Deseo & Pavia
[2022] FedCFamC2F 769
•15 June 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Deseo & Pavia [2022] FedCFamC2F 769
File number: MLC 4776 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 15 June 2022 Catchwords: FAMILY LAW – parenting orders – interim defended hearing – orders for family therapy – mature teenage children with strong views against therapy – consideration of child expert reports and the wishes of the children. Legislation: Family Law Act 1975 (Cth) ss 13C, 60CA, 60CC. Cases cited: Boyd & Sage [2020] FamCA 482
Eaby & Speelman (2015) FLC 93-654
Goode & Goode (2006) FLC 93-286
Division: Division 2 Family Law Number of paragraphs: 82 Date of hearing: 21 March 2022 Place: Melbourne Counsel for the Applicant: Mr S. Fuller Solicitor for the Applicant: Rodriguez Family Lawyers Solicitor for the Respondent: Whyte Just & Moore Counsel for the Independent Children's Lawyer: Ms H. Bonney Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 4776 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DESEO
Applicant
AND: MR PAVIA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
15 JUNE 2022
THE COURT ORDERS THAT:
1.Until further order the children, X born in 2005 and Y born in 2007 (collectively 'the children') live with the Father, Mr Pavia.
2.The parents do all acts and things to cause and ensure the children and the parents are forthwith enrolled into, and attend and participate as directed by Dr B, Dr B's 4 day intensive family therapy program (Dr B’s therapy) and such therapy be subject to therapeutic confidentiality.
3.Further, for the avoidance of doubt, for the purpose of Dr B's therapy, the parents follow all directions of Dr B, including when and how the parents or either of them cause and direct the children or either of them, and including when and how the child Z born in 2012, attends and participates in Dr B’s therapy.
4.The cost of Dr B's therapy be paid for by the Mother in the first instance.
5.The Independent Children's Lawyer be at liberty to provide to Dr B, and any psychologist or therapist of the parents, with a copy of Dr C’s report dated 16 March 2022 and copy of these orders and reasons and such other document as Dr B requests.
6.The parties be at liberty to apply.
7.The matter be listed for a Mention Hearing on 23 January 2023 at 10.00am.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Deseo & Pavia has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
The decision I must make in this case is whether, on an interim hearing, I should impose further family therapy on the parents, Ms Deseo (‘the Mother’) and Mr Pavia (‘the Father’) and their children aged 17 (‘child 1’), and aged 15 (‘child 2’). The children are in fact young adults, although these reasons will refer to them as ‘the children’. On the electronic hearing all parties were represented by counsel or solicitor.
Background
The parents are both aged 46 years. The parents met in grade 9 at high school, commenced cohabitation in 1999, and married in 2000. Child 1 was born in 2005 and child 2 was born in 2007. They separated in September 2009 when child 2 was two years old and child 1 was four years old. At or about the time of separation the Father lived overseas and the Mother and the children remained in Australia. The Father re-partnered in 2010. The parents divorced in November 2011 and the Father remarried in 2013.
The first wave of litigation between the parents was undertaken in April 2012, when child 1 was seven years old and child 2 was five years old. This included a family report, and covered issues including that the Father was then alleging that the Mother was alienating him in the children’s minds by ‘denigrating him at every opportunity’.
The second wave of litigation about the children between the parents commenced in 2015. A family report was undertaken in March 2016 and the litigation was resolved by final orders made in May 2017. By those orders both children were to live with the Mother and spend time with the Father as could be accommodated by his work schedule. Not long after those orders the Father moved overseas for work and the children remained living with the Mother in Australia. The Father returned to live and work in Australia in 2019.
The Mother re-partnered (and separated) and from that relationship had a child, now eight years old (‘child 3’), with that partner. The Mother now lives with child 3.
In December 2019 child 1, then almost 14, moved to live with the Father after he collected her from school following a request from her. He then applied for a family violence order with himself child 1 and child 2 as protected persons. From annexure -2 to the Father’s affidavit (discussed later), which is a document written by child 1 described as “testimony,” it is clear enough that child 1 herself addressed the Magistrates Court in support of the Father’s application for a family violence order. Whether that was a psychologically healthy event for her is not clear to me.
In August 2020 child 2, then 13 years, against the wishes of the Mother, moved to live with his father, his father’s wife and child 1. Neither child 1 nor child 2, despite having lived most of their lives with the Mother, have spent any time with her since.
The Mother alleges that the Father has alienated the children from her. The Father alleges the children not spending time with the Mother is the consequence of their experience of living with the Mother and of her failure to recognise his significance in the children’s lives. In substance, he says he does not support or agree with the children’s rejection of their mother, and would support a relationship between the children and the Mother if the children wanted one.
On an interim hearing I cannot make factual findings about that fundamental dispute, see Goode & Goode (2006) FLC 93-286 at paragraphs [81] and [82] and Eaby & Speelman (2015) FLC 93-654 at paragraphs [17] and [18].
It appears the Mother has a poor relationship with child 3’s father, Mr D. However, the Father has a better relationship with Mr D and at one point facilitated telephone calls between child 3 and the older children when child 3 was with Mr D. At issue for these children is any relationship at all with their mother as well as their relationship with their younger sister.
The children’s letters
The proceedings are marked by long letters from the children being in evidence that describe why the children do not wish to see the Mother. The Father annexed the July 2021 letter to the Mother and the Mother annexed the December 2021 (post the Dr C sessions discussed later) letters to her. To the Mother, these letters demonstrate the Father inappropriately involving the children in the proceedings, coercive control and alienation. To the Father they demonstrate the children’s strong views, their maturity, the Mother’s many faults, his lack of coercion of the children, his attempts to foster their relationship with their mother and their exhaustion with the court process and waves of litigation. There is support for both views in the letters. I will not repeat the text of the letters as I am not satisfied it is in the children’s interests that I do so. The content of those letters weighs heavily on me.
Current proceedings
The Mother issued these proceedings in April 2021 with a first return on 5 July 2021. At that time the Mother complained that she and child 3 had not seen either of the older children since August 2020. On that day, what is known as a section 11F report was ordered. The children and parents were interviewed by a family consultant on 6 July 2021 and a report was prepared that day.
With the benefit of a section 11F report and a detailed report from a child psychologist, who had attempted therapy with the family, the matter came on for hearing on 21 March 2022 as an interim defended hearing. The Father opposed any further therapy and the Mother adopted the recommendations of the child psychologist and sought that I impose a particular type of intensive family therapy.
It was common ground that therapy was relatively expensive, at an estimated $15,500 for the intensive four-day therapy proposed. The Father’s position was that he just could not afford it and the Mother’s position was that she could only afford one half, with difficulty. I raised whether she could pay the whole of the fees and I was told she could not. One aspect of the practicality of the proposed intensive therapy relied upon the parents’ capacity to share the cost. I heard submissions and made orders for the parties to file financial statements so that I could address the issue. The children also attend a private school and $60,000 is currently owed for their school fees. The Father filed a financial statement on 1 April 2022 and the Mother on 4 April 2022.
Material relied upon
All of the parties relied upon the section 11F report dated 6 July 2021, the section 67Z responses from child protection dated 11 June 2021 and 7 July 2021 and the report of the child psychologist, Dr C.
The Mother relied upon her initiating application, her affidavits of 29 April 2021 and 17 March 2022, her Notice of Risk and the 11 June 2021 and 7 July 2021 section 67Z responses from child protection. Exhibit M2 is an email from the Father’s solicitor dated 17 March 2022, asserting debt of $60,000 in school fees, financial difficulty due to the on-and-off litigation process over 11 years and preparedness to participate in ongoing therapy but being unable to afford to contribute financially to the proposed therapy.
The Father relied upon his response filed on 2 July 2021, his affidavit of the same date, his Notice of Risk filed on the same date and an outline of case. The outline of case had attached to it text messages from child 2 to and from the maternal grandmother.
I was provided with the 2016 family report as well which I have considered.
The section 11F Memorandum 6 July 2021
The purpose of a section 11F report (now a Child Impact Report) is as described by Bennett J in Boyd &Sage [2020] FamCA 482 at paragraph 15 as below:
That assessment is a “Child Inclusive Conference” which is a meeting with a Family Consultant, the adults and the children involved in the matter and is ordered by the Court. Lawyers are not included. The conference is intended to give the Court an understanding of the family situation, and particularly of the child/ren’s experience. The conference can help the judicial officer hearing the case make short-term decisions about arrangements for the child/ren. It may also help the parties reach an agreement. A Family Consultant is an expert psychologist or social worker with a high level of training and experience in child development and parenting after separation and divorce. Family Consultants are employed directly and exclusively by the Court in Child Dispute Services which is located within the Registry.
The Mother’s position, reported by the sec 11F family consultant, was then (and now) as follows:
6.[The Mother] alleged that post-separation, [the Father] continued to engage in a pattern of coercive control towards her and exerted dominance due to his position of financial power. She alleged that [the Father] has gradually engaged in denigrating her, and that he and his partner, Ms E have undermined her parental authority leading to a strained relationship between herself and the children. An example she provided was that if [child 1] and she experienced conflict, [child 1] would reach out to her father and step-mother who would then tell [child 1] that she was wrong.
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10.[The Mother] acknowledged that given the poor relationship between the children and herself, it would be detrimental for a change in residence to occur. She was concerned for the long term impacts of [the Father] and [Ms E] engaging the children in adult discussions and information. She was concerned for [the Father’s] capacity to encourage and facilitate a relationship between the children and herself noting that she has had no contact with [child 1] for almost two years and with [child 2] for one year. She acknowledged the high conflict between herself and [child 1] previously and identified that in hind sight she could have handled some situations differently.
The Father’s position, reported by the family consultant, was as follows:
7.[The Father] denied engaging in behaviours to exert control over [the Mother] and denied [the Mother’s] allegations. He stated that [the Mother] was emotionally manipulative and physically aggressive towards the children, ultimately leading to them residing primarily in his care based on their own wishes.
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9.[The Father] expressed concern for the long term impact of [the Mother’s] highly conflictual parenting style on the children’s emotional wellbeing. He reported that the children were emotionally burdened due to [the Mother’s] use of “manipulation”, which eventually led to [child 1] living with him in 2019, and [child 2] following in July 2020. [The Father] held a strong view that the children needed a break from contact with their mother, in order to be allowed the opportunity to heal from their past experiences and that a re-introduction of time with [the Mother] at this stage, would likely be detrimental to their future emotional wellbeing. He alleged that [the Mother] failed to adhere to previous Court Orders and caused the children significant instability by unilaterally removing them from their schools and relocating to a different area.
The family consultant then opined as follows.
19.The acrimonious relationship between the parties, combined with the high conflict nature of [the Mother’s] household has ultimately led to the children rejecting and refusing spend time with their mother and aligning themselves with their father.
20.[The Father’s] presents as reluctant of facilitating a relationship between the children and their mother and instead appears to have offered [child 1] and [child 2] a choice as to whether they spend time with her. It is crucial to note that since the children commenced living with [the Father], they have had no spend time or communication with [the Mother].
Both of the children were interviewed for the 11 F report. Child 1 was observed by the family consultant as follows:
22.[Child 1] presented as a gentle, but confident and emotionally mature 16 year old. She appeared frustrated and somewhat let down by professionals, stating that she has repeatedly “told her story” about her experiences with her mother and felt that she was not being listened to. She recalled her mother being emotionally manipulative and abusive towards her, calling her names like “psycho killer” and consistently denigrating her father and step-mother. [Child 1] became emotional when recalling past instances of conflict with her mother. [Child 1] reported that [the Mother] treated her “as a friend” and involved her in the financial issues she was experiencing with [the Father]. She recalled her holiday to Country F being positive, but was quick to return to identifying the negative aspects of her mother’s behaviour. [Child 1] repeatedly referred to her mother as “[the Mother’s first name]” stating that she never felt a “mother-daughter” connection with her. She was strongly aligned with [the Father] and appeared extremely protective of him and his partner. She repeatedly emphasised that she wanted no spend time with [the Mother] and that she has a “right to whom she has a relationship with.” She described living with her father as “calm, happy and safe” noting that her academic performance and school attendance has improved dramatically since she commenced living with him. She reported that she misses her half-sister [child 3] (8 years), and that she was previously spending time with her sister facilitated between [child 3’s] father and [the Father], but that this has since stopped. [Child 1] stated that she wanted to obtain a [nationality] Passport as her father is [nationality], but believed that [the Mother] would be “spiteful” and stop this from occurring. [Child 1] was agreeable to engaging with a psychologist [child 1] attends Year 10 at [H School] in [Suburb G]. She stated that she wants to study health care after school.
Child 2 was observed by the family consultant as follows:
23.[Child 2] presented as a tall 14 year old, who was lacking in confidence, occasionally struggling to find language to convey his thoughts and feelings during the interview. He described the high conflict between his mother and his sister as “hectic” noting that it was a “battlefield.” He stated that he always expressed a desire to live with his father, and recalled that when he told his mother about how he felt, she stopped speaking with him for a week. He recalled the conflict escalating with [the Mother] throwing household items, stating that he felt uncomfortable and unsafe during these times. He referred to his mother as “two faced” but was unable to provide examples of what this meant. He too recalled visiting Country F with his mother as a happy memory, but quickly returned to the difficult aspects of the relationship with her. [Child 2] held the similar view that he wanted no spend time with [the Mother] and that he should be allowed to choose when he can have a relationship with her, if ready to do so. He stated that his father and step-mother indicated that it was his decision about whether or not he wanted to have contact with his mother and that they felt “sorry” for his mother. [Child 2] noted that he speaks with [child 1] about is worries
The family consultant made the following observations and recommendations.
24.Both children provided a narrative and examples similar to their father. They held a very rigid view of the relationships they shared with each parent and strongly refused to attempt to spend time with [the Mother]. It appeared that they viewed themselves, [the Father] and [Ms E] as one family unit.
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26.Given their ages, the children have a very short window of opportunity to maintain a relationship with their mother. If this opportunity is not fostered by [the Father] as their primary parent, there remains a risk of the children internalising the issues they have experienced with [the Mother] and may have poor outcomes for their long term mental health.
27.The children are having no face to face contact with their maternal family and there appears to be a heavy presence from the paternal family. The children need to have an opportunity for some connection to their maternal family in order to maintain a sense of balance and neutrality.
28.[The Mother] will need to engage in significant efforts to acknowledge how her past behaviour has hurt the children and damaged her relationship with them, only then can there be successful repair and reconnection. It is beyond the scope of the parents in this matter to assist and facilitate this occurring and the family may subsequently benefit from engaging with professional support to achieve this.
29.The children in this matter are presenting with systems fatigue, due to their involvement in past and current Court processes.
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31.The children will benefit from engaging with a Child Psychologist as a matter of urgency, specialising in Family Law matters. The re-introduction of spend time would need to be determined by the children’s progress with the Child Psychologist, as a premature introduction of spend time may further exacerbate [child 1] and [child 2’s] rejection of their mother.
32.The children will benefit from receiving overt permission and genuine encouragement to spend time with [the Mother], from [the Father].
The Child Psychologist Report
Following receipt of the section 11F report, and with the benefit of it, the parties made consent orders on 8 July 2021 that included the appointment of an Independent Children’s Lawyer and the following orders concerning a child psychologist (Dr C):
2.The parties do all acts and things necessary to engage the children with a child psychologist specialising in family law matters (“the child psychologist”) for reportable child therapy, and the following shall apply:
(a)the child psychologist shall be [Dr C], or as otherwise directed by the Independent Children’s Lawyer in the event [Dr C] cannot conduct the therapy;
(b)the parties shall send a joint letter of instruction to the child psychologist and have leave to provide the child psychologist with a copy of the following:
(i)the Child Inclusive Conference Memorandum dated 6 July 2021;
(ii)the Family Report prepared by [Ms J] dated 18 March 2016;
(iii)the Family Report prepared by [Dr K] dated 3 April 2012;
(iv)the evaluation letters from the children’s previous psychologist [Ms L] dated 14 December 2015;
(v)the DFFH Responses dated 11 June 2021 and 7 July 2021; and
(vi)any orders made in these proceedings;
(c)the parties will follow the recommendations of the child psychologist as to frequency of sessions;
(d)the father do all acts and things to obtain a mental health care plan and referral from a general practitioner for the children to attend upon the child psychologist;
(e)the parties shall share equally the out-of-pocket cost of the child psychologist after any Medicare rebate is received; and
(f)both parties and Independent Children’s Lawyer are at liberty to communicate with the child psychologist, subject to his/her policies.
3.Unless the child psychologist has advised the parties in writing that any report would be contrary to the interests of the children and the benefits of the therapy, there be a report of the progress, or otherwise, of the therapy to such extent that the child psychologist considers is consistent with the therapy and in the best interests of the children, with all costs of the report to be shared equally between the parties.
Dr C saw the children and the parents individually. She saw the Mother on 13 August 2021 and each of the children, separately, on that day. She saw the Father on 23 August 2021 and saw the Mother again on 13 October 2021. She saw each of the children again, separately, on 8 December 2021 and saw the Father for the second time on 9 October 2021. Dr C had regard to the 2012 family report and the 2016 family report as well as the section 11F of 6 July 2021. She prepared a detailed report, to assist the court and the parties, on 16 March 2022. Dr C’s report includes the following observations:
14. … He described [the Mother] as unstable, having ‘fits of rage’ and not being able to cope with basic living skills. [The Father] was critical of [the Mother’s] running of the household and ‘expected her to run a house better’. Furthermore, he stated [the Mother] was a ‘liar’ and made up stories, such as [child 1] having cancer and claiming [child 2] would be in a wheel-chair (due to missing a tail bone). At interview, he denied family violence and said [the Mother] ‘played games’. He lacked sight into how his perception of [the Mother] may negatively impact on the children. In addition, he could not see how his communication and relating had any bearing on the family dynamics.
15. At interview, [the Father] spoke about his family viewing [the Mother] as ‘needy’, ‘attention seeking’, ‘untidy’, ‘disorganised with chores’, ‘reactive’ and ‘not able to tolerate criticism’. The writer is mindful that the parties met in Grade Nine in high school. [The Father] also spoke of seeking sole parental responsibility, the children’s passports and for the mother to stop litigating.
16. [The Father] spoke about the children ‘running away’ to be with him, and he stated the ‘children’s relationship (with the mother) was out of his hands’. He said [child 1] felt her mother was a ‘psychopath’. He did not see a role for the mother in the children’s lives. He did not reflect on the impact of resolving the parental conflict or reducing the children’s involvement in it, especially for the children’s development. Regarding [The Father’s] accountability in the conflict and the alignment of the children, at the interview he did not acknowledge his own failing in the relationship. He neither reflected on nor understood how he has contributed to the parental conflict and the children’s decision to reject the mother.
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17. Both parents completed the PAI.
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18. [The Father’s] profile indicated he engaged in positive impression management at least one standard deviation above the mean for parents involved in child custody disputes. His high score on this scale indicates he attempted to portray himself as exceptionally free of common shortcomings most people will admit, leading to his profile likely being questionable. Such a high score on this scale is rare and this raises concerns for [the Father’s] level of defensiveness.
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30. [Child 1] explained at interview that her father was [nationality] and she wanted to travel overseas. She presented as directive and assured in her thoughts and feelings and was frustrated she was again telling her story and involved in Court proceedings. [Child 1] explained she believed she was performing better academically since residing with her father. (Her mother stated she has always performed well at school). [Child 1] reported her poor grades to be due to her mother not providing a stable living environment and moving house regularly. She said, ‘I don’t know how I got by day-to-day academically’, and ‘she never enforced anything’. Throughout the interviews, [child 1] called her mother ‘[the Mother’s first name]’, and said the reason being is that she ‘does not see her as a mother figure’.
31. [Child 1] was visibly upset and frustrated reliving the past and giving accounts of her experiences. She stated she wanted to move on with her life (free from her mother). Furthermore, she is requesting that her decision to not spend time or communicate with her mother be respected by both [the Mother] and the Court. Thus, [child 1] is not seeking therapy or reunification. She outlined the reasons for this decision and described cumulative events over the years that has led to this decision to not have a relationship with her mother. Initially she recalled being a ‘nice girl and blocking it out’. However, she is now advocating that it is in her best interests to not repair the relationship with her mother.
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35. [Child 1] appeared angry at her mother, presenting with fixed views with little room for any good feelings or experiences of their relationship. She stated, ‘mum plays the victim’, and often brought her father into their arguments by saying comments such as ‘your father never pays child support’, leaving her feeling angry and upset. [Child 1] said she ‘hated being brought into the conflict’. [Child 1] acknowledged she felt ‘ashamed’ about behaving this way and having friendship issues when she lived with her mother. She reported her past emotional and interpersonal difficulties were due to her mother being ‘dramatic’. She also blamed her mother ‘for never doing anything about it’. It appears the mother tried to get [child 1] assessed to understand more about her experiences from a specialist.
36. [Child 1] spoke about the experience of arguing with her mother and being made to feel like a crazy angry person. [Child 1] agreed she become angry due to her mother refusing to give her space and continued arguing. At the interview she was upset by the allegations her mother had made about her father, for example ‘your dad beat and hit me’, ‘left us with no money for groceries’. [Child 1] defended her father stating, ‘my dad would never do that’.
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38.… Further to this, [child 1] said she didn’t hate her mother and believed her mother knew why both her and brother felt the way they did. Despite thinking this, [child 1] said she would write a letter to her mother after Christmas explaining to her why she didn’t want to have a relationship with her.
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43. In regard to his father and stepmother supporting a relationship with his mother, [child 2] said ‘they want us to have a relationship with her and ask us to call her’. However, he said ‘I want to cut off all cords’ as she was ‘not honest and sincere’, and he stated he didn’t have close relationship with her, and that she caused him a lot of anxiety. [Child 2] appeared worried he would have to go back to live with his mother and the writer explained his mother was just seeking some sort of visitation. He appeared shocked by this news and said he didn’t know, and then said she needed to wait until he was ready. [Child 2] appeared more genuine at this point of the interview. However, after the session with the writer [the Mother] reported to the writer that [child 2] had sent her repeated poo emojis. When the writer asked [child 2] about this in a subsequent session, he appeared embarrassed and then said ‘wait, it must have been a mistake’.
44.… He said he had not made his decision yet about seeing his mother to work through the issues, and stated he had felt ‘flung off by her’. He also reported wanting to see [child 3] and recommence calls with her when he was at his dad’s house. In summary, [child 2] cannot remember his parents being together. He said ‘I don’t hate my mother, I still love her in a way’. It appeared [child 2] felt frustrated and angry at his mother, and this was leading to a defensive fixed position, However, in relation to his mother he had more ambivalence (mixed feelings) than his sister [child 1], and underneath the involvement of the conflict he appeared to have good feelings and love towards his mother.
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47. Unfortunately, the parents have not been able to work through the destructive communication patterns and unhelpful dynamics of their parental relationship which has led to the children taking sides. The accusations of both parents against each other over the years led [child 1] to feel anxiety, angry outbursts, and somatic complaints (stomach aches), and then to resolve the conflict by a rejection of their mother and alignment with her father. The children have extended their rejection to the extended maternal family. [Child 2] appears to more open to working through the conflict with his mother, but he will struggle to go against the fixed position of the paternal family. To continue any further individual sessions with the children is likely to exacerbate the children’s hostility to therapy.
48. The writer spoke with the children about their mother acknowledging her emotional failings over the years, as well as being remorseful and wanting the opportunity to work through the issues. However, [child 1] rejected this idea and concretely stated her mother was not capable of change, labelling her mother with a personality disorder and herself the daughter of a narcissist. She concluded that her mother would not listen or be sincere. The PAI did not indicate the mother has any traits or indications of a personality disorder; she is likely to be submissive in relationships and will struggle to assert herself appropriately in conflict. There was also no indication [the Mother] engaged in positive impression management, thus she responded in a transparent manner.
49. [Child 2] was more open to the thought of resolving the issue with his mother (when he felt ready); he has already taken the required ‘breathing space he sought’. However, to not align with his current family system will be too difficult for him. The interactions between [child 1] and her mother appear to have been difficult for the mother to contain and manage at various developmental stages, particularly at age two and during adolescence. [Child 1] has felt pathologised by her mother who spoke of [child 1] having autism-like tendencies; [child 1] is now diagnosing her mother. [Child 1] reports her earlier experiences of frustration and anger were due to the dysfunctional interactions with her mother and not being seen in her own right. In terms of [child 1] forming a healthy adult self, it is recommended she move forward and form a new relationship with her mother and resolve the conflict in a healthier way. [Child 1] is requesting to sever all ties and disown her mother. However, this relationship is a relationship she has internalised, and she has defined herself as being the daughter of a narcissist. I recommend the Court considers ordering the family to attend an intensive family therapy program with [Dr M], followed by the children and mother attending face to face therapy to enable real-time contact with the mother.
50. The writer believes only an intensive family therapy-based treatment program such as the one offered by [Dr M] may assist this family. [Dr M] offers a unique family therapy model where she works intensively with families for 4 days to assist families when children reject a parent or in alienation cases.
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RECOMMENDATIONS
The writer would respectfully make the following recommendations based upon her assessment and dependent upon relevant findings of fact, as outlined in the body of the report, and in the absence of evidence to the contrary:
The Court may consider ordering the family (parents and children) to attend upon [Dr M’s] 4-day intensive family therapy program.
The court may consider ordering joint therapy for the children and the mother on a regular basis. (For the children to have separate sessions).
For [the Father] and [Ms E] to be prohibited from discussing the therapy with the children and comply with all directions in the children’s attendance in person for therapy. At the direction of the therapist, for [child 3] to also attend.
For the mother to attend insight-oriented therapy, to address her family of origin, adolescence, and parenting triggers.
The writer notes the father has been requesting the children’s passports to see extended family. Once the family therapy with [Dr M] has been completed the court may need to address the issue of the children’s passport and travel.
[Emphasis added]
The section 67Z Responses
The 7 July 2021 response concluded as follows:
It is the departments assessment that the reported information does not indicate that the [child 1] and [child 2] would be at risk of experience significant or immediate harm whilst in the care of either parent that would require perfective intervention to ensure his safety stop we were given the siblings are aged 16 years and 14 years respectively, child protection feel that it is reasonable for their views regarding contact and residency to be taken into consideration stop this report will be classified as a child well-being report and we closed that intake pays as it is assessed at future contact and residency can be negotiated in Federal Circuit Court.
Father’s affidavit
The Father’s assertions in his affidavit included:
60.… Since the issues of the children wanting to permanently leave their mother’s house began, I have continually tried to advise them against his, frequently attempting to encourage a week about arrangement when the children refused to return home.
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75. … The children refused to return home despite my encouragement to the contrary.
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79. …. [Mr D] and I have been facilitating calls between [child 3] and the children to maintain the relationship, however this was stopped by [the Mother].
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80.… I would be more than happy for the children to spend time and communicate with [the maternal grandmother] as I would be with [the Mother], however unfortunately they have not made the effort to contact the children or initiate this.
…
81.… I agree completely the importance of preparing and developing these relationships.
At Annexure -1, the Father includes a letter from his solicitor dated 20 October 2020 (about 2 months after [child 2] left his mother’s home) that asserted:
We are instructed that the child [child 2] is insistent that he does not wish to return to your client’s care this coming Monday 3 August 2020.
Our client has sought to counsel [child 2] about the need to comply with the agreed week about arrangement, however [child 2] is adamant that he does not wish to return to your client’s care at this stage.
Our client will continue to assess the situation and encourage [child 2] to go with our client on Monday. However, in the event that [child 2] remains steadfast in his position, then there is little that our client can do (given [child 2’s] age) to force his to go.
Therefore, if [child 2] continues to refuse to return to your client’s care, then our client proposes that [child 2] remain with him for a further week, upon which the parties can then re-assess the situation.
The Father’s affidavit at Annexure -2 contains a document self-described as testimony written by child 1 and dated 21 June 2020. That letter sets out in inarticulate terms many complaints by child 1 of her mother’s care for her and attempts to explain why she wishes to live with her father and have no contact with her mother.
The parents sometimes communicate through the Appclose parenting app. The Mother does not wish to communicate to or from the Father’s wife (now of 12 years), but the Father insists on adding her to the app. At times the Mother blocks the communication in response.
The Father proposed by email, in April 2021, that the children meet with the Mother (and only the Mother) for them to explain their position to her. She did not respond to that request and the children’s letters and the Father complains that soon after the request she issued the current wave of litigation.
The Mother’s account in her affidavits are consistent with what she told the 11F family consultant and the child psychologist.
Exhibit M2: the Father’s solicitors email after Dr C’s report release
After receiving Dr C’s report (and shortly before the hearing before me on 21 March 2022) the Father’s solicitor emailed the Mother’s solicitor in that email included the following statements:
Our office has spoken to [Dr M] who has confirmed that her fee for the four day intensive course is $15,500 (as recommended by [Dr C]), and to next available date is not until August 2022.
...
Despite the children adamantly stating to our client, your client (and to an extent [Dr C]) that they do not wish to engage in any further therapy sessions, our client remains willing to participate in ongoing therapy, and to encourage and facilitate the children to do so. However, any such therapy will need to be either funded entirely by your client or court/government funded.
If your client is unwilling or unable to fund the therapy sessions with [Dr M], then we ask that your office and/or the Independent children’s lawyer provide suggestions as to how this matter may otherwise progress. Further, we also ask that your client provide details as to the ultimate outcome that she is seeking to achieve in continuing with this litigation.
…
[Emphasis added]
The parent’s financial statements
Following the hearing, as ordered, each party filed a financial statement. The evidence in those documents has not been tested, but I have no basis to question the assertions therein.
The Mother’s financial statement indicates that she receives a salary or wage of $1,742 per week or $90,500 per annum as well as family tax benefit of $45 and child support from [Mr D], for child 3 of $75, a total of $1,862. Outgoings include payment of income tax of $526, superannuation of $174, rent for accommodation of $450, child support payments to the Father for [child 1] and [child 2] of $134 and very modest day-to-day expenditure for herself and [child 3]. Therefore, the Mother’s financial statement claims she has an excess of income over expenses of $115 per week without provision for legal expenses. Save for an ageing motorcar, the Mother does not have any assets of significance. She says she has about $10,000 in the bank, modest credit card debt and modest superannuation.
The Father’s financial statement indicates that he receives a salary or wage of $2,851 per week or $148,250 per annum and $130 as ‘backpay’ child support. After income tax of $825, accommodation expenses of mortgage and rate expense of $649, significant life insurance and income protection expenses of $306 per week and discretionary day-to-day expenditure of $1,352 per week (for the household of himself, his wife and the children), the Father claims a deficiency in income over expenditure of about $360 per week. As to assets he claims half of a modest equity of approximately $160,000 in his home (with a $530,000 mortgage), a modest 2019 motorcar, modest superannuation and personal loans and credit cards from a number of sources of a further $46,000 (excluding school fees but including $10,000 for legal fees). The financial statement does not make provision for the repayment of those personal debts or the unpaid school fees of some $60,000. If an accurate account of the Father’s household income and expenditure, his financial statement bears all of the fingerprints of real financial stress. According to his financial statement, he is the sole income earner in the household. Teenagers are notoriously expensive to support. The financial statement, consistent with the Mother’s allegations of the children’s involvement in the proceedings, includes the assertion that the child support ‘backpay’ is owed to the children. It is not, it is owed to him for the children’s support.
The Mother’s counsel asserted that the first time she knew anything about the $60,000 of unpaid school fees was when it was raised in Exhibit M2, the email of 17 March 2022.
On this interim hearing I cannot find that the Mother’s allegations of alienation and involvement of the children in the court proceedings are correct or not. However, I am satisfied that for the Father to fund one half of the therapy would add a substantial financial stress to the Father’s household and that one way or another this is likely to increase the children’s opposition to any further therapy.
The reality is that neither parent can really afford, in everyday terms, the therapy. But the frugality with which the Mother conducts her financial affairs means, on her financial statement, that she is better able at the moment, albeit with difficulty, to fund the therapy.
Submissions at hearing
The Mother’s position at hearing was that the recommendations of Dr C should be followed, for the reasons set out in that report, and that I should impose on the Father the additional expense of one half of the therapy, notwithstanding that he says he cannot afford it.
The Father’s solicitor addressed me on the many strong statements made by the children in the letters of July 2021 and December 2021 about why they did not want a relationship or time with the Mother. He asserted that the Father supported the relationship between the children and the Mother, that the possibility of the intensive therapy with Dr M should not be seen as a last ditch attempt, and that because of the Father’s relationship with child 3’s father he would be able to promote the children’s relationship with their younger sister.
The Father’s solicitor asserted that Dr C’s report contained a discordance between the observation of child 1’s strong wishes described at paragraph 47 and her recommendations at paragraph 49 of the report, both recited above. The Father’s solicitor asserted that Dr C had only suggested that the therapy “may” assist and that Dr C’s assessment of the Father’s lack of support for the relationship was not borne out by the children’s statements in the letters and the Father’s own assertions of support. The Father’s solicitor asserted that to proceed with the further therapy against the strong wishes of the mature children, age 17 and 15, may be detrimental to their mental health. The Father’s solicitor asserted that the recommendations of Dr C do not correlate with the reality of the situation and that the Father has already done everything he could to get the children to communicate and have a relationship with their mother.
The Father’s solicitor addressed me on the imposition upon the children of having to tell their story to another professional and then another professional and then another professional and that as stated by them they were exhausted by the litigation and the court process including speaking to experts.
The Father’s solicitor concluded his submissions as follows:
MR WIGHTMAN: So in summary, those are the three issues are really, the fatigue, and the children have clearly expressed in their wishes. They are 17, 15. By the time a report with [Dr M] comes around, [child 1] will be, you know, nudging 18, and [child 2] will be nudging 16. The – you know, it’s our position that they have clearly expressed those opinions. … at this point, they’re [done so in] ... various forms to various people … it would be detrimental, essentially, to their health, to proceed with continued therapy. And, … both the children are old enough, … [their] decision should be given significant weight. And otherwise the concept of this being the last-ditch effort … we submit it’s not the case, and the father will continue to want to encourage and facilitate relationships in the future.
The Independent Children’s Lawyer (‘ICL’) in outline of case made the following submissions:
If the parties agree to facilitate the children’s attendance upon [Dr M] for intensive family therapy, then the Independent Children’s Lawyer will not stand in their way.
If the children’s participation in [Dr M’s] intensive family therapy is not practically possible, then the Independent Children’s Lawyer propose the following final orders:
1.All extant applications be dismissed and all previous parenting orders be discharged.
2.The mother and the father have equal shared parental responsibility of the children, [child 1] born in 2005 and [child 2] born in 2007 (“the children”).
3.The children live with the father.
4.The children communicate and spend time with their mother pursuant to their wishes.
5.The mother may provide the children with letters, gifts and cards from time to time.
6.Such other orders as agreed between the parties in relation to parental communication, authorities to communicate with third parties about the children, and the children’s passports.
…
Further family therapy
6. It is the Independent Children’s Lawyer’s submission that a greater weight should be given to the children’s expressed wishes not to participate in further therapeutic counselling to talk about their relationship (or lack thereof) with their mother, or to be required to communicate and/or spend time with their mother for the following reasons:
a.If the children are required to participate in the intensive family therapy with [Dr M] in August 2022, [child 1] would be 17 years and 7 months, and [child 2] would be 15 years and 5 months old. Both children are older teenagers with strong views.
a.[Child 1] has explicitly expressed her views to [Dr C] (at paragraph 31 of [Dr C’s] report) and in her letter to her mother dated 15 December 2021 (annexed to the mother’s affidavit at page 25) that she does not wish to communicate or spend time with her mother, and that she does not seek therapy or reunification with her mother.
b. Although [child 2] has not outright rejected his mother, he expressed a desire for space away from these current proceedings. [Dr C] noted that although [Dr C] is open to the thought of resolving the issue with his mother when he felt ready, it would be difficult for him not to align with his current family system (being the conflict between the mother and [child 1]) (paragraph 41).
c.The children have been subjected to three separate legal proceedings in relation to parenting matters. From 2011 to the present, the children have been interviewed by:
i. three family consultants ([Dr K] in 2012, family consultant [Suburb N] in 2016, and [child expert consultant O] in 2021),
ii. a child consultant [P] from Q Centre, and
iii. two psychologists ([psychologist P] in 2015 and [Dr C] in 2021).
The above list of experts does not include [Dr M] as recommended by [Dr C] and should this matter proceed to a final hearing, a fourth family consultant.
7. [Child expert consultant O] stated in the Child Inclusive report in July 2021 that “the children in this matter are presenting with systems fatigue, due to their involvement in past and current Court processes” (paragraph 29).
8. It is the ICL’s submission that both parties should turn their minds to concluding these legal proceedings sooner rather than later as further protracted litigation would be detrimental to the children’s mental health and well-being.
That submission was expanded in oral submission by counsel for the ICL to include the submission that Dr C’s evidence had not been tested or qualified in cross examination, that this was an interim hearing (with all the forensic limitations that entails) and, absent agreement and the practical reality of it being actually able to be paid for, an order for the therapy should not be made.
The helpful submissions of counsel for the ICL included the following:
MS BONNEY: The process that is recommended or may be considered – according to [Dr C], is that the parties attend the four-day intensive family therapy program which your Honour may be aware that [Dr M] goes to the children’s home and spends full days with the parents – at their discretion, but the father, the mother and the two children in the home. It’s a very intensive and [involves] some sense unpacking of the position of where everybody is in that therapy. In my submission, that therapy would only work if (a), the parties could both … afford it. If they can’t afford it, I think it’s really a moot issue – and I will address you about that shortly, and (b), if there’s genuine intention on the part of both the mother and the father and [child 2] and [child 1] to make the therapy work.
…
MS BONNEY: By way of background, this is the third set of proceedings. The parties separated in September 2009, as you heard from [Mr R]. The father commenced the first proceedings in 2011, and they were settled by consent with final orders in 2012. At that time, the children were interviewed by [Dr K] in 2012. The second round of proceedings started in 2016, which the mother commenced. That again was settled by consent, and final orders were made in 2017. During that set of proceedings, the children were interviewed by [Ms S] in 2016.
…
MS BONNEY: So I raise that just from my inquiries to, I suppose, elucidate to the court that these parents have practical issues in relation to attending [Dr M], as much as the mother may want it, and as much as she may think that that’s the answer to unpacking something that – a dish that has been a long time cooking. It has been going for 11 years.
I raised with counsel for the ICL what I then saw as the central question or dilemma of my decision as follows:
HIS HONOUR: And if there was the capacity to pay, the issue would then be balancing the children’s wishes and the trauma or even harm to them of forcing them to participate in therapy that they don’t want to participate [in], against the long-term impact on their mental health that’s referred to by [Dr C], of having such a negative or stuck in the past view of one of their parents, which is part of who they are. But you say that [is] only going to arise if they can afford the therapy.
On the 21 March 2022 I concluded the hearing with the following observation:
HIS HONOUR: Thank you for your patience. From a point of view of looking at the whole family, the family is not in a good place. At the moment as I sit here, I don’t know what the answer is. I will think about it. I don’t know if I have the answer. I don’t have a magic wand. I’m concerned about the short-term psychological welfare of these children, and I’m concerned about the long-term psychological welfare of these adults, that there will be some – or that there already are, in many ways. Thank you for your assistance to me today. Thank you, everybody. You’re excused.
The following matters are, on this interim hearing, agreed or at least uncontested. This is the third wave of litigation about the children so far in their lives. The children of the mature ages of 17 and 15, for whatever reason, are strongly resistant to any therapy or attempt to reconnect with their mother, let alone spend time with her. For whatever reason the children request, in emphatic terms, to be left alone to live with their father and his wife and not be asked to tell this story anymore to anyone else. The children express emotional exhaustion with the litigation process.
The family consultant who prepared the section 11F report has considerable expertise and opines as set out at paragraph 25 above, but I repeat, as follows:
26.Given their ages, the children have a very short window of opportunity to maintain a relationship with their mother. If this opportunity is not fostered by [the Father] as their primary parent, there remains a risk of the children internalising the issues they have experienced with [the Mother] and may have poor outcomes for their long term mental health.
[Emphasis added]
Notwithstanding the limited opportunity to quarrel with or qualify that observation at an interim hearing, that proposition was uncontested before me. The Father’s solicitor’s submissions and the Father’s evidence directly challenge and contradict Dr C’s opinion of the Father’s insight and role in the current estrangement of the children from their mother. I do not proceed on the basis that Dr C’s opinion of the Father is correct, as the Mother’s counsel sought that I do. At final hearing there may be evidence that would support a conclusion consistent with Dr C’s opinion or even that would go as far as supporting the Mother’s allegation of alienation. I cannot make a conclusion one way or another on this interim hearing.
The Father’s case is, and he swears on oath, that the current problems exist notwithstanding his support for the children having a relationship with their mother and his personal opposition to their entire rejection of her.
Dr C’s observations, recited above in paragraph 27 and repeated here were not contested before me:
49.… In terms of [child 1] forming a healthy adult self, it is recommended she move forward and form a new relationship with her mother and resolve the conflict in a healthier way. [Child 1] is requesting to sever all ties and disown her mother. However, this relationship is a relationship she has internalised, and she has defined herself as being the daughter of a narcissist.t…
[Emphasis added]
It is not disputed that an essential role of parents is to assist their child or children to form a healthy adult self. Whether the child can or cannot, the consequences will likely be with that child (or young adult as here) for the rest of his or her life.
As at 17 March 2022, after receiving Dr C’s report, the Father supported the recommended therapy but said he was unable to fund a contribution to it. By that time counsel for the Mother had already been briefed and the die was cast for the further expenditure of considerable money on the hearing before me on 21 March 2022.
The ICL’s position included that if the therapy was practically possible, that is if someone could pay for it, and the parents agreed and the children agreed, then the therapy should proceed and otherwise the litigation should cease.
THE APPLICABLE LAW
In accordance with Goode & Goode (2006) FLC 93-286 at [82], on this interim hearing I must chart the course by looking at agreed or uncontested matters. I must also apply the relevant parts of Part VII of the Family Law Act 1975 (Cth) (‘the Act’) and in particular sections 60CA, 60CC(2) & (2A) and (3)(a) to (m). The parents are represented and those sections are well known to their lawyers and the ICL and I will not repeat them here. I must and do regard the best interests of the children as the paramount consideration.
The following headings relate to the corresponding legislative provision of Part VII of the Act.
Primary considerations
It is not disputed by any of the parties that the children would benefit from having a meaningful relationship with their mother. They have a meaningful relationship with their father.
Notwithstanding the allegations in the children’s letters, at this time, and for the purpose of the recommended therapy, there is no risk of the children being exposed to harm by abuse, neglect or family violence.
Additional considerations
The children’s maturity and expressed views
I refer to and adopt the statements of the children’s strong views expressed and discussed above. The children are 17 and 15 with age-appropriate maturity, but their experiences have caused them to ponder questions about themselves that children are usually not expected to ponder. The force, and black-and-white nature, of the children’s views expressed to the independent experts and in the letters weigh on me. Those views may be wholly or largely a product of their experiences over a long time in their mother’s care or they may reflect what Dr C describes as their “current family system”. Or a combination of all of those things.
Nature of the children’s relationship with their parents
The children’s relationship with their Mother is one of deeply felt anger and rejection. The Father and the children assert that this is because of the children’s experience of the parenting by the Mother and her attempts to have them reject their always loved father. The Mother asserts this is because of the Father’s alienation of her to the children.
Extent to which each of the parents failed to participate
The Mother asserts that she has gone to every effort to try to rebuild and reconnect with the children. The Father and the children assert that the Mother has, confusingly, refused to meet with them, and issued court proceedings instead. The Father now undertakes all of the parental burden of day-to-day parental decisions for teenagers.
Whether each parent has fulfilled obligations to maintain the children
The Father alleges the Mother is deficient in her obligation to provide child support. I make no finding.
The likely effect of changes for the children
At the moment the children are not seeing, or having any connection with, their mother. The two independent experts in the case, the family consultant of the 11F and the child psychologist, Dr C, unequivocally opine that a change in the children’s relationship may be or is necessary to avoid poor outcomes for their long-term mental health and/or for forming a healthy adult self. The expertise of each of those experts is significant, and those aspects of the expert’s opinions are uncontested. Despite the criticisms of him, the Father has sworn and the children have written that the Father disagrees with their total rejection of their mother. I find that a change in the children’s relationship with their mother is likely to be necessary for the children’s long-term mental health and for them forming their healthy adult selves.
Practical difficulty
There is real practical difficulty in proceeding with the therapy. The children are strongly opposed to it. It is expensive, although not expensive compared to the costs of legal fees in the continuing litigation, a final hearing and expert witnesses. Neither parent can really afford these expenses and on the evidence I have the Father is less able to afford them than the Mother. Notwithstanding that overseas travel for the children and the Father is contemplated.
The capacity of the parents to provide for the needs of the children
The Mother, in substance, alleges that the Father does not have the capacity to provide for the children’s emotional needs. The children and the Father make the same allegations of the Mother. Apart from having no doubt that neither parent will be perfect in this regard I am unable to reach a conclusion on this interim hearing.
The attitude to the responsibilities of parenthood
A significant component of the responsibility of parenthood is the responsibility to promote and care for the children’s relationship with the other parent. Each parent alleges the other has an inadequate and damaging attitude to that responsibility. The children’s letters have the same concerns as expressed by the Father but in markedly stronger terms.
Family violence
The Mother alleges coercive and controlling behaviour by the Father. The children and the Father deny such behaviour and allege family violence to the children by the Mother. I make no finding, but that does not mean I find that the events alleged by of either parent or the children did not occur. I am satisfied that there will not be the opportunity for, or risk of, family violence in the proposed therapy.
Interim or final order
Notwithstanding the strong view of the ICL that these proceedings should cease, in the circumstances of this interim proceedings as they are I cannot make final orders. However, it is likely that if the proposed therapy proceeds, and whatever the degree of success of it, any further litigation may be otiose. The alternative to making orders for the therapy at this point is to fix the matter for final hearing and put the parties to the very considerable expense of preparing for such a final hearing.
Any other fact or circumstance
As discussed above on the evidence I have, the Mother is better able to pay for therapy, albeit with difficulty. This would no doubt be perceived by her as being an unfair financial burden as a consequence of the Father’s behaviour, not hers. To impose the additional burden of one half of the cost therapy on the Father will add to the financial stress within his household and likely make the children more resistant to therapy. It is usually important for parents to both contribute to the cost of any therapy so that he or she is invested in it, unless one party is actually unfairly burdened.
I also take into account the potential emotional burden upon the children of being compelled by the Court and by their father to participate in the therapy against their strong wishes. Dr C has considerable knowledge and expertise. She has met these children and interacted with them in a professional sense as a therapist. She is aware of the children’s strong views, their ages and likely resistance to the therapy, and yet she recommends the therapy because of the potential benefits for the children’s long-term mental health and/or the concept of the “healthy adult self”.
It was not contested that the Court has power to order the parents to cause the children to participate in the proposed therapy. In any event, I note section 13C(1)(c) of the Act which states as follows:
13C Court may refer parties to family counselling, family dispute resolution and other family services
(1)A court exercising jurisdiction in proceedings under this Act may, at any stage in the proceedings, make one or more of the following orders:
…
(c)that one or more of the parties to the proceedings participate in an appropriate course, program or other service.
Conclusion
I take into account and balance all of those matters, the parties submissions, the agreed and uncontested matters, and the contested allegations, including allegations of coercive and controlling family violence. The Mother has been the children’s primary carer all their lives. I find that it is in the best interests of the children to make orders for the parents to forthwith enrol with the children in the intensive therapy proposed with Dr M and for the Mother to be responsible for the cost of that therapy in the first instance.
I so find because of the balance of these matters referred to and because, notwithstanding the children’s strong views, there are submissions of possible harm from therapy but clear evidence (the 11F report and Dr C’s report) of the likely long term risk of harm, or potential for long term harm, to the children if their relationship with the Mother is left as it is.
I will not order that the therapy be reportable nor was that proposed by any party. This is because the children are exhausted by the scrutiny of examination by various experts and reporting to the court and their parents. I also find that the therapy is less likely to be unsuccessful if it is conducted under therapeutic confidentiality. The therapy should be just that, therapy, and not a mere steppingstone on the litigious stairway to final hearing.
In the event there is a dispute as to the future of the litigation, each of the parties will have liberty to apply. A mention hearing for case management purposes will be fixed for 23 January 2023.
Unless discharged or varied, expressly or by implication, existing orders remain. It is necessary to make orders reflecting where the children actually live.
Hence I make these orders.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 15 June 2022
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