Hilden and Hilden

[2018] FCCA 3954

FEDERAL CIRCUIT COURT OF AUSTRALIA

HILDEN & HILDEN [2018] FCCA 3954

Catchwords:
FAMILY LAW – Rice & Asplund – consent orders – time with father “as agreed” – mother does not agree to any time – consent orders set aside – family therapy ordered.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60CA, 65AA

Cases cited:

Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346

Marsden & Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84

Applicant: MR HILDEN

Respondent: MS HILDEN

File Number: SYC 4648 of 2016

Judgment of: Judge B Smith

Hearing date: 17 December 2018

Date of Last Submission: 17 December 2018

Delivered at: Sydney

Delivered on: 21 December 2018

REPRESENTATION

Counsel for the Applicant: Mr Frost

Solicitors for the Applicant: Horizons Family Law Centre Pty Ltd

Solicitors for the Respondent: Lewis Holdway

Solicitors for the Independent Children’s Lawyer: Phillip A Wilkins & Associates

ORDERS

1. Orders 1, 2, 3 and 4 of the consent orders made 12 October 2016 be set aside.

2. That until further order, each party, Mr Hilden born …1986 and Ms Hilden born …1987, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said Children, [X] born …2010 (male) and [Y] born …2011 (female), from the Commonwealth of Australia until further order of this Court; 

   AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said Children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Children’s names on the Watchlist for the said period, or until the Court orders its removal.

3. Forthwith any passport in either party’s possession or control relating to the children be delivered to the Registrar of the Sydney Registry of the court to be held by the said Registrar pending further order of the court.

4. The parties are to have equal shared parental responsibility for making decisions about the long term care, welfare and development of the children.

5. That the children live with the mother, Ms Hilden born …1987, at her current residence and she is not to relocate the children from her current address without further order of this Court.

6. That, within 28 days of the date of these orders, Ms Hilden (“the mother”) and Mr Hilden (“the father”) (together referred to as “the parents”) do all things necessary to facilitate the engagement and participation of each of the parents and of [X], born on …2010, and [Y], born on …2011 (together referred to as “the children”) in a family therapy process with a therapist determined by the Independent Children’s Lawyer, with the aim of improving the children’s wellbeing and relationship with the father.

7. That the parents each follow such advice and direction as the therapist may give them in relation to all aspects of the children’s relationship with the father including, but not limited to, the children’s relationship, time and communication with the father.

8. That the father bear all costs of the family therapy referred to in order 6, above, including those arising from the engagement and participation of the mother and the children.

9. The Independent Children’s Lawyer has leave to provide a copy of the Child Inclusive Conference Memorandum to the therapist.

10. That each parent keep the other parent informed of:

    (a)Their residential address and mobile telephone number; and

    (b)Any significant injury or illness suffered by the children and details of all medical treatment given to the children;

    (c)The school the children are attending and any extra-curricular activities in which the children are enrolled; and

    (d)All school, extra-curricular and sporting activities in which the children are involved.

11. That the parents communicate about the matters referred to in the preceding paragraph, and/or any other matters relating to the children, by text message between the mother and the father.

12. That each parent is entitled to communicate with the children's school and receive copies of all school reports, notices, newsletters, bulletins, applications for school photographs and other correspondence from the children's schools and each parent will provide the Principal of the children’s school with a copy of this order within 7 days of the date of the orders and will authorise the Principal to facilitate this order.

13. That each parent is hereby restrained from denigrating the other parent and/or any member of the other parent’s family or household to, or in the presence or hearing of, the children and both the parents shall use their best endeavours to ensure that no third party denigrates the other parent and/or any member of the other parent’s family or household to, or in the presence or hearing of, the children.

14. Each parent is restrained from discussing any proceedings between the parents or the parental relationship in the presence or hearing of the Children and shall use their best endeavours to ensure no third party does so.

15. Leave be granted to the Independent Children’s Lawyer to issue such additional subpoena as they deem necessary.

16. Liberty is granted to the all parties and the Independent Children’s Lawyer to approach the Court in Chambers to relist.

17. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:

    (a)to consider the factors in sections 60CC and 65DAA of the Family Law Act 1975;

    (b)to consider issues raised in the Family Consultant’s Memorandum to Court;

    (c)to consider the profile of the parents (and other significant adults);

    (d)to assess the parents’ interactions (and those of other significant adults);

    (e)to assess the children’s developmental and emotional state;

    (f)to assess the relationship of the children to the parents (and other significant persons);

    (g)to ascertain the wishes of the children unless inappropriate by reason of age or other special circumstance;

    (h)to assess the proposed and actual home environments; and

    (i)to assess the proposals of each party as to the children’s future.

18. The Family Consultant is granted leave to inspect all documents produced in response to Subpoena.

19. If the Family Consultant is unable to inspect documents produced in response to Subpoena at the Wollongong Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the Family Consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.

20. The report be released as soon as practicable, and unless otherwise arranged with Chambers.

21. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

22. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the Children to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a convener of any legal dispute resolution conference.

23. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

24. Following release of the Family Report and prior to the adjourned date, the parties file and serve a minute of final order sought by each of them as to parenting.

25. The matter be listed on 14 June 2019 at 9:30am for mention. The parents must attend in person with their legal representatives if the Report is available prior to the adjourned date.

26. Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.

NOTES

1. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4648 of 2016

MR HILDEN

Applicant

And

MS HILDEN

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an oral decision in an interim parenting application. I note the short form reasons for decision provisions of s.69ZL of the Family Law Act 1975 (Cth). While it would always be preferable to provide a written decision, given the urgency of the issue, the volume of cases before this Court, and the time that it will take to find an opportunity to provide a written decision, it seems more appropriate to me to provide a shorter prompter oral decision, and accordingly I follow that course.

2. This matter involves Mr Hilden, the father, and Ms Hilden, the mother.  An independent children's lawyer has been appointed.  The children who are the subject of the proceedings are [X] born …2010 now eight years of age and [Y] born …2011 now seven.

3. The short background is that the parties formed a relationship in about 2002, were married in 2006, physically separated in 2015 and were divorced on 19 November 2016.  The parties applied for consent orders and those orders were made on 12 October 2016.  The consent orders included the following:

   (1) that the applicant mother have sole parental responsibility of the children of the marriage, namely, [X] born …2010 and [Y] born …2011 (“the children”);

   (2) that the children live with the applicant mother;

   (3) that the children spend time with the respondent father as agreed in writing between the parties;

   (4) that the children contact and communicate with the respondent father via telephone, text message, email or social media in accordance with their wishes.

4. There were other orders, relating to passports and property, but the orders which are the subject of the application before this Court are those to which I have just referred.

5. The essential issues are quite narrow.  The factual position, which is not substantially in dispute, is that the mother has not agreed in writing or otherwise for the father to spend any time with the children since 23 July 2016, with a single exception being a visit by the father to the children’s sport lesson on 20 May 2017.

6. The father filed an Initiating Application on 5 March 2018 seeking orders that, in effect, the consent orders be set aside or varied.  In support of that he relied on his affidavits filed on 5 March 2018 and 30 November 2018, and his filed Notice of Risk.  I also had the benefit of written submissions from the father’s solicitor which were Aide Memoire 1. 

7. The mother’s position is that the application should be dismissed.  She filed her response on 15 May 2018.  Her case was argued based upon her affidavits of 16 November 2018 and 15 May 2018 and her filed Notice of Risk, and upon an affidavit of Ms A, a registered psychologist who has been treating the children, particularly her expert opinion report dated 15 November 2018.

   The mother’s case

8. The mother’s primary case, noting that the father bears both the legal and the evidentiary onus, is that the parties voluntarily entered into consent orders.  There is no suggestion of fraud or manipulation or that the father was somehow coerced into entering those orders.  I understand that to be an agreed position.  Where two legally competent adults choose to enter into parenting orders and make consent orders in court, those orders are as a matter of law the orders of the Court, and the fact that they have been made by consent does not make them any less valid.  In those circumstances the father must overcome, at his onus, the principles in Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84, which I will discuss in more detail later.

9. In respect of the fact that no time has been agreed, the mother submits that at the time the consent orders were entered into it was agreed that the mother have sole parental responsibility.  She says that was an acknowledgment of her appropriateness as the person to exercise all major decisions for the children.  The father should have known or did know that she made serious allegations of family violence against him.  He should have known or did know that her agreement to him spending time with the children would be at her sole discretion and based upon her view as to what was in the children’s best interests, consistent with her role as the parent exercising sole parental responsibility.

10. On that basis he should have anticipated the possibility that she would make the decision that the “time with” to be spent would be, in effect, no time if she took the view that that was the most appropriate course.  He, in effect, complied with and assented to that course of action. 

11. To the extent to which she has exercised her authority under those consent orders as the person with sole parental responsibility, she says she has done so consistently with her obligations at law and taking into account the children’s wishes, which I will discuss further when I consider the Child Inclusive Conference memorandum.  

12. The children have clearly indicated to her, as they have indicated in the Child Inclusive Conference memorandum and as they have indicated to their treating psychologist, Ms A, that they do not wish to spend time with the father.   She says she gives great weight to their views and to the view of the treating psychologist, and, consequently, that it is appropriate that she should do so and comply with the terms of the orders by, in effect, allowing no time.  I will also consider Ms A’s report in due course.

13. I think before moving to the father’s case, it is important to note that I also have the benefit of helpful written submissions which are Aide Memoire 2.

    Family violence allegations

14. Before moving to the father’s case, since he bears the evidentiary onus, it is important to consider the evidentiary issues.  I will start quickly with the allegations of family violence.  There appear to be mutual allegations of family violence.  This is an interim parenting application and, of course, the Court is subject to the restrictions that apply to the determination of such a matter where there is only limited affidavit evidence and where the parties are not subject to cross-examination. 

15. That does not, of course, mean that the Court is not to consider and give such weight as it can to the allegations that are made, but I note that in this case there appear to be mutual allegations and concerns, and this is one of those cases where it is difficult, if not impossible, at this stage to make any kind of finding at all, even in the very narrow way in which one might.  And so I proceed on the basis that there are allegations of domestic violence which are made on both sides and contested on both sides, but particularly by the mother who has made them, and the father who opposes them.

    Child Inclusive Conference Memorandum

16. I move now to consider the Child Inclusive Conference Memorandum to Court which was prepared by Ms B on 27 July 2018 arising out of a meeting with the parents and the children on 26 July 2018.  At that stage the father proposed equal shared parental responsibility, with the children to live with the mother and to spend time with him from Friday after school to Monday before school on alternate weeks, together with phone contact with the children around two times a week after school.  He also proposed that, at his cost, the family participate in family therapy at the Relationship Space.

17. The mother proposed she have sole parental responsibility for the children, that the children live with her and, critically, “spend time and have phone contact with the father at the children’s request.”  So it appears that at the child inclusive conference the mother took a position which appears to be the position she has taken in these proceedings as well, that she will merely comply with the wishes of the children who I note are only seven and eight.

18. Ms B went through the risk factors and in particular family violence noting there had been no Apprehended Violence Orders (“AVO”) in the matter, that the mother had previously consulted police about taking an AVO out against the father, that the mother alleged the father “blew up” during the last changeover, and stated that she and the children were frightened of him.  The mother alleged that in early 2017, the father harassed her by calling her consistently from a private number. 

19. The father alleged that there was parental conflict during the relationship but denies there was family violence.  The father said he and the mother had arguments and that he slammed doors or threw the television remote on the ground.  He said the mother also yelled and banged household items on the kitchen bench.  The father stated the mother made demeaning comments to him that made him feel worthless and belittled.  He stated that he felt isolated from his friends and family because he felt opposition from the mother when he tried to arrange time for the paternal grandparents to see the children.  The mother denies those allegations by the father. 

20. The mother says he was physically and emotionally abusive towards her and the children.  She makes an allegation the father picked [X] up by the arm and threw him against a wall, and says that when [Y] was 14 months old the father shook her whilst yelling at her.  She says the father pressured her into sexual intercourse, punched holes in the walls, slammed doors, grabbed the dog by the collar and threw him, and made demeaning comments about her.  I note that the father denied those allegations and he also says, although I am not sure how relevant it is, that the maternal grandmother works in the Employer and if there was any truth to the allegations, intervention would have occurred at the time.

21. As I have said, we have mutual allegations made and denied.  I have the affidavits, but I think the high points on this issue are in the Child Inclusive Conference memorandum, and it is difficult if not impossible for this Court to make any useful findings, or to give great weight to any of these allegations at this stage in terms of considering the issue before the Court, which is whether or not to set aside the existing orders and to then embark upon a course of hearing and determining the matter to determine what orders are in the children’s best interests. 

22. There are also allegations around mental health.  The father says the mother self-harmed when she was 16 years of age.  The mother denies this. 

23. Fortunately, drug and alcohol issues do not appear to be an issue. 

24. In terms of the children’s risk issues, the father has said that since July 2016, he has only spent time with the children on one occasion in May 2017 at the children’s sports lesson.  He expressed concern the children were missing out on having a father figure in their life, and expressed concern or claims that the children are at risk of emotional harm because he is not having any contact with them.  The father said he is concerned that the mother is not encouraging the children to have a relationship with him and has been denigrating him in front of the children.

1. The children were interviewed.  This was some five months ago, when they were then six and seven.  In terms of the children, the mother said the children were seeing a psychologist because of exposure to the alleged family violence, and the consultant noted that:

   The parents’ poor co-parenting relationship could pose a significant threat to [X] and [Y]’s ongoing emotional and psychological wellbeing, particularly if they are not shielded from the parental conflict.

2. I think there can be no doubt that the consultant has identified a key factor there.  The consultant spoke with [Y]:

   [Y] described the father as “mean, not fun, and not nice”… [Y] said that her parents are not friends because “Mr Hilden was mean” to her and “Mummy doesn’t like him”.  [Y] stated that “Mummy tells me not to be friends with him or talk to him”.  [Y] stated that she has forgotten if she “used to like Daddy”.   [Y] stated that she is sad when, “Mr Hilden hurt me and also hurt Mummy and [X]”.  She stated that she has nightmares about the father “stealing me from Mummy”.  [Y] stated that she is scared of the father and remembers when he allegedly hurt the children and the mother.  [Y] says she does not “want to see Mr Hilden any more”.   [Y] was asked why she calls her Daddy “Mr Hilden”.  [Y] said, “I don’t want to call him Daddy, because he might think I love him, and I don’t”.  [Y] was asked if anyone told her to call the father “Mr Hilden”.  [Y] disclosed that, “Mummy tells me to call him Mr Hilden”.  [Y] stated that if she does not listen to her mother’s instructions in relation to the father, she “might get into trouble”. 

3. I note in respect of [Y], that it is hard to imagine more clear evidence of intentional decision by the mother to alienate the children from the father.  I do not think I need to say anything more about that. 

4. In respect of [X], he was interviewed:

   [X] described the father as “mean and not nice”.  [X] stated that the mother is “nice”, caring and that she “loves” him.  [X] stated that the father is a “bad person” but is unsure of why.  [X] was not able to identify things he is good at, or that he likes about himself.  [X] said that he calls the father “Mr Hilden” because he “doesn’t want him to be my dad anymore”.  [X] was asked if he has any worries.  [X] said, “I am worried if he is here and will take me away from Mumma.  He lies to everyone”.  [X] was asked how he knows that his father “lies”.  [X] stated, “He lied to Mummy, but I don’t know what he lied about.  Mummy told me he lies”.  Both [Y] and [X] indicated that they want to live with their mother and spend no time with their father. 

5. The consultant noted that:

   It is very concerning that, even though the children have not had any contact with their father since mid-2016, their views about him seem entrenched despite having no contact with him.  The family violence allegations by both parents require further comprehensive assessment.  The children would likely benefit from participating in family therapy as a means of reconnecting with their father in a supervised and therapeutic environment, if deemed safe to do so by the Court. 

6. The consultant then makes suggestions about possible overnight time:

   It was noted that it is important that the mother and father do not expose or involve the children in further conflict or in matters before the Court, such as talking negatively about the other parent in front of or towards the children, as this may have further implications for their children and their relationship with their parents.  It may also impact negatively on the children’s emotional wellbeing.

7. Other recommendations were made about a family report. 

8. In respect of [X], and noting what has occurred with [Y], I also note that it is hard to imagine more direct evidence that the mother has actively and intentionally manipulated the children to alienate them from their father. 

9. I have absolutely no belief that these opinions expressed by the children are other than those that the mother has inculcated into the children. 

10. It is difficult to know whether she has done that intentionally and consciously, or whether she is in so much personal turmoil that she has done it unintentionally, but the harm that is caused to children by this is hard to overstate. 

    Ms A - psychologist’s report

11. I refer to Ms A’s report that is relied upon by the mother.  It is clear that the children have had difficulties.  My concern is that Ms A, as a treater, has not considered the type of material that the Court consultant has considered.  Ms A has undertaken a therapeutic relationship, and she has it appears just assumed that the children’s distress arises from things that the children have dealt with, and does not need to have considered the possibility that their distress is a consequence of what they have been told by their mother. 

12. I make no criticism whatsoever of Ms A in that context as a treater, where the children are brought to her by the mother, and she only has one source of evidence.  In the circumstances, all I think I can take from that is that these children have been traumatised by the conflict between the parents, and when I look at what is contained in the Child Inclusive Conference Memorandum I have grave concerns, although I cannot know at this stage, but I have grave concerns that much of the emotional trauma being suffered by the children is as a consequence of the mother’s alienation by them and her inability to control her emotions so that she does not involve her children in her hatred for their father. 

    The father’s case

13. I move now to the father’s case.  I note that in respect of the Child Inclusive Conference Memorandum, the father made submissions broadly in line with what I have just said, although perhaps the father did not in fact go so far as I have gone, for forensic reasons.

14. The father’s basic position was to run this case on the basis that the Rice & Asplund test is met.  That was the first positon.  Both parties’ legal advisors have provided very useful written outlines which I think fairly summarise the questions the Court must consider when looking at the rule in Rice & Asplund.  They have both cited paragraph 7, which notes that:

    The Court should have regard to any earlier order and to the reasons for and the material on which that order was based.  The Court would need to be satisfied by the applicant that there is some changed circumstance that will justify such a serious step, some new factor arising, or some factor which was not disclosed at the previous hearing which would have been material.  It is a question of finding that there are circumstances which require the Court to consider afresh how the welfare of the child should best be served.

15. A variety of other references were provided to me which articulate the well-settled law around Rice & Asplund, including the reference in Marsden & Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152 to the fact that the purpose of the rule is to discourage endless litigation. It is important to remember that unlike a general civil cause of case, where the cause of action merges on a judgment and orders, the question of what is in the best interests of the children is always a matter which is justiciable, and the rule in Rice & Asplund is intended to stop people from coming back to Court every time there is a small change or they are unhappy, to discourage litigation that is unnecessary and not likely to assist the child, but, ultimately, the principles that guide this Court are what is in the best interests of these children.

16. The second basic argument is that whether or not the mother’s reading or interpretation of the orders is correct, i.e. whether or not she is entitled to take the view reasonably that the orders anticipate the possibility of no time, that it is unlikely that the father would have considered that to be the case, and that it is also unlikely that a reasonable person in the position of the father would have considered that to be the case, and also that in the absence of clear agreed evidence of family violence it is unlikely to be the case that the Court would have made a no time order.

17. Further, it was submitted that to the extent the mother says that she merely relies upon the views of the children, firstly, the views of a six or seven or eight year old child should only be given limited weight.  The average six year old would have a life of no school, chocolate and other things which are not necessarily in their best interests.  It is for the parent responsible for the child to determine what is in their best interests in accordance with their legal obligations as a parent, and secondly and importantly, that the Child Inclusive Conference Memorandum makes it manifestly clear that what is being expressed are the mother’s views. 

18. It is deeply troubling that we have a six year old, now seven year old girl, saying that she has been told to call the father Mr Hilden, not Daddy, and that she is concerned that if she does not listen to her mother’s instructions, she might get into trouble. 

19. That is a matter of grave, grave concern to me.

20. The matter was not argued by the father on the basis of a contravention, and so I do not need to consider that issue. 

    Independent Children’s Lawyers position

21. The Independent Children’s Lawyer also supported the position that the Rice & Asplund test had been met as proposed by the father, and that the Court should move forward.

    Conclusion

22. I need to consider the questions of whether or not, given the guiding principles in Rice & Asplund, and given the form of these orders and the circumstances in which they were entered, and the view of which I take about the likely future events, it is appropriate to set them aside and to proceed to determine the matter afresh, noting that, of course, if the mother does make out her allegations of family violence at the level she has asserted them, or at a higher level, which is still possible, there is always the possibility that, at the end of the proceedings, we may end up with the same or very similar orders. 

23. As I have said, this is an interim application.  There are contested questions of fact, and I cannot know what the result will be.   I do know, however, that even if that is the result, involving the children in the dispute, noting what Ms A has said about the family law proceedings hanging over the children, and telling them that they are not to call him Mr Hilden and not to care for him, and maintaining their fears, regardless of the true position, must impact negatively on them, and cannot be in their best interests.

24. I find that the children’s views, as expressed in the Child Inclusive Conference Memorandum, are not their views but are only the mother’s, so the suggestion that the mother is making a decision purely based upon the children’s views can be given no weight. 

25. I note that although it may not be strictly relevant to the question since the contravention was not argued, that I consider there is an obligation of good faith in respect of compliance with consent orders in respect of doing things as agreed in writing between the parties. 

26. I cannot make a finding that there is no good faith, because the mother’s fears may be genuine, they may be well grounded, and it may be that she, rightly or wrongly, genuinely believes that it is in the children’s best interests that she not agree to any time. 

27. However, I do not think any reasonable person who entered into orders, or who saw orders that said that the children spend time with the father as agreed in writing between the parties in this case, could, would or should anticipate that that would, in effect, grant the mother the position and power or the authority she is exercising to unilaterally impose a no time with order with the children, which is, in effect, what has occurred, noting that no time orders are very rare in this Court, and that the evidence required to persuade the Court that it is in the children’s best interests to have absolutely no contact whatsoever ever with one parent is very substantial and, although that does happen, is not common. 

28. In those circumstances, and given the material before me, I am not persuaded that it is in the children’s best interests for the current orders to stand, since those current orders, in effect, are no time orders, as they have currently been interpreted and exercised. 

29. On that basis, it seems to me, when I look to the s.60CC factors, and consider ss.60CA and 65AA that looks at what is in the children’s best interests, I think it must be in their best interests to at least have a proper review of the material to determine whether or not there should be the no time order that currently exists, noting how rare they are, and noting that the evidence of family violence before me at least is not of the kind which one sometimes has, such as a conviction and extensive imprisonment term, where the Court is satisfied by that alone that the family violence allegation is made out.

30. For the reasons I have given, noting that there is an obligation to protect the children physically and psychologically, but noting that, in this case, I am deeply concerned that the mother is, whether unwittingly or intentionally, imposing psychological damage and harm on the children, and noting also that there a prima facie presumption of a benefit of a meaningful relationship with both parents, being the twin pillars referred to in Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520, I am satisfied that the applicant has met the onus of showing that the Rice & Asplund test has been met, and that it is in the best interests of these children, for the moment, to set aside orders 1, 2, 3 and 4 of the consent orders of 12 October 2016.

31. I then consider what should happen next.  I think we go back to the question that must be asked in accordance with Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346 as if this was a first return. Obviously, the best interests of the children under section 60CC must be considered. First, there is the obligation to protect the children from physical and psychological harm, and that is the primary concern. The mother alleges that the father represents a danger of physical harm. The father alleges that the mother currently represents a danger of psychological harm. That is a matter of great concern to me.

32. The second issue is the benefit of a child having a meaningful relationship with both parents.  Subject to being satisfied that that can occur without risk of physical harm, in terms of the child’s benefits of a relationship with the father, that is something that needs to be looked at.  However, there is also the psychological concern, which is that given that the children appear to have been told that if they express any affection to their father, they will get in trouble with their mother, and perhaps they feel they will lose her love, the process of reintroduction with the father is going to be fraught, and it is going to need to be handled very carefully.

33. In terms of parental responsibility, the orders having been set aside, a presumption of equal shared parental responsibility may arise, however I note there are mutual allegations of physical or psychological abuse of the children, none of which I am in a position to determine now, although I note that the most compelling evidence I have gives me concerns about the mother in terms of her interaction with the children and their psychological wellbeing. 

34. In those circumstances, where there are mutual allegations, on one view, the presumption is rebutted both ways.  I am concerned about the mother having sole parental responsibility, given the way in which it has been exercised, and given the material in the Child Inclusive Conference Memorandum. 

35. In those circumstances, at this time, I think we need to go back to a situation where the primary position applies, rather than no orders are made, I will make orders that there be equal shared parental responsibility. 

36. The various s.60CC(3) factors are relevant, although I note that both parties presently propose that the children live with the mother. I think that is the only realistic course. In those circumstances, I propose to make an order that the children continue to live with their mother.

37. Beyond that, I note that re the question of the views expressed by the children I do not think they can be given any weight, not only given their age, but given what they have said about what they have been told.  I think when we look at the nature of the relationship of the children with each parent, I am concerned that the mother’s relationship with them has been, in effect, although she may not see this, damaged by what she has been telling them, and they have no relationship with the father, and that will affect how we go forward. 

38. In terms of the extent to which each of the children’s parents have taken, or failed to take, the opportunity to participate in decision making and spending time with, or communicating with the children, obviously the mother has, but no weight can be given to the fact that the father has not, because he has not been allowed to. 

39. Similarly, in terms of the obligations to maintain the children, I think there may be some dereliction by the father in respect of his financial obligations, but, in all the circumstances, I am not convinced that, at this point, given what I am proposing, that is something that I will need to give great weight to, concerning the children’s best interests.

40. In terms of the likely effect of any change in the child’s circumstances, including likely effect of separation from either parent or any other child, I am not proposing to move their primary residence from the mother, and I will come, shortly, to what I propose to do in respect of moving forward. 

41. In terms of practical difficulty and expense of a child spending time with and communicating with a parent, I do not understand that to be a major issue, subject to what may happen if a view is taken that paid supervision is required as an interim issue. 

42. The capacity of each of the children’s parents and any other person to provide for the needs of the children, including emotional and intellectual needs, well, there are allegations of violence against the father, which have not been tested.  I have noted concerns about the mother’s conduct in respect of the children’s emotional health and wellbeing.  Unfortunately, that is where we are at the moment, but I will keep those in mind when looking at the orders to be made going forward.

43. The maturity, sex, lifestyle, issues I do not think are relevant.  The children are not, as I understand it, Aboriginal or Torres Strait Islander children.  The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents, in that regard, I am deeply concerned that the mother has put her interests above the children’s interests, and that she may have caused them psychological harm by imposing her hatred of the father upon them.  Whether it is, as I say, intentional or not, the failure to shield them from this conflict has been, I consider, a dereliction of her responsibilities as a parent.

44. Re any family violence, I have referred to the fact that there are mutual allegations.  Since I cannot make any findings, I have not gone through them in any more detail than necessary.  There is no family violence order. 

45. The question of whether it would be preferable to make orders that would least likely lead to the institution of further proceedings, well, I think that we are going to have further proceedings. 

46. So as I have said, I think we have to go back to equal shared parental responsibility, for the moment, and until such time as the Court can have a further inquiry into what has occurred, and that may require a full hearing.  We will see what happens.

47. The children are to live with the mother at her current address and the mother is not to relocate the children from that address without a specific order of this Court.  I’m not sure if there is a flight issue but I’m going to put the children on the watchlist given what’s occurring at the time.  The children’s passports are forthwith to be delivered to the Registrar of the Federal Circuit Court of Australia in the Sydney Registry, whoever holds those passports, I assume it’s the mother.

1. The Child Inclusive Conference memorandum proposes as does the father, and I understand this is supported by the Independent Children’s Lawyer, family therapy. The reality is that the children have a particular view of the father and to merely change their residence or to give them time with him given that their subjective views are very strong, and given what I have seen in the psychologists report, I’m concerned that if this matter is not handled with great care the process of reintroduction may further traumatize them.

2. In those circumstances I think the proposal for family therapy is wise, I will make an order with a therapist to be determined by the Independent Children’s Lawyer.

3. In terms of the fathers orders proposing that he now have time start immediately, although I have sympathy for his view given what has occurred, this Court’s concern is not with the father’s happiness primarily, or the mother’s happiness primarily.  This Court is concerned with the best interest of the children.  Given the views they’ve expressed, it seems to me that to move to a time with arrangement prior to family therapy and prior to the Independent Children’s Lawyer and the Court being satisfied that the time with isn’t premature, and that the time with will not further hurt these children, I do not think it appropriate to make the time with orders sought by the father.

4. In terms of other issues, I will make orders sought relating to the parents keeping the other parent informed of various things, regarding communication via text, and that the father is entitled to communicate with the children’s school and receive copies of the school reports.

5. I will not make an order that allows the father to attend school events, at this time, for the same reason that I will not order that time commence immediately because I am concerned that moving too quickly may traumatize the children and may in fact undermine the process of reintroduction.  I suspect, unfortunately, that given what’s occurred this process may take a considerable period of time but as I’ve said, the children’s best interests are what concern this Court and to some extent the father’s interests are served in that way.  Although it may take some time and he may find that frustrating, a process that works in the long run is what is sought rather than a process that doesn’t work because it’s rushed.

6. I will make orders sought that the parents be restrained from denigrating the other parent, and that each parent is restrained from discussing these proceedings in front of or with the children and are to use their best endeavours to make sure that no third person does so.

7. I think there is an application for the telephone time to recommence but again I just think we need to go slowly.

8. I make orders in accordance with the reasons I have given.

9. I will hear from the parties on what further orders may be require. 

10. The Independent Children’s Lawyer seeks a family report and to provide the family therapist with a copy of the Child Inclusive Conference Memorandum and I will make those orders.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 31 January 2019