Calvert & Calvert
[2008] FMCAfam 101
•18 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CALVERT & CALVERT | [2008] FMCAfam 101 |
| FAMILY LAW – Parenting – parental alienation – social science research – weight to be given to expert’s report. |
| Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA |
| CDJ and VAJ [1998] FLC 92-828 Calvert & Calvert [2007] FMCAfam 925 Makita Australia Pty Ltd v Sprowles [2001] NSWCA 305 Rice v Asplund [1979] FLC 90-215 |
| Applicant: | MR CALVERT |
| Respondent: | MS CALVERT |
| File number: | SYC 1139 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 5-6 July, 5-6 November, 30 November 2007 |
| Date of last submission: | 30 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 18 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Batey on 5-6 July, then Self represented |
| Solicitors for the Applicant: | McGillivray Solicitors until 6 July |
| Counsel for the Respondent: | Mr Cook |
| Solicitors for the Respondent: | M G O’Callaghan & Associates |
| Counsel for the Independent Children’s Lawyer: | Mr Ladopoulos |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission of NSW |
ORDERS
The Child A born in June 1999 live with the Mother.
The Child spend time with the Father as follows:
(a)Each alternate weekend:
(i)On the first alternate weekend, from after school on Friday to the commencement of school on Monday;
(ii)On the second alternate weekend, from 5.00pm on Sunday to the commencement of school on Tuesday.
Pursuant to section 11F of the Family Law Act 1975 in six (6) months time the parties attend a child dispute conference with a family consultant in this Registry at a time and date to be determined by the Registry and pursuant to section 11C of the Act such conference be reportable, with the Independent Children’s Lawyer to facilitate arranging this appointment.
The matter be adjourned to 27 November 2008 at 2.00pm for mention before me.
I REQUEST that the Independent Children’s Lawyer not be discharged pending the mention date above.
IT IS NOTED that publication of this judgment under the pseudonym Calvert & Calvert is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1139 of 2007
| MR CALVERT |
Applicant
And
| MS CALVERT |
Respondent
REASONS FOR JUDGMENT
Introduction
When this matter started before me it related to three children: K, born in September 1992, who is 15 years old, M, born in August 1994, currently 13 years old, and A, born in June 1999, currently 8 years old. The applicant is the children's father, Mr Calvert, who is a 44 year old public servant. The respondent is the children's mother, Ms Calvert, who is 37 years old, and is a hairdresser. The parents commenced cohabitation in 1989, married in June 1990 and separated in October 2002.
During the course of these proceedings the parents entered into consent orders that, for all practical purposes, dealt with the dispute insofar as it related to the older children, K and M. Insofar as the dispute related to A, they reached agreement in relation to a substantial number of issues relating to her, but there were still some important issues left for me to determine.
Background
The first orders relating to the children were made on 18 December 2002, by consent, in the Family Court of Australia at Parramatta. The parents agreed that all three children would reside with their mother, and that the father would have contact with the children on three days each week, but alternating between Wednesday-Fridays one week, and Friday-Sundays another week. The parties also agreed that the children would have contact with their father for one half of all school holiday periods, and on special occasions.
The father asserts that as from May 2004 the parents agreed to vary the parenting orders so that they had equal shared care, with the father having three days and three nights in each six-day period.
Notwithstanding those orders, K has lived with his father since February 2005, and M has also lived with her father since 2006. While there is no dispute between the parties about these facts, there is a significant dispute about the circumstances as a result of which these children went to live with their father.
The current litigation has its genesis in proceedings commenced by the mother in February 2007 in H Local Court. She filed a recovery application on the basis that A had not been returned from a scheduled visit with her father. On 12 February 2007 the learned Local Court Magistrate at H ordered that A be returned and made a number of incidental orders. The matter first came before me on 27 April 2007, having been transferred from H Local Court. I appointed an Independent Children's Lawyer and adjourned the matter to 3 May 2007 for interim hearing. On 3 May I made an order restraining the parents from causing A to attend on any psychologist or counsellor other than the school counsellor, Ms M, and the family consultant or expert appointed to prepare a report pursuant to the orders I also made. The matter was set down for hearing. On 31 May 2007, by consent, I vacated the order for the preparation of a family report and substituted an order appointing Dr Rikard-Bell as the single expert witness to prepare a report in the matter.
The hearing commenced before me on 5 and 6 July 2007 and on that occasion the expert evidence of Dr Rikard-Bell was dealt with. I deal with this evidence, at length, below. The hearing resumed on 5 and 6 November 2007, and concluded on 30 November 2007.
On 5 November 2007 I was invited to make orders by consent. The effect of those orders was to discharge previous orders, and to order that K and M live with the father, and spend time with the mother in accordance with their expressed wishes. A was to live with the mother, and spend time with the father during school holidays, special days, etc. In addition, the orders provided for communication between A and M and K, and for the parents to keep each other informed about important matters relating to the children.
The main issue for determination at the hearing was the amount of time that A would spend with her father. In this regard, the applicant father's position was that he wanted equal time. The respondent mother proposed that A spend time with her father each alternate weekend from after school Friday to the commencement of school the following Monday on one fortnight, and then from Sunday evening to the following Tuesday morning on the alternate fortnight. A was represented by her own lawyer and the Independent Children's Lawyer's position was that the mother's proposal for A to spend time with her father represented the uppermost order that I should make, in terms of the quantity of time between A and her father.
Issues
The issues in this case were, in my opinion, accurately identified by counsel for the Independent Children's Lawyer, Mr Ladopoulos. He identified the following factual issues as requiring determination in these proceedings:
(1)Whether the father's allegations regarding the mother's capacity to properly care for the children whilst in her care are substantiated.
(2)Whether the father's allegation regarding the mother's abusive behaviour towards the children, are substantiated.
(3)Whether the father has taken all reasonable steps to ensure that the children maintain a healthy relationship with their mother.
(4)If the father has not taken all reasonable steps to ensure that the children maintain a healthy relationship with their mother:
(i)has his failure to do so been deliberate; and
(ii)has he actively sought to undermine the children's relationship with their mother?
Whilst I regard that as an accurate statement of the factual issues to be determined in this case, as will be apparent below, another important issue was the weight to be attached to the expert evidence of
Dr Rikard-Bell.
Of course, in a case like this I am required to make a decision which is in the best interest of A. Ascertaining what is in the best interest of A is determined by reference to the primary and additional considerations that are expressed in s.60CC of the Family Law Act. That inquiry may conveniently be expressed as a series of questions as follows:
(1)Does A have a meaningful relationship with each of her parents? If so, what order best encourages that meaningful relationship?
(2)Does A need to be protected from the risk of harm arising out of abuse, neglect, or family violence? If so, what order best promotes that?
(3)Has A expressed a view about the issues relating to her? If so, what weight should I place on those views?
(4)What is the nature of A's relationship with her mother, father, and siblings? What is the impact on those relationships of the orders proposed by each of the parents?
(5)Are there concerns about the willingness, ability or capacity of each parent to facilitate an ongoing relationship between A and the other parent? If so, what order can I make that takes into account this circumstance?
(6)What would be the impact of any change on A arising out of the orders proposed, and to be made?
(7)Are there any issues of practical difficulty or expense associated with A spending time and communicating with each parent, and her siblings? If so, what order can best deal with these practical difficulties?
(8)Are there issues about the capacity of each parent to meet the needs of the children, including their physical and emotional needs?
(9)In a case like this where the parents agree that there should be an order for equal shared parental responsibility, what is the impact of considering equal time, or substantial and significant time, having regard to the facts of this case, what is reasonably practical, and what is in A's best interest?
It will be apparent that the questions formulated, arising from the primary and additional considerations contained in s.60CC, necessarily overlap with the factual issues identified by the Independent Children's Lawyer, as requiring determination on the facts of this case. In order to avoid duplication I will deal with the considerations primarily in the context of the factual issues requiring determination. However, I propose to deal with the issue of the expert evidence first, before dealing with the evidence of the parties.
Applicable law
The orders sought are governed by Part VII of the Act. The objects and principles underlying Part VII are set out in ss.60B(1) and (2):
(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):
e)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
f)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
g)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
h)parents should agree about the future parenting of their children; and
i)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The child’s best interests are paramount: s.60CA. How a child’s best interests are determined is set out in s.60CC. I must consider these matters. There are primary considerations set out in s.60CC(2):
(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.
There are additional considerations set out in s.60CC(3):
(3) Additional considerations are:
a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
b)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f)the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her 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;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)any family violence involving the child or a member of the child's family;
k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
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 to the child;
m)any other fact or circumstance that the court thinks is relevant.
As I am required to make a parenting order, a presumption of equal shared parental responsibility applies, subject to the terms of s.61DA:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
b)family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
As this section states, the presumption may be negated under subsection (2) if there are reasonable grounds to believe that there is abuse or family violence. The presumption may be rebutted under subsection (4) if it is not in the best interests of the child for there to be equal shared parental responsibility. The effect of subsection (4) is to require consideration of the primary and additional considerations in s.60CC(2) and (3).
If, as in many cases, the presumption of equal shared parental responsibility applies, either because that is what the parents agree to, or it is not negated or rebutted, then I am required to apply s.65DAA and to consider the child spending equal time, or substantial and significant time, with each parent:
(1) If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
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 with 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.
Substantial and significant time
(2) If:
a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; an d
the court must:
c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
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 (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
f)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
g)the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
h)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
a)how far apart the parents live from each other; and
b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
d)the impact that an arrangement of that kind would have on the child; and
e)such other matters as the court considers relevant.
It is apparent from this section that, once again, I must consider what is in the child’s best interests (pursuant to s.60CC(2) and (3)) and what is reasonably practicable (as defined in s.65DAA(5)).
Significance of Time
Like many disputes relating to children, this is a dispute about dividing the child’s time between the parents. A leading Australian researcher has reflected on this phenomena in an article entitled “Time to rethink time? The experience of time with children after divorce”[1]. Smyth refers to the notion of time as part and parcel of the “custody wars” between parents. He says about time at page 4: “…Parents fight about it, courts divvy it up, and children long for it.” Smyth goes on to say some important things about time at page 9 of the article:
A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parent’s wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.[2]
[1] Smyth, B. (2005). ‘Time to rethink time? The experience of time with children after divorce’, Family Matters, 76, pp 4-10.
[2] Ibid
This is a social science perspective on time, and its significance in the context of children’s relationships with their parents. Section 65DAA(3) is the Family Law Act’s attempt to incorporate this social science perspective into law. The definition of substantial and significant time sets a high benchmark (“…only if…”) for the very diverse forms of cumulative interaction between a parent and child described in paragraphs (a), (b) and (c) of that section.
Alienation of Children
One of the main issues arising in this case is whether the children or any one of them has been alienated from one parent. The issue is a complex one. While an allegation of alienation has a distinct legal context (e.g. the considerations referred to in s.60CC(2)(a) and (b), s.60CC(3)(b)(c)(i), and s.60CC(4) it is not a legal concept. Alienation is a concept found in the social sciences (specifically psychology) and medical science (specifically psychiatry). The following discussion is drawn from a series of articles authored by Kelly and Johnston (2001)[3], Lee and Olesen (2001)[4] and Johnston (2003)[5].
[3] Kelly, JB. and Johnston, JR. (2001).‘The Alienated Child: A Reformulation of Parental Alienation Syndrome’ Family Court Review, 39, pp 240-246.
[4] Lee, SM. and Olesen, NW. (2001). ‘Assessing for Alienation in Child Custody and Access Evaluations’ Family Court Review, 39(3), pp 282-298.
[5] Johnston, JR. (2003). ‘Parental Alignments and Rejection: An Empirical Study of Alienation in Children of Divorce’, Journal of the American Academy of Psychiatry and the Law, 31(2), pp 158-170.
Johnston explains that the dilemma posed by a child’s strident rejection of one parent, generally accompanied by strong resistance or refusal to visit or have anything to do with that parent after separation, was first recognised by Wallerstein and Kelly in 1980[6]. They described it as an “unholy alliance” between a narcissistically enraged parent and vulnerable older child or adolescent who together waged battle in efforts to hurt and punish the other parent. In 1987 Gardner[7] coined the term ‘parental alienation syndrome’ (PAS) to describe a psychiatric disorder in a child arising almost exclusively in the context of a custody dispute. Gardner defined it as “the child’s campaign of denigration against a parent, a campaign that has no justification” resulting from “the combination of a programming (brainwashing) parent’s indoctrinations and the child’s own contributions to the vilification of the target parent”. Johnston notes that the scientific basis for PAS as a diagnostic entity has been challenged by both mental health and legal professionals, and the syndrome not accepted as psychiatric diagnosis in DSM III or IV. The criticisms about PAS are discussed in more detail in Kelly and Johnston. These criticisms are convincing.
[6] Wallerstein, JS. and Kelly JB. (1980). Surviving the Breakup: How Children and Parents Cope With Divorce, New York, Basic Books.
[7] Gardner, R. (1987). ‘Parental Alienation Syndrome and the Differentiation between Fabricated and Genuine Child Sex Abuse Allegations’, Creative Therapeutics, Cresskill.
In 2001 Kelly and Johnston proposed a new formulation about the alienated child, which focuses more on the alienated child rather than parental alienation. They defined an alienated child as one who expresses, freely and persistently, unreasonable negative feelings and beliefs (such as anger, hatred, rejection and/or fear) toward a parent that are significantly disproportionate to the child’s actual experience with that parent. This represented a significant shift of focus away from the behaviours of the ‘programming’ parent, and towards the child, his or her observable behaviours, and parent-child relationships.
In order to avoid ambiguity in meaning arising from the use of the terms parental alienation and PAS Kelly and Johnston preferred the terms “alignment” and “rejection” to describe the bilateral balance in the children’s behaviour and attitudes toward their parents. Their reasons for preferring these terms are convincing.
As Johnston explains, the reformulation by Kelly and Johnston, based on clinical observations, viewed children’s relationships with their parents after separation on a continuum from positive to negative, with the majority of children having positive relationships with both parents. By contrast to Gardner’s view, milder forms of parental alignment and rejection are seen as relatively normal. Johnston describes this in the following terms at page159-160:
By reason of temperament, age, gender, shared interests, parents preferred by siblings, and parenting practices, children can gravitate toward one parent more that the other; although such affinities usually shift over time with changing developmental needs and situations.
More unusual are children in whom a moderate degree of rejection of one parent develops after divorce. These are children who demonstrate a clear alignment or preference for one parent during marriage or separation and want limited contact with the nonpreferred parent after separation. Most aligned children do not completely reject the other parent or seek to terminate all contact; rather, they tend to express some ambivalence toward this parent, including anger, sadness and love.
At the far end of the continuum are children who have extreme alignments with one parent after separation and divorce and who express their rejection of the other parent stridently, without apparent ambivalence or guilt. They strongly resist or completely refuse contact with a parent who is undeserving of rejection. While this extreme stance more often occurs in high-conflict custody disputes, it is hypothesized to be an infrequent occurrence among the larger population of divorcing children.
Thus, Kelly and Johnston describe the continuum of child-parent relationships after separation as ranging from:
a)Positive relationships with both parents;
b)Affinity with one parent;
c)Allied children;
d)Estranged children;
e)The alienated child.
For present purposes, children with positive relationships with both parents need not concern us as they are clearly at the positive and healthy end of the continuum. So too are children with an affinity with one parent who, nonetheless, desire continuity and contact with both parents. Kelly and Johnston observe that affinities may shift over time, changing with developmental needs and situations.
They describe “allied children” as demonstrating or expressing a consistent preference for a parent and often wanting limited contact with the non-preferred parents, but without rejecting the other parent or seeking to terminate all contact. The allied child often expresses ambivalence towards the parent. Kelly and Johnston observe about these children:
To evaluate the child’s stance, the degree of entrenchment, and the child’s vulnerability to alienating pressures, clinical observations and psychological assessment are essential to the evaluation process. During the course of interviewing, the evaluator looks for any shift in attitude, particularly when a child has marched in and informed the evaluator what a devil the rejected person is. Does this black and white thinking shift during the course of the interview or over the course of the evaluation? Can the child recall positive memories of the rejected parent? Are there signs of black and white thinking about others in the child’s life? Is the child shut down, i.e., emotionally constricted, closed to new information and showing decreased affective expression? If a child is “shut down”, this can reflect alienation, a response to high conflict or the result of trauma. The child’s emotional “shut down” and withdrawal must be understood in light of other findings in order to evaluate its relevance to alienation.
Estranged children are described as those who are realistically estranged from one parent as a result of that parent’s history of family violence, abuse or neglect:
Among this group are children who are estranged as a cumulative result of observing repeated violence or explosive outbursts of a parent during the marriage or after separation, or who were themselves the target of violence and abusive behaviour from this parent. Often they can only feel safe enough to reject the violent or abusive behaviour after the separation.
It is important to note that children do not have to be direct witnesses to violence – the child need only see the aftermath of the violence or be left in the care of a victim parent who is traumatized by severe marital abuse. And children can also be traumatized by an act of violence that from an adult’s perspective may not have been very serious or injurious. Some children have experienced an early traumatic incident involving excessive force or abuse towards a family member which after separation escalates into a powerful family legend that can contribute to child alienation, in addition to estrangement. The mix of intense anger towards the abusive parent, and phobic reactions to that parent caused by subconscious fear of retaliation looks like alienation. But unlike alienated children, the estranged children do not harbour unreasonable anger and/or fear. In all of these cases, the important reason for distinguishing children who have experienced family violence from those who are alienated is that they generally need a Post Traumatic Stress Disorder intervention at the outset. Only after the trauma has been property addresses should one consider whether interventions for alienation are necessary.
Other youngsters are estranged in response to severe parental deficiencies including persistent immature and self-centred behaviours, chronic emotional abuse of the child or preferred parent, physical abuse which goes undetected, characterologically angry, rigid, and restrictive parenting styles, and psychiatric disturbance or substance abuse which grossly interferes with parenting capacities and family functioning.
Kelly and Johnston warn that the responses of realistically estranged children are commonly and incorrectly interpreted and played out in parental alienation cases.
Kelly and Johnston describe “alienated children” in the following terms:
At the extreme end of the continuum… are children who are alienated from a parent after separation and divorce, who express their rejection of that parent stridently and without apparent guilt or ambivalence, and who strongly resist or completely refuse any contact with that rejected parent. For the most part, these rejected parents fall within the broad range of marginal to good enough, and sometimes between parents, who have no history of physical or emotional abuse of the child. Although there may be some “kernel of truth” to the child’s complaints and allegations about the rejected parent, the child’s grossly negative views and feelings are significantly distorted and exaggerated reactions. Thus, this unusual development, in the absence of the type of factors described above as leading to child estrangement, is a pathological response. It is a severe distortion on the child’s part of the previous parent – child relationship. These youngsters go far beyond alliance or estrangement in the intensity, breadth, and ferocity of their behaviours toward the parent they are rejecting. They are responding to complex and frightening dynamics within the divorce process itself, to an array of parental behaviours, and also their own vulnerabilities which make them susceptible to becoming alienated. The profound alienation of a child from a parent most often occurs in high conflict custody disputes; it is an infrequent occurrence among the larger population of divorcing children.
The distinctions drawn are important in practice and need to be the subject of evidence which is then carefully tested.
Johnston’s empirical study supports the Kelly and Johnston reformulation and demonstrates that the majority of children were not aligned with either parents, and that the overall scores for rejection were quite low. Thus extreme alignments were relatively uncommon in the total sample (eight to nine percent), but children in litigating families were more likely to be aligned. The study enabled Johnston to make observations about the typical family dynamics of children caught up in these difficult situations. These are potentially helpful indicators from an evidentiary perspective:
According to clinician’s ratings, the typical family dynamics of children who show little or no pleasure in spending time with their fathers and who resist or refuse visitation include a father who tends to be deficient in parenting capacities – lacking in warmth, empathy, and cognitive understanding of the child’s viewpoint. He is less able to communicate with the child, less involved in the child’s daily activities, makes fewer attempts to enrich the child’s life, and tends to have less pleasure, joy, or fun in relating to his child. Whether the father’s limitations in parenting are largely a reaction to his child’s rejection of him could not be determined in this study. In the very least, the father has not been able to respond well under the circumstances. The mother, by contrast, is more competent in these domains of parenting, especially with her younger children. However, in the relative absence of a supportive coparent, the mother is likely to be more dependent on her child for approval and support. She tends to use the child to ward off her own depression and for her own emotional needs. She is likely to sabotage the child’s relationship with the father by attempting to turn the child against him, by interfering with and trying to control his activities and time with the child. She is more likely to send messages and pump the child for information and to withdraw her affection or punish the child should he or she show affection toward the father. The deficiencies and problematic parenting of both mothers and fathers are related to their own diminished social and emotional adjustment and sense of well being after divorce. Older children appear to be more vulnerable to these dynamics and are more likely to reject their fathers. It is perhaps not surprising that children who resist or reject visitation with their fathers have anxieties about separation from their mothers. Though these separation anxieties are in part developmentally normal responses of younger children, separation anxieties are exacerbated in those vulnerable children who are less socially competent and by the stress of chronic custody litigation that continues long after the parents have separated. The typical family relationships are fairly similar for girls and boys who demonstrate negative attitudes and behaviour towards their fathers.
According to clinicians’ ratings, the typical family dynamics of children who show diminished pleasure and resist or refuse contact with their mother are somewhat different. In this case, the mother appears to be her own nemesis in that she is lacking in parenting skills, or alternatively, her parenting has been compromised by the child’s rejection and related family dynamics. Specifically, she is deficient in warmth, empathy, capacity to communicate, and understanding of her child’s feelings and ideas. She is less able to enrich the child’s life and is less involved in his or her daily activities. The capacity to experience pleasure, fun, and joy are relatively absent in her relationship with her child, these limitations of parenting are linked to difficulties the mother has in her own social and emotional adjustment. That the parenting capacities of the father appear to be unrelated to the child’s negative attitudes and behaviour toward the mother is interesting. Also, the child’s rejection of the mother is not related to attempts made by either the father or mother to use the child for emotional sustenance or to sabotage the child’s relationship with the other parent. However, children’s separation anxieties from their fathers are associated with rejection of their mothers, and these anxieties are likely to be compounded by ongoing entrenched custody litigation or vice versa.
Kelly and Johnston make some further important points. Even though a child is not alienated, i.e. does not meet all the criteria of an alienated child, a number of the critical factors may place the child at risk of further alienation. They identified the following risk factors that tend to produce alienation:
a)Child triangulated in intense marital conflict;
b)Separation experienced as deeply humiliating;
c)Highly conflicted divorce and litigation;
d)Contributions of new partners, extended kin and professionals.
They also identified common behaviours and organising beliefs of the aligned parents including:
a)Extremely negative views of the rejected parent freely, angrily and repeatedly expressed to the child by the aligned parent;
b)Innuendos of sexual or child abuse or that the parent is dangerous in other ways;
c)A belief that their child does not need the other parent in their lives;
d)A belief that the rejected parent is dangerous to the child in some ways, either violent, physically or sexually abusive, or neglectful, thus justifying behaviour aimed at blocking time with the child;
e)A belief of the aligned parent that the rejected parent does not and has never loved or cared about the child.
They also identified a number of behaviours of the rejected parent that contributed to child alienation including:
a)Passivity and withdrawal in the face of high conflict;
b)Counter-rejection of the alienated child;
c)Harsh and rigid parenting style;
d)Rejected parent is self-centred and immature;
e)Rejected parent has critical and demanding traits;
f)Diminished empathy for the aligned child.
Turning to the child’s own experience of alienation, Kelly and Johnston observed that it was unusual to see children whose alienation from a parent is consolidated and hardened prior to the age of seven or eight. The developmental stage of children is highly relevant in terms of how they experience alienation. The alienated child feels abandoned by the rejected parent, perhaps as a result of the separation or its circumstances, or repartnering. A child might be more vulnerable to alienation due to temperament and personality vulnerabilities, or other factors in the parent-child relationship. A child’s vulnerability to alienation is influenced by lack of external support of the child, e.g. lack of contact with the parent.
Kelly and Johnston present the following typical clinical presentation of alienated children:
By definition, the core feature of alienated children is the extreme disproportion between the child’s perception and beliefs about the rejected parent and the actual history of the rejected parents’ behaviours and the parent-child relationship. Unlike most aligned or estranged youngsters, alienated children freely express hatred or intense dislike toward the rejected parent. They demonize and vilify that parent, often present trivial reasons to justify their hatred and are usually not reticent about broadcasting the perceived shortcomings of the parent to others…
One of the most common behaviours of alienated children is their strongly expressed resistance to visiting the rejected parent, and in more extreme cases, an absolute refusal to see the parent in any setting, including a therapeutic one, and a desire to unilaterally terminate the parent-child relationship. These children want only to talk to lawyers who represent their viewpoint, and to those custody evaluators and judges whom they believe will fully support their efforts to terminate the parent-child relationship, once they hear all the “facts”. To all, they strongly advocate their right to choose whether or not they will see their parent.
Another feature of alienated children is the manner in which they present their stories. Their allegations about the rejected parent are mostly replicas or slight variants of the aligned parents’ allegations and stories. These scripted lines are repeated endlessly, but most are hollow, without underlying substance, texture, or detail to support the allegations. They have adopted the allegation(s), but unlike children with histories of abusive treatment, do not have compelling supporting information. Generally, alienated children sound very rehearsed, wooden, brittle, and frequently use adult words and phrases. They appear not to be guilty or ambivalent as they denigrate, often viciously, the rejected parent. Sometimes they appear to be enjoying themselves. There is no obvious regret.
One of the sobering aspects of these presentations is that alienated children have essentially been given permission to be powerful, and to be hostile and rude towards the rejected parent, grandparents, and other relatives…
And finally, alienated children often idealise or speak glowingly of the aligned parent as an adult and parent. They refuse to consider any information that might undermine this viewpoint of their perfect companion and parent, and vigorously reject any suggestion that their obsessive hatred of the rejected parent has any relationship to the views or behaviours of the aligned parent. They may describe how that parent is suffering, has been harmed economically and emotionally by the rejected parent, and is worthy of their total allegiance.
It is import to note that some alienated children, while they present as very angry, distraught, and obsessively fixated on the hated parent in the therapist’s or evaluator’s office, appear to function adequately in other settings removed from the custody battle. They may retain their school performance, may continue to excel in musical or athletic activities, and at least superficially, seem reasonably well adjusted. A closer look at their interpersonal relationships, however, often reveals difficulties. Alienated children’s black/white, often harshly strident views and feelings are usually reflected in dealings with their peers as well as those in authority. However, it is in the rejected parents’ home that the child’s behaviour is severely problematic and disturbed. They may destroy property, act in obnoxious, even bizarre ways, and treat these parents in public with obvious loathing, scorn, and verbal abuse. They prefer to be in contact constantly with their aligned parent by telephone, at which times they whisper hostile observations about the rejected parent’s words, behaviours, meals, and personality. If they are resisting or refusing contact, all efforts of rejected parents to communicate directly with their children are rebuffed, including demands that the parent never contact them again, stop harassing them with presents and letters (which are often discarded or unopened), and cease their useless legal efforts and court appearances.
The Lee and Olesen article is a useful template to assess the weight to be given to expert reports in cases where it is alleged that there is alienation and rejection. They warn against oversimplified evaluations containing incorrect assumptions and not based on a thorough evaluation and analysis of the child, the family and external corroborating sources and data. They warn against the use of diagnostic labels or inflammatory language and suggest that a highly detailed plan for interventions needs to be developed. There are no easy solutions:
Even when an alienated children has been identified, and even when one parent is clearly promoting that alienation, there is no universally prescribed solution. Certainly there is no change in visitation or scheduling which will “solve” these families’ problems. A combination of detailed recommendations with therapeutic, access, and monitoring components is the most useful.
They urge that recommendations should include the following:
1. A proposed visitation schedule which may contain a graduated access plan between the child and the rejected parent;
2. A proposed plan for how decisions about the child will be made;
3. A proposed plan for how both parents will obtain and exchange information;
4. Proposed rules to manage, minimise and avoid conflict between the parents;
5. A proposed plan for monitoring the family’s compliance with orders and how violations will be addressed;
6. A proposed schedule for evaluative updates;
7. In the most severe and entrenched cases, the evaluator may be making recommendations for removal of the child from both parents, or a change in custody, and/or the suggestion that the rejected parent end their efforts of maintaining a relationship with their child.
The research extracted above demonstrates how difficult it is to make decisions in cases involving allegations of alienation, as well as the challenge facing experts who prepare reports to assist the court in making difficult decisions. It is important, however, for parents to understand that recommendations contained in reports, and decisions made in these cases, are informed by reliable research, and are not mere intuition or supposition.
What weight should be given to the expert evidence of
Dr Rikard-Bell?
Dr Rikard-Bell prepared a report pursuant to orders made by the Court dated 26 June 2007, and released to the parties on 2 July 2007. Dr Rikard-Bell is a child, adult and family psychiatrist in practice in Sydney. His report records the interviews that he held with all members of the family and with other relevant persons, as well as the documents that he examined in the preparation of his report, including documents produced under subpoena. It is a robust, forthright report. I believe it is necessary to extract parts of Dr Rikard-Bell's summary and recommendations, contained at pages 16-18 of his report.
Dr Rikard-Bell summarises as follows:
Gradually, however the domination of the children appears to have occurred and there has been a gradual attrition of the children away from the mother into the father and his extended family. A is the last child and there is a tremendous amount of pressure on her to move to the care of the father and move away from the mother. I believe that the older two children, particularly M, are instruments of the father and the father’s family in this process to remove A from Ms Calvert.
Should A move directly to reside with the father I believe that she would make the adjustment easily and would continue to develop normally in his care in the short term; she also would be reunited with her two siblings and this would strengthen her relationship with them. However, by moving to the father’s care I believe A would also become alienated from the mother and that the three children would become distant from her [the mother]. Ms Calvert would become marginalised and the relationship ultimately between Ms Calvert and the three children would be lost. In the long term, this would be a very sad situation. I believe the sadness could contribute to the children feeling confused about relationships, potentially feeling anger towards both the mother and the father and a deep sense of rejection and loss and possible development of depression. In the short term however, there probably wouldn’t be any major adverse effect except rejection of the mother and perhaps some school behaviour problems.
Should A remain living with the mother I believe that increasingly she would become under pressure from her siblings to move and to (sic) the father’s care and she would become increasingly distressed by the pressure.
The situation for the children is extremely sad and distressing. Mr Calvert I believe suffered an extremely deep hurt and sense of rejection when the relationship broke down between him and Ms Calvert. They have been caught in a loyalty split and the attraction and domination of the father’s family appears to have overpowered the mother and her family resulting in the children’s alienation from the mother. There is a lot at stake for the children in this situation. It appears that the inevitable draw towards the father of the three children is occurring. However, I believe that the loss of the mother from their lives will be extremely damaging to them.
Dr Rikard-Bell then makes the following recommendations:
1. It is extraordinarily difficult to find a solution which will be a good one for these children. It is still possible for the children to have a happy normal time with the mother as happened when the children shared the mother’s birthday last year. However I believe the father has successfully sabotaged the relationship between the older two children and the mother and is slowly achieving the same with the youngest child. Can anything be salvaged? Probably the best outcome for the children would be for the three of them to reside together with one parent and have contact with the other parent. The three children need to be together, however if they go directly to live with the father I believe they will all become alienated from the mother. If they are ordered to reside with the mother the two older children will most probably abscond back to the father’s care. The only chance for a resolution is if the father decides to genuinely support the mother and that a graduated process be followed.
2. I recommend that daytime contact each week be established between the older two children and the mother for one day per fortnight for three months. Once this day time contact has been established then I would suggest that a shared parenting arrangement be established for A between the parents with the two older children having fortnightly full weekend contact with the mother. If this can be achieved then after another three months I would suggest the three children reside with the father and then all have regular fortnightly weekend contact with the mother.
3. I recommend that neither parent denigrate the other parent in front of the children.
4. I recommend that the mother and father both have separate individual counselling to help them deal with these complex issues regarding the children.
5. I do not see any purpose in trying to establish counselling between the older two children and the mother under the current circumstances. The father would need to actively support the older two children’s relationship with her.
6. Should the father not support a daytime relationship between the older two children and the mother I believe that he is not able to put the needs of his children above his own. I would recommend that the contact between A and the father restricted in order to try and at least preserve this one relationship with the mother. If the father does not change his approach and support the children re-establishing a relationship with the mother I would suggest that A only have daytime contact with the father once a fortnight for a day and that she see her siblings at [a] neutral place on the alternate weekend.
It is important to note that the parents entered into the consent orders that I referred to above after Dr Rikard-Bell had prepared his report, and after he had been cross-examined.
When the hearing commenced before me on 5 July 2007 Mr Batey appeared for the father. He made an application for Dr Rikard-Bell's report to be excluded, based on the principles referred to in Makita Australia Pty Ltd v Sprowles [2001] NSWCA 305. My ruling on that application was published on 14 September 2007 as Calvert & Calvert [2007] FMCAfam 925. In short, I ruled that even though the issues raised by Mr Batey were, prima facie, serious issues, it was still preferable to deal with these issues as ones of weight at the end of the hearing, rather than as a preliminary or threshold issue at the commencement of a hearing. Mr Batey then cross-examined Dr Rikard-Bell. It was a robust, forthright cross-examination.
As a result of the cross-examination, Dr Rikard-Bell was able to clarify that he did not believe that the father had consciously and actively proceeded to try and destroy the relationship between the children and the mother, but rather that the father had been happy to allow the relationships to deteriorate as he wanted the three children to come and live with him. A good example of this is found in the transcript at pages 46 to 47:
Mr Batey: Continuing:
“The father appears to have encouraged the rejection not only of the mother but also of the mother’s family.”
Now, where do I find the evidence that was in front of you to support that statement?
Dr Rikard-Bell: Sorry, could you just repeat that again?
Mr Batey: Yes:
“The father appears…”
so, presumably this is some judgment of yours:
“to have encouraged the rejection not only of the mother but also of the mother’s family”
Where did you get that from?
Dr Rikard–Bell: Well, that was my overall impression.
Mr Batey: Yes, from what?
Dr Rikard–Bell: From looking at the sequence of events that had occurred. That the children had previously had a good relationship with their mother, they then – there’s this attrition of the children moving towards the father and his family and the children are not only rejecting the mother but they’re also rejecting the mother’s extended family and…
Mr Batey: The word is “encouraged”?
Dr Rikard-Bell: Perhaps encourage is the wrong word, not prevented and not discouraged.
Mr Batey: You see I am suggesting to you there’s no evidence to say he encouraged. Certainly receptive, I take that. But you see you’re painting him as having a very significant role in these children moving?
Dr Rikard-Bell: I believe that he has had a significant role.
Mr Batey: And when I ask you to identify on what basis it comes down to…?
Dr Rikard-Bell: Well, it’s extremely – I think it’s extremely difficult to – when these subtle forces are happening to children where there are implicit supports for the children behaving and continuing to behave in a way to then say I’m – you know, for the father to say I’m completely innocent, that I haven’t done anything, therefore I’m innocent, I don’t think that’s the case, your Honour. I think parents can be just as complicit by inaction and by allowing things to develop than if they’ve actively tried to sabotage. I don’t think it’s been an active attempt on the father to try and sabotage but I think he’s allowed the situation to develop and therefore has played an extremely important role.
Mr Batey: Continuing:
“He also was an opportunist, he uses the ammunition –“
I’m presuming that was the assault –
“Provided to him by the ex-boyfriend K.”
Dr Rikard-Bell: Yes
Mr Batey: That’s strong language, isn’t it?
Dr Rikard-Bell: Yes
Mr Batey: And incorrect in this instance?
Dr Rikard-Bell: Well, perhaps a little too strong.
Mr Batey: Thank you.
“Mr Calvert appeared to always have had the intention to remove the children.”
We’ve been over that. There’s nothing you can point to is there to say there was an intention?
Dr Rikard-Bell: I think he’s always believed and expected…
Mr Batey: You understand an intention and a belief are very different?
Dr Rikard-Bell: Well, I think intention – it was always his belief and I think that that is borne out by the fact that each child has perhaps jumped camp from the mother to the father and the same process seems to be happening with A.
Mr Batey: And again, one simple explanation could be that she does abuse these children, neglects the children?
Dr Rikard-Bell: Yes, I think that’s a very simplistic explanation.
Mr Batey: No, but if it happened it would certainly give a very good basis for all of this, wouldn’t it?
Dr Rikard-Bell: If it did happen, yes.
Mr Batey: But you don’t know, do you?
Dr Rikard-Bell: We don’t know that it didn’t happen.
Mr Batey: You don’t know?
Dr Rikard-Bell: Nobody knows.
Mr Batey's attack on the family report proceeded much further. He challenged whether Dr Rikard-Bell had a valid basis for the views that he had expressed that both the mother and the father were capable parents. Mr Batey sought to demonstrate that Dr Rikard-Bell had inadequately considered, indeed almost totally discounted the possibility that the mother had in fact been neglectful of and abusive towards her children. Mr Batey contended that Dr Rikard-Bell had placed inadequate weight on the report of Ms H, which in itself was corroborative of the children's concerns about the mother's neglect and abuse towards them. He contended that the doctor failed to seek to corroborate the children's accounts of the neglect and assaults by the mother. Mr Batey asserted that Dr Rikard-Bell preferred the mother's statements over that of the children, and over that of their father, even though there was no independent corroborating evidence.
It was further asserted that the doctor failed to explore the possibility that, if in reality the older children had been neglected and abused by their mother, then this was the real motivation for them trying to persuade A to come and live with them. In broad terms, the challenge to Dr Rikard-Bell's report was that there was no evidence, or no adequate evidence to support the view that the father, and the father's family had sought to influence A in any way, and that some important conclusions made by Dr Rikard-Bell were, in fact, based simply on an impression formed in respect of which there was no objective basis.
The summary of Mr Batey's cross-examination of Dr Rikard-Bell, set out above, does not do justice to Mr Batey's skilful cross-examination of Dr Rikard-Bell. However, the conclusion I reach is that Dr Rikard-Bell should be accepted subject only to the qualifications that he made, and which are noted above. There are two reasons for reaching this conclusion. Firstly, Dr Rikard-Bell was able to provide convincing explanations about many of the issues in respect of which he was challenged. Despite the thoroughness and intensity with which his expert opinion was challenged, he at all times remained convincing. Secondly, and perhaps even more importantly, the fact is that the later evidence of the parents and their respective witnesses overwhelming confirms Dr Rikard-Bell's professional opinion and impressions. When all of the evidence in this case is viewed in totality it tends to confirm almost every one of Dr Rikard-Bell's observations. This is despite the fact that the learned doctor did not have the benefit of observing the parents for as long as I did, or watching them as their evidence was tested in cross-examination, nor did the doctor have the benefit of reflecting on the oral evidence by reference to other documentary evidence.
It is easy to lose sight of the fact that even in a forensic context there is often much benefit for a judicial offer at trial level to read and hear of the impressions of an expert, even if it is not possible to always systematically and scientific state the basis of those impressions. Human nature and behaviour cannot necessarily be explained by reference to scientific, mathematical or even legal principles. The benefit to a trial judge of the observations of someone like Dr Rikard-Bell, an unquestioned expert in the field, is invaluable, especially when it is so rigorously tested, as it was in this case.
I accept the recommendations of Dr Rikard-Bell, and his oral evidence, modified only by the concessions he made in his evidence set out above.
Meaningful relationship
The totality of the evidence indicates that A has a meaningful relationship with both her father and her mother. To that extent, this primary consideration is not really a major issue in this case. As I am being asked to make orders only in relation to A, and not K and M, the absence of a meaningful relationship between the mother, and K and M, is not an issue for me to consider in this section. I record, however, that the absence of this meaningful relationship, i.e. between K and M and their mother, is clearly evident and it forms an important backdrop to some of the other issues I need to determine in this case. Indeed, one of the risks to A is that she too will become alienated, thus threatening the meaningful relationship that currently exists.
Protecting A from harm
Many of the factual issues identified by the Independent Children's Lawyer as requiring my determination (set out above) can be dealt with in the context of this primary consideration, even though there will be overlap with additional considerations.
It is useful to try to identify the risks of harm that arose, or potentially arose, out of the evidence in this case:
a)The father's concerns that the mother had neglected A and the other children whilst in her care;
b)The father's concerns that the mother had assaulted A and the other children whilst in her care;
c)The father's concern that the mother had exposed A to sexual abuse or the risk of sexual abuse whilst in her care; and
d)The mother's concerns about the risk to A of psychological abuse whilst in her father's care in the sense of his seeking to align A towards him, and away from the mother.
As is apparent from the evidence of Dr Rikard-Bell discussed above, he clearly felt that there were no risks to A's wellbeing in any way, whilst in her mother's care. Conversely, he clearly felt that there was a risk to A in the father’s care. At page 16 of the report he expressed it in these terms:
However, by moving to the father's care I believe that A would also become alienated from the mother and that the three children would become distant from her. Ms Calvert would become marginalised and the relationship ultimately between Ms Calvert and the three children would be lost.
It should be noted, by way of eliminating this as an issue, that nowhere in the evidence is there any concern about the father's ability to meet the physical needs of A, or the other children.
Dealing firstly with the father's concerns, it is important to record the basis of the father's concerns about A's wellbeing, whilst with her mother. This evidence is contained in the two affidavits that he relied on at the hearing, one filed on 26 April 2007, and the second one on 15 June 2007. He also gave evidence at the hearing itself. The husband's second affidavit largely repeats the evidence contained in his first affidavit, though sometimes he goes into further detail. The father's concerns about A's wellbeing when with her mother can be summarised as follows:
a)That the mother is lazy, drinks heavily, socialises frequently, and takes antidepressants;
b)The children give accounts of staying at the homes of the mother's boyfriends, and of men staying at the mother's home – paragraphs 13 and 66;
c)Incidents at changeover, for example, M in January 2006 – paragraph 15;
d)The children's accounts of verbal and physical abuse, as well as neglect whilst in their mother's care – paragraphs 17, 19, 38, 55, 68 and 72;
e)The father's concerns based upon the report of a treating consultant psychologist, Ms H, dated 11 April 2007 and is Annexure 1 to the husband's first affidavit;
f)The sexualised behaviour exhibited by A – paragraph 76
The father's concerns are largely corroborated in the affidavits of Mr D that were filed on 12 February 2007 whilst these proceedings were in the Local Court at G, and then on 15 June 2007. Mr D also gave oral evidence. As with the father, Mr D's second affidavit, largely repeats the evidence contained in his first affidavit, though he occasionally goes into more detail in terms of some of the specific incidents. By way of summary, Mr D's concerns about A's welfare whilst in the care of her mother centred around what he considered to be the unsavoury company kept by the mother, and A's exposure to this (paragraphs 11-14 and 18); A's exposure to family violence in the relationships of the mother's friends (paragraph 19); the mother administering Phenergan to A (paragraph 20) and concerns about A being exposed to sexual abuse by another child, S (paragraph 25).
Whilst I have only summarised the concerns expressed by the father and Mr D, it became very clear to me during the evidence that many of the father's concerns were based on Mr D's evidence, rather than direct observation. It follows, therefore, that if Mr D's evidence were not accepted, or were undermined, it would have the same impact on the father's concerns. However, the other main basis of the father's concerns were based on his evidence of what the children said to him, and again not personal observation.
There is a serious issue raised by the father about A having been sexually abused by a young boy, S, whilst A was staying at the boy's mother's home. Dr Rikard-Bell described this as "an unfortunate incident" at page 5 of his report. In relation to this incident, Ms H, the consultant psychologist who met with A on four occasions between August 2006 and March 2007, states at page 4:
There is no evidence of trauma in relation to the alleged incident with the nine-year-old boy who reportedly touched A.
Dr Rikard-Bell otherwise does not have any concerns arising out of this incident. The father is, of course, critical of the mother for exposing A to a situation where this incident might have occurred, or could re-occur in the future. After hearing all the evidence I have formed the view that, with the benefit of hindsight, had the mother appreciated that there was a risk, she would have done whatever was needed to avoid the risk. Having regard to the evidence of Dr Rikard-Bell and Ms H, and based on my own observations of the evidence, there is no evidence which leads me to believe that there is an unacceptable risk of sexual abuse arising whilst A is in her mother's care. I agree with Dr Rikard-Bell – it was an unfortunate incident but, thankfully, A appears not to be suffering as a result of it.
To the extent that the father's concerns are based on what the children have been saying to him, I accept the significant reservations that
Dr Rikard-Bell has about these allegations. Throughout his evidence Dr Rikard-Bell discounted the allegations. For example, he thought it was highly inconsistent that two children would make allegations that they had been abused and neglected, but the third not. He was of the opinion that children can be influenced and be under a lot of pressure when there are divided loyalties between parents and they can develop negativity towards a parent and justify that negativity for reasons that are not related to the relationship and that are more related to supporting one parent against the other (transcript page 22).
Dr Rikard-Bell also observed, and impliedly found quite inconsistent with the children's allegations against their mother, that the older children were willing and ready to engage with the mother, even though it was a negative engagement, suggesting there is still a strong bond between the children and the mother, even though the children were responding in a negative way to her (transcript page 24).
Dr Rikard-Bell observed that the children were very much involved in what he described as "the pernicious dynamics between the parents" and suggested that it was very naive to accept what the children state without actually looking further into what the motivation for their statements might be. He described the statements made by the children against their mother as "broad statements about being neglected but it didn't fit with the history of their relationship with the mother and … their statements were not really backed by a full explanation" (transcript page 27). In cross-examination, Mr Batey directly challenged the learned doctor about the way in which he had discounted the children's reports. At page 29 of the transcript the following exchange takes place between them:
Mr Batey: It seems to me, doctor, that what you’ve done is you’ve discounted significantly the reports of certainly K and M in respect of how their mother treated them. You’ve really not given it much weight have you?
Dr Rikard-Bell: I’ve listened to what they’ve said but I formed the view that what they were saying was really more in support of their father than their – what they had experienced with their mother.
Mr Batey: Because she denied it?
Dr Rikard-Bell: Because the mother denied it?
Mr Batey: Yes.
Dr Rikard-Bell: Well, because they weren’t able to really give full substance to what they were saying about the mother, plus there were other factors that suggested that it wasn’t just the mother that they were rejecting, it was also the mother’s extended family and their negativity towards the mother seemed way out of proportion to their possible experiences.
Overall, Dr Rikard-Bell concluded that the mother's version of events should be accepted in preference not only to that of the children, but also the father, based on his observation and interaction with the parents and the children.
In this regard, based on all the evidence, I concur with the views of
Dr Rikard-Bell. The absence of objective evidence to support the children's allegations makes them highly improbable. The father's own accounts of these complaints are unreliable. In cross-examination, it became apparent that the father was prepared to and, indeed, often unquestioningly accepted whatever the children said to him. He lacked any objectivity about the children's reports and, in fact, his own stated position was that A should spend half time with the mother, a position that was clearly inconsistent with the nature of the concerns expressed by him.
The father, based just on his own evidence for the time being, fails to establish that the Court needs to be concerned about A's wellbeing whilst in her mother's care, having regard to the concerns expressed by the father. I do not discount everything that the father raises by way of concern. I have no doubt that, in the past, changeovers have been the source of conflict between the parents, and that the children have been exposed to the same. This is clearly a high conflict family, and minimising the opportunity for any of the children to be exposed to the conflict is one of the important aims of the outcome of this case. However, none of the issues raised by the father cause me concern about the child's wellbeing in the mother's household.
There are significant problems with the evidence of Mr D and I conclude that it is so unreliable that I can place no weight on it whatsoever. The fact is he was previously in a relationship with the mother that appears to have ended in acrimonious circumstances. There is a strange coincidence between the time that the mother's solicitors wrote to him in relation to a de facto property claim, and the time he expressed concerns to the father about A's care whilst with the mother. Mr D and the mother clearly have unresolved issues of a financial nature, arising out of their de facto relationship. I accept that the evidence illustrates that Mr D was having a relationship with the mother whilst still in a former relationship that included children, and that he was trying to hide this at the time. Mr D agreed in cross-examination that he received a letter from the mother's solicitors on
30 January 2007, and that his initial telephone communication with the father, raising concerns about A, took place four days later. Mr D asserts that the reason for the telephone call with the father was not the letter, but rather concerns that he had about relationships the mother was entering into. Within less than two weeks of the letter Mr D had filed an affidavit in support of the father's proceedings in the Local Court at G.
The most amazing aspect of Mr D's aspect was oral evidence he gave about A's alleged sexualised behaviour that was not contained in any of his previous affidavits. He asserts that A displayed overtly sexualised behaviour towards him, in the mother's absence. He agreed that these incidents caused him concern as a parent and that he was worried about her wellbeing. However, he did not put it in his affidavits, and he justified this by reference to there being a lot of information that he did not put in relating to A's welfare. He agreed in cross-examination that he chose to include in the affidavits the most important things, but not these new allegations of sexualised behaviour.
In other parts of Mr D's evidence his responses were unclear, and often evasive. He could give me no clear evidence about precisely how much time he was spending with the mother, in her home. Indeed, reflecting on Mr D's evidence, he appeared to be more concerned about relationships which, he asserts, the mother formed after the end of their relationship, than he does about A's alleged sexualised behaviour.
I reject Mr D's evidence. He was unimpressive. It is inconceivable that such important evidence about A's sexualised behaviour towards him should not be contained in any of his previous affidavits filed in these proceedings. I find that he has a motive in distorting the truth because of the failed relationship with the mother. I do not accept any part of Mr D's evidence in this case. It follows, therefore, that insofar as the father's concerns about A are based on concerns expressed to him, and evidence given by Mr D, that evidence is so unreliable as to not form the satisfactory basis for any concerns about her.
The third basis of the father's concerns about A's wellbeing whilst in the mother's care is based on the report of Ms H, a consultant psychologist. Ms H is based at the Rxxx Clinic in G. Her report dated 11 April 2007 was prepared at the request of the father, who met with Ms H and A on 5 March 2007. Ms H had seen A on four previous occasions with the initial appointment dating back to 4 August 2006. Out of the preceding four appointments, A attended with her mother on three occasions, and father on one occasion. The context of the earlier appointments was to attempt to resolve A's difficulties with staying with her father. It is interesting to note, at this point, the context of those first consultations, and the fact that the mother took A to see Ms H on those first three occasions. Ms H notes at the top of page 2 of her report, in this regard:
There was very little shift in A's apprehension about staying with her father at this time. She reported considerable conflict with her siblings and felt unwanted in the home.
Specifically, in February 2007, Ms H reports that her father brought her in to see her after receiving a call from Mr D expressing concerns about A's wellbeing whilst in the care of the mother.
Ms H interviewed A and administered two tests, the family relations test, and the trauma symptoms checklist for children. Based on the interview and assessment, together with the feedback from the tests that were administered, Ms H concludes at page 4 of her report that:
It is apparent that A is going through an unsettling and disruptive time. She is particularly sensitive to the reactions of others and is feeling quite vulnerable and unliked … What is most apparent at the time of the assessment is that A is attempting to protect and preserve her relationship with her father more so than that of her mother. She awarded her father the majority of items relating to both incoming and outgoing positive feelings. A indicated that she perceives her mother as prioritising her partner over and above her in terms of attention … There is no evidence of trauma in relation to the alleged incident with the nine-year-old boy who reportedly touched A. I found A to be well cared for, however, she is a young girl who is not particularly happy. A is no doubt unsettled and insecure regarding her sense of belonging in a happy and healthy stable family unit.
Ms H goes on to describe the conflict of loyalties that A experiences, and the emotional difficulties that she experienced are a product of the underlying anxiety and trauma combined with the grief she is experiencing at the dissolution of her family unit. She concludes, however, that A does not suffer from a psychological disorder at this time.
From the perspective of the validity of the husband's concerns about A's wellbeing whilst in the care of her mother, Ms H's report goes no further than indicating that, from A's perspective, she perceives that her mother has prioritised her partners over and above her in terms of attention. This is, of course, a concern, but with respect it is hardly a matter going to protecting A from harm or the risk of harm whilst in her mother's care. There are other more significant aspects of Ms H's report. It is apparent from the report that Ms H was informed that from around July 2006 A began refusing to stay with her father. She records that A would cry and become upset and it was for this reason that A attended counselling for the first time in August 2006. Three visits took place in 2006 at which her mother accompanied A, and one visit was attended by the father. As indicated above, Ms H reports that the four sessions did nothing to shift A's apprehension about staying with her father, and Ms H records that A reported considerable conflict with her siblings, and feeling unwanted in the father's home, as the basis for her apprehension.
Yet, by February 2007 when the father takes A back to see Ms H at a time that coincides with the genesis of these proceedings, A was reported as attempting to protect and preserve her relationship with her father more so than that of her mother. This is surely a dramatic change which appears not to have attracted much attention in Ms H's report. In any event, it is apparent that within a remarkably short period of time, coinciding with the commencement of these proceedings, A went from being ambivalent about her father, to being ambivalent about her mother.
By way of summary so far, the evidence does not support any of the concerns expressed by the father in relation to A's wellbeing whilst in her mother's care. The final issue that needs to be examined, in the present context, is whether there is evidence to support the mother's concerns about the risk to A of psychological or emotional abuse whilst in her father's care, in the sense of seeking to align A to him, and away from her. This, of course, is the third and the fourth factual issues raised by the Independent Children's Lawyer, as requiring determination by me, i.e. namely whether the father has taken reasonable steps to ensure that the children maintain a healthy relationship with their mother.
I have already dealt, at length, with Dr Rikard-Bell's evidence in this regard. In short, Dr Rikard-Bell believes that the father has failed to take all reasonable steps to ensure that the children, including A, maintain a healthy relationship with their mother, and he gave evidence about the risk to A, both in the short and long term, if this were to continue. I will not repeat this evidence and I confirm my acceptance of Dr Rikard-Bell's views in this regard. For the most part his expert evidence is consistent with the social science research about alienation.
From the husband's perspective, the most damning evidence in this regard was, in fact, given by himself in cross-examination. Before summarising this cross-examination, and to be fair to the father, he was given the opportunity in chief to give evidence, particularly in response to the expert evidence of Dr Rikard-Bell. The father gave evidence in-chief about all the things that he has done to try to restore, and foster the relationship between all of the children and their mother. He gave evidence about inviting the mother to come and have dinner with the family, encouraging the older children to ring their mother, especially to get assistance with things like homework, encouraging the older children to maintain telephone contact with A, as well as their mother, encouraging the mother to assist during a period when the older child M had an ankle in plaster, including undertaking some of the driving responsibilities to get M to school, invitations to special occasions such as birthdays and so forth.
I accept the father's evidence when he says that he did these things. Indeed, he was not challenged about whether he did do the things he asserted. The difficulty for the husband is that his evidence in cross-examination leads me to be deeply concerned about his underlying attitude towards the mother. Thus, whilst I find he did do certain things that, on the surface, appear to indicate a willingness to facilitate an ongoing relationship between the children and their mother, in reality his underlying attitudes are such that this is not something he will do other than in a tokenistic way. From A's perspective, this leads me to be deeply concerned about her emotional wellbeing in her father's household.
As I indicated above, the father's own evidence in this regard is quite damning against himself. In cross-examination he asserted that the mother had little significance in K and M's life, at the moment. As for the future, he saw the mother's significance in K and M's life as being limited to shared parental responsibility about decisions, but not in relation to responsibilities or caring for them. In relation to A, he said he would like to see a sharing of responsibilities. When pressed about what other role he would like to see the mother play in the life of the children (the context being the older children) he reiterated that she plays a very little role now and that the children are quite content with that. Indeed, he remained firmly of the view that in view of the allegations made to him by the children in relation to their mother, they would be at risk with her. He agreed that it was sad, but nonetheless true, that the older children were quite happy with the mother's limited role in their life. When given the opportunity to express his own personal views about the situation, he thought it was sad that the mother played such a limited role in the lives of the older children, but he was nonetheless "happy because of what they were previously exposed to." It was apparent to me that the father had unequivocally and unreservedly accepted what the older children had said to him, even though there was such little objective evidence to support it.
In cross-examination he was pressed by counsel for the Independent Children's Lawyer to explain precisely what saddened him about the mother's limited role in the lives of the older children. The father explained that there were certain things that a father cannot provide in a child's life, such as nurturing that only a mother could do. He explained, however, that in his close knit family his two sisters acted as a surrogate mother to all three children. He agreed that this was not an ideal situation, but it was nonetheless "a position I was put in by Ms Calvert". It was apparent to me that whilst expressing sadness about what I regard as the older children's alignment with their father, and rejection of their mother, the father was firmly of the view that he had not contributed anything towards the creation of this situation and it was, in fact, all the mother's fault.
The father was given the opportunity to tell the Court about any good points that the mother had as a parent. The father indicated that, off the top of his head, he could not think of any good points, but he asked counsel whether he had a checklist that he could go through. The father went on to give evidence that from his perspective the absence of the mother from the lives of the older children was not a problem at all and, indeed, if the mother had no involvement in A's life, that would not be a problem either, provided A were happy with that.
The father was challenged about his unquestioning acceptance of what the older children said to him. He agreed that he always had his own concerns about the mother's behaviour. He accepted the children’s concerns, especially insofar as they fitted in with his own views about the mother. Despite all of these concerns, he only allowed the children to spend as much time with their mother after separation, as he in fact did, because he did not think he could win in court, and the children were too young.
The father was taken through each of the legal arrangements that he and the mother had entered into in relation to the parenting of the children. He agreed he had no concerns about the mother's behaviour at separation in October 2002. In December 2002 the parties entered into consent orders at Parramatta Family Court, and those arrangements were varied in May 2004. In cross-examination the father asserted that even as at the end of 2002, however, he had long-standing concerns about the mother that he did not act on, being convinced that he could not possibly win parenting proceedings because he was a father. He was challenged about whether he did, in reality, have any concerns about the mother and his response was, to the effect that he thought the children would tire of the mother eventually. It was put to the father that he thought he might simply bide his time and the children would come over. He agreed yes, the children would come over by their own volition. He agreed, indeed, that that is what he thought would eventually happen in relation to A, being what he described as the "ideal situation".
The father's evidence in this regard can be summarised using words which, although emotional, are quite factual under the circumstances. His evidence was sad, indeed tragic. He believes he has done nothing wrong. He sees no role for the mother in the children's lives. He sees nothing in the mother's qualities as a mother that are positive. He unequivocally accepts the children's concerns. He did nothing to dissuade the older children from coming over to live with him. If A lived with him and spent no time with the mother, or if A lost her relationship with her mother, he would not be concerned provided that was A's wishes. The father regards his two sisters as being possible surrogate mothers for the children.
Does this amount to a situation where A might be in a position of psychological or emotional harm whilst in the care of her father? The answer is, in my opinion, yes. The emotional and psychological risks to A are set out at page 16 of Dr Rikard-Bell's report. He describes it in the following terms:
However, by moving to the father's care I believe that A would also become alienated from the mother and that the three children will become distant from her. Ms Calvert would become marginalised and the relationship ultimately between Ms Calvert and the three children would be lost. In the long term, this would be a very sad situation. I believe the sadness could contribute to the children feeling confused about relationships, potentially feeling anger towards both the mother and the father and a deep sense of rejection and loss and possible development of depression. In the short term, however, there probably would not be any major adverse effect except rejection of the mother and perhaps some school behaviour problems.
From my perspective, even the short-term problems referred to by Dr Rikard-Bell raise serious concerns about A in her father's care. The longer-term consequences for A are quite clearly unacceptable from the Court's perspective.
I accordingly find, so far as the primary considerations are concerned, that even though A enjoys the benefit of a meaningful relationship with both of her parents, she needs to be protected from the psychological harm which might arise from being subjected to or exposed to emotional abuse and neglect in the father's household. In these circumstances, an equal shared care arrangement with the father is plainly not in A's best interests. Indeed, any arrangement that involves A spending time with her father is potentially problematic.
Has A expressed any relevant views in this matter, and what weight should I place on those views?
Having regard to the complex factual and emotional matrix in this case, to the extent that A may have expressed any views, I cannot place any weight on them. A's treating consultant psychologist, Ms H, described her as being unsettled and insecure and experiencing a deep conflict of loyalties. The evidence causes me real concern to the effect that if A is expressing a view, it has been influenced by her father, and her siblings, the latter of whom have probably been influenced by the father. This is a case where I can place no weight whatsoever on any views that have been expressed by the child.
What is the nature of A's relationships with each of her parents, and other significant persons?
A's relationships with each of her parents has been described at length above. A, of course, also has other important relationships, including with her siblings, and with the wider members of both her mother and father's household. The relationships with her siblings are important, but also pose a risk to her that was identified by
Dr Rikard-Bell, namely that they might exert influence on her to come and live with her father, much in the same way as they did. There is little the Court can do to control this. Whilst there is potential risk to A in maintaining her relationship with her siblings, the fact is that the sibling relationship is a lifelong one, and is psychologically important for all the siblings. These important relationships can be preserved by ensuring that A has regular time with her siblings, balanced with the stability of remaining in her mother's household. As a result of the time that A spends with both of her parents, pursuant to the orders I have made, she will have the opportunity to continue her relationship with the members of the broader family. I record my concern that in the father's household, whether intentionally or inadvertently, attempts will be made to align A with her father, against the mother. I balance that against the importance of preserving the sibling relationship. One can only hope that the passage of time will help to heal the dysfunctional relationships that appear to exist in the Calvert family at the present time.
What is the likely effect on A of the changes in her circumstances arising from the making of these orders?
I have set out the respective positions of the parents in these proceedings earlier in my judgement.
The changes that are brought about by the orders I make are, in the overall scheme of things, minimal changes for A. The fact is that she will be spending less time with her father and siblings, but the reasons for that are obvious, I trust, from the concerns I have expressed above about A's wellbeing in her father's household.
Are there any practical difficulties and expense issues arising out of A spending time and communicating with her parents?
The mother lives at L, and the father at B so that geographical distances are not an issue in this case. The parties, in the consent orders I made, reached agreement about A spending time with her father during school holidays and on special occasions. The mother seeks orders for A to spend each alternate weekend with her father. The father wants equal shared time, but implemented on a basis that fits in with his shift work as a public servant. His evidence was that he works on a 24-hour roster, with two days on, two nights on, and then six days off. He would like A's time with him to be based around his availability in accordance with his roster which is known well in advance. He argued that as the mother was not working, there was no inconvenience to her of fitting in with his rostered arrangements. He gave evidence that, in the past, he simply let the mother know what his shifts were. In addition, he has seven weeks annual leave, which affords him considerable flexibility in the context of school holiday time.
In cross-examination the implementation of the father's proposal was explored in greater detail. He envisaged that A would be spending four nights with him one week, and three nights in the other. He agreed that his proposal would involve, in effect, A and the mother having to organise themselves around his roster. His response to this was that, like most parenting arrangements, it has to be flexible. When he was challenged by counsel for the Independent Children's Lawyer as to whether he was being flexible in his proposal his response was that he was bound by his roster. He expected the mother and A to accommodate the demands of his roster. He felt that he could accommodate A's other commitments, such as after-school commitments.
I find that quite apart from equal shared time being an arrangement that is not in A's best interests (for the reasons I set out above, and elsewhere in this judgment) the father's proposal is simply impractical, having regard to his shift work arrangements. Again, I observe that Ms H, A's treating consultant psychologist, described her as being unsettled and insecure. A needs certainty and stability in the parenting arrangements relating to her. The practical implementation of the father's proposal would mean that it would be intensely disruptive for A. I acknowledge that if I accept the mother's proposal in this regard it is possible that the father will be working on the alternate weekends when A is spending time with him. This does not mean that he will be spending no time with A, but rather that it will not be between 6 am and 6 pm when he is working day shift, or 6 pm to 6 am when he is working night shift. He will still have time with A, and A will have the benefit of spending time with her siblings as well. This is not the perfect solution. In many respects it is the least of two poor alternatives, but I am satisfied under the circumstances that it is the proposal that is in A's best interests.
The capacity of the parents and other persons to provide for A's needs
As I indicated earlier in these reasons, there are no concerns about the capacity of either parent to meet A's physical needs. The main concerns in this case are about meeting her emotional needs. Meeting A's emotional needs is very much linked to the concerns I have expressed above about her emotional wellbeing when in her father's household. I will not re-express my concerns in this regard. The father's total lack of insight about the need for the mother in A's life indicates to me that he does not have the capacity to meet her emotional needs. That, of course, does not disentitle him from spending time with A, and continuing the meaningful relationship that I believe already exists between them. I am more satisfied about the mother's ability to meet A's emotional needs. I trust that the mother will take on board Ms H's comments about, in effect, re-prioritising her hierarchy of relationships so that A is at the top. Whilst I have not accepted the father's concerns about the mother's relationships, the mother does need to give serious consideration to the relationships she enters into, purely for the sake of, and from the perspective of A.
Other additional considerations
I record here that there are further additional considerations set out in s.60CC(3) that are relevant in this case, but in dealing with them, I would be repeating for the most part my discussion about other aspects of the evidence. Thus, for example, much of the evidence that I have discussed above could equally have been dealt with under paragraphs (g) and (i) of s.60CC(3).
Equal time, or substantial and significant time?
Based on the evidence and the reasons I have set out above, equal time is clearly not in the best interests of A and, indeed, is not reasonably practicable having regard to the father's shift work commitments. An order for substantial and significant time is appropriate, but the real difficulty in this case is the dissonance between the recommendations of Dr Rikard-Bell, and the agreement that has been reached by the parties in relation to the older children, and in relation to A about holiday time, and special events. The mother's position is that A should spend time with her father each alternate weekend, but that is a position that is different to that adopted by Dr Rikard-Bell. Counsel for the Independent Children's Lawyer took the position that he did not wish to stand in the way of the mother's proposal, while still maintaining the concerns about the risk to A of alienation in her father's household. The ICL strongly supported the mother's proposal about A's time, as opposed to the father's proposal.
I record here the difficulty I have experienced in this case in, firstly, making consent orders about M and K and secondly, having to choose between a spends time with arrangement proposed by the mother, when in each case Dr Rikard-Bell has made contrary recommendations. Do I, in effect, uphold the autonomy of parents to make decisions in the best interests of their children, or do I impose my own view about what is in the best interests of children?
The High Court expressly recognised the difficulty in making decisions about children in CDJ and VAJ [1998] FLC 92-828 at page 85,458. I am particularly mindful of the statement: “It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require.”
The resolution of the dilemma is often resolved by reference to context. The consent orders relating to M and K were made at a time when both parents and the ICL had available to them Dr Rikard-Bell’s report. The mother was legally represented. Both children were of an age where their views had to be taken into account – indeed, that is partly why they were separately represented. By the time of these proceedings they were already aligned with their father, if not alienated from their mother. Under those circumstances, and with all parties and legal representatives adopting a united front, I decided it was in the best interests of M and K to make those orders.
At the heart of Dr Rikard-Bell’s recommendations is the concern that the father will use his time with A to, either actively or passively, align her towards him and cause her to reject her mother. The potential dynamics of this are compounded by A spending that time with her siblings as well. Dr Rikard-Bell expressed the hope that the father will decide to genuinely support the mother, particularly as regards her relationship with the older children. The evidence leads me not to share in that hope. But the mother’s proposal for time is made with the benefit of legal advice, and with full knowledge of all the evidence presented in this case. Whilst the ICL remains concerned about the risks to A, she will not stand in the way of the mother’s proposal.
The mother’s proposal was explained to Dr Rikard-Bell when he was re-called as the last witness in this case. He seemed quite surprised by the mother’s proposal and considered her somewhat naive, particularly as regards the risk of further alienation and/or alignment. He emphasised that the context of time between A and her father was to maintain relationships and to limit potential harm. But even he agreed that an alternative, such as further limiting A’s time with her father to days only and one night per fortnight, was not fool proof. The risk to A was as great in the alternative as it could be in the mother’s proposal. Merely limiting time does not, ipso facto, mean there is less risk of alienation or alignment. Lee and Olesen in their passage extracted at paragraph 41 of these reasons were clearly correct in observing that there is no change in visitation or scheduling which will solve this family’s problem. For this family resolution is rendered even more problematic because of the father’s shift work.
On balance I have decided to accept that mother’s proposal as being in A’s best interests and reasonably practicable, but my orders will require the arrangement to be reviewed in 9 months’ time, and I will request that the Independent Children’s Lawyer not be discharged until the end of this period. I direct the parents to attend a Child Dispute Conference in six (6) months to discuss the progress of these orders and I adjourn this matter before me for mention at 2pm on 27 November 2008. Whilst these orders are final, I record for the purposes of any future application to vary the orders that I would not regard any revisiting of the time arrangements in this case as requiring demonstration of changed circumstances for Rice v Asplund [1979] FLC 90-215 purposes.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Lisa Molloy
Date: 18 February 2008
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