preferred parent.
…
192.At this time the children are experiencing instability and emotional strain due to the loyalty binds they are exposed to. The impression was formed that they have been placed in a position where they have been required to choose, exclusively, their relationship with one parent over the other. As conflicted children they impressed as having sought to minimise the accompanying stress by rejecting their relationship with their father. [The younger child] has exhibited this by withdrawing completely from his relationship with/interaction with, his father. [The elder child] presented with more ambivalence about her relationship with her father, though is veering towards adopting a rejecting position.
[116] Second Single Expert Report
The views sometimes expressed by the children of their rejection of the father are not likely genuine. Most likely, they believe the expression of such sentiments is the only way they are able to ensure the stability of their relationships with the mother, because they perceive she demands their loyalty. Accordingly, no probative weight is attributed to views expressed by the children which are critical of the father.
During cross-examination, the mother was impelled to concede the elder child periodically told her she wanted to see the father, which sentiment she expressed to her as recently as only a few weeks ago. One of the last supervision reports, compiled at the supervised visit in December 2022,[117] betrays the elder child was genuinely pleased to see the father. Similarly, the younger child outwardly seemed very happy to see the father at the supervised visit in September 2022. Children’s behaviour is likely to more reliably show their feelings than their verbal expressions.
[117] Exhibit ICL4
Section 60CC(3)(b)
The children’s relationships with the parties has been discussed under s 60CC(2)(a) of the Act. There is no need to say more.
The children have loving relationships with the maternal half-sibling and the maternal grandmother, but those relationships are no more important than the loving relationships the children formerly enjoyed with the paternal half-siblings. Those latter relationships are at risk of becoming permanently disrupted if the children remain living with the mother.[118]
[118] Second Single Expert Report at [193]
Section 60CC(3)(ca)
The father has paid assessed child support without default, despite the mother’s commentary on the subject.[119]
[119] Mother’s affidavit at [120]–[126]
Section 60CC(3)(d)
This factor looms large in the face of the proposals of the father and the ICL for the children’s residence to be reversed.
The elder child is anxious and will probably be worried for the mother if she moves to live with the father. She may even experience a sense of guilt, given she has come to feel partly responsible for supporting the mother emotionally.
The younger child’s autism pre-disposes him to the need for a primary stable home, some space for himself, reliable routine, and relative calm around him.[120] Moving to a different household containing three younger half-siblings is likely to be challenging for him, but the single expert said in cross-examination his trust of the father would be re-established by “his lived experience” outside the mother’s influence.
[120] First Single Expert Report at [447]; Second Single Expert Report at [179]
The mother sought to contend that any change would be detrimental for the children, but the situation is not so absolute. She has been willing to subject the children to significant changes. She unilaterally terminated their relationships with the father in August 2021 when they had been living with him for equal time for preceding years. She has also already enrolled the younger child at three different schools in the first few years of his education[121] and insists he remain at his current school even though she must know he has expressed some dissatisfaction with it.[122] Change is a fact of life for children. Helping them manage to cope with the changes is key.
[121] Mother’s affidavit at [248], [254], [349]
[122] Second Single Expert Report at [122]
The father’s wife is supportive of the children’s integration into their family unit.[123] The father will maintain his full-time employment and they will manage their household as a team,[124] which is no different from what they did up until August 2021 when the children lived with them for equal time.
[123] First Single Expert Report at [249]
[124] Second Single Expert Report at [7]
The father and his wife have already investigated the therapeutic help they will need to facilitate the children’s transition into their residential care, as advised by the single expert.[125] There are no guarantees the residential transition will be uniformly successful for both children but, on balance, it likely will be successful if managed in the way the single expert advised.
[125] First Single Expert Report at [487]; Second Single Expert Report at [183]
Sections 60CC(3)(f) and 60CC(3)(i)
The mother’s capacity to provide for the children’s emotional needs and her attitude to the responsibilities of parenthood are sadly lacking. If her conduct is not such as to be considered emotionally abusive to the children, so as to engage s 60CC(2)(b) of the Act, it is a strongly influential feature of the evidence under s 60CC(3) of the Act.
If the mother’s statements are truthful, she believes the father will harm or abuse the children.[126] She professed her belief that the father has no real interest in the children and only pursued this litigation to spite her.[127] Her adverse attitude towards the father is affecting the children, whom she believes are now genuinely resistant to spending any time with him.[128] She does not want to be placed in the position of having to “force” them to do so.[129]
[126] First Single Expert Report at [49], [60], [102], [122], [485]; Second Single Expert Report at [18], [43]
[127] First Single Expert Report a [107]
[128] Second Single Expert Report at [11], [12], [166]
[129] Second Single Expert Report at [14], [28], [166]; Mother’s affidavit at [291]
The mother’s expressed beliefs do not correlate with the evidence, which fails to demonstrate the father poses any risk of harm to the children, and consequentially proves her lack of insight. The mother could not identify any need for improvement in her parenting capacity,[130] which led the single expert to conclude she has “limitations in her ability to self-reflect” and lacks insight.[131] The single expert believes she presents with “significant personality vulnerabilities”, without diagnosing any specific psychological condition.[132] The single expert opined the mother tends to view all things in absolute terms, without nuance, leading her to interpret events to fit her preconceptions. She suspects the mother has constructed a distorted view about the father to justify the severance of the children’s relationships with him.[133] The single expert was inclined to think that process was deliberate,[134] but it is really immaterial whether it is intentional or accidental because the effect is the same.
[130] First Single Expert Report at [121]
[131] Second Single Expert Report at [41], [174]
[132] First Single Expert Report at [404], [449]
[133] Second Single Expert Report at [399], [407]
[134] Second Single Expert Report at [175]
The single expert also expressed some concern about the level of the mother’s anxiety, which is prone to adversely affect the children. The situation is liable to be compounded by the maternal grandmother’s anxiety.[135] The elder child is already unusually anxious and prone to developing a frank disorder.[136] The younger child is diagnosed with autism spectrum disorder and finds it difficult to cope without calm surrounds.
[135] Second Single Expert Report at [84]
[136] Second Single Expert Report at [187], [188], [189]
Both the mother and maternal grandmother were observed by the single expert to be anxious around the children.[137] A psychological test administered to the mother proved her elevated paranoia.[138] The single expert found her “easily overwhelmed and engag[ing] in anxious avoidance”.[139]
[137] Second Single Expert Report at [138]
[138] First Single Expert Report at [142]
[139] First Single Expert Report at [389]
The psychologist engaged by the mother opines that both children are suffering from psychological distress.[140] The mother believes that is due to stress induced by being compelled to see the father, but the child welfare agency considered it was just as viable an explanation that the mother’s home environment was as much to blame.[141]
[140] First Single Expert Report at [338]
[141] First Single Expert Report at [385]
The mother does not believe the father has the capacity to provide adequately for the children’s emotional needs,[142] but her opinion is rejected. The single expert found the father and his wife to be emotionally stable with developed insight.[143] By contrast with the mother, the evidence easily enables inferences to be drawn that the father can adequately provide for the children’s physical, emotional and intellectual needs. He recognises the important need to preserve the children’s relationships with the mother.[144]
[142] Second Single Expert Report at [29], [30]
[143] First Single Expert Report at [199], [201]; Second Single Expert Report at [63], [64], [74], [76]
[144] First Single Expert Report at [417]
Sections 60CC(3)(j) and 60CC(3)(k)
There are no, and has never been any, family violence orders in existence between the parties.[145]
[145] Second Single Expert Report at [5]
The father was formerly bound by a State family violence order for the children’s protection, arising out of the allegations of child abuse made against him in late 2021,[146] but the terms of the order did not preclude the children’s contact with him and the order expired in early 2023.[147] That family violence order was not for the mother’s protection, as she wrongly alleged to the single expert.[148]
[146] Exhibit ICL13
[147] Exhibit F1; Second Single Expert Report at [162]
[148] Second Single Expert Report at [32]
Section 60CC(3)(l)
The prospect of further allegations by the mother against the father cannot be ruled out,[149] so further litigation may ensue.
[149] First Single Expert Report at [480]
Most probably, the mother wants to permanently erase the father from the children’s lives.[150] Making the orders she seeks would probably end the children’s relationships with the father and the paternal family, which would be a disastrous result, even if it is an outcome more likely to avoid further litigation.
[150] Second Single Expert Report at [18]
The chance of further litigation resulting from making the orders proposed by the father and the ICL, as are recommended by the single expert, might be more pronounced, but that is a chance worth taking in view of the benefits such orders will likely bestow upon the children.
CONCLUSIONS
The presumption of equal shared parental responsibility being allocated to the parties is rebutted by the evidence (s 61DA(4)). Their antipathy would preclude them from working cooperatively to solve problems for the children in the manner envisaged by the Act as being necessary (s 65DAC). The persistent failure to implement the existing interim orders enabling the children to spend supervised time with the father is one obvious example. The father’s attempts to communicate with the mother have been met with accusations of harassment.[151] The residential parent should have sole parental responsibility.
[151] Second Single Expert Report at [47]
The children should live with the father. The features of the evidence which dictate that outcome are these, in summary:
(a)the only way in which the children can enjoy meaningful relationships with both parents is to live with the father. They cannot do so if they continue living with the mother.
(b)the father does not pose any risk of physical or emotional harm to the children. He can meet all of their physical, emotional and intellectual needs.
(c)the mother does pose a risk of emotional harm to the children. She cannot adequately meet their emotional needs.
(d)the children’s relationships with the paternal half-siblings are no less important than their relationships with the maternal half-sibling and the maternal grandmother.
The single expert recommended the reversal of the children’s residence, supposing the mother’s allegations of abuse and family violence were unsubstantiated, which is the factual finding now made. She said in cross-examination the change of residence is designed to alleviate the stress felt by the children.
The children will be initially upset by and apprehensive about the residential transition. While it is possible they may not recover their emotional equilibrium, they most probably will. The father and his wife have contemplated how they will manage the change. They will avoid any other upheavals in the children’s lives by maintaining their school enrolment, maintaining their friendship groups, and maintaining their existing therapeutic medical relationships.
The prospects of success of the residential transition will be enhanced if the mother’s influence is removed for a relatively short period of time. The single expert recommended an embargo for the younger child in her second report,[152] but expanded that opinion evidence during her cross-examination, saying the embargo should best apply to both children uniformly and be for a period of two months, which advice was embraced by both the father and the ICL.
[152] Second Single Expert Report at [184]
Enforcement of the embargo period is fraught with practical difficulty because the father intends to keep the children at their current school, which is the same school attended by their maternal half-sibling. Because of the half-sibling’s young age, the mother will likely be regularly involved in his delivery to and collection from school, so there is every chance the children will see the mother and want to converse with her. I reject the onerous form of injunction proposed by the father,[153] which is impractical. Rather, an injunction is made confining the mother’s attendance at the school to short periods and preluding her from initiating contact with the children. If they run up to her at the school while she is there to deliver or collect their half-sibling, she can hardly be expected to ignore them or chase them away.
[153] Exhibit F6 (Order 19)
The declaration proposed by the father and the ICL that the children “spend no time with the mother” during the embargo period is not made.[154] It is a declaration in rem which neither compels a party to do, nor abstain from doing, anything and is therefore meaningless.
[154] Exhibit F6 (Order 3); Exhibit ICL12 (Order 4)
After the embargo period, the children will be re-introduced to the mother gradually, beginning with professionally supervised time at a contact centre. The next stage will be unsupervised time for a day on a regular basis. Ultimately, the children will spend three nights on alternate weekends and parts of school holiday periods with the mother. The ICL proposed the eventual expansion to include school holiday periods, but the father did not.[155] The father claimed the single expert did not recommend any school holidays visits, but her evidence was not so prescriptive.
[155] Exhibit ICL12 (Order 7); Exhibit F6 (Order 7)
The incremental progression is generally in line with the single expert’s recommendations. She said the graduation allows the children to adapt to the changes slowly and enables them to return to the stability of the father’s care knowing they will still see the mother.
The orders accommodate Christmas Day, Mother’s Day, and Father’s Day as special occasions, but no variation of the orders is made to accommodate birthdays. There was no evidence, no cross-examination, and no submissions about the importance of birthdays.
Changeovers will occur either at the children’s school or the public venue which the parties have used in the past.
No orders are made to regulate the children’s telephone communication with the mother when they live with the father, or with the father when they are spending time with the mother. The children will see the parties frequently enough without the need for such prescriptive communication. The mother can hardly quibble. She told the single expert it is inconvenient for the children to receive telephone calls from the father,[156] so the reverse must also be true, and she did not propose any communication orders herself.[157]
[156] Second Single Expert Report at [43]
[157] Exhibit M17
The parties agreed to submit to an injunction restraining their physical discipline of the children.
The father abandoned a raft of the orders he proposed.[158]
[158] Exhibit F6 (Orders 16, 17, 18a, 18b, 23, 24, 25, 26, 27 and 28)
The remaining orders could not be the subject of rational objection.
The single expert proposed that the children be presented to a court child expert to have the orders explained to them, to which idea the parties and the ICL uniformly acceded.
I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 3 November 2023
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