CHOLIC & CHOLIC

[2015] FamCA 1156

FAMILY COURT OF AUSTRALIA

CHOLIC & CHOLIC [2015] FamCA 1156

FAMILY LAW – CHILDREN – Interim proceedings – where final orders made on April 2014 for mother to have sole parental responsibility and the mother and children to relocate the Adelaide and for the resumption of the children’s relationship with the father through graduated therapeutic intervention – where the mother and children relocated but therapy was ceased by the therapist and the children’s relationship with the father has not resumed – where the mother seeks to relocate the residence of the children back to Western Australia on an interim basis – where the father seeks the children reside with him and spend time with the mother – consideration of best interests principles – where not appropriate to make interim orders as sought by the mother or the father – Independent Children’s Lawyer appointed.

Family Law Act 1975 (Cth)ss 60CA, 60CC

Cholic & Cholic (2014) FamCA 234
Dieter & Dieter [2011] FamCAFC 82
Goode & Goode [2006] FamCA 1346
SS & AH [2010] FamCAFC 13

APPLICANT: Ms Cholic

RESPONDENT: Mr Cholic

FILE NUMBER: ADC 5009 of 2009

DATE DELIVERED: 3 December 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Hannam J

HEARING DATE: 3 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lewis

SOLICITOR FOR THE APPLICANT: Ms Black of Alderman Redman

RESPONDENT – SELF-REPRESENTED LITIGANT: Mr S Cholic in person

Orders

1. Pursuant to Section 68L of the Family Law Act 1975 (Cth) as amended the children B born on … 2005 and C born on … 2006 be independently represented and that such representation be arranged by the Legal Services Commission of South Australia UPON NOTING it is requested that Mr Timothy Stephen Adey be re-appointed if available AND that to expedite the appointment of the Independent Children’s Lawyer within seven [7] days of the date hereof each party do cause to be furnished to the said Commission a copy of all documents filed in the Family Court of Australia from the commencement of the current Initiating Application filed on 3 November 2015.

2. The mother’s Application in a Case filed on 3 November 2015 and the father’s Response to the Application in a Case filed on 25 November 2015 is dismissed and removed from the active pending cases list.

IT IS FURTHER ORDERED IN CHAMBERS THAT

1. The final application proceedings be referred to the list of matters awaiting trial allocation and are adjourned for trial directions before the Registrar on a date to be advised by the Court UPON NOTING the length of the trial is not known at this stage.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cholic & Cholic has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 5009  of 2009

Ms Cholic

Applicant

And

Mr Cholic

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns the parenting arrangements for the parties’ two daughters, B who is 11 years of age and C who is 9 years of age. In April 2014 final orders were made, following a protracted parenting hearing.  Those orders required the mother, with whom the children had been living, to relocate from Perth, where they had lived since separation, to Adelaide where the family previously lived.

2. The April 2014 orders also provided for the mother to have sole parental responsibility for the children and for them to live with her.  Orders were made for a gradual reintroduction and rekindling of the relationship with the father from whom the children were estranged.

3. The reunification process was not successful and the father has spent no time with, or communicated with, the children since the date of the final orders and for many years.

4. The mother has now initiated further proceedings and seeks to relocate with the children to Perth on a permanent basis.  She proposes an order on a final basis that, upon written notice from the father that he intends to engage in a therapeutic reunification process between himself and his daughters, she will do all things necessary to engage with a suitably qualified psychologist for that purpose and that the progress of the therapeutic intervention be at the discretion of the appointed therapist.

5. On an interim basis the mother seeks suspension of the orders requiring her to maintain the children’s residence in Adelaide and for the children to spend unsupervised time with the father.  The father opposes the interim orders proposed by the mother and seeks an order that the children live with him and spend time with the mother as ordered by the Court.  Each party seeks that the other party pay costs in respect of the application.

Background

1. The mother, who is 40, and the father, who is 46, met and commenced a relationship in 1994.  They married in 2002.  In 2004 the parties’ first daughter B was born and their second daughter C was born in 2006. 

2. From about 2006, as I understand it, the relationship between the parties began to deteriorate and in around 2008 the family spent some time living in Country S.  In December 2009 there was an incident at the parties’ business which resulted in the father’s arrest and the parties’ separation.  Initially the mother and children went into hiding and then were assisted by police to leave Adelaide and take up residence in hiding in Western Australia.

3. In December 2009 the mother initiated parenting proceedings.  Although there were orders made for the father to spend supervised time with the children at a contact centre, this did not eventuate.  The orders with respect to the father’s time with the children were later suspended.

4. In January 2011 the parties divorced and the mother filed a Further Amended Initiating Application.  According to the judgment in the parenting proceedings reported as Cholic & Cholic (2014) FamCA 234, the parties’ position at trial can be summarised as follows [at 22]:

   It is the mother’s case that the father perpetrated sustained and ongoing domestic violence, including sexual violence, against the mother and, with less detail, physical and psychological abuse to the children.  Indeed, the mother alleges that the father’s demonstrable violence and aggression towards her was a feature of their relationship from a time before the parties married and possibly as early as 1998.  The father’s alleged behaviour did not abate but rather developed into behaviour that borders on the horrific.  The father trenchantly denies the allegations and alleges that the mother suffers from significant psychiatric disability, has concocted the entirety of the allegations and, for reasons that are not clear to him, has in effect manufactured a circumstance which has seen the mother and the children in hiding in Western Australia with the father having been denied a relationship with his children for now in excess of four years.

5. The trial judge was satisfied that it would be in the children’s best interests for the children to return to reside in South Australia and for there to be an attempt at rekindling the relationship between the children and their father.  The orders provided for a graduated reunification process whereby the Independent Children's Lawyer was to organise for the children to attend upon a therapist and for the father to participate in the therapy which was to take place over eight weeks from July 2014.

6. At the conclusion of this period, the children were to spend time with their father for two hours on one occasion each week for four occasions, supervised by the therapist.  If the therapist was unable or unwilling to supervise these four periods, then the manager of Child Dispute Services at the Court was to nominate a family consultant to supervise the compliance by the parties with the parenting orders. 

7. After this period of four supervised occasions of time with the father, the parents were to enrol in a contact centre for supervised time to commence as soon as practicable thereafter.  The orders provided for six periods of supervised time at the contact centre, either weekly or, if weekly could not be accommodated, fortnightly. 

8. At the conclusion of the six supervised occasions at the contact centre, the children were then to spend time under the orders with their father unsupervised on a graduated basis.  This regime was to commence with one period of seven hours on a single day each alternate weekend for six periods, after which one overnight was to be introduced, which was to increase to three overnights after six occasions and four overnights after a further six occasions.

9. At the commencement of overnight time, the children were also to spend block periods of a week with their father during the school holidays.

10. The mother complied with the orders that she relocate with the children to Adelaide.  They moved to Adelaide in July 2014.  The father paid the costs of the relocation as required by the orders.  The mother and children live in a village in the XX Region and the children have been enrolled in a private school which they have attended since the third term of 2014.  The mother has paid all the school fees and other costs associated with the support and maintenance of herself and the children and has received no contribution from the father.

11. The Independent Children's Lawyer made arrangements for the children to receive therapy as required by the orders.  A therapist was chosen and arranged by the Independent Children's Lawyer and the mother ensured that the children attended each of the sessions arranged by the therapist.  After four sessions of therapy, Mr VV, the therapist, wrote an email to the Independent Children's Lawyer which included the following:

    I am writing to inform you that, having conducted four meetings with [B] and [C], I do not feel that I can ethically carry out the therapeutic course of action ordered by the Family Court.

    He went on to say:

    Both children are very distressed, fearful and worried about any impending contact with their father.  [B] has threatened harm to herself with sharp knives on two recent occasions, the second resulting in presentation to [UU Hospital] Emergency on 16 August.  Both are feeling intense loss of connections and a sense of security developed in Perth.  [B] is feeling trapped, that her feelings are not being listened to and that she is losing her capacity to cope in these circumstances.  C is highly anxious and worried at the prospect of contact with her father. 

    Regardless of the veracity of the allegations made and notwithstanding a likely collusion between the girls and their mother, these children are genuinely fearful and highly distressed.  I do not see it as being in their best interests to use therapeutic intervention as a means to introduce contact with the father, regardless of his intent.  I cannot support a plan of introducing contact with the father, particularly within the eight-week timeframe ordered.  It is my view that proceeding with such a plan would be subjecting both girls to a form of coerced contact in the guise of therapy and likely to be detrimental to their emotional wellbeing.

12. This email was forwarded to the parties by the Independent Children's Lawyer on 18 August 2014.  The Independent Children's Lawyer wrote to each of them:

    It is now a matter for you to each obtain independent legal advice as to how you should proceed.

13. The father then sent an email directly to the therapist in which he requested that the therapist continue to provide therapy to the children.  The therapist apparently did not respond to that email.  In August 2014 the father made contact with the school at which the children were enrolled and arranged a meeting to introduce himself to staff at the school and provide them with a copy of the Court orders.  In August 2014 the older child, B, was referred to a psychologist, Mr WW, under a treatment plan prepared by her general practitioner.  B attended upon Mr WW on four occasions. 

14. As the therapy with the therapist was unsuccessful, the father made contact with the manager of Child Dispute Service at the Adelaide Registry with a view to having him nominate a family consultant to supervise compliance by the parties with the parenting orders as provided for in order 14 of the April 2014 orders.  By letter dated 5 November 2014 directed to each of the parties, the director of Child Dispute Services expressed the view that he would be unable to assist in the matter as the order providing for the involvement of a family consultant was to occur only after the children had received therapy for eight weeks, as provided for in order 9 of the April 2014 orders.  The head of Child Dispute Services noted that, as the therapist conducted four sessions with the children and reached the conclusion that further involvement with them was likely to be detrimental to their wellbeing to the point of being professionally unethical, he considered it inappropriate to involve the children with a further professional.

15. In November 2014 the father received a letter from the psychologist Mr WW, to whom B had been referred.  In that letter dated 4 November 2014 Mr WW makes it clear that the terms of his engagement was that he was not to be involved in the reunification process between B and her father but was to provide her “with counselling support, given the stress she was receiving since relocating to Adelaide”.  Mr WW described B as “adamant that she never wanted to see her father again” but said, “She struggled to recall anything of significance to warrant such a strong aversion to seeing her father now.”

16. In that letter, Mr WW said that on the last occasion he saw B she appeared reasonably comfortable with his attempts to explain his concerns that she is very young to be making such important decisions about seeing her father and it was this belief that this was causing more stress than would occur if she were actually to see her father again.  Mr WW said that, following the appointment, the mother rang and advised him that the child’s behaviour had deteriorated significantly since the last appointment and she was adamant she never wanted to see Mr WW again. 

17. Mr WW also reported that, during the visits, he had had the opportunity to speak with the mother, both individually and with the child present, and he noted that she “always spoke extremely negatively about B’s father and portrayed him as a very violent, manipulative and controlling person who was capable of extreme aggression and violence”.  He said that the mother “made it very clear that the father was entirely responsible for the trauma caused as a result of them having to relocate back to Adelaide and, without her father in her life, B would be a happy, normal child”.  He said there was never any evidence of a desire on behalf of the mother for B to have any relationship with her father.  Indeed, it was abundantly clear that the mother expressly wished for the child to have no relationship with the father, believing that this would be in B’s best interests.

18. Mr WW also said that he had met with the father who voiced his concern and belief that “the mother has actively and passively alienated B from him”.  Mr WW expressed the view that, having spoken to both parties and assessed the child’s mental state in relation to the current circumstances, that “it is [his] strong opinion that significant harm has been caused to B by her being exposed to such a toxic situation”.  He expressed the opinion that the only conclusion he could draw is that the mother has alienated the child from her father and that “this level of alienation is very damaging to a child and abusive in itself”. 

19. Mr WW also noted that the child had been placed in a position of feeling she had a choice or right to refuse to have contact with the parent which he said is “widely understood to be very unhealthy and potentially damaging for a child of this age”.  It was his opinion that the child’s visits with him were perpetuating the conflict and he recommended that the sessions not continue as they were likely to be causing more harm than good.  He expressed the view that the child’s best interests would be served when her mother is supportive of the child’s spending time with her father. 

20. Mr WW also expressed the view that counselling could not “undo the damage that is caused to a child when this level of alienation and abuse is ongoing”.  He felt that any attempts at passive reunification or reunification in circumstances where the child had the perception that she could choose whether to spend time with the parent will fail.  Mr WW also expressed a view concerning appropriate orders that should be made in these circumstances.  However, orders in those terms have not been sought by either party in this case. 

21. Since relocating to Adelaide, the mother says she has continued to work for a company based in Perth.  She is employed full time as the health, safety and environment manager, business manager and accounts manager for the company and says she earns approximately $100,000.00 per annum.  The father disputes the veracity of the mother’s evidence as to this issue, and it will be dealt with later in these reasons.  Since the mother and the children began living in South Australia in mid-2014, she says she has continued to be employed in the same position and works primarily remotely from Adelaide, but travels to Perth for five days every three weeks.  I note, however, that in a number of her job applications annexed to her affidavit, she states that she is in Perth approximately two weeks per month.

22. The mother’s five days work in Western Australia occur during the week, and during this period, the children are cared for by a live-in nanny in Adelaide.  The mother is home with the children every weekend.  The mother says she has been advised by the company that her employment will be terminated if she is not able to relocate to Perth permanently by 4 January 2016 and annexes a copy of the letter from her employer.  As indicated, this is disputed by the father and will be dealt with later in the reasons.  The mother says that she seeks orders to be permitted to relocate to Perth immediately and will take up an offer of a three-year contract which I understand to be with the same employer that she says is currently available to her.

23. The mother says that since being ordered to relocate to Adelaide, she has applied for a very large number of jobs without success and says that if she were required to remain in Adelaide and undertake a less well-paid job or take up Centrelink benefits, it would impact significantly on the standard of living that she’s able to provide for the children.  The mother is solely financially responsible for the children.  The mother has found living in Adelaide difficult for her emotionally and socially.

The Matters in Dispute

1. As I understand it, the background which I have just related represents the uncontested facts in the matter with the exception of the mother’s assertions with respect to her employment which, as I’ve indicated, the father contests.  In addition the mother contends that the children have not settled well in Adelaide and that B has been particularly negatively affected, that she suffers from anxiety and has, on occasions, refused to go to school.  The mother says that both children have had difficulty making friends.  The father contends that the children have settled well and that the mother exaggerates the level of their stress.

2. The father also contends that the children may be exposed to violence, instability and unsuitable associates if the mother is permitted to relocate to Western Australia and that it would be unhealthy and emotionally damaging for the children if this were to occur.

3. In addition to the uncontested facts which govern these applications, in accordance with some Full Court authority, the Court may also have regard to some, and must have regard to other of the matters in dispute.  In SS & AH[1], their Honours said [at 100]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.  The mere fact that matters are in dispute does not mean that the Court can ignore concerns that are raised on the material before it.  See George & George [2013] FamCAFC182, a decision of the Full Court citing Dieter & Deiter.

   [1] [2010] FamCAFC 13

1. In Dieter & Dieter[2], the Court was particularly concerned with the situation where the contested facts relate to an assessment of risk, where it was said [at 61]:

   Risk assessment comprises two elements.  The first requires predication of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

   [2] [2011] FamCAFC 82

2. In this matter, the father’s contention about a risk of harm to the children arising from the environment to which the mother may expose them, has some support from his Honour’s Reasons for Judgment.  In paragraph 76 of that judgment, his Honour describes the mother’s circumstances in Perth at the time of hearing as follows:

   The unfortunate picture presented by the mother is one of personal and domestic chaos arising out of failed relationships.

3. However, there is no reason why these concerns would only particularly pertain to Perth.  In circumstances where final orders were made for sole parental responsibility to the mother, and the children were to live with her which was not appealed, and where there was no challenge to these orders by the father until he filed his Response in these proceedings, I cannot conclude that because of historic matters in circumstances where there is no new evidence before me that it is likely that the children will be exposed to harm particularly if they move to Perth.

4. There are, as I referred to earlier, two bases for the interim orders proposed by the mother, and the factual foundation of them are both challenged to some extent by the father. 

5. First of all, there is the mother’s proposition, as I understand it, that she will lose her well-paid job that she has been engaged in for four years, if she is not able to relocate to Perth on a full-time basis by 4 January 2016.  The exact position in relation to her job is unclear from her affidavit.  She deals with it in several parts of her affidavit, and, in my view, some parts of each of those paragraphs are inconsistent with each other and with other evidence in the matter.

6. In her affidavit, the mother first says in a number of paragraphs that she has worked for a company in Perth for four years.  She says at one point that she works full-time and continued to be employed by the company when she moved to South Australia.  In the judgment of April 2014, his Honour said at paragraph 72 that the mother said she was currently completing a diploma in bookkeeping and accounting.  In paragraph 70, after describing the mother’s current circumstances as uncertain and that the mother had provided scant information it is recorded that the mother said she worked part time and was also studying at the time.  In her affidavit filed in these proceedings at paragraph 59, the mother says that she was employed full time by the same company at the time of the judgment which, as I note, is inconsistent with his Honour’s findings and her own evidence in the previous proceedings.

7. The mother then says in her affidavit in these proceedings that she has received advice from her employer that her position will be terminated if she is not able to relocate.  In a letter dated 1 October 2015 purported to be written by her employer, it says:

   …we regret to advise that if you are not able to permanently relocate to Western Australia by the 4th of January 2015 [sic] the offer of your new position will be made available to an alternate individual … 

   The letter goes on to refer to this position being advertised in the event that the mother is not able to relocate and the necessity for the mother to be in Perth for a minimum of six weeks for the handover.  The mother in other parts of her affidavit goes on to suggest more consistently with the letter that if she relocates, she will be offered a three-year contract.  At one point in her affidavit, she also says that she has been offered a contract under which she will earn $120,000.00 per annum which is an improvement on her current position. 

8. In my view, there are some concerns about the authenticity of the letter which the mother annexes to her affidavit, the original of which she was required to file in the proceedings as part of the copy letter was illegible.  The document that purports to be an original does not bear an original signature and the signature annexed is clearly a photocopy.  The letterhead is also not printed and appears to be a colour photocopy.  The letter also contains a number of grammatical errors, punctuation errors, half-sentences and some sentences the meaning of which is unclear.  In my view, it is quite an unreliable document.

9. Later in the mother’s affidavit, she is a little more specific about her employment situation in Western Australia, but the details she gives are inconsistent with the suggestion that she has been offered a new contract.  She indicates that unless she returns to full-time by 6 January 2016, she will lose that position and also will be required to retrain a new person for that position.  She indicates in that paragraph that she has agreed to retrain a replacement which, according to the letter, is for a minimum of six weeks in Perth.

10. There is also a document headed ‘A Letter of Offer’ of 5 August 2015 attached to the mother’s affidavit which gives me some concern.  This letter refers to a “starting date as soon as possible” and appears to have been a position that the mother has already accepted as she has signed it in August of 2015.  It is a document of four pages but it is again apparent, on the face of it, that the font and text of the front page is not the same as the balance of the document.  I have concerns about whether, in fact, that is a single document.  It appears to be some sort of construction of more than one document and it also refers to an offer of $100,000.00. 

11. As I understand it, the mother’s position is that she has looked for work in Adelaide since returning in July 2014, and she says that she has applied for about 280 jobs.  She attaches a list of recent job applications which she says she has applied for in Adelaide and I have no reason not to accept her suggestion that she has tried diligently to apply for a suitable job in Adelaide. 

12. In relation to the issue of the mother’s employment I have some real concerns about the mother’s position that she will lose her employment or, alternatively, not gain a new position which would otherwise be available to her unless she moves to Perth immediately or at least prior to the beginning of January 2016. 

13. The evidence concerning her employment at the time of the judgment, over the last 18 months and currently, is unclear.  It is equally unclear if she has in fact already accepted a new job and what the terms of that job are.  I have concerns, for the reasons given, about the authenticity of the employment contract and also about the authenticity of the letter dated 1 October 2015 because of the unusual features on the face of each of those documents to which I have referred. 

14. The second main basis on which the mother makes the application is that she says that there has been an ongoing negative impact to her own wellbeing and to the wellbeing of the children living in Adelaide and essentially she needs to move immediately for her own and to a greater extent the children’s emotional wellbeing. 

15. So far as her own mental state is concerned, the mother relies on a letter or report provided by a psychologist who she engaged herself and the sole source of information to which that psychologist has access is information given by the mother.  In my view, it is a self-serving document and it is also contrary to many of the findings of the Court especially in relation to the circumstances of the mother prior to the judgment and I attach no weight to it. 

16. So far as the children are concerned, there is no doubt that they did not engage well in the therapy which was provided for in the orders.  The therapist was of the view that it was not in the children’s best interests to continue with that therapy and I have no reason at all not to accept the opinion of the therapist; indeed I would attach great weight to that opinion. 

17. At least part of the concern of the therapist was the eight week timeframe within which he was to provide therapy but that of course was part of the orders and not a matter upon which he had any choice.  In my view, in the circumstances, it was quite proper for the director of Child Dispute Services of the Court not to become engaged in the matter because pursuant to the orders that was only to occur after the therapy with the children had occurred. 

18. The psychologist, Mr WW, I note from his letterhead is also a regulation 7 family report writer and I infer is a very experienced person in relation to parenting matters.  He expressed the view that it is likely that alienation is occurring or has occurred in this case and he felt that his ongoing involvement with at least the older child was counterproductive. 

19. I do not accept the submission made by the father that the mother has exaggerated the symptoms and concerns of the children.  The circumstances for the older child particularly but for both of the children at about the time that therapy was being attempted in the second half of last year is well documented. 

20. However, there is no evidence that the children have continued to suffer any emotional distress once that attempted process throughout the second part of last year was not pursued.  After Mr WW discontinued being involved with the older child and no further therapists were involved there is no evidence to suggest that the children continued to suffer or are currently suffering from psychological or emotional distress. 

21. So far as the father’s position’s that the children are well settled is concerned, there is some support for this even in the mother’s own affidavit.  A very recent email from the school, dated 27 November 2015, indicates that the school staff provided a letter to the father, that when the girls started school, – in July last year or a little after July last year – in the view of school staff the girls were working at acceptable levels and presented at school as happy and healthy. 

22. A more recent document, dated 19 November 2015, attached to the mother’s second affidavit in these proceedings, indicates that the children have been supported by a wellbeing coordinator at their school.  The author says that she has spent time working and talking with B to support her in friendship, family and classroom issues and talks about a group that B will be joining for next year.  She also says that from time to time she’s discussed C’s friendship issues with her teacher and her overall description of the girls is as follows:

    I find both girls to be in good health, bright and generally attentive in class.  Academically both girls are performing at the level expected of their age or above.  [C’s] NAPLAN results for year 3 indicates she’s working at level with a particular area of strength being in writing. 

The Law

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[3]. In applying the law to the uncontested facts the Court must uphold the relevant objects and principles in the part of the Act dealing with parenting. Section 60CA of the Family Law Act 1975 (Cth)  (“the Act”) provides that in deciding whether to make a particular parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration. 

   [3] [2006] FamCA 1346

2. Goode v Goode (supra) sets out the framework for the conduct of interim proceedings.  The court must first identify the competing proposals, identify the issues in dispute and identify the agreed or uncontested relevant facts.  As explained earlier the Court must also give some consideration to the matters in dispute. 

3. Further, in Dieter & Dieter (supra) the Full Court said when making an interim order a court should have regard to its likely duration especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration.  In this matter the new parenting proceedings have only just begun and it will be at least a matter of many months before a final hearing can be considered. 

4. I note in this matter that neither parent is seeking to change the order in relation to parental responsibility. 

5. Under section 60CC of the Act, in determining what is in the child’s best interests the Court must consider the matters set out in subsection (2) and (3). The primary considerations which are contained in subsection (2) are:

   a)The benefit to the children of having a meaningful relationship with both of the children’s parents; and

   b)The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. 

6. Having regard to when these proceedings were initiated the Court must attach greater weight to the need to protect the children from harm.

7. The children currently do not enjoy a meaningful relationship or indeed any relationship with their father.  They will not share that relationship under the orders that govern their parenting arrangements if those orders are not changed as a stalemate has been reached.  In April 2014 a judge of this Court determined that the children will benefit from having such a meaningful relationship and provided a mechanism for that relationship to be reinstituted.  Various people, such as Mr WW, have expressed an opinion as to how that could occur but no party is seeking orders in line with Mr WW’s recommendations.

8. The father’s proposed orders certainly would change the position such that the children would live with him but there is no evidence at all to support the proposition that the children would benefit from a relationship which would involve them living with him. 

9. The mother’s proposal, on an interim basis, will also not give the children the benefit of a meaningful relationship with their father because she proposes a further attempt at exactly what has failed.  In circumstances where the children have clearly voiced their opposition to any therapeutic engagement, where they are given the entitlement to indicate whether they wish to proceed or not, it is highly unlikely, in my view, that any further therapy of the same type to attempt to rekindle that relationship will in fact result in the children enjoying a meaningful relationship with their father. 

10. The issue of the need to protect the children from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence only arises in a marginal way.  I have already addressed the issue that the father raised about his concerns of what the children may be exposed to if they’re permitted to relocate to Western Australia and I cannot make any further determination with no further current evidence. 

11. Section 60CC(3) then sets out additional considerations a number of which are not applicable in the case and I will refer to those which are relevant.

12. First of all there’s the issue of the views expressed by the children and any factors underlying their views noting their ages.  Each of the children has expressed very strong and long held views in opposition to having any form of association with their father and each has expressed them to a range of people.  In some cases it may be that the views of children of this age should be given some significant weight, but in circumstances where there is at least a risk that the children have been alienated or at least very heavily influenced in their views, I do not attach weight to their views.

13. In relation to the nature of the relationship between the children and each of the parents, I adopt the description of the trial judge given in April 2014 in relation to the mother’s relationship with the children that she has been the primary carer of them for most of their life.  So far as the father is concerned, I simply say that he has no relationship with them.  It is one of complete estrangement.  I note that the father’s application is for the children to live with him and he refers to his new fiancée.  There is absolutely nothing known about the relationship and I assume there is no relationship between the children and the father’s fiancée.

14. I agree with the submission made on behalf of the mother that the issue of the extent to which each parent has taken or failed to take the opportunity to participate in decision making, spend time with or communicate with the children is a significant factor in this matter.  Although the father cannot, of course, participate in decision making, bearing in mind that the mother holds sole parental responsibility, he has not taken any steps to spend time with or communicate with the children since the failure of family therapy to rekindle the relationship.  The father says that he has wanted to do that, but did not take any further steps through a desire not to involve the children in the conflict between himself and the mother.  Certainly Mr WW describes that level of conflict as toxic and the history of the proceedings themselves would certainly support that that is the case.  It is to the father’s credit that he does not wish to involve the children in further conflict.  However, it can only be inferred that he has been content with pursuing only a relationship with his children that amounts to obtaining some information about them from the school and it appears on the evidence, one occasion that he saw one of the children in the distance when he attended school.

15. In relation to the extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the children, it is to the mother’s credit that all of the financial support of the children has been undertaken by her, but I note that she has not sought child support.  She shouldn’t be criticised for this.  There’s no reason why the father could not voluntarily support his children.

16. The likely effect of any change in the children’s circumstances so far as the father’s application is concerned is the most critical matter.  The father is totally untested in terms of his capacity as a parent, there is contradictory evidence about the extent of his work commitments overseas and, in my view, he lacks insight to suggest that in circumstances where there is no relationship between him and the children that there will be no problems and that they simply will be able to move house and live with him, even though they have no relationship with him.

17. In the mother’s application to relocate, she paints a very pleasant picture of the proposed life for the children in Western Australia.  She describes interaction with friends, church attendance and the like, but I still have to bear in mind the conclusions and findings of his Honour about some of the circumstances of the mother and her lifestyle, at least in the past.

18. In my view, it does appear that the children have finally settled in Adelaide.  The mother does have some extended maternal family members here and, even discounting the rekindling of the relationship with the father, which has not occurred, there is also some benefit, in my view, of stability for these children after years of instability.  The issue of the relocation to South Australia was very carefully considered by his Honour in his judgment.

19. I also do not accept the mother’s evidence that her job is in jeopardy in the way in which she describes, because of the inconsistencies and uncertainties in that evidence. I accept that she has applied for many jobs and has been unsuccessful, but she seems to concede that she would get some sort of job if she remains in Adelaide.  She may have to accept a more modest lifestyle.  There is no reason why the children must live in a four-bedroom house and there seems to be no reason why she has not sought child support from the father.

1. So far as parental capacity is concerned, the mother clearly has the capacity to meet the day-to-day needs of the children, their educational needs, and she is also clearly a hardworking person and genuinely cares about her children.  However, I think there are real concerns about her capacity to provide for the children’s psychological and emotional needs, especially because, despite the statement she makes about supporting the relationship with the father, it is clearly the case that she does not support that relationship and cannot see the benefit to the children for it.

2. In relation to the issue of maturity, sex, lifestyle and background of the children with the parents, I note that these children have been the subject to a lifestyle when their parents were together which appears to have been characterised by dysfunction and volatility.  They had a number of years where they were in hiding and little is known of their circumstances, but, in recent times, they have settled back in South Australia pursuant to court orders.

3. As far as other factors are concerned, it is of significance, in my view, that the mother has stated that she intends relocating permanently to Western Australia in circumstances where she previously went into hiding and where little was known about her circumstances.  That matter obviously must be approached with great caution on an interim basis when there is limited time to consider all of the important matters.

4. The orders made by his Honour based on his finding that the children will benefit from a meaningful relationship with their father have not been challenged and, as I referred to earlier, there seems to be a stalemate in relation to that.  The father is now seeking that the children’s relationship with him be supported by the children living with him and it may be that he is able to establish that that is in the best interests of the children on a final basis.  At this stage, there is no evidence at all to support that it would be in the best interests of the children to live with the father, especially having regard to the matters I have found in relation to his capacity, the nature of the relationship and the likely effect upon the children.

5. Similarly, in my view, given the children’s current stability and given that the mother is, in effect, seeking to have the final orders determined on an interim basis, I cannot, having regard to the findings that I have made, conclude that it is in the best interests of the children to relocate and for the interim orders made to be made as sought by the mother.  Accordingly, the mother’s application for interim orders is dismissed and the father’s application for interim orders is also dismissed.

6. I do make one further order.  Bearing in mind the history of the matter, the nature of the allegations, and the age of the children, it is in my view in the best interests of the children for an Independent Children’s Lawyer to be appointed.  I make the usual orders in relation to the appointment of an Independent Children’s Lawyer, and, obviously, if possible, that should be the Independent Children’s Lawyer that was previously engaged.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 3 December 2015.

Associate: 

Date:  21 December 2015