Hopper and Hopper
[2010] FMCAfam 699
•8 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOPPER & HOPPER | [2010] FMCAfam 699 |
| FAMILY LAW – Child aged 11 – child estranged from father – father asserts child being manipulated by mother – mother asserts child has been subjected to father’s violent behaviour and is making rational decision to withdraw from him – interim arrangements – should child undergo course of court mandated therapy to repair paternal relationship prior to re-introduction – best interests – weight to be given to child’s views. |
| Family Law Act 1975, ss.60B, 60CC, 61DA Federal Magistrates Regulations 2000 Family Law Amendment (Shared Parental Responsibility) Act 2006 |
| Goode & Goode (2006) FLC 93-286 Re K (1994) FLC 92 461 Blanch v Blanch & Crawford (1999) FLC 92-837 T & N (2003) FLC 93-172 Re L (Contact: Domestic Violence) [2000] 2 FLR 334 |
| Applicant: | MR HOPPER |
| Respondent: | MS HOPPER |
| File Number: | ADC 2201 of 2009 |
| Judgment of: | Brown FM |
| Hearing date: | 30 June 2010 |
| Date of Last Submission: | 30 June 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 8 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bowler |
| Solicitors for the Applicant: | Robinson & Mason |
| Counsel for the Respondent: | Ms Tinning |
| Solicitors for the Respondent: | Von Doussas |
ORDERS
Pursuant to section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child [X] born [in] 1999 (hereinafter referred to as “the child”) and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
The matter is fixed for final hearing before Federal Magistrate Brown on 16, 17 & 18 March 2011 at 10:00am NOTING 3 days allowed.
On or before 2 March 2011 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
The applicant pay such daily hearing fee as required pursuant to the Federal Magistrates Regulations 2000.
The matter be listed for further directions on 27 August 2010 at 2:15pm.
The husband be at liberty to write cards, and letters and provide appropriate gifts to be forwarded by pre-paid post to the child at her address and the mother shall deliver such correspondence and gifts to the child. In addition the husband and child are at liberty to communicate via email.
The husband’s interim application to direct the wife to ensure the child attends upon Ms J or any other psychologist for the purposes of therapeutic counselling to examine whether and by what means the child may be re-introduced to the husband is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hopper & Hopper is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2201 of 2009
| MR HOPPER |
Applicant
And
| MS HOPPER |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern a child who has become alienated from one of her parents. The child is [X]. [X] was born [in] 1999. She has not seen her father, Mr Hopper, since April of 2009.
[X]’s mother is Ms Hopper. [X] lives with her mother. The mother’s position is that [X] has witnessed her father behaving violently in the past. As a consequence, Ms Hopper asserts that [X] is fearful of her father and has no wish to engage with him, at this stage, in any way.
The father’s position is that the mother is manipulating or influencing [X] in some way. This influence or manipulation has caused [X] to be ostensibly antipathetic towards him. [X] has expressed her antipathy for her father to a number of experts, whom she has consulted, largely under the auspices of her mother. Mr Hopper believes Ms Hopper has orchestrated [X]’s disavowal of him to these various experts.
In these circumstances, Mr Hopper argues that the court needs to make every feasible and reasonable attempt available to assist [X] to re-engage with him, otherwise there is a very real risk that [X]’s relationship with him will be irretrievably lost, to [X]’s permanent detriment. In effect, she will have lost her only father.
The issue for the court, at this stage, is whether an order should be made requiring Ms Hopper to ensure [X] attends upon Ms J, an experienced child psychologist, for therapeutic counselling, to see how a relationship between [X] and her father can be re-instated.
In his amended application filed on 28 June 2010, Mr Hopper seeks such an order, on an interim basis. He also seeks orders that would see him engaging with [X], in the presence of her half-siblings [Y] and [Z].
On a final basis, Mr Hopper seeks orders that [X] live with him and that he should have sole parental responsibility for her. He has no clear proposal as to what time [X] should spend with her mother in these circumstances.
The rationale behind the final orders sought by Mr Hopper, in respect of [X], is his view that the only way [X] is likely to have a relationship with both of her parents, during her childhood, is if she lives with him. It being his position that the mother is pathologically opposed to him having any form of relationship with [X] and will do whatever she can to subvert it.
The mother has not formally responded to Mr Hopper’s application. However, without doubt, she would rigorously resist the father’s final application. It is her case that she is [X]’s principal repository of emotional sustenance, primarily because she has been [X]’s main provider of care since the time of her birth. It is her case that [X] has made a logical decision about her father, based upon her experience of him to date.
I am not determining the issue of final arrangements for [X]’s living arrangements at this stage. I am rather dealing with interim or temporary measures through which [X] may engage with her father, particularly through the process of therapeutic counselling, with Ms J, advocated by Mr Hopper.
Necessarily, at some stage, this process would include Mr Hopper himself. It being envisaged that Ms J would “re-introduce” [X] to her father. Ms J would oversight this process and determine, in her professional judgment, when the time was right for [X] to meet with her father, presumably in the setting and under the supervision, which Ms J thought most conducive to the re-introduction being successful.
From Ms Hopper’s perspective, [X] is a traumatised child, who has told a number of psychologists and counsellors, including Ms J, that she does not want to see her father. As such, the mother can see no utility in the process advocated by Mr Hopper and much potential harm in it for [X].
Ms Hopper asserts that to push [X] too hard, at this stage, may hasten the process of her alienation from her father. [X] may perceive, from being compelled to engage in such a process, that no adult or person in authority gives credence to or values her views about her father and she is a person whose preferences and wishes are essentially disregarded.
Finally, the mother fears that to force [X] into such a therapeutic process, where her opinions are subject to professional scrutiny and question may, of itself be emotionally abusive of [X], no matter how well handled by Ms J and regardless of the ultimate outcome of the case.
As previously indicated, this important decision about [X] is being made at an interim stage. What this means is that there has been insufficient time, available to the court, to have a full hearing or testing of all available evidence, particularly from the parties themselves, as to why and how [X] has apparently become estranged from her father.
However, as Kelly & Johnston have pointed out, there are likely to be many factors at play, originating with the father, the mother and indeed with [X] herself, as to why [X] is currently expressing such an apparently unwavering wish to have nothing to do with her father.
Kelly & Johnston concluded as follows:
“The complexity of these very challenging and demanded cases [concerning alienated children] requires a full assessment to understand the multiply determined factors and influences leading to the children’s abrupt rejection of a previously acceptable and meaningful relationship. Each of these influences has their own particular weight and significance for a particular child in a particular family. No one factor produces the alienated child. A full understanding of this pathological development in the parent-child relationship, most often separation engendered, can then lead to an effective plan and structure for legal, judicial, and therapeutic interventions directed at resolving the profound alienation of the child from the parent.”[1]
[1] Kelly Joan B and Johnston Janet R (2001) The Alienated Child – A reformulation of parental alienation syndrome – Family Court Review, Volume 39 No. 3, July 2001 249-266 at 264.
At this stage I do not have such a full assessment, of the likely factors at play, which have led [X] to reject her father. There is significant controversy between the parties about the nature of their relationship together and its influence on [X] herself. In addition, the father is opposed to there being any such investigation of [X], in the form of such a family assessment report.
It is the submission of his counsel, Mr Bowler that such an assessment will only provide a further stage from which [X] can voice her rejection of him, at the mother’s orchestration and, as such, it will serve no forensic purpose.
Rather, it is Mr Bowler’s position that the court needs to fix the parties’ competing applications for final hearing as soon as practicable and this hearing should be addressed to the court making findings about the respective credibility of the father and the mother. Essentially he advocates that if the court finds that Ms Hopper is the manipulative and emotionally needy parent portrayed by Mr Hopper, it will have no alternative but to remove [X] from her mother’s predominant care.
In the meantime, the father still wishes to persist with his application to re-engage with [X] through a less draconian process involving therapeutic means, although he is not sanguine that it will produce positive benefits, given what he believes are the mother’s likely mala fides in respect of such a process.
The major evidentiary issue between the parties concerns the nature of their relationship. Was it a violent and abusive one, as the mother asserts? In particular, what happened when the parties finally separated on 15 April 2009, the last time [X] saw her father.
It seems clear that there was an incident between the parties, on this occasion, which also involved [Y]. [Y] is now eighteen years of age. The police were called to the incident and Mr Hopper was charged with assaulting both the mother and [Y].
Later, on 18 October, 2009 [X] also provided a statement to the police about the incident. The timing of this interview is significant, so far as Mr Hopper is concerned.
[X] was also present, at the Magistrates Court at [M], in May of 2010, when the charges against Mr Hopper were dealt with by the court. Again, [X]’s involvement with the court process is significant to
Mr Hopper’s case.
Mr Hopper pleaded not guilty to the charges and was acquitted by the magistrate concerned, who heard evidence from the mother, father and [Y], but not [X]. The magistrate did not form a favourable view of the mother’s credibility.
Undoubtedly, the consequences of the incident of 15 April 2010 were traumatic for all concerned and continue to reverberate for each of them. At some stage, it is likely to be necessary for this court to examine the incident and determine, if it can be done, what occurred on the day in question, on the balance of probabilities.
That examination cannot occur yet and, in any event, the main focus of this case is not on what occurred between the parties, rather it is on securing the best possible outcome for [X] herself, within the legal matrix created by Part VII of the Family Law Act.
It is the father’s case that the mother has consistently misstated what happened on 15 April and has actively attempted to align [X] in the dispute between the parties, on her mother’s side. As such, he asserts that the mother will stop at nothing to sabotage his previously wholesome relationship with [X], including presenting her as a potential witness against him.
The mother resists these assertions, portraying [X] as an intelligent child, who has made her own decisions about her father on valid and understandable grounds – she has seen him to be a violent and unstable person, whose behaviour frightens her.
The current proceedings have taken some time to reach this point. Their progress has been delayed by the criminal proceedings against Mr Hopper. It is necessary to set out some of the salient matters, which bring the parties to this stage.
Background
Mr Hopper was born [in] 1969. He is a [occupation omitted].
Ms Hopper was born [in] 1969. She is not currently in the paid workforce.
The parties married [in] 1999. [X] is the parties’ only child but the mother has two children from an earlier relationship. They are [Z] aged twenty and [Y] aged eighteen. [Z] and [Y] have the surname Hopper.
The father commenced these proceedings on 5 June 2009. At that stage he sought an order that the parties undergo parentage testing in respect of [X]. In an affidavit in support of his application, he asserted that he had reasonable grounds to believe he was not [X]’s biological father.
The mother responded to this application on 9 July 2009. She sought final orders in respect of the division of the parties’ matrimonial property. She later consented to orders designed to determine [X]’s paternity, provided Mr Hopper pay the costs of such testing.
The father filed a further application, in respect of arrangements for [X]’s care, on 9 September 2009. He prepared his own application, in which he sought to spend supervised time with [X], pending the outcome of the criminal charges against him.
In a short affidavit filed in support of his application, he categorised the mother as having been diagnosed with a mental illness. He asserted that she had been prescribed Zoloft and “on occasion has been incapable of looking after herself and those dependant on her”.[2]
[2] See father’s affidavit filed 9 September 2009 at paragraph 6
The mother responded to this application on 23 September 2009. She was opposed to the father spending any time whatsoever with [X]. Rather, she sought that the court order a family report be prepared to examine issues arising from the nature of [X]’s relationship with each of her parents.
It was the mother’s case that [X] had been present when Mr Hopper had assaulted both [Y] and herself and had been “badly distressed” by what she had observed. It was Ms Hopper’s case that [X]’s sleep patterns and appetite had been disturbed and [X] was withdrawn after the incident.[3]
[3] See mother’s affidavit filed 23 September 2009 at paragraph 5
As a result of what she perceived to be [X]’s adverse emotional reaction to what had occurred on 15 April, Ms Hopper arranged for [X] to consult a psychologist, Ms S. Ms S subsequently wrote a brief report regarding her involvement with [X] and Ms Hopper.
Ms S has never met Mr Hopper and accordingly has not had an opportunity to hear his account of the nature of the relationship between the parties nor to see Mr Hopper interacting with [X]. In these circumstances, Mr Hopper is highly dubious of Ms S’s report and its conclusions, particularly that she was not enlivened to the possibility that [X] may have been primed in her account of what had happened to her by her mother.
In her report Ms S reached the following conclusions:
“[X] presents as a vulnerable young girl who, if I base my assumptions on the truth of her statements during our sessions, has experienced genuine fear and distress as a result of interactions with her father Mr Hopper. These include the long term impact of living in an alleged Family Violence situation where she describes [Mr Hopper] engaging in verbally abusive, controlling and physically threatening acts towards her in her home as well as the immediate impact of witnessing the alleged physical assault of her mother and older sister by Mr Hopper. Although I have not heard Mr Hopper’s version of events, the sadness, fear and anxiety expressed by [X] appears genuine to me.
Although I cannot be an objective person in this matter and so cannot make long term recommendations about any future access visits between [X] and Mr Hopper, the negative effects of family Violence on children and families are well documented and acknowledged in the Family Court of Australia’s Family Violence Strategy and I believe need to be considered in this case. Therefore, considering the seriousness of the alleged assault, coupled with the long term nature of the alleged Family Violence perpetrated by Mr Hopper towards his family, I recommend that any access visits be denied until such time as a full Family Court Assessment that takes all parties opinions and views into account can be conducted. If however, the Court deems that access visits are in [X]’s best interest in the meantime, I recommend that any access between [X] and Mr Hopper be fully supervised by a non-family member in a neutral place such as a Supervised Access Service.” [4]
[4] See report of Ms S dated 16 September 2009 being annexure B to the affidavit of the mother filed 23 September 2009
Ms S’ conclusions have not been subject to any scrutiny in these proceedings, particularly through any process of cross-examination by those representing Mr Hopper. In these circumstances, Mr Hopper does not accept Ms S’s conclusions and believes they are based on the false premise that he is a violent and abusive person.
In her affidavit filed on 23 September 2009, the mother outlined other concerns, which she had at the time. In my view, these concerns are indicative of an extremely tense and unhappy relationship between the parties, which is only to be expected given that Mr Hopper had been charged by police with assaulting Ms Hopper and [Y].
In her affidavit, Ms Hopper raised her disquiet that Mr Hopper’s original application to the court raised allegations that she had been unfaithful to Mr Hopper. In addition, she asserted that [Z] had recently left her household because she believed that he was “cooperating with the husband and providing information to him.”[5]
[5] Ibid at paragraph 10
The matter returned to court on 25 September 2009. By this stage, the issue of [X]’s parentage had been resolved and there is now no issue that Mr Hopper is [X]’s father. It was also the position in September of 2009 that Mr Hopper’s bail conditions precluded him from approaching either [X] or the mother. There was apparently also a domestic violence restraining order, which had the same effect.[6]
[6] See father’s affidavit filed 19 October 2009 at paragraph 29
This was the background to the parties being directed to attend a child inclusive family dispute resolution conference, pursuant to section 11F of the Family Law Act. The conference was arranged for 22 October 2009. The family consultant convening the conference was Mr T.
Pursuant to section 11E of the Act, the court has a discretion to seek the advice of a family consultant in respect of any proceedings, which come before it. For that reason, what is said at such conferences is not subject to privilege or otherwise confidential. Rather, the consultant concerned can report back to the court as to what occurred in the conference, particularly whether any areas of agreement have been reached or how otherwise the matter should be dealt with by the court.
The Family Law Act was significantly amended by the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006. Through this amendment, the legislature has made significant directions as to how courts, such as this one, are to conduct “child-related proceedings”. These provisions are contained in division 12A of Part VII of the Act. These provisions apply at both the interim and final stage.
Pursuant to section 69ZN the court is required to give effect to a number of principles, whilst exercising jurisdiction in proceedings concerning children. These principles are as follows:
a)the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of proceedings.
b)the court is to actively direct, control and manage the conduct of proceedings.
c)proceedings are to be conducted in a manner which will safeguard the child and parties concerned from family violence, abuse and neglect.
d)proceedings are to be conducted in a way the will promote cooperative and child-focused parenting.
e)proceedings are to be conducted without undue delay, formality and legalism.
Pursuant to section 69ZQ, the court is provided with a number of duties in order to enable it to give effect to these principles. It may:
a)decide which issues require full hearing and which may be dismissed summarily;
b)decide the order in which issues are determined or what steps should be taken to determine issues;
c)in deciding whether or not a particular step is taken, consider the cost implications of such a step;
d)use appropriate technology;
e)use family dispute resolution or family counselling where appropriate;
f)deal with as many aspects of the case as possible on a single occasion and if appropriate without the physical attendance of the parties.
As a corollary to these duties, the court is provided with a number of powers pursuant to the provisions of section 69ZR. At any time in child related proceedings, it may:
a)make a finding of fact;
b)determine a matter arising out of proceedings;
c)make an order in relation to an issue arising out of proceedings.
These various principles and duties have been collectively described as being procedures designed to make proceedings, in regards to children, “less adversarial”.
In enunciating these various principles, the legislature recognised that unduly protracted litigation, regarding any child, is usually not helpful to the child, who is the subject of such litigation and certainly does not encourage those who are involved in his care to have a cooperative or collaborative approach towards his or her parenting.
The rationale behind the order for a child inclusive family dispute resolution conference, taking place in this case, was to see if this would assist the parties to be focussed on [X]’s interests and for [X] herself to be able to have a voice in them, particularly as her views were so central to it.
Perhaps naively, I hoped that such a conference would assist the parties to move forward in respect of arrangements for [X]’s care, particularly if they were both part of a process through which her views were canvassed by an independent and professional person.
Mr T provided a written advice to the court on 22 October 2009, following a conference on the same date. From Mr Hopper’s perspective, this date is significant as [X] was interviewed by police officers, in respect of the incident at the former family home in April, on 18 October 2009, only a few days prior to the conference.
Mr Hopper is suspicious about this scheduling of the police interview for a number of reasons. Firstly, given [X]’s tender years, he questions the utility of the police obtaining a statement from her, particularly in circumstances where the prosecution involved concerned one of her parents.
In these circumstances, he is suspicious that the mother has orchestrated the police interview in an attempt to reinforce whatever negative view [X] has of her father in the lead up to her involvement with Mr T. Accordingly, he remains sceptical about the validity of any views expressed by [X] to Mr T.
In the advice to the court, Mr T noted that the relationship between the parties was complex, being characterised by issues of power and control. As a result of his interviews with each of the parties, he noted both alleged that the other had been violent towards him or her.
Mr T described [X] as an articulate and engaging child. She had with her a soft toy, described as her “gentle bear”. She had received this toy from the police, on the occasion of her interview with them. Again, Mr Hopper is suspicious about the provenance of this toy and its use by [X] in the interview with Mr T.
In interview with Mr T, [X] apparently described events leading up to her parents’ separation. Mr T’ view was that [X] had experienced her father as “the aggressor” in this process and she said to Mr T that she had been “really really really scared of dad”.
In his advice, Mr T wrote as follows:
“[X] stated very clearly that she does not wish to see her father at this time because “I’m really angry at him for what he did” and “I’m really petrified of him – he hurt mum and [Y] and I’m scared he’ll hurt me … maybe down the track but not right now … maybe in a few years”. Asked how she would react if time with her father were ordered [X] hugged her bear tightly, and said in a tearful voice “I probably would refuse because I do not want to see him at all”. [X] thought that her mother “probably doesn’t want me to see dad … wouldn’t want me to get hurt … she’s said if I want to then it’s completely fine”. She believes her mother means what she said.”[7]
[7] See family consultant advice to court at paragraph 8
As a result of his interview with her, Mr T did not support the court making orders, which would result in [X] spending time with her father. In this regard, he did not think it would be in [X]’s interest to “force the issue”.
Mr T also considered it likely to be beneficial to [X] to continue with a course of counselling, particularly as it was her perception that she had been abandoned by [Z]. Mr Hopper was also recommended for counselling.
The parties’ competing applications were scheduled to return to court on 16 December 2009. In the meantime, as well as the family dispute resolution engagement with Mr T, the parties were due to attend a financial mediation conference, in respect of the financial issues between them.
On 16 December 2009, Mr Hopper did not formally raise any criticisms of the process involving [X] and Mr T. On this occasion, I was also advised that the parties had been able to resolve issues of matrimonial property arising between them. Accordingly, on this date, I was able to make a consent order finalising the parties’ respective applications for settlement of matrimonial property.
In broad terms, the orders provided for the parties’ former family home in [M] to be sold and for the proceeds to be divided 60/40 percent in the wife’s favour. Orders were also made for a superannuation fund to be wound up and for Ms Hopper to deliver up to Mr Hopper a number of specified items.
I was pleased that the parties had been able to resolve the property matters. Again, perhaps naively, I thought that with the consensual resolution of these difficult and emotional issues, some of the tensions in the parties’ relationship would ease and it would be easier for some rapprochement to be reached between [X] and her father, particularly if [X] continued with the process of therapeutic counselling recommended by Mr T.
On 16 December 2009, I made orders, with the consent of both parties, that [X] should continue to attend upon Ms S and that Mr Hopper also should consult her, so that Ms S would be able “to make a recommendation as to whether the husband should spend time with [X], and if so, as to the terms (if any) on which she should do so.”.
Mr Hopper, after some disputation, agreed to bear the costs of this process. The case was then adjourned until February in the New Year.
Unfortunately, certainly so far as the court process has been concerned, there has been a marked escalation in the intensity and vitriol of the proceedings between the parties. Both Mr Hopper and Ms Hopper have instigated contravention proceedings, against the other, in respect of the property orders made on 16 December 2009.
Ms Hopper alleged that Mr Hopper had not signed the necessary agreement to place the former family home on the market. Mr Hopper alleged that the wife had not provided him with the items of property, which the orders required.
I was also advised that Ms S had declined to facilitate the order involving her made on 16 December 2009 for “personal and professional reasons”. As a result, the parties were exchanging formal correspondence as to whether it was possible to involve an alternative therapist for [X].
On 24 February 2010, the parties were able to resolve their respective contravention applications. In respect of issues pertaining to [X], the parties agreed that they should engage Ms J, an experienced psychologist to undertake the role originally envisaged for Ms S. The proceedings were adjourned until 5 May 2010.
Unfortunately, the arrangements involving Ms J were not without incident. Controversy arose regarding how Ms J’s professional fees would be met and whether any part of those fees could be met by health insurance. The tenor of the father’s position was that the mother was unnecessarily delaying the process and seeking to shift all financial responsibility for it to him.
On 5 May 2010, I made orders for the mother to facilitate [X] attending on Ms J, on a number of specific dates. I also made orders in respect of the payment of the fees involved and how any “gap” between the fees and any moneys received through health insurance arrangements would be met. The proceedings were then adjourned to 10 June 2010.
On 1 June 2010, Mr Hopper filed a further contravention application in respect of the property orders. Again, he alleged that the mother had not provided him with items of property as specified by the earlier orders.
Mr Hopper’s second contravention application was listed for directions on 10 June 2010. By this time, the criminal charges against Mr Hopper had been dismissed by the [M] Magistrates' Court.
On 10 June 2010, it seemed to me that the contravention application needed to be resolved expeditiously. Mr Hopper asserted that a number of specific items had not been delivered to him. Ms Hopper’s position seemed to be that she had done all that was reasonably practical in respect of the orders and some items of property in dispute could not be located.
In these circumstances, I allocated 30 June 2010 as the date specified for the hearing of the contravention application. At this stage, I was also provided with a brief letter from Ms J, which detailed her involvement with [X]. Ms J’s view of the familial situation has not been subject to scrutiny through cross-examination through the court process. In those circumstances, it is appropriate to reproduce the entire contents of her letter, in these reasons for judgement.
“Thank you for referring [X] and her parents to attend upon [O].. I was requested to provide considerations regarding the possible risks and benefits to [X] of time with her father. A family assessment report was not requested.
I met with Mr Hopper and Ms Hopper individually prior to having two appointments with [X]. The situation has been stressful for all involved, as have their interactions at times with [O].
[X] presents as a capable child. She was confident in her expressed views and talked willingly about matters relating to school and general interests. [X]’s thinking about her mother and father was black and white, and fixed. Her reported experiences of her father were of a critical, aggressive and frightening parent. Her reported experiences of her mother are of a loving, supportive and understanding parent. There is no middle ground in her reported experience with either parent.
[X] shows no desire to see her father and expresses no awareness of ways in which he could demonstrate an ability to be a competent parent. At this stage, her determined view is that she should not be forced to spend time with him. Any interaction with her father is seen as overwhelming, unreasonable and unmanageable.
The parents are equally fixed in their views of the current situation – seeing each other’s behaviour as unreasonable and alienating. Neither offered ways in which their own behaviours and views might have contributed to [X]’s current views. Neither saw the other’s influence as beneficial to [X]’s development. Neither were willing or able to acknowledge that positive change could occur in the other parent.
If the Court chose to instigate time between [X] and her father, the risk is that [X] will continue to interpret any behaviours from Mr Hopper as fitting with her views. If he does persist in seeking time with her, it is likely to reinforce the view that he does not respect her feelings and wishes. Further, the alignment with her mother is likely to be strengthened as she returns to the maternal environment in which her position (i.e. that her father is someone to fear) is supported. Given the climate within her primary home environment, separating to spend time with her father is likely to be stressful (as was attending upon [O]) and any possible positive encounter overlooked.
[X] has experienced ongoing conflict between her parents though litigation after a stressful marital separation and, as such, some estrangement is not necessarily abnormal. The greater risk is that (if Mr Hopper has been violent within the family home) this situation is re-traumatic for [X] and disrupts her otherwise generally positive development (noting that the writer does not have third party confirmation of such).
If the Court chose not to pursue time between [X] and her father, one risk is that she loses the opportunity to develop a view of her father independent from the conflict of the marital relationship. This is in addition to her developing without a father figure. She is also likely to maintain a static, overwhelmingly negative perception of her father and continued idealisation of her mother, which is a risk to later establishment of healthy adult relationships. If Mr Hopper has been violent within the family home, however, it would normalise [X]’s response as being appropriate (that is, healthy avoidance of an abusive parent).”[8]
[8] See Annexure A to the affidavit of Ms F filed 8 June 2010
After having considered Ms J’s letter, Ms Hopper was of the view that nothing further could be achieved by compelling [X] to continue to attend on Ms J. In these circumstances, she opposed the court making any order compelling her to engage [X] in any way with her father, even through a sensitive and professional intermediary, such as Ms J.
Mr Hopper’s position was that the court needed to keep Ms J and [X] engaged in a therapeutic process directed towards him being
re-engaged with [X] at some stage in the future. As is clear from
Ms J’s letter, she did not provide a view as to how this could specifically occur and she had significant reservations about the potential pitfalls involved in [X] coming into direct contact with her father.
In an affidavit sworn on 9 June 2010, Mr Hopper deposed that he was hopeful that his relationship with [X] could be improved through him and [X] attending upon Ms J “for the purposes of therapeutic counselling to be directed at improving our relationship.”[9] Mr Hopper said that he was willing to pay all the costs involved in such therapy.
[9] See father’s affidavit filed 15 June 2010 at paragraph 6
This was the background to me making the following order:
“1. Further consideration of the contravention application filed 1 June 2010 and the issue regarding the mode by which [X] and her father should engage whether that should be postponed or should occur via a therapeutic channel with Ms J is adjourned to 30 June 2010 at 10:00am NOTING that Mr T will give evidence at 2:15pm on that day and FURTHER NOTING any evidence from the child’s school will be provided before 25 June 2010 and the teacher or counsellor concerned will give evidence by telephone on the adjourned date if required to do so.”[10]
[10] See order made 20 June 2010
Following the making of this order, Mr Hopper has significantly amended his position. As previously indicated, he now seeks orders that would see [X] living predominantly with him, on a final basis. He has filed a further affidavit. In this affidavit he asserted that the mother had been hospitalised in 2004 as a result of experiencing major panic attacks. It is his position that the mother continues to suffer from a panic disorder and depression. As a result, Mr Hopper asserted that
Ms Hopper was prone to be “volatile, unpredictable and aggressive” particularly when she was non-compliant with her medication.
Mr Hopper also alleged that Ms Hopper was attempting to influence [X], particularly through her (the mother’s) conduct in respect of the assault charges against him. It being his position that [X]’s record of interview with the police contained second hand statements critical of him and his behaviour, which she could only have received from her mother. It is Mr Hopper’s view that statements of this kind have played a central role in the breakdown of his relationship with [X].
Mr Hopper was also concerned that [X] was present at the
[M] Magistrates' Court, when the criminal charges against him were proceeding. Ultimately however, after the intervention of the presiding magistrate, the prosecution and defence agreed that [X] would not be required to provide evidence in the case.
Mr Hopper is of the view that it was open to Ms Hopper to indicate to the police prosecutor concerned that she did not agree to [X] being a witness in the case. The fact that she did not do so is, in Mr Hopper’s view, corroboration of his belief that Ms Hopper is actively engaged in aligning [X] with her against Mr Hopper.
The father is also concerned that Ms Hopper refuses to accept any financial assistance from him for [X] and amounts of child support have been returned to him. By necessary implication, Mr Hopper asserts that such conduct is evidence of the mother’s irrational antipathy towards him.
Mr Hopper also deposed that he continues to maintain a close relationship with [Z]. It is Mr Hopper’s view that the mother has ostracised [Z] because he continues to maintain a relationship with him. Furthermore, Mr Hopper is concerned that the mother has been willing to endorse the severance of a previously viable relationship between [Z] and [X] because of her own emotional needs.
It is Mr Hopper’s position that he learnt from [Z], on 22 June 2010, that [Y] had left Ms Hopper’s home, due to some form of dispute between her and Ms Hopper. This situation resulted in Mr Hopper expressing the following opinion:
“I am now extremely concerned for [X] given that she will be residing in the former matrimonial home, alone with the mother. I am further concerned that [X] and [Y] will now lose contact with each other, which will damage their relationship. This will, therefore [X] will lose contact with another significant person in her life, after having lost contact with me and then [Z]”.[11]
[11] See father’s affidavit filed 28 June 2010 paragraph 50
This was the background to Mr Hopper’s application that the court make some form of interim order, which would enable him to spend time with [X] in the company of either [Y] or [Z]. In respect of [Y]’s involvement, Mr Hopper conceded that there was currently a domestic violence restraining order, which prevented him from coming into direct contact with [Y]. However, he has further deposed that he has an application on foot to either vary or rescind this order, which is next scheduled to come before the court on 16 July 2010.
Finally, Mr Hopper raised concerns that the mother was engaged in a relationship with a person who lives in Townsville. In these circumstances, he sought an injunction which would restrain the mother from changing [X]’s place of residence from outside the metropolitan area of Adelaide.
Mr Hopper’s amended application and supporting affidavit were filed on 28 June 2010. Ms Hopper has not formally responded to the application, which was not originally envisioned when the parties were allocated a hearing on 10 June 2010. However, for obvious reasons, the matters raised in the father’s application have coloured those proceedings and I suspect added heat to the already troubled relationship between the parties.
The hearing of the two charges against Mr Hopper occurred at the
[M] Magistrates' Court on 15 & 16 April 2010. Mr Johansen S.M., the presiding magistrate, reserved his decision to 21 May 2010 and provided written reasons in support of it. I have been provided with those reasons.
I am, of course, not bound by the prior determination of another judicial officer, who has presided over proceedings, subject to a different standard of proof, concerning the same factual dispute, which comes before me. However, Mr Johansen’s judgement provides some background as to what occurred on 15 April 2009, which is not in dispute between the parties.
It is not disputed that Ms Hopper changed the locks on the parties’ former family home on the morning of 15 April, after Mr Hopper had left. Around midday on that day, Mr Hopper returned to collect items of his own personal property.
When his key would not operate the lock on the door, Mr Hopper concedes that he used a piece of firewood to break a window and gain entry to the property. It is also conceded that the mother, [Y] and [X] were at home at the time.
Some form of altercation then occurred, the factual basis of which remains in vehement dispute between the parties. Mr Johansen described the mother as a “poor witness [who was at times] blatantly inconsistent”. He found the father to be a more convincing witness. Mr Johansen did not find that the prosecution had established its charges against Mr Hopper beyond reasonable doubt.
I am not determining what occurred between the parties on 15 April 2009. That determination must await the judicial officer who ultimately determines the parties’ competing applications, in respect of [X], on a final basis. However, in my view, the parties’ obviously poor relationship and the resulting trauma, extending over many months, must have some relevance to the issue which falls for determination currently.
The legal principles applicable
In making any interim decision concerning any child (as at the final stage), the best interests of the child or children affected by the decision remain the most important consideration. The matters which the court must take into account in deciding how a child’s best interests are to be served is set out in the Family Law Act [see section 60CC].
What have been called the best interest considerations rest on two main pillars. The first is the importance to children of having a meaningful relationship with both parents. The second is the need to protect children from physical and psychological harm as a result of exposure to abuse, neglect or family violence.
In the case of Goode & Goode[12], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[12] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.
The presumption set out in section 61DA is a complex legal concept. In essence, the law requires the court to presume that it is the best interests of any child, whose parents bring an application before the court about parenting arrangements for that child, to have equal shared parental responsibility for him or her. The presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
Issues
a) Should [X] be independently represented in these proceedings?
The parties both agree that, due to the complexity of the proceedings, it is appropriate that [X] be represented independently of her parents in them.
In Re K[13] the Full Court of the Family Court set out some criteria to guide the court in respect of the appropriate circumstance in which to appoint independent counsel for children. Some of those criteria, outlined below, appear to be applicable to the circumstances of this case:
·Cases where there is an apparently intractable conflict between the parents;
·Cases where the child is apparently alienated from one or both parents;
·Cases involving issues of psychological illness pertaining to one of the parties;
·Cases involving a child expressing strong views, the giving of effect to which would result in the complete denial of access to another parent.
[13] See Re K (1994) FLC 92 461
In my view, this is clearly a case which warrants the appointment of an independent legal representative for [X] and I will make an order to this effect.
b) Issues in dispute between the parties
There are many issues in dispute between the parties. However, the central issue concerns the nature of the parties’ relationship with one another and who was the primary instigator of acts of violence between them.
Subsidiary to this issue is the emotional consequences for [X] of exposure to this violence and what can be done to protect her from it. As has previously been indicated, I am not in a position to resolve this central issue definitively at the interim stage.
The other major issue concerns the factors at work in shaping [X]’s current attitude towards her father. Are her views the valid and understandable reaction of a child who has been exposed to an insensitive and violent person or is she being actively manipulated and primed by an emotionally needy and manipulative parent? Again, these proceedings cannot resolve this issue.
c) Should a family assessment report be prepared?
Kelly & Johnston speak of children being “triangulated” by intense marital conflict, which creates a “hostile dynamic”, placing the child at a greater risk of becoming alienated. They highlight that many factors may be in play in this process of triangulation and that those factors do not emanate from one parent alone. Thus it is usually simplistic to consider that there is an alienating parent and a parent who is the victim of such alienation.
Kelly & Johnston identify the following factors as being relevant to an apparently “alienated child”:
·A history of intense marital conflict;
·A humiliating separation;
·Subsequent divorce conflict and litigation;
·The personality dispositions of each parent;
·The age, cognitive capacity and temperament of the child concerned.
Whether these factors are present in the current case and to what degree is unknown to me, at this stage. In particular, it is impossible for me to assess the implications of each parent’s disposition and prior behaviour as contributors to the current impasse.
As such, I consider it likely to be a simplistic reduction that the court will be able to determine the appropriate outcome in this case – that is the outcome which will best serve [X]’s interests – by it conducting a hearing centred on the credibility of the parties alone. In my view, the issues at play between Mr Hopper and Ms Hopper are likely to be far more complex.
In my assessment, I should adopt the terminology of Kelly & Johnston and characterise the current case as a challenging and demanding one. In my view, it is one which requires a full psychological assessment of all the parties involved, including [X] and possibly also [Y] and [Z], subject to their willingness to be involved.
However, at this stage, I propose to await the appointment of the independent child representative, before embarking on the formal process of obtaining such a report and determining its parameters and participants, given the controversy likely to surround such issues. In addition, clearly, [X]’s representative, when appointed, is likely to have views as to who is the appropriate person to prepare such a report.
d) Section 60CC factors
The principles underlying Part VII of the Family Law Act place parents in a position of primacy towards their children. Children have a right to know and be cared for by both their parents and to spend regular periods of time with them [section 60B(2)(a) & (b)].
Children gain a sense of personal identity by interacting with their parents – their biological instigators with whom they share a genetic inheritance – in a variety of settings and circumstances. As such it is a significant thing to deprive a child, of any age, of the opportunity to know a parent at first-hand.
A child’s parents are also likely to be a source of unconditional love and approval for the child concerned. For these central and self apparent reasons, children benefit from having a “meaningful” relationship with both their parents.
The parental bond, involving nurture and support, is central to a child’s ongoing development. Children need both paternal and maternal role models to assist them to move appropriately towards maturity and become competent and insightful parents in their own turn.
As Ms J points out, there is a real risk present, in this case, that [X] may lose the opportunity to have such a relationship with her father and will view him (and possibly other males) with only negative connotations. Accordingly, I acknowledge that the issues at stake in this case are highly significant and potentially long lasting for [X].
The mother’s position is that the court’s pre-eminent responsibility is to consider the need to protect [X] from suffering recurrent psychological harm, as a result of her prior exposure to her father’s violent behaviour, within her familial setting. It is Ms Hopper’s case that she herself has been the subject of the father’s violent outbursts.
Just as the objects and principles of the Family Law Act emphasise the responsibility of the court to maintain a child’s meaningful parental relationships, so do they reinforce the need to protect children from both physical and psychological harm, as a result of being subjected to, or exposed to, abuse, neglect or family violence [section 60B(1)(b)].
All allegations of family violence must be closely examined by the court. Exposure to family violence represents a multi-faceted danger to children. At its most obvious level, it may represent a direct risk of injury to the child concerned. However, more often, it may cause a child to be at risk of living with fear, insecurity and vigilance because of a fear that a parent perpetrating violence will abuse their other parent, whom they love.
In addition, violent parents are inappropriate role models for children. There is a real danger that children, who are exposed to family violence, will perceive that abuse is part of life for females (in particular) and become accepting of such behaviour. As a consequence, children may learn that violence is an appropriate way to resolve disputes and thus will follow in the footsteps of a violent parent, when they become parents themselves, thus entrenching a cycle of violence between familial generations.[14] This is equally damaging for boys and girls.
[14] See Blanch v Blanch & Crawford (1999) FLC 92-837 – per Mullane J at 92-837
In T & N,[15] Moore J, after reference to social science research, identified the highly detrimental consequences, to the wellbeing of children, of being exposed to family violence. She said as follows:
“They are terrified and simultaneously come to accept it as an expected part of life; they may learn that violence is acceptable behaviour and an integral part of intimate relationships; or that violence and fear can be used to exert control over family members; they may suffer significant emotional trauma from fear, anxiety, confusion, anger, helplessness and disruption in their lives; they may have higher levels of aggression than children who do not have that exposure; and they may suffer from higher anxiety, more behaviour problems and lower self-esteem than children not exposed to violence. Clinical profiles for children who witness domestic violence include post-traumatic play, diminished ability to regulate affect in the forms of hyper-arousal, numbness, emotional constriction, a low frustration threshold, nightmares and other sleep disturbances, aggressive behaviours, intense and multiple fears, regression in developmental achievements, and disturbances in peer relations.”
[15] See T & N (2003) FLC 93-172 at 78,760
In her original affidavit, Ms Hopper has alleged that [X] suffered from some of these symptoms, specifically nightmares and other sleep and appetite irregularities. No matter who was the primary instigator of the altercation, which occurred between the parties on 15 April 2009, it appears to have been a violent one and although it is conceivable that [X] did not specifically witness it, it seems unlikely that she would have been unaware of it. Certainly, it seems unlikely that she would not have heard something of it.
Accordingly, regardless of the truth of whether [X] has or has not been primed by her mother, I regard her as a vulnerable child. In my view, this vulnerability behoves that the court take a cautious approach in respect of ongoing arrangements for her to engage with her father.
[X]’s views about whether and how she should engage with her father are important. However, the court is also required to consider any factors impacting on her views and the level of maturity and degree of insight, which lays behind such views [section 60CC(3)(a)].
I am uncomfortable with a child of [X]’s age being placed in a position where theoretically she can determine whether she will have a relationship with her father and what form it will take. Clearly, at eleven years of age, [X] is not in a position to appreciate the potential long term detriment of not having a paternal role model in her life. Nor is she likely to have a sophisticated level of insight into the consequences of her mother’s antipathy for her father, in the shaping of her own views. The emotional situation surrounding [X] is complex and labile.
Given this degree of complexity, I am concerned, in the absence of a more detailed assessment, of the consequences of the court essentially disregarding [X]’s views and compelling her to undertake a process of counselling, with her father, to which she is opposed.
Ms J has interviewed Mr Hopper and [X]. Although, I do not know what was said in these respective interviews, Ms J was not willing to oversee a direct physical introduction of the two in her rooms. In this context, Ms J has reported that [X] sees the prospect of any interaction with her father as “overwhelming, unreasonable and unmanageable”.
In this context, Ms J does not offer any timetable or suggest any strategy through which [X] may be introduced to her father. Certainly, she does not offer herself as such an instrument. Rather, she expresses the invidious consequences, from [X]’s point of view, of either forcing her to spend time with her father, against her will, or of allowing her paternal relationship to lapse, in a stark dichotomy.
In essence, Ms J’s letter is pessimistic and provides no solution, however tenuous, for the dilemma which currently confronts the court. As I put it to Mr Bowler, I am damned if I do what the father wishes and damned if I don’t, so far as Ms J is concerned.
Perhaps more importantly, Mr Hopper himself provides no clear proposal as to how the therapeutic counselling, which he proposes, would work. Mr Bowler contends that the purpose of therapy is for the therapist engaged to challenge the belief systems of the patient concerned.
This is all very well when the therapist concerned is dealing with something like an irrational phobia or some form of compulsive behaviour being displayed by the patient concerned. But [X] is an eleven year old child. She is not a willing participant in a process of cognitive behaviour therapy or the like. At this stage, I have no way of adequately assessing whether her apparent fear of her father is rationally or irrationally based.
If Ms Hopper is to be believed, [X] is rationally responding to her own direct experience of her father. If Mr Hopper is to be believed, [X]’s fear of him is based on phantoms created by the mother.
Certainly, from her direct interaction with her, Ms J does not appear to have considered that [X] was behaving in either an irrational or illogical manner. Rather, she regarded [X] as a capable and confident child.
In these circumstances, I question the utility of a process directed to challenging [X]’s belief systems about her parents, particularly given that Ms J does not advocate such a process or offer clear guidelines as to how any proposed therapy involving Mr Hopper and [X] would proceed. Certainly, she cannot be said to be an advocate of such a process. Essentially, Ms J is silent about how [X]’s relationship with her father may be restored.
I can understand why Mr Hopper feels frustrated and upset by the current impasse between him and [X] but I fear that in advocating the ongoing therapy between himself and [X] he has no clear understanding of how such therapy will work but is only hopeful that “something will turn up” from it.
In 2000 the English Court of Appeal, via the Official Solicitor, instructed two consultant psychiatrists, Doctors Sturge and Glaser to prepare a joint report regarding the implications of family violence, which arose from four appeals before the Court of Appeal. This report was entitled “Contact and Domestic Violence – The Experts Court Report”.[16] This report was cited by the Court with approval in the four appeals concerned.[17]
[16] Contact and Domestic Violence – The Experts Court Report [2000] Fam Law 615
[17] See Re L (Contact: Domestic Violence) [2000] 2 FLR 334 per Dame Butler-Sloss
Doctors Sturge and Glaser specifically considered the problem of a child, who was adamant that he or she did not wish to see a parent, in the context of a violent family situation. In such a situation, Doctors Sturge and Glaser suggested that the following factors ought to be accepted:
·The child must be listened to and taken seriously;
·The age and understanding of the child are highly relevant;
·The child, and the younger and more dependant, either for development or emotional reasons, if in a positive relationship with the resident parent will inevitably be influenced by:
Ø That parent’s views;
Ø Their wish to maintain his or her sense of security and stability within that household.
Doctors Sturge and Glaser indicated that going against a child’s wishes must involve the following:
·Indications that there are prospects of the child changing his or her view, as a result of preparation work or the contact itself, for example there is a history of meaningful attachment and a good relationship;
·The non-resident parent has child centred plans as to how to help the child overcome his or her resistance;
·There are some indications of ambivalence from the child concerned, such as an adamant statement of not wanting to see that parent accompanied by lots of positive memories and affect, when talking of that parent.
In addition, Doctors Sturge and Glaser indicated that a decision maker, in such a context, needed to give consideration to the possible effects on the child concerned of making a decision that appears to disregard the child’s feelings and wishes, particularly when the child is forced to do something, which he or she cannot see the sense of.
Accordingly, in a psychiatric sense, particularly when young and dependent children are concerned, it may not necessarily have sinister connotations that a child is being influenced by his or her primary carer.
I appreciate that I am not bound by the decision in Re L and, in addition, it may be imprudent of me to give undue weight to the various considerations raised by Doctors Sturge and Glaser before the factual circumstances of the case are determined. However, although given that Ms J is an experienced child psychologist, her intervention may be considered child focussed, there exist none of the other positive indicia raised by the English experts in this case.
In particular, neither party can point to any evidence of ambivalence in respect of [X]’s stated views about her father. In addition there are no current indications that there are reasonable prospects, in the short term, of [X] changing her position. As such, there do not appear to me to be significant indications that the court should go against [X]’s self professed wishes.
Mr T and Ms J, like the English experts, caution the court against disregarding [X]’s views, without a proper basis to do so. In particular to compel [X] follow a process to which she is opposed may not result in the break through Mr Hopper seeks but may lead in the opposite direction and to a hardening rather than a softening of her attitude to her father.
In my view, this is a significant factor in this case. No matter who or what is influence [X], she has told Ms S, Mr T and more recently Ms J that she does not want to interact directly with her father and is apprehensive about such a prospect.
It is in this context that the court must, on the basis of the limited evidence available to it, assess whether there are any potential benefits to [X] of compelling her to persist with a process of therapeutic counselling directed towards reintroducing her to her father. At this juncture, given [X]’s opposition to such a process and the fact that Ms J does not clearly recommend it, I am not persuaded that such a process is likely to be beneficial to [X] at this stage.
One of the underlying themes of Mr Hopper’s position is that therapy, of itself, can do no harm and although the prospects of it being successful, in terms of [X] re-engaging with him successfully during it are slight, nonetheless in the worrying circumstances of the case, the court is duty bound to pursue whatever intervention may possibly lead to the restoration of [X]’s relationship with her father.
Like Doctors Sturge and Glaser, Kelly and Johnston caution about the unforseen consequences of involving therapists, for children such as [X], without detailed consideration. They wrote as follows:
“When therapists selected for the child have no knowledge of child alienation processes or collaborative efforts needed to assist such children and families, considerable harm can be done in supporting and consolidating the child’s rage and unwarranted rejection of the parent.”[18]
[18] Ibid at page 257
In my view, although I appreciate that time is of the essence to
Mr Hopper and he feels frustrated by any delays, it is likely to be more beneficial to [X] to await the input of the independent children’s lawyer and any detailed family assessment report before turning to the question of what is the appropriate means, if any, to reinstate her relationship with her father.
As these steps are undertaken, the parties’ competing applications can also move towards trial, which will provide a forum for the forensic examination of the nature of their marital relationship. Clearly, definitive findings about whether the relationship was or was not violent will be influential regarding how the court shapes any future orders, which deal with [X]’s relationship with her father.
Pursuant to section 60CC(3)(c), the court is required to consider the willingness and ability of each of a child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent. It is Mr Hopper’s case that the mother is incapable of supporting his relationship with [X], in any way whatsoever. In my view, this central issue is a matter for the final hearing. At this stage, it is not possible for me to ascertain definitively the reasons why [X] is estranged from her father.
Having considered the various section 60CC factors applicable, I have come to the conclusion that it will not be in [X]’s best interests, at this stage, to make the order regarding her attendance on Ms J, which
Mr Hopper seeks. The parties agree that Mr Hopper should be able to correspond with [X] by letter and email, as well as by sending her appropriate gifts. I will make an order to this effect.
d) The presumption of equal shared parental responsibility
Clearly this is a case where the presumption of equal shared parental responsibility is rebutted. Given the degree of deadlock between the parties and the fact that [X] is ostensibly aligned with her mother, it is not appropriate for the presumption to be applied at this interim stage.
e) Should the proceedings be transferred to the Family Court?
Both the father and the mother wish the case to remain in the Federal Magistrates Court. It is the position of both parties that the case will receive a sooner hearing date, in this court, than in the Family Court at Adelaide.
Although the matter is clearly a complicated one, given this preference expressed by the parties, I will not transfer the proceedings to the Family Court but will allocate a date for final hearing in the New Year in this court.
I will adjourn the proceedings to a date in approximately eight weeks time, when I anticipate that the independent children’s lawyer will have been appointed and further attention can be given to preparing the matter for final hearing and the nature of the expert report which is required.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 8 July 2010
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