Durante & Durante
[2024] FedCFamC1F 794
•25 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Durante & Durante [2024] FedCFamC1F 794
File number(s): PAC 2251 of 2019 Judgment of: ANDERSON J Date of judgment: 25 November 2024 Catchwords: FAMILY LAW – PARENTING – Allegations of parental alienation – Where the Court finds that the father does not have any desire to support the children’s relationship with the mother - Finding that the father and the paternal grandparents have psychologically abused the children and caused them serious psychological harm – Where the children are aligned with the father’s views – Likelihood of long-term psychological consequences for the children - Order for the children to spend no time with the mother notwithstanding the findings made in respect of the father’s conduct Legislation: AustralianPassports Act 2005 (Cth) ss 11
Evidence Act 1995 (Cth) ss 140
Family Law Act 1975 (Cth) ss 3A, 4, 4A, 4AB, 5, 6, 60B, 60CA, 60CC, 60CG, 61B, 61C, 61D, 61DAA, 61DAB, 62B, 64B, 65AA, 65D, 65DA, 67U, 68B, 68C, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15
Cases cited: Bant v Clayton (2015) 53 Fam LR 621
Blinko & Blinko [2015] FamCAFC 146
Briginshaw v Briginshaw (1938) 60 CLR 336
Cotton & Cotton (1983) FLC 91-330
Fitzwater & Fitzwater (2019) 60 Fam LR 212
G & C [2006] FamCA 994
Hickson & Matthew [2022] FedCFamC1A 161
Isles & Nelissen (2022) FLC 94-092
M v M (1988) 166 CLR 69
McCall & Clark (2009) FLC 93-405
N and S and the Separate Representative (1996) FLC 92-655
PBF & TRF (2004) 33 FamLR 123
Summerby & Cadogen [2011] FamCAFC 205
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 216 Date of hearing: 23-27 September 2024 Place: Parramatta Counsel for the Applicant: Mr Schroder Solicitor for the Applicant: Rafton Family Lawyers Solicitor for the Respondent: Unified Lawyers Counsel for the Respondent: Mr Sperling Solicitor for the Independent Children's Lawyer: Mark Macdiarmid Family Law Specialist ORDERS
PAC 2251 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DURANTE
Applicant
AND: MR DURANTE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ANDERSON J
DATE OF ORDER:
25 NOVEMBER 2024
THE COURT ORDERS THAT:
1.All former orders in relation to the children, X born 2011 and Y born 2015 (“the children”) be discharged.
2.The father shall have sole parental responsibility for the children and sole decision‑making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (‘the Act’) affecting the children save and except for issues relating to the children’s health and education.
3.That notwithstanding paragraph 2 herein, and by no later than thirty (30) days prior to making any major decision in relation to the care, welfare and development of the children (or either of them), the father shall notify the mother in writing of the proposed decision and make genuine efforts to consult the mother in relation to the same.
4.The parties have joint parental responsibility and joint decision-making authority in respect of all major long-term issues concerning the children’s health and education.
5.The children live with the father.
6.The children spend time with the mother subject to their wishes.
Provision of cards, letters and gifts
7.The mother shall be permitted to forward letters, photos, gifts and cards to the father for the children, and in the event that the children are unwilling to accept such letters, photos, gifts and cards, then the father shall retain those communications and gifts until the children are willing to receive them.
8.Within 7 days of the date of these Orders, the father shall advise the mother by way of a written communication directed to her solicitor of a postal address to which the mother may forward letters, photos, gifts and cards pursuant to Order 7 herein.
Communication
9.Each parent shall:
(a)Forthwith do all things necessary (including, without limitation, paying their share of any subscription fees) to establish and maintain access for each of them to such parenting application as is agreed between them and failing agreement to the parenting application “App Close”; and
(b)Unless otherwise agreed in writing or in the event of an emergency concerning the children, the parties shall utilise the parenting application to communicate in relation to all issues concerning the children.
10.The children be at liberty to communicate with each parent by electronic means at any reasonable time when they are in the other parent’s care and each parent shall do all things necessary to facilitate such communication.
11.Each parent shall keep the other parent advised of his/her mobile telephone number and advise the other parent of any change to these details within 48 hours.
Authorities and Provision of Information
12.Each parent shall be permitted to communicate directly with the children’s school/s, sporting bodies, and medical practitioners to obtain any information and/or documents about the children’s progress and this Order shall constitute sufficient authority for such communication.
13.Each parent shall keep the other advised of the health of the children including any serious illness, medication or hospitalisation of either child as soon as reasonably practicable and to allow the other parent to visit the children if hospitalised.
14.Each parent shall keep the other advised in writing of the names and contact details of all of the children’s treating medical practitioners, dentists and allied health professionals.
Restraints
15.That pursuant to s 68B of the Family Law Act 1975 (Cth) (as amended), the parties be restrained, and injunction is hereby granted restraining each of them from:
(a)Facilitating the attendance of the children (or either of them) on any psychiatrist, psychologist, social worker or any mental health professional whatsoever without the written consent of the other parent;
(b)Facilitating the attendance of the children (or either of them) on Ms C, psychologist for the purposes of treatment, research or therapy;
(c)Permitting Ms C from attending at any residence at which the children may reside from time to time whilst the children are present;
(d)Permitting Ms C from attending any medical appointment in relation to the children;
(e)Denigrating the other parent to or in the presence of the children or allowing any third party to do so;
(f)Denigrating any member of the other parent’s family to or in the presence of the children or allowing any third party to do so; and
(g)Permitting the children to access or read any documents filed in these proceedings or any correspondence or reports prepared in relation to these proceedings.
Costs
16.The application for the mother to pay to Legal Aid New South Wales her share of the costs of the Independent Children’s Lawyer is refused.
17.The application for the father to pay Legal Aid New South Wales his share of the costs of the Independent Children’s Lawyer is refused.
Meeting between the children and the Independent Children’s Lawyer
18.That within 28 days of the date of these Orders, the father do facilitate the attendance of the children on the Independent Children’s Lawyer on a date, time and place to be nominated by the Independent Children's Lawyer so that he might explain the terms of these Orders to the children.
Discharge of the Independent Children's Lawyer
19.That on compliance with Order 18 herein, the appointment of the Independent Children's Lawyer be discharged.
Other
20.That pursuant to s 62B of the Family Law Act 1975 (Cth) (as amended), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
21.That pursuant to s 65DA(2) of the Family Law Act 1975 (Cth) (as amended), 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 the Fact Sheet, attached hereto and these particulars are included in these orders.
22.All other applications pursuant to Part VII of the Family Law Act 1975 (Cth) (as amended) are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Durante & Durante has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ANDERSON J:
INTRODUCTION
These proceedings brought under Part VII of the Family Law Act 1975 (Cth) (‘the Act’) concern a male child aged thirteen years and a female child aged nine years.
The applicant is the mother.
The respondent is the father. The children live with him.
The children were due to return to the mother’s care on 18 July 2023 pursuant to the terms of final parenting orders made with the consent of the parties on 31 October 2022.[1] The children did not return to the mother as anticipated, and the father has withheld them ever since.
[1] Mother’s affidavit filed 16 August 2024, paragraph 6.
The children have been the subject of proceedings in this court since 16 May 2019 when the mother filed an application for interim and final parenting orders. Except for a short hiatus of eight months, the elder child has been the subject of court proceedings for a little under half of his life. The younger child has been the subject of court proceedings for more than half of her life. Each of them has been deprived of a childhood. The children have been the subject of court proceedings, interviews by strangers, unnecessary psychological treatment, hospital admissions and abuse. They are the victims of sustained parental conflict. And, in recent times, they have been the subject of abuse at the hands of their father, the paternal grandparents and those persons who support the paternal family. In the words of a Single Expert engaged by the parties, the behaviour of the father and his parents have caused the children to be “profoundly disturbed”. The Single Expert under cross-examination described the children as being “delusional” and having “an extreme and pathological unjustified rejection of their mother”. It is a case where the elder child gleefully advised the Single Expert that he dreamed of “pushing… [his mother] over a balcony”.[2] It is also a case where the children have allegedly reported to their father “that they would prefer to be dead than to see their mother, and that should they be required to see her, that it would be like them going to hell”.[3] The Single Expert reflected on the elder child’s desire to harm his mother and said as follows with respect to the elder child’s desire to throw his mother off a building:
I shared with [the elder child] that I thought this was a tremendously unacceptable thing to say to anyone and yet the ease with which his disdain and malevolence simply rolled off his tongue without guilt or reflection was genuinely confronting.[4]
[2] Family Report dated 8 November 2023, paragraph 47.
[3] Family Report dated 8 November 2023, paragraph 19.
[4] Family Report dated 8 November 2023, paragraph 89.
It is against this background that the children have not spent any time with the mother since July 2023. They have not had any communication with the mother whatsoever since 8 April 2024.[5]
[5] Mother’s affidavit filed 16 August 2024, paragraph 269.
For five days, I heard a trial with respect to the parties’ competing parenting applications. Having heard the evidence, I agree with the opinion expressed by the Single Expert that the children “are well down the path of major psychiatric and personality problems”, which will manifest in their early adult lives.[6] The tragic reality is that neither the father nor his parents have the ability to understand the harm, which they have caused and continue to cause the children.
[6] Oral evidence of the Single Expert – 26 September 2024.
For reasons, which will become clear, the father and his parents have triumphed in this litigation. I am not persuaded that it is possible to make any parenting order for time between the children and their mother. I am left wondering whether the father and his parents will realise in the years to come the extraordinary damage, which they have caused to the children’s lives.
BACKGROUND
The mother is aged 45 years. She works in office administration at a private company on a part‑time basis.[7] She has a Country D and Country E ethnic background and practises the Catholic faith.[8]
[7] (Further Amended) Initiating Application filed on 18 January 2024; Exhibit F9, paragraph 11.
[8] Exhibit F9, paragraph 9.
The father is aged 45 years. He is currently employed in transport. His daily hours “range from 3.00 am to 4.00 pm”.[9] For this reason, the children have been living with the paternal grandparents during the working week.[10] By necessity, the father also relies on the paternal grandparents to deliver the children to and collect them from school.[11] The father has an Australian background with a Country B paternal ethnicity. The father, like the mother, practises the Catholic faith but his church attendance is limited to Christmas and Easter.[12]
[9] Father’s affidavit filed 16 August 2024, paragraph 119.
[10] Father’s affidavit filed 16 August 2024, paragraph 120.
[11] Father’s affidavit filed 16 August 2024, paragraph 120.
[12] Exhibit F9, paragraph 40.
The parties married in 2010. They separated on a final basis under the same roof in August 2017. On 5 April 2019, the mother moved out of the former matrimonial home together with the children.[13] The mother commenced financial and parenting proceedings in May 2019.
[13] Mother’s affidavit filed 16 August 2024, paragraph 10.
It was clear from the oral evidence of the father and the paternal grandmother that each of them are bitter about the mother’s decision to leave the former matrimonial home with the children in April 2019. In his oral evidence, the father expressed a view that the mother “stole the children” by doing so. The Court file, however, reflects that when the competing applications were listed before a Judge of Division 2 of the Court on 2 September 2019, the mother consented to orders that the children spend four nights per fortnight with the father as well as half of all school holidays. The giving of such consent is antithetical to the conduct of a person “stealing” the children.
The competing parenting applications concluded with the consent of each party on 31 October 2022. At that juncture, the parties agreed to final orders that:
(a)The parties have equal shared parental responsibility for the children;
(b)The children live with the mother; and
(c)The children spend five nights per fortnight with the father.
The Orders made on 31 October 2022 bore the seal of the Federal Circuit and Family Court of Australia. Nevertheless, and for the reasons discussed below, I have concluded that the father and his parents considered that compliance with Orders made by a Judge of Division 2 of this Court was at their discretion. During the Christmas school holiday period in 2022/2023, the father retained the children in his care breaching the “week on and week off” arrangement prescribed by the 2022 orders.[14] I find below that the father did not do so due to a fear that the children were unsafe in the care of the mother. He did so to suit his own convenience because the children did indeed return to the mother after school in late January 2023.[15] If the father was concerned about the safety of the children he would have withheld them at that juncture.
[14] Mother’s affidavit filed 16 August 2024, paragraph 88.
[15] Mother’s affidavit filed 16 August 2024, paragraph 88.
The father withheld the children again during the April 2023 school holidays. The mother says that the children refused to get out of the father’s car on 8 April 2023.[16] The father agrees and said in his oral evidence that he “could not get two scared or petrified children out of the car”. In respect of the same school holiday period, the mother says that on 12 April 2023 she had a conversation with the paternal grandmother in the following terms:
Paternal Grandmother: The kids don’t want to go back with you. If you want them you will have to come and pick them up yourself from [Region F].
Mother:[G Venue] is the court ordered place to exchange the children, not [Region F].
Paternal Grandmother: Who cares about the court orders.[17]
[16] Mother’s affidavit filed 16 August 2024, paragraph 91.
[17] Mother’s affidavit filed 16 August 2024, paragraphs 93–94.
Whilst the paternal grandmother denied asserting that the court orders were irrelevant, the consequence of her actions was that the children were deprived of any time with the mother during the April 2023 school holiday period. The father’s oral evidence was to the effect that the paternal family were taking a vacation in Region F of New South Wales at the relevant time and for the reasons discussed below, I find that the father and his parents withheld the children to suit their own convenience. The children returned to the mother’s care when school resumed in late April 2023.[18] Again, and if the father was concerned about the safety of the children, he would have withheld them from the mother at that juncture.
[18] Mother’s affidavit filed 16 August 2024, paragraph 96.
In mid-2023, the mother collected the children from school. She says that prior to doing so, she checked the elder child’s video game collection and discovered that many games were missing. On arrival at her home, the mother and the elder child searched for the games. They could not be located.[19] The mother purchased two new games for the elder child and gave them to him on the occasion of his birthday.[20]
[19] Mother’s affidavit filed 16 August 2024, paragraphs 106–113.
[20] Mother’s affidavit filed 16 August 2024, paragraph 120.
In mid-2023, the elder child was hospitalised.[21] Thereafter, the father aided by the paternal grandparents, withheld the children from the mother. In the days, which followed, the father and his parents also failed to facilitate the children’s attendance at school.[22]
[21] Mother’s affidavit filed 16 August 2024, paragraph 122.
[22] Mother’s affidavit filed 16 August 2024, paragraph 62.
The mother commenced proceedings on 26 July 2023. The competing interim applications were then listed before a Senior Judicial Registrar on 29 August 2023. The Senior Judicial Registrar suspended the parenting arrangements prescribed by the orders made on 21 October 2022. She directed that the children spend time with the mother as agreed in writing between the parents and failing agreement, each weekend for up to three hours on a Sunday supervised by a professional supervision service.[23] As discussed above, the children have not spent time with their mother in accordance with this order.
[23] Orders made 29 August 2023, paragraph 2.
COMPETING PROPOSALS
The mother by her (Further Amended) Initiating Application filed on 18 January 2024 sought orders for the father to return the children to her or in default of compliance by the father, the mother sought a remedy under s 67U of the Act requiring the Marshal of the Court or police to locate the children and thereafter deliver them to her. On an assumption that the children would then remain in her care, the mother sought orders that:
(a)The mother have sole parental responsibility for decision making in relation to major long term issues concerning the children;
(b)The recovery order remain in place for a period of twelve months from the date of a final order;
(c)The children live with the mother and spend no time with the father for a period of three months following the making of a final order;
(d)On the expiry of three months, the children spend time with the father on each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday with such regime to continue during all school holiday periods; and
(e)The children attend on a psychologist previously nominated by the parties to prepare a personality assessment in respect of each of them[24] so that the psychologist might explain the nature and effect of the orders to the children and thereafter, that the children attend for therapy on the psychologist as may be recommended by him.
[24] Orders made 22 December 2023 with the consent of the parties.
The mother also sought several injunctive orders restraining the parties from discussing these proceedings with the children, denigrating the other parent or his/her family members in the presence or hearing of the children or allowing the children access to documents prepared in these proceedings.
The mother’s application was expanded by her counsel’s Outline of Case Document. Particularly, the mother sought orders pursuant to s 68B of the Act to the effect that for a period of three months:
(a)The father not communicate with the children by any means whatsoever;[25]
(b)The father whether by himself, his servants, agents or the paternal grandparents be restrained from entering or remaining in a place of residence, employment or education of the mother or the children or a place where the children are receiving or attending to receive the benefit of medical, educational or other professional service;[26] and
(c)The father refuse any effort by the children to return to his care and immediately inform the mother of his refusal.[27]
[25] Outline of Case Document filed by the mother, page 9.
[26] Outline of Case Document filed by the mother, page 10.
[27] Outline of Case Document filed by the mother, page 10.
The above orders were expressed to be orders to which a power of arrest without warrant attaches pursuant to s 68C of the Act.
With respect to the topic of time spending, the mother’s Outline of Case Document altered the mother’s position as expressed by her (Further Amended) Initiating Application. Particularly, and whilst the mother’s ultimate application remained that the children spend time with the father on each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday, the mother by her Outline of Case Document promoted an order that on the expiry of three months, and after increases for a period of four months, the children spend time with the father on each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday. On the expiry of seven months (being the period during which the children do not spend time with the father in addition to the four‑month period of gradually increasing time), the mother also proposed that the children’s time with the father during school holiday periods and on special occasions be reinstated.
In addition to the short-term injunctions referred to above, the mother sought injunctive relief on a final basis in the following terms:
(a)That the father be restrained from using any school portal to communicate with the children or the school save that the father may use such portal to keep himself advised as to the children’s academic progress and to obtain the children’s school reports; and
(b)That the father and his parents be restrained from making any medical appointments or appointments with other health providers for the children or either of them.
The father moved on his Amended Response to Initiating Application filed on 24 January 2024. By that document, the father sought orders that:
(a)The father have sole parental responsibility for making decisions about major long-term issues for the children;
(b)The children live with the father;
(c)In the event that the children express a wish to spend time with the mother, the father “do all acts and things to facilitate such time, in a manner as determined by the…father”; and
(d)The mother be permitted to send gifts, cards and letters to the children on condition that the father “be at liberty to review any card, gift or letter and assess its suitability and/or appropriateness”.
For reasons, which will become clear I find that the father will never facilitate any time between the children and the mother, nor will he provide the children with any cards, letters or gifts, which may be forwarded by the mother. It is his expressed view that the children will not benefit from any relationship with the mother. This being so, the orders sought by the father with respect to time between the children and their mother are a nonsense.
The father also sought:
(a)Orders regulating the mother’s ability to obtain information from the children’s school and treating medical practitioners;
(b)Orders permitting the father to obtain an Australian passport for the children absent the mother’s consent;
(c)Orders permitting the father to facilitate the children’s attendance on a psychologist nominated by him; and
(d)Injunctive relief pursuant to s 68B of the Act restraining the mother from attending at the children’s school, place of residence or any location where the children “attend to socialise, play sport or undertake extra curricula [sic] activities”.
The Independent Children’s Lawyer promoted orders that the parties have joint parental responsibility for making decisions about all major long-term issues in relation to the children save that the father have sole parental responsibility for making decisions about health and education issues. He promoted orders that the children live with the father and in addition to some special occasions, spend the first Sunday of each calendar month with the mother from 11.00 am to 1.00 pm. That position did not alter by the conclusion of the trial.
The Independent Children’s Lawyer also sought an order that pursuant to s 68B of the Act:
(a)Each party be restrained by injunction from taking either child to any mental health professional without the prior written consent of the other parent; and
(b)Each party be restrained by injunction from continuing to facilitate the attendance of either child on the elder child’s treating psychologist.
MATERIAL RELIED UPON
In support of her case, the mother read the following documents:
(a)Affidavit of the mother filed on 16 August 2024;
(b)Affidavit of the maternal grandmother filed on 16 August 2024;
(c)Affidavit of the mother’s niece filed on 16 August 2024; and
(d)Tendered documents.[28]
[28] Exhibits M1 to M23 (inclusive).
The father relied on:
(a)Affidavit of the father filed on 16 August 2024;
(b)Affidavit of the paternal grandmother filed on 16 August 2024;
(c)Affidavit of the elder child’s treating psychologist filed on 4 August 2023; and
(d)Tendered documents.[29]
[29] Exhibits F1 to F15 (inclusive).
The parties and the Independent Children’s Lawyer relied on a Single Expert Report authored by a clinical psychologist and family consultant dated 8 November 2023.
Reports prepared by a Family Consultant in the earlier proceedings were also admitted into evidence with the consent of the parties and the Independent Children’s Lawyer. Those reports were dated 12 January 2021[30] and 22 August 2022.[31]
[30] Exhibit M1.
[31] Exhibit M2.
Three additional reports were also admitted into evidence with the consent of the parties and the Independent Children’s Lawyer, namely:
(a)A Child Inclusive Conference Memorandum to Court dated 27 August 2019;[32]
(b)A report prepared by a consultant psychologist dated 15 September 2023.[33] That report was prepared as a consequence of orders made by a Senior Judicial Registrar on 29 August 2023 obliging the parties and the children to participate in therapeutic counselling; and
(c)A report dated 9 February 2024 and described as a “personality assessment”.[34] That report was prepared pursuant to the terms of an Order made with the consent of the parties by a Senior Judicial Registrar on 22 December 2023.
[32] Exhibit M6.
[33] Exhibit F7.
[34] Exhibit F9.
The Court excluded all annexures to the affidavits having regard to r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
PARENTING PROCEEDINGS – LEGAL PRINCIPLES
Orders in respect of children are made under Part VII of the Act, where the meaning of a ‘parenting order’ is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
Parental responsibility
Parental responsibility for children is vested in their parents (s 61C(1)) but that situation only applies whilst ever no order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B).
When an order is made allocating parental responsibility for a child or children in relation to “major long-term issues” to more than one person, the order may prescribe whether those persons have joint or sole decision-making authority in relation to all or only specified issues (s 61D(3)). The Act defines “major long-term issues” to include those such as the child’s education, religion, culture, health, name, and changed living arrangements (s 4(1)) and defines what “joint decision-making” requires in respect of such issues (s 61DAA). A person allocated with parental responsibility for a child need not be consulted by another person in respect of minor decisions made for the child which fall outside “major long-term issues” (s 61DAB).
Best interests of the child
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA and 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC). The six considerations referred to in s 60CC(2) are non-hierarchical. The Court is obliged to consider:
(a)arrangements that promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and each person who has care of the child;
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or will have parental responsibility to provide for the child’s needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and
(f)anything else that is relevant to the particular circumstances of the child.
When considering the arrangements, which would promote the safety of the child and each person who has the care of the child, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful. Examples of such behaviour include assault, sexually abusive behaviour, stalking, repeated derogatory taunts, intentional damage or destruction of property, unreasonably withholding financial support needed to meet reasonable living expenses of the family member or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support, preventing the family member from making or keeping connection with his or her family or friends, or unlawfully depriving the family member from his or her liberty.
Section 4AB(3) and (4) makes it clear that children are to be regarded as exposed to family violence either through direct sensory perception of violent action or such perception of consequences of violent action.
As the facts referred to above make plain, this is a case about risk but in particular, psychological harm of the children.
Where ultimately the Court’s focus is on formulating orders which attend to the child’s best interests, the Court is required to make findings of fact. The standard of proof is one of “on the balance of probabilities” consistent with s 140 of the Evidence Act 1995 (Cth) which provides:
(1)In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.[35]
(2)Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
[35] Briginshaw v Briginshaw (1938) 60 CLR 336.
A party making an assertion of fact has an onus to prove that fact on the balance of probabilities although the task for the Court ultimately remains as one of weighing and balancing the probity of evidence towards a determination of the child’s best interests.
The mother in this case invites me to make findings that the father and his parents have abused the children by causing them serious psychological harm. When making that submission, the mother’s counsel invited me to find that the abuse of the children has resulted in an extreme and pathological unjustified rejection of their mother. For his part, the father’s counsel invites me to find that the children have been subjected to physical and emotional abuse by the mother.
When considering the submissions of the parties, I am mindful of the Full Court’s decision in Isles & Nelissen (2022) FLC 94-092 (“Isles”), which summarised the authorities on unacceptable risk since M v M (1988) 166 CLR 69 (“M v M”). The Full Court said that while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities.
The Court in Isles also said of the decision in N and S and the Separate Representative (1996) FLC 92-655 as follows:
12.Fogarty J stated it is necessary for a trial judge to give real and substantial consideration to the facts of the case and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child and, furthermore, the qualitative analysis of the evidence must be directed not just to the existence of the risk of harm but also the magnitude of the possible harm...
(citations omitted)
In Isles, the Court at [35] went on to quote Tree J in Bant v Clayton (2015) 53 Fam LR 621:
171.Risk assessment involves determining firstly, the degree of the likelihood of the postulated event, and secondly, the prospect and magnitude of harm that may flow if the event occurs. The weighing of those two considerations – even accepting they may be imprecisely expressed within parameters – will inform whether the risk is adjudged to be acceptable or not. However that conclusion cannot be made in the abstract.
The Court agreed with and adopted Austin J’s judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin’s judgment includes the following:
138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter [2007] FamCA 350; (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
In Hickson & Matthew [2022] FedCFamC1A 161, Deputy Chief Justice McClelland said this of Justice Austin’s analysis at [39]:
39.Additionally and relevantly for the purpose of this appeal, I would expand upon that insightful analysis by Austin J with the following guidance that emerges from authorities:
(1)It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm.
(2)Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved.
(3)The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard, endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
(4)While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”.
(citations omitted)
I have read the parties material and listened to their submissions. I am not however required to address every fact or submission made.[36]
[36] Whisprun Pty Ltd v Dixon (2003) 200 ALR 447.
It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. Nor have I done so. However, every piece of evidence relied upon by the parties has been read and carefully considered by me.
Before considering the evidence and the application of the relevant legal principles, I make the following observations of the parties.
CREDIT OBERVATIONS OF THE MOTHER, THE FATHER AND THE PATERNAL GRANDMOTHER
From my perspective, and despite the mother’s reliance on an affidavit in the name of her niece and an affidavit in the name of the maternal grandmother, the evidence of the parties, which focussed my mind came in the form of evidence from the parties themselves and the paternal grandmother. I set out my observations with respect to their evidence below.
Evidence of the mother
The mother presented in a straightforward manner, and it was my impression that she answered questions put to her by the father’s counsel and the Independent Children’s Lawyer to the best of her ability.
Given the unhappy nature of these proceedings, I was surprised by the way the mother gave her evidence. Her answers showed defiance. For example, when asked by the father’s counsel whether she blamed the father for his failure to facilitate time between the mother and the children in the Christmas school holiday period and the April 2023 school holiday period, the mother said “Correct”. When asked whether she implemented strict rules in her household such that she requires the children to be obedient she said “Yes”. Similarly, and when criticised by the father’s counsel about her attendance at the children’s schools for events in 2024, the mother was defiant and reminded everyone in the Court room that the Court had not made an order preventing her from doing so.
These questions were asked of the mother in circumstances where the psychologist appointed by the parties to undertake a “personality assessment” of each of them, administered an inventory to “estimate the level of parental risk in suspected cases of at-risk parenting”.[37] The psychologist said as follows with respect to the mother’s answers to the questions:
Results were also very high on the rigidity scale, denoting rigid attitudes towards behaviour of children and their appearance, and more specifically, that children require strict rules, should be obedient, clean and should not talk back.[38]
[37] Exhibit F9, paragraph 83.
[38] Exhibit F9, paragraph 85.
The results referred to by the psychologist are consistent with my observations of the mother in the witness box. She presented as a person who demands high standards of herself and the children. On only one occasion during her oral evidence did the mother cry. I expect that the mother is worn down by the litigation and exhausted by the efforts of the father, the paternal grandparents and his supporters to sever the relationship between the children and their mother. The financial burden of these proceedings and the previous proceedings cannot be underestimated. By the conclusion of the trial, the mother had expended monies just shy of $250,000. It is an extraordinary amount of money.
Evidence of the father
The father presented as person who held no regard whatsoever for the mother or her role in the children’s lives. When asked whether he “sees a role for the mother in the children’s lives”, the father responded in the negative and expressed that his conclusion was reached because of how the mother speaks to the children. When asked under cross-examination whether the children’s perception of their mother may have been influenced by living in a household, which is “hostile towards their mother”, the father said:
They are mature. They have seen and heard how their mother has behaved. I cannot go on the line and defend… [the mother].
The father gave this evidence despite his concession that at the time of the making of final consent orders in October 2022, it must have been his position that the mother was the appropriate primary carer for the children. For the reasons discussed below, I am not persuaded that any event occurred between October 2022 and July 2023, which justified either a reaction on the part of the children such that they would not wish to spend time with the mother or a decision on the part of the father to withhold the children from the mother. This being so, I find that the father’s suggestion to the effect that he would not “go on the line” to defend the mother is a narrative, which the father has established to justify his actions and the actions of his parents.
When asked under cross-examination whether he does anything to alter the children’s perceptions of the mother, the father said “No, it’s too hard to speak positively about her now”. In a nonchalant manner, the father also conceded that it is his view that the mother is a liar and agreed that the children are aligned with him with respect to this view.
The Single Expert in his oral evidence said as follows with respect to the father:
I suspect that – frankly, I suspect that [the father] is not particularly consciously aware or attuned to what – how he contributes to the desperate and anxious connection that his children maintain to him, nor the message of restraint and – and the negativity that he – he imposes upon them.
The Single Expert also said:
My concern…is that what you are observing and what has been described to you of the behaviour of these children is so off the charts in terms of disturbance and dysfunction and reflects such a level of internal distortion and disturbance that it makes no sense that just the mother’s behaviour and her treatment of them could account for that level of behaviour. It has to be a significant factor contributing by their father and the way in which their father is communicating to them about their mother and their relationship with her, possibly in a manner in which he is completely oblivious.
The Single Expert’s evidence about the father being “completely oblivious” was in the context of the elder child’s psychologist having administered a test to the father, which caused her to conclude that the father was “mildly autistic”.[39] She also tested the father for attention deficit disorder and found the father “to score moderately on the test”.[40] The Single Expert went on to say that as a consequence of the father’s alleged conditions, the father has “accepted, non‑critically, everything the children have said and he finds it difficult to place limits and reality check with them”.
[39] Affidavit of the elder child’s treating psychologist, page 12 of 16.
[40] Affidavit of the elder child’s treating psychologist, page 12 of 16.
I accept what the Single Expert has to say insofar as the father’s conditions might provide an explanation for the father’s conduct. Particularly, the Single Expert agreed with a proposition put by the father’s counsel to the effect that the father’s conduct “is likely to be borne out of incapacity rather than conscious deceit”. However, that evidence is based on two sentences in a report prepared by the elder child’s treating psychologist. It could not be meaningfully tested in any way. Further, the Single Expert did not have the benefit of observing the father’s evidence in the witness box. I did so and I found the father’s presentation disturbing. For example, the father was asked the following questions by the mother’s counsel with respect to the father’s application:
Mother’s counsel: [You promote orders] that the children will be spending time with their mother in accordance with their wishes?
Father: Correct.
Mother’s counsel: You would say that the children are mature enough, old enough and psychologically stabilised to express that wish?
Father: Correct.
Mother’s counsel: If they do express that wish – once that [wish] is expressed – you will be the one who determines the manner in which the wish will be carried out?
Father: Yes.
Mother’s counsel: So, it would be open to you – if [the elder child] says I want to go and see mum, have a milkshake at McDonalds tomorrow – it would be up to you to determine whether he in fact goes to have the milkshake?
Father: Yes.
Mother’s counsel: If you determine that it is not to happen then it won’t happen?
Father: Yes.
Mother’s counsel: Being realistic, you would consider it unlikely that [the children] will ever express a wish to see their mother?
Father:Correct.
Simply, the father demonstrated no concern whatsoever that on his application and by reason of his desire to control the children’s contact with the mother (even if they express a wish to communicate with her or spend time with her) the children will be deprived of any relationship with their mother. I was not convinced that the father’s position could be explained by his alleged neurodevelopmental conditions in respect of which there was limited evidence. Instead, and based on my observations of the father, I find that the father has embarked on a battle to deprive the children of any relationship with their mother. I found the father’s evidence to be uncaring and cruel.
Evidence of the paternal grandmother
Sadly, for the children, my observations of the paternal grandmother mirror my observations of the father. The paternal grandmother held an impenetrable view that the children had been abused by the mother.
On cross-examination about events at each child’s school in 2024, the paternal grandmother said as follows:
[In mid] 2024, I dressed [the younger child] for school. As we were preparing to attend [the elder child’s] [event] at his school, [the younger child] repeatedly expressed she was in fear saying she didn’t want to attend school because she was scared [the mother] and [the maternal grandmother] would attend the event like they did for hers and try and grab her again. I assured her that I would take her through the office and pick her up so she wouldn’t have to worry.[41]
[41] Affidavit of the paternal grandmother filed 16 August 2024, paragraph 36.
The paternal grandmother’s evidence on this topic also discloses that on the previous day, the younger child referred to her mother as a “bitch”.[42]
[42] Affidavit of the paternal grandmother filed 16 August 2024, paragraph 34.
I will discuss the conduct of the paternal grandmother at the school events and the circumstances surrounding the mother’s attendance at those events below. However, it is sufficient for a reader of this Judgment to understand that on questioning by the mother’s counsel, the paternal grandmother conceded that she did not admonish the younger child for describing her mother as a “bitch”. Similarly, and with respect to the alleged fear held by the younger child to the effect that she would be picked up by her mother from school, the paternal grandmother conceded that she said nothing to allay the child’s fears or to disabuse the younger child of a belief that her mother was someone to fear. Instead, the paternal grandmother gave the following evidence:
Mother’s counsel: You didn’t do anything to allay [the younger child’s] fears?
Paternal Grandmother: Yes, I did. I told her I would pick her up earlier so she would be safe.
Mother’s counsel: What signal does it send to her mother? It’s a signal that the mother is a danger?
Paternal Grandmother: After the abuse she has gone through, yes it is.
The paternal grandmother went on to express a view that the children’s experience of their respective events was “wrecked” as a consequence of their mother’s attendance. The paternal grandmother’s evidence oozed with unbridled contempt for the mother.
The paternal grandmother did not demonstrate any ability to understand the extreme harm which her conduct, and the conduct of the paternal grandfather and the father are having on the children. Instead, and when challenged by the mother’s counsel and by me, the paternal grandmother said, “You don’t understand” and went on to ask me whether I had children. Her behaviour was aggressive and contemptuous. In summary, and for the reasons discussed below, I have formed a view that the paternal grandmother is a central and active participant in the “psychological catastrophe that is awaiting” the children the subject of these proceedings.[43]
[43] Family Report dated 8 November 2023, paragraph 166.
ISSUES FOR DETERMINATION
At the conclusion of the trial, the mother’s counsel provided me with a list of findings, which the mother invited the Court to make. By reference to that document, and having heard the evidence, I formed a view that the issues, which I am obliged to determine in this case are:
(a)Whether the mother has physically abused the children or emotionally abused the children;
(b)Whether the father and the paternal grandparents have abused the children by causing them serious psychological harm;
(c)Whether the abuse of the children by the father and the paternal grandparents has resulted in an extreme and pathologically unjustified rejection of the mother;
(d)If the answer to the above question is in the affirmative, whether the risk presented by the father and his parents is of such magnitude that the Orders sought by the mother, or some variation thereof, is the only way to ensure the safety of the children;
(e)Whether despite any finding to the effect that the father and the paternal grandparents have abused the children, the only solution is to leave the children in the care of the father; and
(f)Whether it is appropriate to injunct the father from facilitating the elder child’s attendance on his treating psychologist.
Has the mother physically abused the children or emotionally abused the children?
It is the father’s case that each of the children have disclosed incidents of physical and emotional abuse by the mother.[44] For this reason, the father asserts that each of the children are resistant to returning to the care of the mother and have been resistant to communicating with her.[45]
[44] Father’s Outline of Case Document, page 6.
[45] Father’s Outline of Case Document, page 6.
In support of his assertion that the mother presents a risk to the children:
(a)The father relies on events of mid-2023;[46]
(b)The father says that each child has shown him “various bruises and scratches they have reach received on their arms from… [the mother] by either hitting or scratching them with their hands”;[47] and
(c)The father relies on the circumstances relating to the admission of the elder child to the hospital in mid-2023.
[46] Father’s affidavit filed 16 August 2024, paragraph 17.
[47] Father’s affidavit filed 16 August 2024, paragraph 20.
Events of mid-2023
The father says that in about mid-2023, he had a discussion with the children wherein the children said as follows:
Elder Child: Hey Dad, I told… [my psychologist] about the incident with Mum when she picked us up from school and was very angry and pulled our bedroom apart. I told her I was very upset when Mum kept yelling at us and that I cried for almost an hour.
Younger Child: Yeah Dad, she pulled the sheets off the bed and told [the elder child] to clean it all out! I cleaned my own stuff up though that Mum threw to the floor. I was so scared of her though when she started screaming fuck and cunt.[48]
[48] Father’s affidavit filed 16 August 2024, paragraph 17.
The father says that on hearing the children’s disclosure, he “tried to comfort them the best I could by giving them a cuddle”.[49]
[49] Father’s affidavit filed 16 August 2024, paragraph 18.
The parties’ affidavit material reveals that the discussion between the children and the father relates to events, which occurred several weeks earlier. As discussed above, the mother says that in mid-2023, and prior to collecting the children from school, she checked the elder child’s collection of video games. She says that she did so in circumstances where the elder child’s birthday was approaching and she proposed to purchase new games for him. She noticed that at least eight or nine games were missing from the elder child’s collection. This was in the context of the mother catching the elder child taking some games to school in his school bag a few weeks prior.[50]
[50] Mother’s affidavit filed 16 August 2024, paragraphs 101–104.
The mother says that when she arrived home with the children, she helped the elder child search for the games. The mother says:
(a)We went to his room. I pulled the sheets forward from his bed as he often played the games on his bed. I thought the games may have fallen down the side of the bed or been caught in the sheets;[51] and
(b)After some time, she made the children an afternoon snack and then prepared dinner whilst the children did their homework. Once dinner was concluded, the mother says that she and the elder child looked in his room for the missing games for another hour. The mother says that on making enquiry as to the whereabouts of the games, she considered the elder child to be evasive.[52] She also says that on alerting the elder child to the fact that the games are expensive, the elder child became upset and was crying. The mother says that she responded by saying “I don’t like getting annoyed at you. It takes a lot of energy from us. It’s not a positive thing. Its very draining. Look how much time we’ve spent looking for these games when we could have done other things”.[53]
[51] Mother’s affidavit filed 16 August 2024, paragraph 106.
[52] Mother’s affidavit filed 16 August 2024, paragraph 104.
[53] Mother’s affidavit filed 16 August 2024, paragraph 116.
During cross-examination, the maternal grandmother appeared baffled about the focus on the events of mid-2023 and baffled “to see how the children have changed since [mid] last year”.[54] Her bewilderment is highlighted by her affidavit wherein she notes that even after the events of mid-2023, the children returned to the care of the mother during the July school holidays.[55]
[54] Affidavit of the maternal grandmother filed 16 August 2024, paragraph 25.
[55] Affidavit of the maternal grandmother filed 16 August 2024, paragraph 61.
The elder child told his treating psychologist that the quest to locate the games began at “exactly three o’clock”. He also told his psychologist that his mother “shouted at him for a total of six hours, non stop [sic], starting as soon as he returned from school and had continued non-stop until 9pm, the children’s bed time”. The elder child’s psychologist recorded that the elder child told her that the mother “swore at both children using obscene words, including… the ‘C’ word. The shouting continued over dinner as well”.[56] There is no indication that the elder child’s psychologist challenged him in any way with respect to the accuracy of his reporting.
[56] Report of the elder child’s treating psychologist dated 2 August 2023 referred to in Affidavit of the treating psychologist filed 4 August 2023, page 11.
It appears from the report of the elder child’s psychologist that she had the conversation described above with the elder child whilst at the residence of the paternal grandparents. She says that the younger child “came out of her bedroom to confirm the story and sat in front of… [the elder child]”.[57] The psychologist also records that the younger child went on to talk about the events of mid-2023 asserting that the elder child had cried “for over an hour”.[58]
[57] Report of the elder child’s treating psychologist dated 2 August 2023 referred to in Affidavit of the treating psychologist filed 4 August 2023, page 11.
[58] Report of the elder child’s treating psychologist dated 2 August 2023 referred to in Affidavit of the treating psychologist filed 4 August 2023, page 11.
I have significant doubt about the truth of what both children reported to the elder child’s treating psychologist. Firstly, the consultation between the elder child and his treating psychologist occurred at the residence of the paternal grandparents. As I have foreshadowed and will particularise below, I consider that the paternal grandparents have caused each child significant psychological damage. Each child is aware of the negative view, which the paternal grandparents have of the mother. Further, it is extraordinary that the elder child’s treating psychologist would conduct therapy with him in the earshot of the younger child. I find that the way in which the elder’s child treating psychologist elected to conduct therapy on this occasion casts doubt over the truth of what each child said to her. I also have concern about the ongoing involvement of the elder child’s treating psychologist with him. For reasons discussed below, I find that the elder child’s treating psychologist lacks any clinical objectivity.
For his part, the father advised the Single Expert that the events of mid-2023 occurred “over a 6-hour period”.[59] The elder child described the incident as the mother “screaming at him continuously and unrelentingly for 9 hours”.[60] He says that the mother’s behaviour “frightened both him and his sister”.[61] I do not accept the elder child’s evidence in circumstances where it is the opinion of the Single Expert that he has “completely and unequivocally aligned” himself to his father[62]. Further, it was the opinion of the Single Expert that the elder child has accepted his father’s version of events “in relation to the marriage and separation”.[63] The alignment between the elder child and his father causes me to be sceptical with respect to any view expressed by the elder child or any statement of fact by the elder child.
[59] Family Report dated 8 November 2023, paragraph 30.
[60] Family Report dated 8 November 2023, paragraph 62.
[61] Family Report dated 8 November 2023, paragraph 62.
[62] Family Report dated 8 November 2023, paragraph 186.
[63] Family Report dated 8 November 2023, paragraph 186.
The mother conceded in her oral evidence that immediately on returning from school on that day she made the elder child look for the games for about forty minutes. She also agreed that she pulled the sheets off the elder child’s bed, checked under his mattress and checked through the drawers in his bedroom. Thereafter, the mother maintained in her oral evidence that she gave the children a snack and that the children attended to their homework whilst she prepared dinner. The mother said in her oral evidence that whilst she could not recall the exact duration, the search for the games occurred for another hour after dinner. The maternal grandmother’s evidence was consistent with the mother’s evidence. Under cross-examination, she said that a search was made for the games “in the afternoon and a little at night”.
The mother denied in her oral evidence that she physically disciplined the children on that evening and denied that she had ever hit either child. The mother’s denials were consistent with the information, which she provided to the Single Expert. The Single Expert says:
I pushed this issue with… [the mother] and asked questions of her in a highly suggestive and directive manner, but she remained absolute that never had she ever physically disciplined the children and that this behaviour was just not in her parental repertoire.[64]
[64] Family Report dated 8 November 2023, paragraph 51.
As I say above, it was my impression that the mother answered questions put to her by the father’s counsel and the Independent Children’s Lawyer to the best of her ability. Her oral evidence to the effect that she had never physically disciplined the children was consistent with her advice to the Single Expert. I am persuaded by reason of her presentation in the witness box that the mother is a person of high standards and a person who gave her evidence in a truthful manner.
For these reasons, I have concluded that the facts are insufficiently strong to permit any finding that the mother physically abused the children on the afternoon or evening of that date. I have also concluded that the facts are insufficiently strong to permit a finding that the mother perpetrated any other form of family violence on that date.
Having arrived at these conclusions, I do not ignore the fact that the search for the games in the afternoon and evening appears to have gone on for several hours. The impression I obtained from the mother’s oral evidence is that save for time allocated for an afternoon snack, homework and dinner, the elder child and the mother were searching for the games until he was due to go to bed at 8.30 pm or 9.00 pm. The mother also conceded that she was “upset” during this period and advised the Single Expert that she was “angry with her son…because he was so obviously lying to her”.[65]
[65] Family Report dated 8 November 2023, paragraph 180.
I find that the mother did chastise the elder child in a manner, which he considered objectionable. It is also possible that in mid-2023, and given her disappointment with the elder child, the mother failed to parent the children in a calm and empathic manner. There is support for this proposition from the Single Expert. During observations of interaction conducted by him on 18 September 2020, the Single Expert identified that in the face of strident criticism of her by the children, the mother challenged the children, implicated the father and his family and tried to “defend herself from what she described as categorically false and distorted representations”.[66] By doing so, however, the Single Expert identified that the mother placed herself in a position of “conflict and polarisation”.[67] The Single Expert also identified that the mother had a prevailing emphasis on “discipline, rules, teaching the children ‘right from wrong’, and articulated belief that despite the children’s heightened emotionality, she ‘needed’ to correct them in the parent/child observation”.[68] Given the expression of these opinions, I consider it to be highly likely that the elder child considered his mother’s behaviour in mid‑2023 to be heavy handed and undesirable for him. However, the elder child’s disdain for the mother must be seen against the background of the Single Expert’s opinion that “both children are now contemptuous of authority [and] have forewarned that neither the court nor the police can direct them how to behave”.[69] In his oral evidence, the Single Expert reaffirmed this view saying as follows:
We don’t allow our children to behave in this manner. We don’t get intimidated by children. They don’t dictate to adults around them what’s going to happen. We don’t step away from children when they’re distressed; we stick towards them. Everything about this family and the family’s functioning is, frankly, arse backwards.
[66] Family Report dated 8 November 2023, paragraph 90.
[67] Family Report dated 8 November 2023, paragraph 90.
[68] Family Report dated 8 November 2023, paragraph 103.
[69] Family Report dated 8 November 2023, paragraph 165.
Having regard to the father’s evidence, I find that neither the father nor the paternal grandmother place any limits around the children’s behaviour. For example, and as discussed above, the paternal grandmother is a person who does not admonish the younger child when she calls her mother a “bitch”. The father does not admonish the children when they denigrate their mother saying, “it’s too hard to speak positively about her now”. In the absence of any finding of family violence, I consider that in mid-2023, there was a collision between the mother’s high expectations of the children and the permission, which the children receive in the household of the paternal family to do and say as they wish without consequence.
Various bruises and scratches
The father says that in early 2023, the children showed him “various bruises and scratches they have each received on their arms from… [the mother] by her either hitting or scratching them with her hands”.[70]
[70] Father’s affidavit filed 16 August 2024, paragraph 20.
The allegations, which are made by the father must be seen against the following background:
(a)When the father was interviewed by a Family Consultant in August 2020, he made no allegation that the mother had been physically abusive towards the children. In fact, the father advised the Family Consultant that the mother “is not physically violent towards the children”;[71]
(b)When the children were interviewed in September 2020 at which time they were aged nine years and five years respectively, neither child disclosed that their mother had been physically abusive. The elder child was asked whether there was anything he would like the mother “to change about her parenting” and he replied, “I’m not sure”.[72] The younger child described the mother as a “loving parent who ‘get me toys all the time’”. She said that she is not fearful of the mother saying that her mother “shouts but does not smack her”;[73]
(c)When the children were interviewed in September 2022 at which time they were aged eleven years and seven years respectively, neither child disclosed that their mother had been physically abusive. The younger child said that she is not fearful of the mother.[74] Further, and whilst the elder child described his mother as “horrible”, he did not disclose that his mother had been physically abusive;[75] and
(d)When the father was interviewed in September 2022, he advised the Family Consultant that the mother “hits the children if they tell him things she does not want him to know”.[76] When challenged as to the accuracy of this statement, the Family Consultant recorded the following with respect to the father’s reaction:
Given the claims…[the father] was making the…[Family Consultant] asked him why he was proposing that the children spend an alternate weekend with… [the mother] and…[the father] appeared shocked by this and appeared to backtrack on his claims, stating, “I honestly don’t believe…[the mother] would do any serious injuries [sic] to the children so I do think she should still see the kids.[77]
[71] Exhibit M1, paragraph 32.
[72] Exhibit M1, paragraph 84.
[73] Exhibit M1, paragraph 75.
[74] Exhibit M2, paragraph 18.
[75] Exhibit M2, paragraph 23.
[76] Exhibit M2, paragraph 35.
[77] Exhibit M2, paragraph 35.
The father’s “backtrack” with respect to his claims as so described by the Family Consultant causes me to find that the father’s behaviour in 2022 is similar to the behaviour witnessed by me during the trial and as described in the parties’ affidavit material. That is, the father has across the course of this litigation been prepared to say anything, which he perceives may assist him to obtain an advantage in this litigation. Further, I consider that the father is prepared to say anything, which may assist him to sever the relationship between the children and their mother.
I also reject the father’s oral evidence that the mother was able to control the children such that the children’s advice to the Family Consultant in September 2022 that their mother does not hit them was false. The cross-examination on this topic proceeded as follows:
Mother’s counsel: You say that the mother could control the children to say to [the Family Consultant] that the mother does not hit them? That is your view is it?
Father: Yes.
I find that the father’s evidence is a nonsense. This is because on two separate occasions between 18 September 2020 and 15 July 2022[78], the children denied to a Family Consultant engaged by this Court that the mother had been physically abusive to them. There was no suggestion in either of the reports dated 12 January 2021 or 22 August 2022 that the children had been pressured by their mother to express a particular view.
[78] Being days on which the children were interviewed by a Family Consultant
Insofar as the father maintains that in early 2023, the children showed him “various bruises and scratches”, which they received from their mother, I am able to disregard the allegation for the following reasons:
(a)As at 31 October 2022, it must have been the father’s position that the children were safe in the care of the mother. Any assertion to the contrary is inconsistent with the father’s consent to orders, which by their operation meant that the children lived in the primary care of the mother;
(b)The allegation as it finds form at paragraph 20 of the father’s affidavit filed on 16 August 2024 is vague and non-specific. Even if such a conclusion is erroneous, there is no evidence that the father sought any medical assistance for the children or otherwise sought to document their injuries. As discussed below, the father and his parents have been frequent users of medical and allied health professionals to document their alleged concerns and/or gain advantage in this litigation. This being so, I find that the father’s failure to seek any assistance for the children in early 2023 with respect to alleged injuries or at least to have those injuries documented contradicts any allegation that in early 2023, the children were being hit or scratched by their mother or otherwise being physically abused by the mother; and
(c)If the father did in fact consider that the children were being physically abused by their mother in early 2023, it is incredibly curious that the father did not take any steps to prevent the children from returning to their mother after school on 30 January 2023.[79] It was the mother and not the father who commenced the current litigation. Given that the father had incurred and satisfied solicitor costs of $189,000 at the time of Trial,[80] it beggars belief that the father would not have sought relief from this court if he considered the children to be at risk.
[79] Mother’s affidavit filed 16 August 2024, paragraph 88.
[80] Father’s Costs Notice filed on 20 September 2024.
For all these reasons, the evidence does not support a conclusion that as at early 2023 or at any other time, the mother has physically abused the children.
Admission of the children to the hospital in mid-2023
This topic is introduced by the father’s affidavit filed on 16 August 2024 wherein the father said as follows:
[In mid] 2023, the children and I were in the lounge room at my parents’ residence located at…when [the elder child] began shaking and crying, and I saw his eyes roll upwards into his head. My parents…were also present in the lounge room and helped me calm [the elder child] down which took approximately five minutes. My father then told the [elder child] he can take the day off school tomorrow which seemed to settle [the elder child] down and relaxed him.[81]
[81] Father’s affidavit filed 16 August 2024, paragraph 21.
Despite the dramatic description given by the father with respect to the elder child’s presentation, the elder child did not receive any medical assistance until the following day at which time the paternal grandmother facilitated his attendance on the child’s treating general practitioner.[82] If the father in fact believed that the elder child suffered a medical episode on the previous evening, it is incredible that he would not have taken time off work so as to ensure the wellbeing of his son. My incredulity as to the father’s behaviour is heightened by the fact that the father himself describes the elder child as having “seizure-like symptoms” on the previous evening.[83] Whatever the scenario, it was the paternal grandmother who facilitated the child’s attendance on his treating practitioner.[84]
[82] Father’s affidavit filed 16 August 2024, paragraph 22; Exhibit M14.
[83] Father’s affidavit filed 16 August 2024, paragraph 23.
[84] Exhibit M14.
The notes of the elder child’s treating practitioner dated mid-2023 record among other things the following:
Recorded on: […] 2023
Father consented to appt.
[Ms C] = psychologist in room as worried re [patient]
Grandma came with child
Had a meltdown yesterday – as going back to mother.
Felt eye rolling upward.
Bent backward but stopped.
Verbalised he wanted to kill himself – father told me on the phone earlier.[85]
[85] Exhibit M14.
The note of the treating general practitioner is interesting because:
(a)Despite the apparent urgency of the elder child’s presentation, the paternal family was able in the time afforded to them to arrange for the child’s treating psychologist to attend on the general practitioner together with the paternal grandmother. As I discuss below, I consider that the elder child’s treating psychologist lacks any objectivity with respect to the dynamics of this family and in fact, whether willingly or otherwise, has become an agent with respect to steps taken by the paternal family to sever the relationship between the children and the mother; and
(b)Despite the father telling the elder child’s treating general practitioner by telephone that the child verbalised wanting to “kill himself”,[86] the father said nothing about the child’s alleged suicidal ideation on the previous evening in his affidavit filed on 16 August 2024.[87] Similarly, the father said nothing whatsoever to the mother.
[86] Exhibit M14, page 2.
[87] Father’s affidavit filed 16 August 2024, paragraph 21.
If the child was in fact expressing suicidal ideation in mid-2023, then it beggars belief that the father did not advise the mother of this fact. Indeed, the mother learned nothing of the elder child’s alleged condition until 11.29am the next day at which time she received an SMS Text message from the father to the effect that the children had a doctor’s appointment.[88] The father failed to explain in his written evidence or his oral evidence why the younger child also required an appointment absent any presenting condition. This being so, I find that the father and his mother facilitated the same so as to obtain evidence for the purposes of this proceeding.
[88] Mother’s affidavit filed 16 August 2024, paragraph 17.
The father’s failure to inform the mother as to the elder child’s condition, however, is not surprising. By his affidavit filed on 16 August 2024, the father says that in January 2023, the elder child disclosed that he “has started to put his hands around his own neck” so that he does not need to return to his mother’s residence.[89] The father conceded in his oral evidence that he never raised the child’s alleged suicidal ideation with the mother and there is no evidence that he raised it with any third party.
[89] Father’s affidavit filed 16 August 2024, paragraph 19.
The father says that having attended on the elder child in mid-2023, the child’s treating general practitioner contacted him to say that in turn, the elder child had disclosed that he “wanted to ‘kill himself’ every time he returned to…[the mother’s care] due to the immense pressure and anxiety associated with it”.[90] At the same time, the father alleges that the general practitioner told him that the mother subjects the elder child to physical abuse.[91] The notes of the treating general practitioner do not reveal that she gave any consideration to the fact that these disclosures were made in the presence of the paternal grandmother and the child’s treating psychologist. Each of these people are people who gave no consideration to any alternate reason as to why the child may be behaving in this manner apart from a fixated view that whatever the child’s problems, they were causally related to abuse he allegedly suffered at the hands of the mother. Indeed, the treating psychologist’s report dated 2 August 2023 says nothing positive whatsoever about the relationship between the elder child and the mother nor does it contemplate that the elder child would benefit from a relationship with his mother.[92]
[90] Father’s affidavit filed 16 August 2024, paragraph 22.
[91] Father’s affidavit filed 16 August 2024, paragraph 22.
[92] Report of the elder child’s treating psychologist dated 2 August 2023 annexed to the affidavit of the said psychologist dated 4 August 2023.
As a consequence of a referral made by the elder child’s treating general practitioner, the elder child was admitted to hospital on the same date where he was kept overnight for supervision.[93]
[93] Father’s affidavit filed 16 August 2024, paragraph 23.
The father says that at 12.00pm the next day, he and the mother were brought into a separate room at the hospital to discuss the elder child’s health with the treating doctor. At that time, the father says that the treating doctor advised the parties that the elder child “was strongly against returning into the care of his mother because of all the physical and mental abuse he had experienced by her hands”.[94]
[94] Father’s affidavit filed 16 August 2024, paragraph 24.
The mother’s evidence is in the following terms:
(a)She spoke with the children by telephone on the evening of the medical episode at which time it was her understanding that neither child was ill.[95] Certainly, there is no evidence that either child conveyed to the mother that he/she was ill nor did the father or his parents convey such a fact to the mother;
[95] Mother’s affidavit filed 16 August 2024, paragraph 17.
(b)At 11.29am the following day, the father advised the mother by SMS Text Message that the children had a doctor’s appointment scheduled “later”.[96] There is no evidence whatsoever that the father informed the mother that the elder child had “seizure-like symptoms” on the previous evening nor that the elder child had expressed suicidal ideation; and
[96] Mother’s affidavit filed 16 August 2024, paragraph 17.
(c)At 4.05pm on that date, and in response to an enquiry made by the mother, the father advised the mother by telephone that the elder child had been taken to hospital by the paternal grandparents. The mother’s recall of that conversation with the father is in part, set out below:
Father:[The elder child] has been taken to hospital by my parents. He does not want to come back to you.
Mother: Why is [the elder child] being taken to hospital?
Father:We think that [the elder child] had had a seizure because his eyes rolled in the back of his head and his legs were shaking.
Moher:Why didn't you call an ambulance immediately and why didn't you notify me straight away?
Father:We took [the elder child] to the GP first. It's better that you don't come to the hospital as you shouldn't be there.
Mother:I have every right to be there…. I am [the elder child’s] mother and I have every right to be with him at the hospital.[97]
[97] Mother’s affidavit filed 16 August 2024, paragraph 19.
By finding against the mother’s application, I am mindful that the children’s relationship with their mother will for the foreseeable future be severed.
In Summerby & Cadogen [2011] FamCAFC 205 at [95], the Full Court noted the potential adverse impact upon a child of permanent separation from their parent and, in the context of that case, agreed with and applied the analysis of the trial judge in those proceedings to conclude that “the termination of a child’s relationship with one of her parents is a course of last resort”.
Given the potential consequences for a child of such a separation, careful consideration is required on the part of a trial judge before reaching a conclusion of no time and no communication. This is made clear in Blinko & Blinko [2015] FamCAFC 146 (“Blinko”) where the Full Court said at [28]:
28. The authorities dealing with cases of unacceptable risk are replete with exhortations to trial judges to “consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard”: see for example N and S and the Separate Representative (1996) FLC 92-655 at 82,714. That extends not merely to the identification and analysis of the risk itself, but also to the imposition of conditions or other safeguards in relation to the non-resident parent.
The parenting dispute at bar should not be seen through a prism of giving the mother a chance to see the children. Sadly, the children in this case “show a profound alignment to their father characteristic of splitting and characteristic of behaviour associated with alienation”.[138] The Single Expert identified that:
(a)The children claim that their decision to reject their mother is justified and based on their own direct experience;
(b)The children reject out right the influence of anyone else in the choices that they have made;
(c)The children communicate an absolute lack of guilt for how they have acted or spoken to their mother;
(d)The children refer to matters historical from the position of authority;[139] and
(e)The children’s rejection of their mother is absolute.[140]
[138] Family Report dated 8 November 2023, paragraph 178.
[139] Family Report dated 8 November 2023, paragraph 178.
[140] Family Report dated 8 November 2023, page 76, paragraph 10.
As discussed above, reasonable attempts to intervene have failed. The Single Expert opined that “[t]he most rigid of Court orders would need to be applied with real and immutable consequences” but still, there is no certainty that this would lead to a successful outcome.[141] In the circumstances of this case, the legislative tools available to me under the Act, the behaviour of the father and his family members, and the unwavering alignment of the children to the father makes it impossible for me to craft any order, which would have the effect of the children (or either of them) spending time with their mother.
[141] Family Report dated 8 November 2023, page 76, paragraph 10.
CHILDREN’S BEST INTERESTS – PRIMARY CONSIDERATIONS
Section 60CC(2)(a) - The arrangements that would promote the safety of the children and each person who has care of the children
I have set out above my findings. The “likely long-term psychological consequences to both children, regardless of the intervention imposed by the court, is…bleak”.[142] In the words of the Single Expert, “their presentation is now reflective of an encapsulated delusion”.[143]
[142] Family Report dated 8 November 2023, paragraph 166.
[143] Family Report dated 8 November 2023, paragraph 75, paragraph 9.
If I make orders removing the children from their father, then the evidence is to the effect that the children will be overwhelmingly disruptive and it would cause a severe regression in the children’s behaviour.[144] Under cross-examination, the Single Expert opined that this could result in an outcome worse for the children than making effort to reverse the children’s primary living arrangements. As discussed above, it was the Single Expert’s view that the elder child would run away, he will make threats of self-harm, and his behaviour would likely invoke the intervention of protective services. He also agreed that both children would reach out to their father “and things will escalate so that they create a crisis that predicates that the risks to them are too great”.[145] The risks are so great that the Single Expert suggested that the mother move overseas with the children. This was not an option adopted by the mother.
[144] Family Report dated 8 November 2023, page 73.
[145] Oral Evidence of the Single Expert – 26 September 2024.
Equally, there was no evidence to support a finding that reparative action such as therapy would positively impact on the relationship between the children and their mother.
A psychological catastrophe awaits the children.
Section 60CC(2)(b) - Any views held by the children
I have already discussed the views, which each child holds in relation to the mother. Their views are entrenched and consistent with the views of the father and his parents. They are refusing of any relationship with their mother. The Single Expert rejected any suggestion that a relationship between the children and their mother might be restored by therapy or other intervention.
The Independent Children’s Lawyer met with the children on 24 August 2023. Each child asserted on that occasion that “they had no wish to spend time with their mother either now or the remainder of their childhoods”.[146] He met with the children again on 16 September 2024. The children’s views remained unchanged.[147] The Independent Children’s Lawyer noted the “rigidity and durability of the children’s views”.[148]
Section 60CC(2)(c) - The developmental, psychological, emotional and cultural needs of the children
[146] Family Report dated 8 November 2023, paragraph 121.
[147] Outline of Case filed by the Independent Children’s Lawyer, page 2.
[148] Family Report dated 8 November 2023, paragraph 121.
There was little information before the Court in relation to the children’s developmental needs. However, the Single Expert was at pains to impress upon the Court during his oral evidence the following:
I clearly don’t need to reiterate how profoundly, overwhelmingly disturbed and disturbing the presentation of these two children was when I saw them. I have seen a great many cases where children are refusing and resisting contact with their parents. This is at the absolute top of the list. I think that the children’s level of dysfunction is almost off the charts.
Notwithstanding these concerns, the mother advised the Single Expert in October 2023 that the children’s schools had not expressed any concern about their welfare or development.[149] On his enquiry, the Single Expert identified that the children’s academic performance, social relationships and overall welfare appeared to be positive.[150]
[149] Family Report dated 8 November 2023, paragraph 36.
[150] Family Report dated 8 November 2023, paragraph 20.
Sadly, by reason of their alienation from the mother, the children are “at significantly higher risk of problems with anxiety and depression, drug and alcohol use, and are at significantly higher risk of being unable to sustain intimate and satisfying relationships themselves”.[151] It is also likely that in time, each child’s relationship with each of their parents will fracture. In this regard, the Single Expert said as follows:
… the available longitudinal social science research suggests that for these children, when they come to understand what has transpired in their family, and are better able to reflect upon the conflicting issues… [there will be a] breakdown of their relationship with the previously favoured parent but they find it difficult to re-establish a relationship with the previously rejected parent.[152]
[151] Family Report dated 8 November 2023, paragraph 194.
[152] Family Report dated 8 November 2023, paragraph 192(c).
As a consequence, it is likely that each child will lose a relationship with both parents leaving them “alone and unscaffolded [sic]”.[153] The risks for the children’s mental health is obvious.
[153] Oral evidence of the Single Expert – 26 September 2024.
As I suggested at the commencement of this Judgment, however, the die had been cast well prior to the Trial. The father and his parents will by reason of the orders I make achieve a pyrrhic victory. However, the emotional cost to the children will be significant and their prognosis is poor.
Section 60CC(2)(d) - The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
I find that both parents have the capacity to provide for the physical and intellectual needs of the children. The father’s capacity to provide for the psychological and emotional needs of the children is diminished for the reasons set out above. This conclusion, however, does not cause me to reconsider the orders, which I will make.
Section 60CC(2)(e) - The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so
It is obvious that each of the children would benefit from a relationship with their mother and with their father. However, and for the reasons set out above, I am unable to make any order, which will provide the children with the benefit of dual experiences with each of their parents.
PARENTAL RESPONSIBILITY
The competing applications with respect to the allocation of parental responsibility can be summarised as follows:
(a)The mother seeks an order that she be allocated sole parental responsibility for decision making in relation to major long-term issues concerning the children. The father seeks an order in similar terms; and
(b)The Independent Children’s Lawyer promotes an order that the parents have joint parental responsibility for making decisions about all major long-term issues in relation to the children save that responsibility for making decisions about major long-term health and education issues be allocated to the father.
As discussed above, I am very concerned about the preparedness of the father and his parents to utilise the medical system and health professionals to fabricate concerns in relation to the mother and/or to engage mental health professionals who are prepared to support the narrative of the paternal family with respect to the mother. Certainly, the elder child’s treating psychologist demonstrated by her report that she was unable to approach the question of the elder child’s relationship with the mother with any objectivity. The manner in which she treated the elder child also exposed the younger child to the elder child’s views and compromised the younger child’s ability to have an independent view of her relationship with the mother. If this practice continues, then each child will be subjected to abuse and inappropriate treatment.
For these reasons, I find that it is in the children’s best interests to preserve the topic of health as one area of joint parental responsibility.
I also find that the father and his parents are unable to act in the children’s best interests with respect to their education. When asked by the Single Expert about the circumstances of the children’s enrolment at a public school in 2023 when the mother had been paying for a private education, the father referred only to the fact that the children had been home-schooled “for their protection” due to a fear that the mother may collect them from school.[154] He conceded that he deliberately excluded the mother’s details from the enrolment application at the public school.[155]
[154] Family Report dated 8 November 2023, paragraph 64.
[155] Family Report dated 8 November 2023, paragraph 64.
I also find that the father and his parents have permitted school refusal on the part of the elder child and acted in a manner contrary to the children’s best interests – for example, by ensuring that the children do not attend at school or do not complete the school day so that they cannot be collected by the mother. If the behaviour of the father and his parents is a harbinger for their future behaviour, then I have no confidence whatsoever that the father will act in a manner consistent with the children’s best interests insofar as their education is concerned. For these reasons, I find that it is in the children’s best interests to preserve the topic of the children’s education as a further area of joint parental responsibility.
SPECIFIC ISSUE ORDERS
Injunctive relief – the elder child’s treating psychologist
The elder child’s treating psychologist was referred to in the Notations to the orders made with the consent of the parties on 31 October 2022.
For the purposes of contextualising the involvement of the elder child’s psychologist, I set out the relevant notations:
28.It is the intention of the Father to attend upon a general practitioner and obtain a referral for… [the elder child] to engage with [a psychologist].[156]
29.It is agreed that should her attendance be required, and the mother will do all things and sign all documents necessary for the therapeutic process to occur.
30.It is agreed that any sessions… [the elder child] is required to attend with [his treating psychologist] are to be scheduled during the father’s time with… [the elder child] as provided in these orders.
[156] The psychologist was named in the order and was the professional who did in fact become the elder child’s treating psychologist.
The father says that the elder child began attending on his treating psychologist in November 2022 being one month after the making of the final parenting orders with the consent of the parties.
The engagement of the elder child’s psychologists is marked by several irregularities. These irregularities can be summarised as follows:
(a)First, and in mid-2023, the younger child’s treating general practitioner referred the younger child to the elder child’s treating psychologist with a provisional diagnosis of “anxiety and depressive mood” and “stress related to family issues”.[157] Despite the terms of the GP Mental Health Treatment Plan referring to the elder child’s treating psychologist by name,[158] it was the oral evidence of the treating psychologist that she was not providing treatment to the younger child. Instead, it was the oral evidence of the psychologist that she was not treating the younger child and instead, was “heading in a research model”. Frankly, the psychologist’s oral evidence made no sense whatsoever given that the Mental Health Treatment Plan makes it plain on its terms that the younger child was to receive treatment from the psychologist who was also treating the elder child. The father also understood that the younger child was to attend on the psychologist for “opinion and management”.[159] The psychologist’s refusal to acknowledge that she was treating the younger child was inconsistent with her report dated 2 August 2023, which was replete with references to the younger child’s presentation from time to time and her views about the younger child’s relationship with the mother;
(b)The report of the psychologist dated August 2023 is replete with:
(i)Criticism of the mother;
(ii)An absence of objectivity. For example, the psychologist commented on the “litany of very distasteful assertions regarding [the father]” made by the mother[160] but the psychologist demonstrated no insight in relation to the conduct of the father or his parents or the manner in which their behaviour impacts on the children in a harmful way. The psychologist also criticised the behaviour of the mother at the hospital in mid-2023 but made no remark whatsoever as to the behaviour of the father and his parents during the children’s respective admissions or any comment about their absolute refusal to comply with Orders of a Judge of Division 2 of this Court; and
(iii)The expression of a belief without critical analysis that the mother had physically abused or emotionally abused the children;
(c)The elder child’s treating psychologist was also treating the father. She says, however, that this was permissible under guidelines published by the Australian Psychological Society. As discussed above, and in 2023, the elder child’s treating psychologist says that she diagnosed the father with an autism spectrum disorder and an attention deficit hyperactivity disorder.[161] Whilst it may be so that the psychologist is permitted by her professional society to treat the elder child and the father, her willingness to do so in the circumstances of this matter highlights my concern about the alignment of the psychologist with the father and his parents. Such an alignment is also demonstrated by the psychologist’s preparedness to undertake therapy with the elder child at the residence of the paternal grandparents and in the company of the younger child.
[157] Exhibit M18, page 6.
[158] Exhibit M18, page 8.
[159] Father’s affidavit filed 16 August 2024, paragraph 34.
[160] Report of the elder child’s treating psychologist filed 4 August 2023, page 6.
[161] Father’s affidavit filed 16 August 2024, paragraph 143.
Against this background, the Independent Children’s Lawyer sought an order that each parent be restrained by way of injunction from presenting either child for treatment to any mental health professional without the prior written consent of the other parent and presenting either child for treatment by the elder child’s treating psychologist. Given the reservations, which I have expressed in relation to the conduct of the elder child’s treating psychologist, I consider that it is appropriate for the welfare of the children to make the orders promoted by the Independent Children’s Lawyer.
The mother also promoted orders to the effect that each parent be restrained from permitting the elder child’s treating psychologist to conduct any research with respect to either child and/or permitting the psychologist to attend at any residence in which the children may reside from time to time or attending any medical appointment in relation to the children. Again, and given my findings with respect to the conduct of the psychologist, I am satisfied that it is appropriate for the welfare of the children to make the orders promoted by the mother. The father indicated his consent to orders in these terms in any event.
The Independent Children’s Lawyer also promoted orders precluding the parties or either of them from denigrating the other parent or his/her family members. For reasons, which will be obvious from these reasons, it is in the children’s best interests to make orders in the terms sought by the Independent Children’s Lawyer.
The provision of Gifts and Cards
The Independent Children’s Lawyer seeks an order that the mother be permitted to forward letters, photos, gifts and cards to the children on condition that any communications are child‑focused and absent any denigration of the father or his family members. In order to facilitate such communication and/or the provision of gifts, the Independent Children’s Lawyer promotes an order that the father advise the mother of an address to which the mother may forward her communications or gifts.
As discussed above, the father agrees that the mother ought to be permitted to send gifts, cards and letters to the children but says that he ought to be “be at liberty to review any card, gift or letter and assess its suitability and/or appropriateness”. In circumstances where it is the father’s expressed view that the children will not benefit from any relationship with the mother, I decline to make the order promoted by the father.
I will, however, make the orders sought by the Independent Children’s Lawyer so that the children may maintain an avenue of communication with the mother.
Communication
The Independent Children's Lawyer invites me to make an order requiring the parties to use a parenting application such as “App Close” for the purposes of communication between them unless otherwise agreed between them or in relation to an emergency. The father consented to such an order, but the mother’s counsel was silent in his closing submissions in relation to the mode of communication between the parties.
Given the poor communication between the parties and the conflict between them, I find that it is appropriate to make an order in the terms sought by the Independent Children’s Lawyer. No party suggested an alternate parenting application for the purposes of communication and accordingly, the application proposed by the Independent Children’s Lawyer shall be the mode of the parties’ necessary communication. I will, however, make an order for the parties to communicate by telephone in the event of an emergency as proposed by the Independent Children’s Lawyer.
The Independent Children's Lawyer also promoted an order that the children be at liberty to communicate with either parent by electronic means at any reasonable time with each parent to do all things necessary to facilitate such communication. Again, and given my finding that it is in the children’s best interests to maintain an avenue of communication with the mother, I will make the orders sought by the Independent Children’s Lawyer. I will also make an order for each parent to keep the other advised of his/her mobile telephone number for this purpose and to otherwise facilitate communication between the parties in the event of an emergency involving the children.
Authorities and Provision of Information
The Independent Children's Lawyer promoted orders to the effect that:
(a)Each parent be at liberty to communicate directly with the children’s schools, sporting bodies and medical practitioners and to obtain any information and/or documents about the children’s progress;
(b)Keep the other parent advised with respect to the health of the children; and
(c)Keep the other parent advised of the names and contact details of the children’s treating medical practitioners, dentists and allied health professionals.
The father promoted orders, which save as to form are consistent with the orders promoted by the Independent Children’s Lawyer. The father did, however, seek to limit the mother’s communication with the children’s school to no more than two occasions each school term. The father’s counsel did not make any submission about why such a limitation is necessary nor is a factual basis for such an order found in the father’s written or oral evidence.
As discussed above, I have concerns with respect to the children’s health and education and the ability of the father and his parents to act in the best interests of the children. This being so, I will make the orders sought by the Independent Children’s Lawyer. These orders will provide the mother with a mechanism to monitor the children’s health and education.
Overseas travel and passport
The father sought an order that he be at liberty to apply for the issue and/or renewal of an Australian Passport for the children without the mother’s consent pursuant to s 11(4)(b)(i) of the Australian Passports Act 2005 (Cth). The application was supported by the Independent Children’s Lawyer who also promoted an order permitting the father to remove the children from the Commonwealth of Australia for the purposes of international travel.
The father by his written evidence said that he did “not have intentions at the present to travel overseas”.[162] Apart from the expression of an opinion, the father produced no evidence whatsoever with respect to the locations where he would like to travel with the children or when he might do so. For these reasons, I refuse to make an order permitting the father to obtain passports for the children absent the consent of the mother and/or permitting the children to travel outside of the Commonwealth of Australia.
[162] Father’s affidavit filed 16 August 2024, paragraph 148.
Meeting between the children and the Independent Children’s Lawyer
As discussed above, the Independent Children's Lawyer met with the children on 24 August 2023 and 16 September 2024. His concern for the children was evident from the manner in which he conducted himself throughout the proceedings and the thoughtful questions, which he put to the Single Expert during cross-examination.
The Independent Children’s Lawyer advised me at the conclusion of his submissions that he would be prepared to meet with the children to advise them about the terms of my Judgment. Given the children’s vulnerabilities, I consider that it would be in the children’s best interests to meet with the Independent Children’s Lawyer for these purposes.
Application by the Independent Children’s Lawyer for costs
At the conclusion of proceedings, the Independent Children’s Lawyer made an application for costs.
Section 117(1) of the Act abolishes for the purposes of family law proceedings, the general rule that, in civil proceedings, costs follow the event. Section 117(2) of the Act provides that if, in proceedings under the Act, the Court is of the opinion that there are circumstances that justify it in doing so, the Court may subject to subsections (3A), (4), (4A), (5) and (6) and the applicable rules of court, make such order as to costs as the Court considers just.
Section 117(2A) is expressed in mandatory terms to require a Court when considering what order (if any) should be made under s 117(2) to have regard to seven matters. None of those seven matters is determinative. As was held in PBF & TRF (2004) 33 FamLR 123,[163] it is not necessary for more than one factor to exist under s 117(2A) before it is competent for a judge to enliven s 117(2A) so as to make a costs order departing from the general principle set out in s 117(1) of each party bearing his or her own costs.
[163] PBF & TRF (2004) 33 FamLR 123.
The Independent Children’s Lawyer identified that between them, the parties had by the commencement of the trial expended monies in excess of $267,000 with respect to their participation in these proceedings.[164] This may be so. Nevertheless, the Independent Children’s Lawyer correctly submitted that these proceedings have been very difficult and emotionally charged and that it would be inappropriate to submit that the manner in which the matter has been conducted ought to justify an order for costs. I agree.
[164] Father’s Costs Notice filed 20 September 2024; Mother’s Costs Notice filed 18 September 2024.
Otherwise, I was not addressed with respect to the criteria referred to in s 117(2A) of the Act.
The application for costs is refused.
CONCLUSION
The orders set out at the commencement of these reasons are those that most capably meet the children’s best interests.
I certify that the preceding two hundred and sixteen (216) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson. Associate:
Dated: 25 November 2024
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