In the Marriage of R [Children's Wishes]
[2002] FamCA 383
•31 May 2002
[2002] FamCA 383
In the Marriage of R [Children’s Wishes]
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT MELBOURNE
Appeal No : SA 30 OF 2001
From File No : ML 9004 OF 1998
BETWEEN :
R
Appellant Wife
- and -
R
Respondent Husband
EDITED REASONS FOR JUDGMENT OF THE FULL COURT
CORAM: NICHOLSON CJ, HOLDEN & MONTEITH JJ
DATE OF HEARING: 10 DECEMBER 2001
DATE OF JUDGMENT: 31 MAY 2002
APPEARANCES: For The Appellant /Wife
Mr Spicer of Counsel and DrIngleby of Counsel
Instructed by Clancy & Triado Solicitors
DX 12403
CAMBERWELL
For the Respondent /Husband
Mr O’Shannessy of counsel
|
Coram: Nicholson CJ, Holden and Monteith JJ.
Date of Hearing: 10 December 2001.
Date of Orders: 31 May 2002.
Date of Publication of Judgment: 31 May 2002.
CHILDREN – contact – wishes of child – whether the trial Judge gave sufficient weight to the expressed wishes of the child – whether the trial Judge gave sufficient weight to the effects upon the child of forced contact - whether the trial Judge gave adequate weight to the expert evidence
APPEALS – application to adduce further evidence – evidence not credible - evidence would have been unlikely to affect the outcome of the trial – application refused
This was an appeal by the mother against orders for contact made by his Honour Justice Guest on 27 April 2001. The issue relates to the child C, who was aged 11 at the time of the trial, and whether there should be orders for contact with her father, against her expressed wishes.
The parties married in 1986 and separated in 1998. There are three children of the marriage, all of whom have resided with their mother since separation. There was no dispute between the parties that the children should live with their mother who has been their primary care-giver since birth. C, the second youngest child no longer wishes to have contact with her father, and at the time of trial had not seen him since June 2000. The eldest child, J, who is now 14, similarly no longer wishes to see her father, and ceased having contact in February 1999. The father reluctantly accepts this, but does not accept that he should no longer see C. The youngest child, D, who is now 9, continues to see his father on a regular basis.
At trial the mother maintained that C’s wishes should be respected and that she should not be required to see her father. It was the father’s case that C’s wishes have been brought about as the result of the behaviour of the mother and should not be given the weight that would normally be attached to them.
His Honour made a number of unfavourable findings about the mother’s attitude to contact. He found that she had not overtly encouraged C to have contact with her father and did little if anything to actively promote the advantages of contact and present the father in a positive light.
His Honour was not satisfied that the wishes of C were soundly based or founded upon mature and independent considerations. His Honour accepted that C’s wish was strongly held, but considered that she was not appreciative of many of the factors that he had heard or the longer term implications of her view. His Honour was satisfied that despite her expressed wishes C had a fond and loving relationship with her father as well as her mother. His Honour accordingly, made orders for contact, albeit with a staggered introduction.
On appeal the mother argued inter alia:
That his Honour failed to give any or sufficient weight to the evidence of the child’s treating psychiatrist, Dr Davis;
That his Honour failed to give sufficient weight to the evidence of the Court Counsellor, and gave greater weight to the evidence of the Court Expert;
That his Honour failed to give sufficient weight to the wishes of C and/or her depressive condition in considering her wishes;
That his Honour failed to give sufficient weight to the deleterious effects upon the child of the forced contact; and
That his Honour failed to have sufficient regard to the evidence of the child’s fear of the father.
Held – dismissing the appeal:
His Honour had the advantage of observing Dr Davis and of hearing him cross-examined. His findings must be read in light of his findings as to the mother’s role in relation to contact and his acceptance of the father’s evidence as to what occurred during contact. Dr Davis’ failure to interview C without the presence of her mother is extremely troublesome in a case of this nature. It seems to have involved an uncritical acceptance that the mother was playing a neutral role in the matter. It also failed to empower the child to express her own views independent of her mother. Had Dr Davis also interviewed the father and attempted to make an objective observation of the relationship and interaction between the child and her father, his evidence would have been more substantial. Dr Davis would also have been in a better position to compare and contrast the presentation of the child had he done so. His Honour was perfectly entitled to discount the evidence of Dr Davis and there is no error on his part for doing so: W and W: Abuse allegations; expert evidence (2001) FLC 93-085 applied.
His Honour disagreed with the Court Counsellor’s view that the wife was genuinely supportive of the father’s relationship with the children. He made a number of specific criticisms of her conclusions and in substance rejected them. His Honour considered the evidence of the Court Expert to be important and relevant and not rendered stagnant by the passage of time. His Honour accepted the Court Expert’s conclusion that the mother did not appear to be actively encouraging a relationship between the father and the children and her opinion that the underlying reasons appear to relate to the mother’s need to control the situation. His Honour’s own observations of the mother at trial confirmed the Court Expert’s assessment of the mother’s behaviour.
The principle is clear that a Court must take the children’s wishes into account, but is not bound by them. In this case his Honour found that the wishes expressed by the child should be given less weight than would normally be the case having regard to all of the evidence and particularly the attitude of the mother to contact. This was clearly open to him and it was not argued to the contrary. His Honour was clearly entitled to come to the conclusions he did concerning the children’s wishes and there was no appealable error on his part.
This is not a case where there is a background of violence or ill treatment. On the contrary it is a case where it is common ground that the father had a good and loving relationship with the children prior to separation. On the basis of his Honour’s findings nothing has occurred since separation on the part of the father has altered that situation. This is a situation where first one and then a second child refuses to see their father. From the evidence, C had a warm relationship with her father that continued well into 2000. The inevitable question arises as to what has brought this change about. The answer that his Honour arrived at is that it is associated with the mother’s conscious or unconscious discouragement of contact. There is plenty of evidence from which his Honour could arrive at this conclusion.
In the present case the trial Judge found that the child’s fears and expressed wishes were caused by the background to which he referred in detail and to the behaviour of the mother. He was clearly aware of these concerns when he made the staggered order that he did in relation to contact.
Reportable.
Introduction
This is an appeal in which the issue relates to the child, C, who was 11 at the time of the trial before Guest J and is now 12. She is the second of three children of the marriage between her father and mother. It appears that she no longer wishes to see her father and at the time of trial had not seen him since June 2000. The eldest child, J, who is now 14, similarly no longer wishes to see her father. Her father reluctantly accepts this. He does not however accept that he should no longer see C. The youngest child, D, who is now 9, does see his father on a regular basis.
There is no dispute that the children should continue to live with their mother. She has been their primary care-giver since birth and they have lived with her since the father and mother separated in September 1998. They commenced living together in 1983 and married in 1986.
Guest J made orders that the children live with their mother, and that each parent have day to day responsibility for the children during such times as they may be with them.
He made no direct contact order on 27 April 2001 in relation to J but ordered that the mother use her best endeavours to encourage J to see her father. He also ordered that the father be entitled to forward letters, cards etc. to J.
He made detailed contact orders by consent in relation to D.
None of these orders were in dispute on the appeal.
There is a real dispute in relation to C. The mother maintains that her wishes should be respected and that she should not be required to see her father. The father says that these wishes have been brought about as the result of the behaviour of the mother and should not be given the weight that might normally be attached to them. He says that he should have contact with her at the same times as D, albeit after a staggered introduction to contact.
Background
The father is and was a school teacher with specialist education qualifications.
The mother met the father when she worked as a housemother at his place of employment.
By January 1996 the parties’ marriage had fallen upon unhappy times.
In August 1997 the father was placed on sick leave for approximately fourteen (14) months. In November 1997 he commenced seeing Dr P, a psychiatrist, to assist with a depressive illness. Dr P’s evidence was to the effect that the father has completely recovered from this illness. He thought as at 5 February 2000 that the father was in a psychiatrically healthy state and that he saw no impediment to him being able to provide excellent fathering input to the children. The mother at trial had sought to make this illness an issue adverse to the father. His Honour rejected this and accepted Dr P’s evidence.
No ground of appeal was directed to this finding and we mention it only because we think that it supports his Honour’s finding as to the attitude of the mother to contact.
In 1998 the parties also consulted with a counsellor at Relationships Australia on a weekly basis and they also consulted with another psychiatrist.
The children were also seen by a counsellor at Relationships Australia in 1998.
In that year the father and mother also conferred with another consultant psychologist.
They were unable to resolve their marital differences, despite these efforts.
In August 1996, J was referred to a paediatrician and in January 1997, she was referred by him to Dr C, a psychiatrist, for treatment for an obsessive-compulsive disorder.
When the father and mother separated the father had regular contact with all three children. However, by February 1999, J refused to have contact with him. C continued to have contact until June 2000. D continued and continues to have contact with his father.
History of Proceedings
On 11 September 1998 the mother filed an application for final orders seeking residence of all three children, with contact to the father. On 13 November of that year the father filed a response seeking a shared residence arrangement.
On 17 November 1998 consent orders were made in relation to interim contact.
On 4 December 1998 orders were made by consent that the parties attend upon Ms M, a psychologist, for the purposes of a family report.
Contested interim applications were adjourned to 23 December 1998 and consent orders were then made in relation to contact, including overnight contact.
Mushin J heard the contested interim applications on 22 December 1998 and made detailed orders, including overnight contact for all three children. Guest J, regarded his Honour’s then comments as significant. We share that view.
Mushin J described Ms M’s report as making very disturbing reading. He commented that it was apparent from Ms M’s report that there were signs of rejection by the children of their father. Ms M said in her report that the mother saw her role as providing an avenue for the children to present their views. The mother told Ms M that her views were entirely guided by the children’s wishes. She did not accept that she was seeking to limit the children’s contact with their father.
Mushin J considered that the mother’s approach was potentially dangerous for the children in that she might be giving the children too much power in determining what should happen. He warned that she was not doing enough to facilitate contact and that there could be difficulties in the future.
Further consent orders were made on 18 February 1999, providing for C and D to reside with the husband on alternate weekends, and on the Wednesday of each week from close of school until the commencement of school on Thursday morning. Orders were also made for contact between the husband and J on each alternate weekend from 10.00am Saturday until 6.00pm Sunday, to coincide with the contact periods for C and D.
The matter came back before Registrar Raby in June 1999. She noted that J had not been attending for contact since February 1999 and that the father had reluctantly accepted this situation. She noted that the wife proposed that contact with the other children be further reduced.
Ms Raby also referred to the mother’s stated position, that she was aware of and supportive of the notion of the children having an ongoing relationship with their father. The mother claimed that the children had expressed strong views that they did not wish to have contact with the father and thought their views should determine the parenting arrangements. Ms Raby noted that the Child Representative had expressed real concerns regarding J’s medical condition and the possibility that her approach and behaviour would filter down to the younger children.
Ms Raby made orders substantially in accordance with the father’s request for continued overnight contact with the two younger children. This approach was supported by the Child Representative.
The father and mother were formally divorced in December 1999.
On 20 December 1999, specific orders, opposed by the mother, were made for the father’s contact with C and D covering the Christmas/School holiday period. The contact did not occur as ordered.
During December 1999 the parties and the children also attended upon Ms Warhaft, a Court Counsellor, for the purposes of preparing a further family report. She delivered her first report following a series of interviews in December 1999 in anticipation of a February trial. That did not proceed and her second report followed further interviews in August 2000 immediately prior to trial.
The trial commenced on 4 September 2000. It continued for some 11 days during September and October 2000 before Guest J and his Honour gave judgment on 27 April 2001.
Summary of Relevant Findings of the Trial Judge
·Prior to separation the father played an active and participatory part in the general nature and development of the children, including C.
·When seen by a counsellor, Ms M on 22 December 1998, C easily engaged with her father and was affectionate towards him.
·Another counsellor, Ms Warhaft, observed in December 1999, that C was a happy child in need of love and acceptance from both her parents.
·Despite J having ceased contact in February 1999, and despite her sharing a close sibling relationship with J, C continued to see her father for a further 18 months.
·Contact visits between C and her father proceeded in a relatively satisfactory way until May 2000.
·The father is a genuinely caring and loving parent who is aware of and sensitive to the concerns of C.
·The fear and anxiety displayed by C in attending contact related to her sleeping patterns, given the absence of J. This was not helped by the fact that both J and C slept in the mother’s bedroom for substantial periods. The father was aware of this problem and took a sensitive approach to it. In particular, he had not acted in any way that could have had the effect of terrorising her.
·The mother did not actively encourage contact and the children were aware of this. She inflicted her views upon the children to the extent that her wishes became their wishes. She also placed too much power in the hands of the children in determining issues relevant to their welfare.
·The mother maintained the children’s dependencies and insecurities in an unhealthy way.
·The mother passively if not directly influenced the wishes of C. She failed to actively encourage C in a responsible and unselfish way to enjoy contact with her father.
·C was well aware of the polarised positions of her parents. Her strongest allegiances lay with her mother and the household in which she lived. Her sister no longer saw her father. She was faced with a conflict of loyalty and chose that with which she felt more comfortable and expedient.
·The wishes of C are not soundly based or founded upon mature and independent considerations. While C has a strongly based view that she does not want to see her father, she is not appreciative of its implications or long term effects.
·The father’s pursuit of a shared parenting arrangement was ill advised, but he did so in good faith and has a proper understanding of his responsibilities as a parent. It became a foundation of the mother’s, and then the children’s, discontent and the perceived source of the children’s complaint that their father did not listen to them.
The Grounds of Appeal Raised by the Mother
Leading Counsel for the wife, Mr Spicer, indicated that he did not intend to abandon any of the grounds of appeal, but would put little or nothing in relation to a number of them.
This is unsatisfactory. In our view, if counsel for the appellant is not prepared to advance any serious argument in relation to one or more grounds of appeal, there is no reason why the Full Court should deal with them. Counsel’s approach seems to involve some sort of process of lying in wait, in the hope that the Full Court might say something in relation to one of these un-argued grounds that will give a basis for an application for leave to appeal to the High Court.
We reject this approach. If the point has so little substance that Counsel does not wish to argue it then we see no reason to deal with it.
In any event, the mother’s grounds of appeal, while voluminous, may be condensed to a small number of propositions. These are :
·That Guest J failed to give any or any sufficient weight to the evidence of the child’s treating psychiatrist, Dr D;
·That he similarly failed to give any or any sufficient weight to the evidence of Ms Warhaft. In her supplementary grounds of appeal this was developed further.
·The substance appears to be that his Honour erred in ascribing greater weight to the evidence of Ms M than that of Ms Warhaft;
·That he failed to give sufficient weight to the wishes of C. This ground was later amplified to assert that his Honour had mistakenly considered that the issue was one of duration of contact rather than no contact at all. It was also asserted that his Honour failed to have regard to the child’s depressive condition in considering her wishes and also to the evidence of Ms Warhaft and Dr D.
·That he failed to give sufficient weight to the deleterious effects upon the child of forced contact.
·In her amended grounds, the mother also relied upon what she said was his Honour’s failure to give sufficient weight to Ms Warhaft’s evidence that the child could not tolerate the possibility of contact and was a vulnerable child who would be destabilised by contact.
·That he failed to have sufficient regard to the evidence of the child’s fear of the father.
The Findings of the Trial Judge as to the Mother’s Attitude to Contact
Before dealing with these grounds it is important to note that his Honour made a number of extremely unfavourable findings about the mother’s attitude to contact. They were not the subject of attack on appeal.
His Honour summarised the mother’s evidence as follows:
· She acknowledged that J’s problems began prior to separation and that both she and the father had been concerned about her welfare.
· She gave evidence about certain incidents that J had told her occurred during contact at the father house.
· These included an incident where J had said that she was dragged up the stairs and hit her head in October 1998 and another where she awoke to find her father kissing her on the lips. His Honour took the view that either J or the wife had exaggerated these events and that there was nothing untoward in the conduct of the father arising from any of these incidents.
· The mother acknowledged that she supported J’s desire not to have contact and there were good reasons why she did not wish to see her father. The mother said that she had encouraged J to have contact. His Honour said he was:
“Extremely sceptical as to that assertion and in my view she yielded to the child’s wishes without mature consideration and without any objective scrutiny of her complaints”.
Further, his Honour commented that whilst he had no doubt that the mother had listened to the children’s concerns about contact, he did not accept that she encouraged it in an active and positive way or promoted and fostered the children’s contact with their father.
The mother agreed that the three video tapes, produced by the father, showed D and C having a good time in his company. His Honour found this evidence to be helpful. The mother conceded that until February 2000, C slept in her bedroom regularly and for most of the time, and that although C no longer slept there, D continued to do so.
The mother said that following the contact period between 2-4 June 2000, C no longer wanted to go on contact. When asked what were the concerns of C, the mother said that the child had:
· Feelings of being unsafe;
· Been frightened;
· Found it was extremely difficult to get through the night time; and
· Stayed awake a lot of the night and she was getting very tired.
When asked whether she believed that they were good reasons for C not to go on contact, the mother said: “I responded to her feelings.” It was put again to her and she said that they were very good reasons and considered that it was likely C knew her views on it. She said that she opposed C having any contact with the father until “it can happen through Dr D”, the child's treating psychiatrist.
The mother acknowledged that the children were dependent upon her for emotional support, but she did not see that dependence as undermining their self confidence and maintained that the children thought for themselves.
His Honour however, was satisfied from her evidence, that the mother disingenuously employed the wishes of the children to validate her case. His Honour also noted the mother’s very tentative approach when asked by Counsel for the Child Representative what she perceived to be the positive aspects of the husband as a father, which he found to be in sharp contrast to the father’s evidence as to her contributions a parent.
She admitted that prior to separation, the father was a good father and that he loved the children and she acknowledged that the children loved him. She then went on to voluntarily deprecate that evidence by saying, “I do not know if they still love him” as she had not asked them. His Honour noted that the mother maintained that the breakdown in contact was entirely the fault of the father. In the context of this case, this is a very troublesome statement by the mother.
His Honour also noted the mother’s qualifications about D’ love for his father and that she was quite unable to say whether C loved her father. His Honour found that attitude quite incompatible with one that would encourage and foster a relationship with the father.
On the issue of the wishes expressed by the children it was the mother’s evidence that all three children were gifted, which was one of the reasons why she respected their wishes. The mother said that the children’s views should be listened to and then a decision made. When asked by whom, the mother said that she and the father could not make a decision and it would therefore be made by the Court.
However, in an interview with Ms Warhaft on 28 August 2000 the mother was reported as continuing to advocate that the children’s wishes in regard to their father must be heard and acknowledged. Ms Warhaft said that the mother explained that they must be implemented or realised. Apparently she subsequently qualified this view in relation to D.
His Honour commented that the obvious contradiction between the mother’s statements in evidence before him and her position as expressed to Ms Warhaft was quite untenable. He regarded some of the statements made by the mother in relation to the absence of the contact with the father as “vapid, superficial and callous”.
His Honour observed after discussing aspects of her evidence relating to her attitude to contact:
“I have no doubt that any order for contact is repugnant to her and that she may even be a reluctant participant in actuating such orders. It is my expectation however, that upon reading this judgment the wife will act in positive recognition of the orders and thereby benefit the children both in the short and “long” term.”
His Honour also referred to the contradictory position of the mother as to extended contact and to the fact that despite her having appeared to concede this, there had never been any extended time with the father. His Honour noted that the mother said that C is now no longer attending contact because of her distress. When asked why she was unable to reassure C about her concerns, the mother replied that she did not know.
His Honour regarded that reply as evasive. He also noted her statement that C would in the long term have contact with her father and that the mother said in evidence that in referring to the long term she was talking about 5 or 10 years.
His Honour contrasted the evidence given by the mother as to the great degree of distress of C when being required to have contact with her father in 2000 with her school results. He noted that C’s report for the period was outstanding and revealed an almost perfect level of distinguished achievement.
His Honour’s conclusions about the mother were as follows:
“I carefully observed the wife during the giving of her evidence. She was courteous, but on a number of occasions failed to directly respond to questions put to her, even allowing for the strain of giving evidence and the pressured environment of the witness box. I was not convinced, by any measure, that she overtly encouraged C (and the children generally) to have contact with their father despite her evidence to that effect. In my view, from her evidence and also from her demeanour, I have the distinct impression that she was moved to rely conveniently upon the children’s wishes and did little, if anything to actively promote to them the advantages of contact and to present the husband in a positive light. I have no doubt that had she done so the position would be markedly different from that of today.”
Findings in Relation to the Father
So far as the father was concerned his Honour found him to be a reliable witness and a parent genuinely concerned for the welfare and best interests of the three children. He said that where his evidence was in conflict with that with the mother concerning material considerations and in the absence of acceptable corroboration of the mother’s evidence, he preferred the evidence of the father.
He accepted the father’s evidence as to his close involvement with each of the children. He also accepted that the father’s parents had a significant role in the lives of the children prior to separation.
He noted that the father had developed a network of friends with families having children of similar ages and that during periods of contact the father arranged appropriate socialisation with other children.
He noted the father’s evidence that nothing in the behaviour of C during contact would have suggested stress on her part. He explained the last contact weekend in June 2000 as being a normal contact weekend in which they enjoyed mutual activities and that C had a friend sleep over on Saturday night. He felt that his communication with C was normal and that her behaviour did not indicate signs of stress, anxiety or her not wishing to be with him.
His Honour accepted the father’s evidence that nothing in the behaviour of C or her demeanour caused him any concern on that weekend or foreshadowed subsequent events.
We think that these findings are particularly important in relation to the “terror” that C was alleged to feel during contact visits. We note the later view expressed by Dr D, her psychiatrist, that she adopts a “false self” during such visits. We find this explanation unconvincing.
His Honour referred to allegations suggesting improper or violent behaviour by the father in relation to the child J and the father’s answers to them. His Honour accepted the substance of the father's evidence in this regard. He found that either J or the mother had exaggerated their evidence about this matter.
His Honour discounted the issues that had been raised by the mother in relation to the father’s past mental health difficulties and depression, which he said did not have any impact on the orders that he proposed to make.
His Honour commented that in evidence, the father was supportive of the mother in a number of ways that was in marked contrast to the attitude of the mother to the father. On the issue of the children’s wishes, his Honour found the father’s attitude to be more informed, responsive and appropriate than that of the mother.
We have set out his Honour’s findings in relation to the parties in some detail, because we think it important to note that these findings are not particularly dependent upon the evidence of the professional witnesses. Rather, they rather represent his Honour’s views about them, based upon his assessment of their evidence before him. In our view these findings alone would more than justify his Honour’s conclusions in this matter.
Therefore, the attack upon his Honour’s findings about the professional witnesses must be considered in this light. Similarly, these findings are of considerable importance to his Honour’s assessment of the strength and validity of the wishes expressed by C.
The Grounds of Appeal
We turn now to examine our summary of the grounds of appeal in detail and the findings and submissions that are relevant to them
That Guest J failed to give any or any sufficient weight to the evidence of the child’s treating psychiatrist, Dr D.
Dr Davis first saw C on 20 June 2000. She was referred to him by Dr L, the family’s general practitioner. We later summarise the evidence of Dr L. His Honour’s findings about that evidence have, we think, an important bearing on his findings concerning the evidence of Dr D.
Dr D is a specialist child psychiatrist. At the time that he gave evidence he had had eight consultations with C and proposed to continue them into the future. A report by Dr D referred to her difficulty in separating from her mother and her feeling of being isolated and terrified during visits to the father.
Dr D concluded that it was “detrimental to C’s psychological well-being for her to be forced to continue access (sic) visits to her father” and expressed the view that if pressure was removed she would probably in time make her own decision about when to see her father.
His Honour was highly critical of the evidence of Dr D and in particular his reference to the child being “terrified” and to “terror” which he considered to be a grossly misrepresentative description of the actuality. His Honour found the terminology used by Dr D to be hyperbolised.
His Honour referred to the videos, which had been condemned as irrelevant by Dr D. His Honour considered that they were a helpful tool for him to see C and D at play, both with each other and with others. He thought Dr D’s approach to the videos was ill considered, dismissive, and lacking in objectivity. He thought and that his attitude demonstrated a preparedness to place himself clearly within the camp of the mother.
He was also concerned that Dr D had seen C in company with the mother throughout all of his consultations. He thought that this had a serious bearing upon his objectivity.
He referred to Ms M’s 1998 view that there was evidence of enmeshment between the mother and daughter. He noted that Dr D saw no evidence of enmeshment although he agreed that it could have quite serious short and long term consequences.
His Honour said that although he could not on the evidence and to the required degree draw any conclusion of enmeshment he was concerned about this aspect of the evidence.
Finally, his Honour rejected Dr D’s conclusions that there should be no contact between the father and C until C wanted it to occur.
Counsel for the mother directed our attention to a number of transcript references with a view to arguing that his Honour’s discounting of the child’s alleged terror was unfounded. We are not convinced by this argument.
They pointed out that the evidence of Dr D in this regard was supported by that of Ms Warhaft. They argued that if the father or the child representative had been unhappy with the evidence of Dr D, they could have arranged for an assessment by another psychiatrist. They also said that his Honour did not have the advantage that Dr D had of observing the child when being interviewed concerning this matter.
We consider that there is no substance in these submissions. His Honour did have the advantage of observing Dr D and of hearing him cross- examined. His findings must also be read in light of his findings as to the mother’s role in relation to contact and his acceptance of the father’s evidence as to what occurred during contact.
We think that Dr D’s failure to interview the child alone is extremely troublesome in a case of this nature. It seems to have involved an uncritical acceptance that the mother was playing a neutral role in the matter. It also failed to empower the child to express her own views independent of the mother.
Although his Honour did not make this specific criticism, we are also troubled about Dr D’s failure to interview the child in the presence of her father or to interview the father at all. We think that the effect of his evidence would have been much more substantial had he attempted to make an objective observation of the relationship and interaction between the child and her father. Dr D would also have been in a better position to compare and contrast the presentation of the child had he done so.
In W and W: Abuse allegations; expert evidence (2001) FLC 93-085, the Full Court expressed concern about expert witnesses advancing opinions without having seen all of the relevant parties and having observed the interactions between them and the children. It is true that the position is slightly different in this case in the sense that Dr D is a treating doctor rather than an outside expert. However, we have little doubt that had he wished to do so he could have seen the child with the father and have also seen the father himself. Further, he did not hesitate to express views concerning the child's relationship with her father. In the circumstances, we think that the principle expressed in W and W is applicable in this case.
For all of these reasons, we think that his Honour was perfectly entitled to discount the evidence of Dr D and we see no error on his part in doing so.
That his Honour failed to give any or any sufficient weight to the evidence of Ms Warhaft.
In the mother’s supplementary grounds this was developed further. The substance appears to be that his Honour erred in ascribing greater weight to the evidence of Ms M than that of Ms Warhaft. In any proceedings like this, such a decision is clearly one for the trial Judge. However we propose to examine this proposition further.
Ms Warhaft is a Family Court Counsellor with 13 years experience and she prepared two reports dated 24 December 1999 and 28 August 2000.
His Honour made a general observation that, unlike any of the expert witnesses, including Ms Warhaft, he had had the opportunity of observing and listening to the parties themselves for in excess of 15 hours. He had also had the advantage of listening to the evidence and conclusion of a number of other expert witnesses. In making these remarks we take his Honour to mean that he was in no sense bound to accept her evidence or conclusions and was perhaps in a better position than any of the experts to evaluate the evidence and arrive at conclusions. In this regard his Honour was undoubtedly correct.
His Honour noted that although Ms Warhaft was but one of many witnesses, counsel for the mother emphasised her significance by dedicating almost one half of his lengthy written submissions to an analysis of her evidence.
In considering Ms Warhaft’s evidence, his Honour thought it important to refer to the proceedings before Mushin J in December 1998 and the proceedings before Registrar Raby in August 1999. He also attached importance to the proceedings in the Registrar’s Duty List in December 1999. His Honour obviously considered that the mother’s attitude as demonstrated in these proceedings was somewhat different to that described by Ms Warhaft. It is apparent that she not only opposed any extension of contact, but she attempted to reduce it.
There were however aspects of Ms Warhaft’s evidence that his Honour accepted. His Honour referred to Ms Warhaft’s evidence as to the positive relationship between C and her father at the time of her first interview in late 1999, which he contrasted with the view later expressed by Dr D as to the relationship. He noted her observations in 1999 that C had a very successful year at her new school, was happy and dearly loved her father.
His Honour was critical of Ms Warhaft’s assessment of J as having feelings that were genuinely and deeply held. He commented that there was nothing in the report to suggest that Ms Warhaft examined or in any way tested the reality of those feelings. He obviously considered that this went to the objectivity of Ms Warhaft's approach.
His Honour went on to deal with a number of aspects of Ms Warhaft’s evidence, which largely supported the position of the mother. He commented that whilst Ms Warhaft’s assessment was that she accepted that the mother was responding to the strength of feelings of the children, rather than simply conveying their wishes, that was an assessment with which he disagreed. He also felt that Ms Warhaft had paid insufficient regard to the authenticity of the mother’s position in relation to the children’s wishes.
Accordingly, his Honour disagreed with Ms Warhaft’s view that the wife was genuinely supportive of the father’s relationship with the children.
His Honour made a number of specific criticisms of Ms Warhaft’s conclusions and in substance rejected them.
Counsel for the mother argued that an important aspect of Ms Warhaft’s evidence was her opinion that “At present she (C) cannot tolerate the possibility of having contact with him and to force her to do so would risk destabilising this already vulnerable child.”
They asserted that his Honour did not specifically reject Ms Warhaft’s evidence on this point. Rather they said that he found that Ms Warhaft’s views were but one aspect, albeit an important one, of the process constituted by the proceedings, and that he preferred the evidence of Ms M to that of Ms Warhaft where they were in conflict. They argued that Ms M's evidence was not relevant to this issue.
We agree that his Honour’s preference for Ms M’s evidence has little bearing on his rejection of the view expressed by Ms Warhaft on this point. Rather we think it apparent that his Honour did reject her view, not by relying on Ms M’s evidence, but rather upon his own observations and the other evidence before him. It is quite obvious that his Honour did reject this evidence, for if he had accepted it he would have been unlikely to have made the orders that he did.
It is appropriate at this stage to have regard to his Honour’s findings concerning the evidence of Ms M.
In late 1998, Ms M noted that the mother wanted to reduce contact and in particular was opposed to overnight contact in particular.
His Honour gained the impression from the evidence of Ms M that the father was anxious to maintain a high level of input into the children’s general nurture and development to which the mother was opposed.
It is clear that when speaking to Ms M the mother consistently adopted the approach that it was her role to provide an avenue for the children to present their views and that her views were entirely guided by the children’s wishes. His Honour found that this situation had not changed despite the mother’s denial in evidence.
Ms M commented that the children were extremely anxious to express their views and that the mother encouraged them to do so. She considered that C had been prepared by her mother in relation to the interview. She also found that that C had a considerable capacity to spontaneously relate to the father.
His Honour considered her evidence to be important and relevant and not rendered stagnant by the passage of time. He found her to be a highly experienced psychologist whose evidence was well balanced and insightful.
His Honour accepted Ms M’s conclusion that the mother did not appear to be actively encouraging a relationship between the father and the children and her opinion that the underlying reasons appear to relate to the mother’s need to control the situation.
He agreed with her conclusion that if the mother supported contact and conveyed it to the eldest child it would significantly assist the children’s acceptance of the change in circumstances.
We can well understand the importance that his Honour ascribed to Ms M’s evidence, particularly as her 1998 observations were confirmed by his Honour’s observations in 2000.
Counsel for the mother attempted to argue that these observations were out of date by the time of trial. On the contrary we regard them as extremely prescient. The conduct of the mother, both then and now, is entirely consistent with them. One only needs to look, as his Honour did, at her behaviour in relation to contact between the time of Ms M's assessment and the trial. His own observations of the mother confirmed them and no doubt explains much of his scepticism about aspects of the evidence of Dr D and Ms Warhaft.
That he failed to give sufficient weight to the wishes of C.
This issue was later amplified to assert that his Honour had mistakenly considered that the issue was one of duration of contact rather than no contact at all. It was also asserted that his Honour failed to have regard to the child’s depressive condition in considering her wishes and also to the evidence of Ms Warhaft and Dr D.
First we have no doubt that his Honour was under no misapprehension as to the attitude of the mother to contact. This trial proceeded over many days and we regard the suggestion that he was under such a misapprehension as nonsensical. His Honour was well aware that the issue was whether there should be any contact between the father and C.
Secondly as to the alleged depressive condition of the child, we have no doubt that his Honour considered all of the relevant evidence. In any event, as counsel for the father pointed out, this proposition was not really supported by the evidence of Dr D.
Dr L had referred her to Dr D, because of anxiety rather than depression.
Dr L, whose evidence was accepted by his Honour, described an escalation of distress by C as the proceedings wore on without resolution and stress on the part of the mother. He said that the mother “maintained the children’s dependence and insecurities in an unhealthy way by acceding to their demands to sleep with her or in her room. I felt that the benefits derived here were more for herself than for her children and that other more appropriate means of personal support needed to be found.”
Dr L’s evidence was that the father was concerned to have a counselling approach to the family’s problems from early 1999 and that he had understood that the mother was in agreement with that approach.
His Honour found that this was not the case and he expressed concern that she had misled Dr L in that regard.
In relation to C, Dr L made it clear that she had never expressed any fear of her father or said that she was terrified of him.
Dr L had treated the family for a number of years. His Honour thought that Dr L was obviously well aware of the problems that the marital breakdown and the subsequent events had caused.
Dr L took the view that the family needed help with appropriate psychiatric interventions rather than a team of observers and record keepers. He was of the view that both parents have serious work to do regarding their own psyche and that both should seek the help of a psychiatrist to gain necessary insights.
He thought that it was time for the court to settle the issues and provide appropriate access for both the parents to allow both an opportunity to assist in the development of their children.
His Honour found Dr L’s evidence that C could benefit by maintaining the relationship with her father to be particularly persuasive and significant in coming to his determination.
His Honour took the view that the mother had played a significant part in the formation of C’s wishes. He rejected the proposition that she had appropriately encouraged C and J to attend on contact. He said that he had no doubt that she conveyed to them by either the spoken word or by her conduct or demeanour that she did not favour contact. He remarked that to take a passive position is equally infectious as to verbally express opposition. He said either way he was satisfied that she made her position clearly known to J and C.
He said that it was the unjustifiable empowerment of those wishes as expressed by them that dominated her application. His Honour said:
“Had she the will, the grace and the resolve to do so, I have no doubt that the wife could have actively encouraged both the children to attend contact visits with their father.”
His Honour referred to a number of findings to which we have already referred in our summary of his findings and concluded:
“I am not satisfied that the wishes of C are soundly basis (sic) nor founded upon mature and independent considerations. I understand her position and to which I am sensitive. However, there are other considerations of which C is not cognisant. I also accept that hers is a strongly held wish, but she is not appreciative of many of the factors that I have heard and the longer term implications of her view. In a reading of this judgment, it is my hope that C will appreciate that I am not being dismissive of her views nor am I treating them in a token manner.”
His Honour considered the nature of the relationship of C with each of the father and the mother and expressed himself as satisfied that despite her expressed wishes, she bore a fond and loving relationship with her father as well as with her mother.
In our view, all of these findings were clearly open to his Honour on the evidence.
In considering the issue of wishes, his Honour referred to the decision of this Court in H v W (1995) FLC 92-598 and quoted in detail from its decision in R and R: Children’s wishes (2000) FLC 93-000, especially at 87,070-072.
The principle is clear that a Court must take children’s wishes into account, but is not bound by them. In this case his Honour found that the wishes expressed by the child should be given less weight than would normally be the case having regard to all of the evidence and particularly to the attitude of the mother to contact. This was clearly open to him and it was not argued to the contrary. Indeed the arguments on the appeal really involved an attack on the factual findings by his Honour that underpinned his decision, rather than his application of the law.
We think that against the evidentiary background to which we have referred and his own observations, his Honour was more than entitled to come to the conclusions that he did concerning the child’s wishes and we consider that there was no appellable error on his part.
That he failed to give sufficient weight to the deleterious effects upon the child of forced contact.
That he failed to have sufficient regard to the evidence of the child’s fear of the father.
In her amended grounds, the mother also relied upon what she said was his Honour’s failure to give sufficient weight to Ms Warhaft’s evidence that the child could not tolerate the possibility of contact and was a vulnerable child who would be destabilised by contact.
These two grounds may conveniently be dealt with together. They depend upon the acceptance of the correctness of the earlier grounds that assert error on the part of his Honour in not accepting critical aspects of the evidence of Dr D and Ms Warhaft.
We have already dealt with those issues and have found that there was no appellable error on his Honour’s part in failing to act on their evidence.
However, as we understand it, the mother was arguing that despite the other findings of his Honour that were unfavourable to her, he failed to address the issue of the effect upon C of requiring her to see her father. In effect, what was put was that C was so alienated from her father, for whatever reason, that it was not in her best interests to have contact with him.
It is perhaps useful to summarise the relevant findings of his Honour on these issues.
His Honour concluded that there was no cogent or compelling evidence put forward upon which he could safely rely, that C would unduly suffer emotional trauma or damage following an order for contact. His Honour rejected what he described as the open ended approach of the wife and Ms Warhaft that it should be left to the children to determine when and if contact should resume. He said that this was hardly specific and otherwise appeared to centre upon the husband as being the absolute cause of the problems. He commented:
“Little attention was given by any expert witness to the long term effect on a child of 11 years of age ending contact with a loving father. One could foresee a scenario that in such circumstances a child may not renew contact out of guilt alone. It is all so speculative in the circumstances and the case put forward by the wife dwelled far too heavily on the immediate situation and the fact of C’s present wishes without considering whether they were reasonably held.”
In our view, it is all too easy to start from the proposition that because a child in circumstances such as these expresses fear and revulsion towards contact, that fact of itself justifies a refusal of contact. It is obvious that the whole of the circumstances must be examined, as his Honour did in great detail.
This is not a case where there is a background of violence or ill treatment. On the contrary, it is a case where it is common ground that the father had a good and loving relationship with the children prior to separation. On the basis of his Honour’s findings, nothing that has occurred since separation on the part of the father has altered that situation. The worst that can be said of him is that he has pursued an application for shared parenting in an overly persistent fashion.
Despite this, we have a situation where first one and then a second child refuses to see him. In the case of C, the evidence is clear that she had a warm relationship with him when seen by Ms M in 1998 and Ms Warhaft in 1999.
The video evidence suggests that this continued well into 2000. The inevitable question arises as to what has brought this change about. The answer that his Honour arrived at is that it is associated with the mother’s conscious or unconscious discouragement of contact. There is plenty of evidence from which his Honour could have arrived at this conclusion. It is the function of a trial Judge to weigh the evidence and make findings. This, his Honour did.
In the present case he made the judgment that the child’s fears and expressed wishes were caused by the background to which he referred in detail and to the behaviour of the mother. He was clearly aware of these concerns when he made the staggered order that he did in relation to contact.
While another judge could have reached a different conclusion, his Honour was obviously conscious of and sensitive to the child's needs as he saw them and we are unable to see any error on his part in this regard.
Application to Adduce Further Evidence
It is now necessary to deal with an application that was made on the hearing of the appeal to introduce further evidence. This was supported by an affidavit from the mother’s solicitor as to events that were said to have occurred since his Honour made the relevant orders. He said that:
·following the making of the orders, C had contact with her father on three occasions;
·during this time, C became withdrawn and depressed and her demeanour and behaviour was such that the mother and Dr D became so concerned for her emotional and psychological well being that the mother made the decision that contact should no longer proceed; and
following the three contact visits, Ms Warhaft recommended that C be assessed by an independent psychiatrist, and recommended that she attend upon Dr A, a child and adolescent psychiatrist in Melbourne.
The mother sought to adduce further evidence from the treating psychiatrist, Dr D, Dr A, and herself. The father had filed a contravention of child order application on 21 September 2001, which was dismissed by Judicial Registrar Nikakis on 1 October 2001, and subsequently listed for review. The mother's solicitor said that the father annexed Dr A’s report to his affidavit in support of his contravention application and relied upon it, and did not challenge the evidence of the mother or the evidence of Dr D.
Summary of Additional Evidence
Dr D exhibited a report to his affidavit, dated 19 September 2001. He said that he had seen C eight times since the Court orders of 27 April 2001, mostly around the times that she was seeing her father. He said that the main issue with C was not only her implacable opposition to seeing her father, but also her depression and closing down when she does see him. He said that she manages the time with him in a “false self” mode so that she seems to be cooperative and even pleasant, but before the visit and after her return home, she becomes very depressed and unable to cope at school or at home. He said that he was continuing to work with C to help her understand her anger and depression but the progress was understandably very slow.
Dr A said that C was accompanied to the interview by her mother, but agreed to be seen alone. She was clearly very unhappy about being interviewed. She described to him how difficult she found contact with her father. She said that her only explanation was that her father changed after her parents separated and that she no longer trusts him. She described difficulty going to sleep at night in her father’s house and complained of her father’s girlfriends. She acknowledged that both her father's partner and her children go out of her way to be nice to her. Dr A invited C to talk about what it was like for her father since the separation. She replied that she had no idea and became quite annoyed when pushed to think about it further. She said that she had felt “practically devastated” when told by the child representative that she would have to go to her father’s after the recent hearing.
At a second appointment, C expressed displeasure again at seeing Dr A. She repeated her comments about mistrusting her father and her feeling that he gets angry and intimidating and does not listen. He said that through much of the second interview and some of the first, C was in tears. She presented to him as a sad, distressed, articulate 12 year old, who attributed most of her problems to the pressure she was experiencing to see her father. He also observed a significantly depressed mood and a number of passive aggressive tendencies.
He also described an interview with the father, who had difficulty reconciling C’s behaviour and her apparent pleasure when she was at his house, with her state of distress. He was described as a quietly spoken and reasonable, and somewhat inflexible man, who was greatly distressed by his current loss of contact with his daughters. He clearly believed that their refusal to see him had been actively encouraged by the mother. Dr A told the father that he did not think that there was a basis for family therapy for his family at the present time. This was in the context of a discussion as to the benefits and risks of not trying to force the situation with someone of C’s age and the likelihood that in later adolescence she may well seek him out of her own accord.
Dr A's opinion was that the family seemed to have reached an impasse. He said that as he had not interviewed the mother, he had no way of assessing to what extent she may have actively contributed to the position adopted by her daughters. He noted that while D appeared to enjoy contact with his father, the father was understandably concerned that he may follow his sister’s lead. Dr A said that while it was clearly within the power of the Court to order contact between C and her father, it was questionable as to what was to be gained from forcing contact at this stage, given her age and clear opposition to contact. He thought it likely that if the father did not pursue the matter, she will of her own volition, seek contact with him at some time in the next few years.
In our view, it is unfortunate that Dr A did not see the mother as well, for the reasons already expressed in relation to Dr D.
In her affidavit the mother said that C cried continually following the judgment on 27 April and then became very weak, distressed and withdrawn. She claimed to have put in place mechanisms to facilitate the first contact visit, including a meeting with Dr D so that he could help her cope with the first occasion of contact. She said that pending the first contact visit, C remained deeply distressed and teary and was having a lot of trouble sleeping. During the period, the mother arranged for her to be in regular contact with Ms S, her educational consultant and Dr D, to help her with strategies to establish contact with the father.
She said that every time she tried to raise the issue of contact with C, she would start screaming and become hysterical. She said that following the first contact visit, C ran into the house, grabbed the phone and shut herself in her room and rang Dr D, but was unable to contact him. She appeared to be deeply distressed and screamed during her sleep. She said that the screaming continued thereafter. She said that in the following week, C continued to be very teary and distressed and continued to have trouble sleeping.
On 16 May, which was the second scheduled visit, C tried desperately to contact Ms S and showed signs of high anxiety. She went to school very withdrawn and despondent and would not eat breakfast. Following contact she would not talk and became very teary.
She said that from 18 May until 25 May C travelled to Noumea for a school trip and the father sought make up contact on 6 June. She said that on 27 May, C broke down and cried incessantly and became hysterical when discussing contact. She had a further discussion with Dr D and Ms S on the next contact occasion and cried all the way to school. Contact proceeded that afternoon and when C returned she went straight to her room and stayed there for an hour. The mother said that following the third contact visit, she became concerned about C’s health and well being. She said that she had observed her become more and more withdrawn and dysfunctional.
She had discussions with her classroom teacher, who indicated to her that C’s behaviour had changed and that he was concerned about her well being. She eventually became so concerned that she telephoned the supervising counsellors, Ms Warhaft and Mr Skoufis. She said that C was due to have make up contact on 6 June and the first alternate weekend Sunday contact on 10 June. On the previous weekend, C’s behaviour became even more distressed.
Following a discussion between the father and Ms Warhaft on 4 June, the father agreed to suspend the scheduled Wednesday contact on 6 June. It was at this stage that Ms Warhaft recommended that C be assessed by an independent psychiatrist and it was in those circumstances that Dr A was engaged.
It was on that basis that the mother says that she instructed her solicitors to notify the husband’s solicitors that the contact would not proceed on 10 June or thereafter, pending further psychiatric assessment. The mother says that until the time when the father brought a contravention application, C had changed her demeanour and outlook and had become much happier.
The principles in relation to the admission of further evidence were considered by the High Court of Australia in CDJ v VAJ (1998) FLC 92-828.
The majority judgment (McHugh, Gummow, and CallinanJJ) said that the critical factor in exercising discretion to admit further evidence is the subject matter of the proceedings with which the proceeding is concerned. They said that this is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. They said that one of its purposes is to give a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal was erroneous. Their Honours pointed out that the power to admit further evidence exists to serve the demands of justice. They said at par 111:
“Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent the benefit of the orders made by the trial Judge and put that person to the expense, inconvenience and worry of a new trial.”
They continued at par 115:
“In most cases concerned with parenting orders that means that it should only be exercised in favour of the receipt of the further evidence if that evidence is not only relevant to the welfare of the children but is also admissible according to ordinary principles or by statute, and if there is no reason apparent to the Full Court of the Family Court for believing that the evidence is not credible.”
They said that the failure to introduce such evidence if it was available at trial would be a variable factor, the weight of which would depend upon all of the other factors pertinent to the case. However their Honours went on to advert to the need for caution in exercising the discretion to admit further evidence and to the fact that the advantages to a trial Judge of seeing and hearing the witnesses on issues of credibility and the like are real ones in a parenting case. See also Allesch v Maunz (2000) FLC 93-033, and T & S (2001) FLC 93-086.
In the present case, we refused to admit the fresh evidence.
We did so in the case of Dr D and the mother because having regard to his Honour’s findings, we did not consider that the evidence was credible. We have already discussed in detail his Honour’s views concerning the credibility of the mother and of Dr D.
As to the mother, the description that she gives of the distress of the child is consistent with his Honour’s findings that she has either consciously or unconsciously made it clear that she will not encourage contact between the child and her father.
As to Dr D, we refer to his Honour’s findings that Dr D was in the mother’s camp and lacked objectivity. We have also expressed our own criticisms of his approach to the matter. In the circumstances we could have no confidence that he could bring any independent assessment to bear upon the present situation.
We also considered that having regard to his Honour's findings, the evidence of Dr D and the mother would have been unlikely to affect the outcome.
The only new source of evidence that was proposed to be called was that of Dr A. Quite obviously, Dr A’s evidence could have been called at the trial if the mother had arranged for him to conduct an examination. She did not choose to call independent psychiatric evidence at that stage. The attempt to introduce it on appeal smacks of a desperate attempt to shore up what must have seemed to those advising the mother, to be an appeal that faced considerable difficulties.
Dr A’s evidence is at best, equivocal. It is true that he queries the desirability of forcing contact in a situation where the child is expressing the type of opposition that he observed. In our view there is nothing new about what Dr A has to say, and nothing that was not before his Honour. His Honour obviously took views of this sort into account, particularly from Ms Warhaft and rejected them.
In all the circumstances therefore, we took the view that the fresh evidence should not be admitted on the appeal.
Conclusion
It follows from what we have said that the appeal must be dismissed. This means that Guest J’s orders will have to be complied with. It may be necessary to make adjustments to them, having regard to the passage of time and we will hear Counsel in relation to that matter. This however, will only relate to the issue of when the operation of the orders will commence.
We are not unmindful, as to the difficulties of those orders being successfully put into place. No doubt Guest J had the same reservations.
The remedy we feel lies with the mother. If the mother will, as she should, change her approach and properly encourage contact between C and her father, then we consider that the problem will cease to exist. If she does not do so, it may be that a future trial Judge will have to give serious consideration to ordering that C and probably D should reside with the father. This would seem to be one of the only realistic sanctions remaining. Before such a decision could be taken, there would have to be an extensive examination of whether it would be in the children’s best interests to make such an order.
Orders of this type are not without their difficulties. They were recently highlighted by Professor Carol Bruch in an article “Parental Alienation Syndrome and Parental Alienation; Getting it Wrong in Child Custody Cases (Family Law Quarterly Vol. 35 No. 3, 2001).
In that article, after an extensive discussion of the relevant research and literature, she makes the point that the appropriate methods for dealing with alienated children like C in circumstances such as these have not yet been discovered.
However that may be, judges that are faced with these problems cannot avoid them by pointing to the difficulty of the situation.
For our part, we echo the view expressed by the trial Judge of the serious nature of depriving the father of contact in circumstances where that appears to have been engineered by the mother, without any fault on the part of the father at all. This cannot be in a child’s best interests.
It also does not appear to us to be appropriate for a parent to be able to manipulate the family law system to such an extent that the other parent’s hope of ever seeing the child again, rests upon the possibility that she may wish to seek him out in later adolescence or adulthood.
We think that a Family Court would not be doing its duty if it were to simply give in to these sorts of considerations, except in the most extreme case and only then, when a positive determination is made that the welfare of the child requires it.
The appeal is accordingly dismissed.
I certify that the previous 180 numbered paragraphs are a true copy of
the reasons for judgment delivered by this Honourable Full Court.
Elizabeth Martello
Executive Assistant to the Chief Justice
31 May 2002
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Family Law
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Appeal
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