Christensen and Christensen

[2018] FCCA 2390

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHRISTENSEN & CHRISTENSEN [2018] FCCA 2390

Catchwords:
FAMILY LAW – Parenting – older children with firmly expressed view – younger child who has not spent time with the Father for many years – need for gradual re-introduction of time with younger child at contact centre – provision of children’s “views” via short report and by separate memorandum from Independent Children’s Lawyer.

Legislation:

Family Law Act 1975 (Cth) ss.60CA, 60CC(2A), 60CC(3)(a), 60CC(3)(e), 68LA(3) & (5)

Cases cited:

Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422

R v R (2000) 155 FLR 29; (2000) 25 Fam LR 712

Applicant: MR CHRISTENSEN

Respondent: MS CHRISTENSEN

File Number: CAC 1487 of 2017

Judgment of: Judge Neville

Hearing date: Written Submissions

Date of Last Submission: 19 June 2018

Delivered at: Canberra

Delivered on: 19 July 2018

REPRESENTATION

Solicitors for the Applicant: Legalworks

The Respondent: Self-represented

Solicitors for the Independent Childrens Lawyer: Tarella Law

UNTIL FURTHER ORDER, THE COURT ORDERS THAT:

1. The children [X] (born: 2001), [Y] (born: 2002) and [Z] (born: 2010) live with the Mother.

2. The children, [X] and [Y], spend time with and communicate with the Father in accordance with their wishes.

3. The child, [Z], spend time with the Father as facilitated by the Town A Children’s Contact Service.

4. The parties forthwith do all acts and things and sign all necessary documents to complete the intake process required by the Town A Children’s Contact Service.

5. Both parties do all necessary acts and sign all necessary documents so as to cause:

   (a)a passport to issue for each of the children and to be held by the Mother, and

   (b)an updated passport to issue for each of the children at any time that a current passport expires or is due to expire.

6. Where a party fails or refuses to do so, the requirement for that party’s consent will be dispensed with.

THE COURT FURTHER ORDERS IN CHAMBERS THAT:

1. The matter be adjourned for further directions on 20 September 2018 at 2:00pm in CANBERRA.

THE COURT NOTES THAT:

(A)The practitioners are granted telephone leave and unless advised no later than three (3) business days prior to the next Court event, Ms Naidoo will be contacted on, Ms Christensen will be contacted on and Ms Hill will be contacted on;

(B)Should a practitioner or party who has been granted telephone leave decide to appear in person, they are to contact Chambers no later than three (3) business days prior to the next Court event advising of their intention to appear in person.

IT IS NOTED that publication of this judgment under the pseudonym Christensen & Christensen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1487 of 2017

MR CHRISTENSEN

Applicant

And

MS CHRISTENSEN

Respondent

REASONS FOR JUDGMENT

1. This matter concerns interim parenting Orders in relation to three children - 16 year old [X], 15 year old [Y] and 7 year old [Z].  Subject to what is said later in these reasons, the children (a) currently live with their Mother, and (b) have spent little  to no time with their Father during the past 4 years following the separation of the parties in August 2014.  The reasons that follow have been revised from the transcript.

2. The Mother lives in Town A; the Father lives in Town B, which is approximately 30 kilometres west of Town C.  The geographical distance between the residences of the parties is some 240 kilometres, or thereabouts.

The Issues

1. As identified in the Memorandum from Ms D, dated 23^rd February 2018, the following issues are in dispute:

   (a)The “time-with” arrangements for the children and the Father.  The Father seeks regular time with the children each alternate weekend with the children, on an interim basis, and ultimately that they live with him and spend time with the Mother (thus a change in residence of the children).  On the other hand, the Mother proposes either unsupervised time for the older children and a re-introduction of the Father’s time with [Z] effectively to be supervised by the older sisters ([X] and [Y]), or a re-introduction of [Z]’s time with the Father to be via the Town A Children’s Contact Centre;

   (b)There is an issue regarding the children obtaining passports and being able to travel overseas.  The Father agrees to the passports being issued but (strangely in my view) opposes any overseas travel.  This rather begs the question: why have a passport if it is not able to be used?

   (c)The Father contends that the Mother has been alienating the children from him; the Mother denies this;

   (d)There are disputed allegations of family violence and or controlling behaviour by the Father of the Mother;

   (e)Added to these matters must be the obvious issue of the logistics, cost and other expense of travel between the residences of the parents.

Documents Relied On

1. In addition to the parties’ Affidavits, the principal documents before the Court regarding this interim parenting contest are:

   a)The s.11F Memorandum from Ms D, dated 23^rd February 2018, to which I have already referred.  That Memorandum should be taken to be admitted into evidence; it will become Exhibit A.

   b)There are submissions from the Father and from the Independent Children’s Lawyer (“the ICL”).

   c)There is a psychological report of Dr S, dated 27^th May 2018, regarding the Father’s psychological condition.  She assessed him to have no relevant psychological condition.  Because of that conclusion I need not address matters contained in that Report.

   d)There are response submissions from the Mother, filed 19^th June 2018, which are in the form of a letter to the Court.

   e)There is also a note from the ICL, dated 29^th May 2018, regarding the views of the older two children.

   Relevant parts of these documents are set out in the course of these reasons.

Note & Written Submissions filed by the Independent Children’s Lawyer

1. In accordance with the Court’s Orders of 6^th April 2018, as well as pursuant to s.68LA(3) and (5) of the Act, the ICL provided a note to the Court regarding the children’s views. The note, filed 29^th May 2018, was as follows:

   VIEWS OF CHILDREN

   [X] born 2001

   I met with [X] today. [X] has given me permission to share the following information:-

   [X] expressed a view

   [X] does not want to be bound or committed to spending time with her father

   [X] does not mind continuing to communicate with her father via her phone as they presently do

   [X] would not mind spending time with her father in Town A, for short periods, like going out to dinner together

   [Y] born 2002

   I met with [Y] today. [Y] has given me permission to share the following information:-

   [Y] expressed a view

   [Y] wants to communicate with her father on her own terms

   [Y] does not want to be committed to seeing her father

   [Y] does not want to spend time at the family farm at all

   [Z] born 2010

   I met with [Z] today. [Z] was too young to give me a formal view about her time with her father.

   Proposed procedural orders

   On an interim basis, I propose Orders be made for [Z] to begin spending time with the father at the Children’s Contact Service in Town A.

   On an interim and final basis, I propose that Orders be made:-

   For all the children, for the issue of a passports to be held by the mother, and that the father’s consent be dispensed with;

   For all the children, that they live with the mother;

   For [X] & [Y], that the mother have sole parental responsibility for them, and that they spend time with and communicate with their father in accordance with their wishes.

   I suggest that in the event that the parties do not consent to interim Orders as outlined above, the matter be listed for interim hearing.

   In the event that the parties do consent to interim Orders as outlined above, the matter be listed to final hearing with the preparation of a family report.

2. In addition to the above, the ICL filed written submissions, incorporating a Minute of Orders Sought, on 1^st June 2018, which were as follows:

   Orders sought by the Independent Children’s Lawyer on an interim basis

   1) That the children [X] born 2001, [Y] born 2002 & [Z] born 2010 live with the Mother.

   2) That the children [X] & [Y] spend time with and communicate with the Father in accordance with their wishes.

   3) That the child [Z] spend time with the Father as facilitated by the Town A Children’s Contact Service.

   4) That both parties forthwith do all acts and things and sign all necessary documents to complete the intake process required by the Town A Children’s Contact Service.

   5) That both parties do all necessary acts and sign all necessary documents so as to cause:

   a) a passport to issue for each of the children and to be held by the Mother, and

   b) an updated passport to issue for each of the children at any time that a current passport expires or is due to expire.

   6) Where a party fails or refuses to do so, the requirement for that party’s consent will be dispensed with.

   Submissions

   The issues are:-

   a) whether or not [X] and [Y] should spend time with the Father, and if so, how?; and

   b) whether or not [Z] should spend time with the Father, and if so how?

   i.It is the Independent Children’s Lawyer’s submission, that given [X] and [Y]’s ages, their views and the ongoing relationship they have maintained with their Father since separation by use of their own mobile telephones, their views should be given considerable weight and Orders should be made which allow them to continue to communicate directly with the Father and make arrangements to spend time with him, in accordance with their wishes.

   ii.It is the Independent Children’s Lawyer’s submission that [Z] has no real relationship with her Father and very few memories of the family living together before separation. She is open to spending time with her Father and has a fairly positive view both of him, and of spending time with him which has been fostered by both parents, by the Father writing to her and the Mother assisting [Z] to reply.

   iii.Given her young age and the lack of contact between [Z] and the Father since separation, it is the Independent Children’s Lawyer’s submission that their reintroduction needs to be supported. This support could be provided by the Children’s Contact Service at Town A.

   iv.Although the Child Inclusive Memorandum refers to [X] and [Y] accompanying [Z] and providing support to her, the Independent Children’s Lawyer does not support this as a formal support mechanism, as placing that supportive and protective role upon the shoulders of [X] and [Y] is not in their best interests.

   v.It is in [Z]’s best interests that she not be subject to lengthy travel to spend time with her Father, and that the Mother’s household not bear the brunt of the cost and time required for [Z] to travel to spend time with the Father; it is in [Z]’s best interests that the Father undertake the travel to her area for the purpose of their time together.

   vi.The Independent Children’s Lawyer has reservations regarding the Father’s commitment to spending time with [Z], given the long period since separation where he has not pursued time. The Independent children’s Lawyer is also concerned about the Mother’s allegations of family violence, and the parties’ actions post separation appear to be consistent with those allegations.

   vii.It is important in the Independent Children’s Lawyer’s view that the time initially be supervised to allow [Z] and the Father to re-acquaint themselves, and for there to be a period for the Father to prove his commitment.

   viii.Specifically in terms of the psychological report, it is a report prepared for the Father attesting to the Father’s current mental health status. Given that there is no allegation, as the Independent Children’s Lawyer understands the parties’ positions that the Father suffers from a mental illness or disorder, the report’s conclusion is not unexpected.

   ix.The report does not assist the Court in terms of an interim decision regarding the children’s time with the Father as the Child Inclusive Memorandum does, or as a family report might, because it does not include any of the other family members, nor review of any of the court material nor examine or comment on any of the interpersonal relationships between the Father and other family members.

Written Submissions of the Father

1. Although legally represented, the Father himself provided the following written submissions on 18^th June 2018.  They were simply forwarded to the Court by the Father’s solicitor (paragraph numbers have been inserted; emphasis in original):

   1)   The full bench has ruled that a child from the age of seven (7) can and should have their wishes represented.  Paragraph 72 states “There is a considerable body of psychological evidence which suggests that children as young as seven are capable of expressing soundly based wishes as to their preferred custodian.”  This is repeated at paragraph 77 “In fact, it has been shown that children as young as seven years can make enlightened decisions about matters which involve them”. 

   2)   At paragraph 87. The Appeals court describes the Concrete operational phase (ages 7-11) “During this phase, a child learns to see an event from different perspectives and to think logically. By the age of seven, the child is beginning to be capable of a new level of thought which Piaget calls operational thought. Operations are logical rules. Children at the stage of concrete operations are able to use logical rules to deal with problems. There is a shift from an inductive to a deductive mode of reasoning. By the conclusion of this phase, the child can explain his or her experiences and thoughts in relation to others.”

   3)   There are 6 factors a court needs to know described Baker J at paragraph 79 page 46:

   4)   1. The age of the child; 2. The cognitive developmental level of the child; 3. The emotional developmental level of the child; 4. The current mental state of the child; 5. The current emotional state of the child (for example, the degree to which the child has been emotionally or physically traumatised) (Such as parental alienation) 6. The general personality and character traits underpinning the child's day to day functioning.

   5)   These 6 criteria set by the court are the professional role and responsibility of psychologists within the structure of a family court report. 

   6)   Here we see a report where the ICL is not, nor expected to be, a psychology trained professional, and has chosen not to given that such an assessment is not within the professional role of the ICL to complete the criteria. 

   7)   Particularly relevant here is the years of separation from the father at the facilitation of the mother, and the negative impact of the contrived absence which in the view of the father is deliberate Parental Alienation.  This bears directly on Courts considerations 4 & 5 above.  Against this Alienation background, it would be unwise for the court to grant the mother the children’s passports and support such a recommendation unjustifiably made without reason by the ICL as the father has already experienced and brought to the court for remedy the flight risk and alienation already put in place by the mother. 

   8)   In Alienation cases where flight has occurred it is essential not to take a one-sided non-evidence-based view.  The evidence of the Forensic Psychologist report volunteered by the father shows his openness and willingness to supply evidence to the court.  Such scientific assessment and willingness to cooperate to establish facts must be given great consideration and weight.  This is not “he said – she said evidence”.  It shows the Father to be quite the contrary to the statements and claims of the mother.  The father submits to the court that the mother’s statements are self-serving and without evidence or basis in facts. 

   9)   The Forensic Psychologist presents an evidence-based assessment that in fact that the Father is Highly Agreeable which his most distinctive feature.  Accordingly He is trusting and assumes the best which in this case has been used to the Father and his children’s great detriment as the mother has excluded him from the children’s lives, despite the Children’s Human Right to be raised by both parents.  And in this case, a good man. 

   10)    Further the Forensic evidence suggests that the father exhibits a great number of positive characteristics which would be greatly beneficial in modelling to his children.   He is thoughtful and helpful to others, and quite generous.  He is reluctant to express anger even when justified.  He is Humble and unassuming, He is particularly sympathetic.   The father is warm and affectionate towards others. He is rational, prudent, practical resourceful and well prepared.  He is also dependable and reliable.

   11)    His Agreeable nature and positive character is consistent with the finding of the Criminal Court overturning the accusations of domestic violence on appeal.  The Father had this violence accusation against him overturned in the appropriate jurisdiction and we ask the court to recognise that just finding.  The Forensic Evidence states that “He is very candid and sincere and would find it difficult to deceive or manipulate others.”

   12)    The ICL is in error to give credence to the mother’s false accusation of Domestic Violence.  The father presents to the court that such serious allegations, especially when already rejected in the State Courts, should not be so easily made or believed without evidence by the ICL.  The evidence before the court is that of the Criminal Court rejecting the mothers claim and the Forensic evidence supporting that outcome. 

   13)    Furthermore, the ICL has not given any weight or consideration to the mother’s complicit role in the parental alienation.  The absence of this weight by the ICL is troubling.  Note to date the courts frustration that the mother has been uncooperative and this is aligned with the Fathers testimony.  The absence of the ICL’s consideration toward the mother’s uncooperative role in Parental Alienation needs to be corrected by the court.

   14)    In the judgement of Murray J, Paragraph 58 “the Court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications.” The father submits to the court that the basis for the children’s distance from the father is Parental Alienation via an uncooperative mother.  This must be corrected by the court in the best interests of the child and the positive character the father offers.

   15)    Further at paragraph 62. Specifically, in Murray's case at 80,257, the Chief Justice and Fogarty J said that as the Convention on the (Human) Rights of the Child had been "ratified by Australia but has not been given specific legislative recognition" its status was that "it can thus be used to resolve ambiguities in domestic primary and subordinate legislation".  Article 18.1 states that it is the Human Right Of The Child “Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child.”  Parental Alienation is a violation of Article 18.1 of the Human Rights of the child perpetrated on the child and the father by the acts and statements of the mother.

   16)    FOGARTY, BAKER AND KAY, JJ ruled that a child as young as 7 should be consulted and have their wishes weighed and considered along with the Human Rights of the child to be raised by both parents.  They ruled the child to the father’s custody.

   17)    The father points to the error in weiht [sic] in the lower courts corrected in H&W.   At Page 28 paragraph 25, we find:

   18)    “That the trial Judge's assessment of the evidence and of the respective personalities and credibility of each of the parties has produced an unjust result in that her Honour has accentuated and given too much weight to the positives on the respondent's (mother’s) side and accentuated the negatives on the appellant's (father’s) side and given little or no weight to the positives on his side.” 

   19)    The father is aware that those who do not know history are doomed to repeat it and respectfully asks the court to address the ICL’s weigh of the mother’s false statements, conduct and motive, and reflect more on the evidence of fact, and Character the father submits to the court.  The weight of the court must not be lead into error potentially at the lead of the ICL as found by the Full Bench of the Court of Appeals.

   20)    With reference to the ICL’s stated position, not to interview the child at all, not to address, weigh and consider the 6 specific issue as requested of the court particularly given the ICL’s acknowledgement in effect of passing time and distance (Parental Alienation) on the child, and not to interview the child or address the 6 stated court required consideration criteria above, is in fact an error at law which we ask the honourable court to rectify.

Written Submissions filed by the Mother

1. The Mother filed written submissions in response, dated 19^th June 2018, by way of letter.  The submissions were as follows:

   I agree with the ICL’s proposal for the procedural orders on an interim base as it gives the father, Mr Christensen an opportunity to begin to build a healthy relationship with his youngest daughter, [Z].  

   As for [X] and [Y], it is unfortunate that Mr Christensen has not been willing in the past to build a healthy relationship by means of regular phone calls as per arrangement in previous mediations to which I (Ms Christensen) willingly attended, and in the past year or so when they have had their own mobile phones.  It is important to note that Mr Christensen had offered to take one of his daughter’s, [X], out for dinner in Town A, however, Mr Christensen failed to follow through with it which would have been lovely for [X]. I believe Mr Christensen stopped pursuing the dinner idea because Mr Christensen needs to make Ms Christensen look unco-operative to the court.  So when [X] told Mr Christensen that she didn’t need to sneak out and meet him for dinner as per Mr Christensen’s proposal, rather, her mother (Ms Christensen) was happy to drive her to the restaurant there was no more talk about the dinner.  I want what is best for the children and care about them and their needs.  Mr Christensen needs to take some responsibility for his own actions instead of blaming the mother (Ms Christensen) for parental alienation.  My partner (Mr K) and I personally find it very difficult that Mr Christensen has not visited his daughters once in the past three years nor made any attempt to make any such arrangement with me (Ms Christensen) or the children.

   I believe Emma Hill won the hearts of the children; [X], [Y], and [Z], in a short space of time and they quickly felt comfortable enough with the ICL, Emma Hill to be open with her.  Because of this she gained much respect from me because she appeared to be genuine in her desire to represent the children. I do not believe Mr Christensen will like what the children shared with the ICL and he will try to discredit the ICL so as to give the findings as little weight as possible.

   I am in agreeance with the ICL and her findings and believe her proposal to reasonable and also in agreeance with the children’s wishes.

Consideration and disposition

1. From the memorandum of Ms D, I note in particular the following paragraphs (pars.20 – 28; emphasis in original):

   20) [X] (aged 16 yrs).  [X] is in Year 10.  [X] indicated that she and [Y] spent a weekend with Mr Christensen on his farming property in 2017 which was quite pleasant and they engaged in enjoyable activities including (activities omitted).  She said that Mr Christensen texts her regularly and she responds, on occasion. 

   21) [X] indicated that, post separation, she has asked Mr Christensen to spend time with her and her siblings in Town A but he has not been inclined to do so. 

   22) [X] said that she would like to support [Y] to reconnect with Mr Christensen and potentially she could potentially be available one afternoon each month, preferably on a Sunday.  [X] said that she is not prepared to travel with [Y] and/or [Z] to spend time in Mr Christensen’s home in his location, due to her commitments. 

   23) [Y] (aged 15 years).  [Y] is in Year 10.  [Y] was somewhat reticent and reserved during her interview.  [Y] indicated that she enjoyed spending the weekend with Mr Christensen in 2017 and they engaged in fun activities.  She said that Mr Christensen appeared to make an effort to ensure that she and [X] had a good time.

   24) [X] said that she has felt disappointed in that Mr Christensen has been unwilling to spend time with her and her siblings in Town A albeit he has been asked to do so, including by her.  She said that Mr Christensen says that he is too unwell to travel but she has seen him in Town A and she questioned why he attended the s11F event in Town D if he were not well enough to drive.

   25) [Y] said that she would probably like to spend time during the day with Mr Christensen with [Z] and [X] about once a month, if this is practicable for all concerned.   

   26) [Y] is keen to obtain her passport and said many of her school friends have travelled overseas.

   27) [Z] (7 yrs).  [Z] has not spent time with Mr Christensen since the parents’ separated in April 2014, almost four years ago, when she was aged about 3 yrs 10 months.  Encouragingly, over the years, Mr Christensen has sent regular cards and letters to [Z] (including gifts/money) and [Z] has written positive and loving notes and letters back to Mr Christensen, sent by Ms Christensen.  When [Z] observed Mr Christensen in the waiting area she smiled and waved at him and he smiled back.

   28) During her interview, [Z] presented as a bright, happy and chatty child.  She described her school life and activities in positive terms.  She said that she recognised Mr Christensen from the photographs she has of him.  Due to her tender years, [Z] was not asked her views about her future parenting arrangements.

2. Then at pars.29 – 32, Ms D stated:

   29) Within the scope of this limited preliminary assessment, the issue that needs critical consideration is developing appropriate interim parenting arrangements to provide for [Z] to comfortably reconnect with Mr Christensen and for [X] and [Y] to spend time with him. 

   30) Mr Christensen’s proposal involves [X] and [Y] being willing to spend alternate weekends with him, with [Z], in his location, but they are unwilling to do so, other than on an occasional basis and according to their wishes.  At this stage of their development, [X]’s and [Y]’s focus is on their activities and interests and if parenting arrangements are reliant on them being willing to spend a weekend with Mr Christensen in his location, [Z]’s time with her father is likely to be restricted and ad hoc.

   31) Considering the situation, to move forward, it appears evident that Mr Christensen would need to travel to Town A to spend time with [Z], [X] and [Y].  It is encouraging that [X] and [Y] are prepared to be present to help [Z] reconnective positively with Mr Christensen and also that they want to spend time with their  father.  Once [Z]’s relationship has developed with Mr Christensen and she feels secure with him, consideration could then be given to progressing to weekend and holiday time. 

   32) However, on the other hand, Ms Christensen has raised family violence concerns in regards to alleged longstanding controlling behaviours by Mr Christensen and she expressed concern about [Z] being exposed to such if/when the child spends longer block periods with the father.  Mr Christensen refutes this.  The family violence allegations may require further exploration by the Court before time progresses past daylight hours.

3. Ms D also recommended that a full Family Report might assist if the matter proceeds.

4. For context, principle and otherwise, I note the following brief comments of the Full Court in R v R, at [54]:[1]

   There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.

   [1] R v R (2000) 155 FLR 29; (2000) 25 Fam LR 712.

5. I do not understand it to be disputed that [Z] has not spent any time with her Father since separation in 2014.  In my view, there needs to be some structured, facilitated time to allow for reintroduction of the time she spends with her Father.  Indeed, the fact that the Father proposes that, effectively, each alternate weekend, [Z] spend unsupervised time with him, suggests, in my view, a lack of insight into the importance and necessity of there being a gradual reintroduction of time between [Z], who is still quite young, and her Father.  Put another way, to propose that a Father and young child, who have spent little to no time together for the better part of 4 years, immediately spend each alternate weekend together, in my view displays little parenting insight.

6. Part of the Father’s lack of insight is the fact that [Z] has obviously lived with her Mother and her older sisters since separation, and her sisters have clearly stated their wishes not to spend each alternate weekend with their Father and otherwise to spend time with him as they wish.  This would mean that [Z] (on the Father’s proposal) would likely be spending time with the Father without the familiar and supportive presence of her sisters (and her Mother).  This would also be in circumstances of very significant travel between the parents’ households.

7. As already noted, I am acutely conscious of the geographical distance between the parties, which is a relevant consideration under Part VII of the Family Law Act (“the Act”).[2]  I am also conscious of allegations of controlling behaviour, and many other things that are set out in the memorandum from Ms D, and also in the parties’ Affidavits, especially that of the Mother.  The allegations of controlling behaviour are primarily directed by the Mother against the Father.  On the other hand, the Father makes allegations in relation to the Mother alienating the children from him.  Typically, absent incontrovertible evidence (and usually at a final hearing) the Court cannot make any findings about such allegations and the other matters outlined in the parties’ material.[3]

   [2] See s.60CC(3)(e).

   [3] See, for example, Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 at [81] – [82].

8. In my view, notwithstanding the conflicted evidence, but particularly having regard to the Memorandum of Ms D, as well as the “Note” from the ICL, the allegation by the Father of alienation clearly has no foundation.  This is for the simple reason that the two older girls, [X] and [Y], have expressed to both Ms D and the ICL that they are content to see and spend time with their Father, but only according to their own timetable, commitments and wishes.  In such circumstances, there can be no prospect of any alienation argument having any chance of succeeding, where the children – the older two – have said plainly, (to paraphrase): “We are happy and content to spend time with Dad, but just when we wish to.”  This bespeaks no alienation; the Father’s allegation/submission in this regard is without foundation.

9. I also need to refer specifically to the Father’s submission, where he refers to a case from the mid-nineties from the Full Court of the Family Court regarding the views of children. I simply note that that case pre-dates, by approximately 10 years, the statutory amendments to Part VII of the Act, and specifically the very wide range of considerations that the Court has to take into account, accepting that the views of the children are important, but the reality is that they are but one of a very wide range of considerations.[4] The general breadth of “considerations” set out in Part VII of the Act, as well as the comments noted earlier in these reasons from the Full Court in R v R, highlight the wide ambit of the Court’s discretion in making Orders that are in the children’s best interests.

   [4] The “views” of the children are the first of multiple “considerations” in s.60CC(3)(a).

10. The Court’s formal responsibility, particularly where there are allegations of the kind that are set out here, is to act protectively towards the children, and always in their best interests.[5] The protective provisions of the Court’s responsibility are set out in Part VII of the Family Law Act, and in particular, s.60CC(2A).

    [5] See s.60CA of the Act.

11. For my part, I accept the recommendations of Ms D and the submissions of the Independent Children’s Lawyer.  There is complete consistency in the views expressed by the older children, but at the same time there is relevant independence, between them.  In my view, they are in the best interests of the children.  Apart from the expression of the Father’s own views, there is no independent evidence to warrant Orders as proposed by the Father.  More restrained and balanced Orders are necessary and appropriate here at the present time.  Certainly, given the ages of the older girls, [X] and [Y], their views should be given significant weight.  As for [Z], given her much younger age, and that she has not spent any regular time with the Father for quite a number of years, there needs to be a more structured and gradual re-introduction of the Father’s time with her.  Likewise, that time has to properly and reasonably take account of the very large geographical distance between the parties.

12. In my view, the Orders proposed by the ICL appropriately address the current matters that require resolution – the time-with arrangements for the older 2 daughters, [X] and [Y], and for the much younger [Z], that are in the children’s best interests at the present time.  This necessarily includes that there should be no disruption in (or to) their current, primary residence, where they have lived with their Mother since separation.

13. I make the Orders I have indicated.  There will also be an Order for when the matter will next come back before the Court.  On that occasion, there will be an opportunity for discussion regarding the appropriate procedural course ahead.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Neville

Date: 12 September 2018