King and King & Anor - [2018] FamCA 762

FAMILY COURT OF AUSTRALIA

KING & KING AND ANOR

[2018] FamCA 762

FAMILY LAW – CHILDREN – PARENTING – application by father for time with children aged 15 and 12 years – not change of circumstances since last determination in 2013 which warrant re-examination of parenting arrangements – rule in Rice & Asplund – application dismissed.

FAMILY LAW – CHILDREN – PARENTING – application by older sister of children for time with younger sisters – best interests – no time.

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

Rice & Asplund (1978) 6 FamLR 570
Poisat & Poisat [2014] FamCAFC 128
SPS & PLS [2008] FamCAFC 16

APPLICANT:

Ms King

FIRST RESPONDENT:

Mr M King

SECOND RESPONDENT:

Ms C King

INDEPENDENT CHILDREN’S LAWYER:

Mr W Dunstan

FILE NUMBER:

MLC

9554

2011

DATE DELIVERED:

25 September 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

11, 12, 13, 14 and 15 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Staindl

SOLICITOR FOR THE APPLICANT:

Clancy & Triado

COUNSEL FOR THE FIRST RESPONDENT:

In person

SOLICITOR FOR THE FIRST RESPONDENT: In person

COUNSEL FOR THE SEVENTH RESPONDENT:

In person

SOLICITOR FOR THE SEVENTH RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Bonney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Bowlen Dunstan & Associates

Orders

The orders will be:

(1)All previous parenting orders be discharged.
(2)The children D, born … 2003, and E, born … 2006, live with the mother.
(3)The mother have sole parental responsibility for the children.
(4)All previous orders contemplating the father spending time with the children be and are hereby discharged, with the effect that the father has no entitlement to spend time with the children or either of them.
(5)The father be at liberty to send cards, letters or gifts to the children on or around special occasions, such as their birthday, Father’s Day or New Year, and the mother facilitate receipt by the children (or either of them) of such cards, letters and gifts as are sent by the father at her discretion. If the mother elects not to provide the children with the items sent by the father (or any of them) she return those that were not given to the children to the father care of any return address supplied in the parcel, which was posted.
(6)The mother notify the father if the children or either of them suffer from a serious illness or injury or if either require hospitalisation, provided that nothing in this order entitles the father to attend upon the children or either of them at the hospital or other such location as the children or either of them may be located.
(7)In the event that the children spend time or communicate with the second named respondent, Ms C King (who is their older sister), by agreement with the mother, each of the father and Ms C King be and are hereby restrained from causing, permitting or suffering the father to be present or to participate in the time or communication including but not limited to, the passing of messages from the father to the children (or either of them).
(8)That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
(9)That otherwise all parenting applications be dismissed and the bifurcated property proceedings be adjourned to the docket registrar on a date to be fixed for further directions.
(10)In respect of costs:-
(a)Any party wishing to make an application for costs, make file and serve such application within twenty one (21) days and support it by evidence of an estimate of costs claimed including, but not necessarily limited to, a calculation of such costs in accordance with the Itemised Scale of Costs at Schedule 3 to the Family Law Rules 2004 (Cth);
(b)Any party who is served with an application for costs against him/her, file and serve an affidavit setting out any dispute as to quantum of costs within fourteen (14) days of service upon him/her of the application;
(c)My Associate advise the parties of the listing of this matter for oral submissions as to liability for costs (estimated to take not longer than one hour);

NOTING THAT any costs so ordered may include the costs of making the application for costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym King & King and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9554 of 2011

Ms King

Applicant
And

Mr M King

First Respondent
And

Ms C King

Second Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT

Amended Pursuant to Rule 17.02A AND Rule 17.02 of the Family Law Rules 2004 by Order of 8 February 2019

Introduction

These proceedings concern the girls, D, born in 2003, and E born in 2006 who currently reside with the mother and have spent no time with the father since the parents separated in August 2011. At that time, there were three daughters living at home and the eldest, Ms C (born in 1996), has lived in various places in the last few years, but since the beginning of 2017, has been residing for a good part of each week with her father and is aligned with him. She is the third party in these proceedings and seeks orders in her own right.
On 23 October 2013, final orders were made which provided that the mother have sole parental responsibility for all the children of the marriage, D and E live with her, and there be no face to face time between the children and the father. The father was at liberty to maintain communication with the children by letters, cards and presents on special occasions and the wife was required to ensure that such communications were provided to the children. The final orders also provided that Ms C live with the mother and spend time and communicate with the father as she wished. The mother was directed to engage the children, D and E, in therapeutic counselling with a counsellor to be recommended by the independent children’s lawyer. The purpose of the counselling was to explore the nature of the children’s relationship with the father and the possibility of implementing face to face time with the father. The mother was required to provide the children’s school reports to the father and to advise him of significant issues relating to their welfare.
Justice Johns, who made the final orders, delivered reasons for her decision which I will discuss later. It is the position of the mother and the independent children’s lawyer in the proceedings now before me that, vis-à-vis the father, there has not been a change of circumstances such as to warrant a re-examination of parenting orders as between D and E and their father. This is in line with the proposition known as the rule in Rice & Asplund (1978) 6 FamLR 570 to which I will come later in these reasons.
The final order sought by the mother before me, as amended, is set out in exhibit “W9”. Essentially, she seeks to retain sole parental responsibility; that the father and Ms C to have no time with either of the children and for there to be a moratorium on any further parenting proceedings for the next four years unless leave is first obtained from the Court. The mother is prepared to provide, at her discretion, cards, letters and gifts sent by the father to the children, and says she will return to the father those cards, letters and gifts that she decides the children should not have.
The order sought by the independent children’s lawyer as set out in exhibit “ICL 2” coincide with those sought by the mother. Additionally, the independent children’s lawyer sought that the father be authorised to obtain school reports from the children’s schools at his initiative and his expense. Such authority is necessary because all parties to the proceedings contemplate that the mother will continue to have sole parental responsibility for the children. The independent children’s lawyer also seeks that the children be allowed to communicate and spend time with Ms C in accordance with their wishes and that the mother facilitate that communication or time.
The order sought by the father is set out in Exhibit “H3”. He seeks time with the children for two hours on the first Wednesday of each month between the hours of 4 pm and 6 pm and on the first Saturday of each month from 2 pm to 7 pm. He also seeks to spend time with the children between 12 pm and 6 pm on Father’s Day and one day of every Ramadan celebration. The father agrees that he not be present during any time ordered to be spent between Ms C and the children or either of them.
The order sought by Ms C is set out in exhibit “T3”. Ms C seeks a suite of orders. Ms C originally sought that the children reside with her father, notwithstanding, that her father sought no such order. However, the orders that she sought on the final day of the trial and on which she rendered her final submissions were a suite of times for her to spend with her sisters as follows:
a)From 3.30 pm to 7.30 pm every second Friday during school term time as agreed between Ms C and the children;
b)From 10 am to 3 pm on the last Saturday of every calendar month during the school term;
c)during all school term holidays for three days in the second week from 11 am until 4 pm each day as agreed between Ms C and her sisters and for three days for the same times of day in the second and fourth week of the long summer school vacation;
d)on each of the children’s’ birthdays if they fall on a school day for a period of two hours from 3 pm till 5.30 pm, and if they fall on a non-school day from 10 am to 3 pm or 5 pm to 9 pm in accordance with the mother’s plans;
e)on the first day of the four day Ramadan celebrations (Eid) in each year from 12 pm to 5 pm;
f)on New Year’s Eve in odd numbers years from 6 pm till 12.30 am on New Year’s Day;
g)on New Year’s Day in even numbered years from 12 pm until 6 pm; and
h)as may otherwise be agreed between the girls and Ms C.
Ms C also sought that she be at liberty to contact the children by telephone, text message, FaceTime, email and/or mail by communicating directly with the children or either of them; and that the mother facilitate that contact in accordance with the younger children’s wishes.
In addition to orders about her younger siblings, Ms C also sought orders against her mother, namely:
a)that the mother undertake a psychiatric evaluation and provide the assessment to Ms C;
b)that the mother undertake counselling with the children and Ms C once a calendar month commencing January 2018 until March 2018, such counselling to be as agreed; and
c)the mother be restrained from bringing the children into contact with Mr W, who is her former neighbour and who attended the trial as a support person for the mother.

Summary of the outcome

As a threshold matter, I have decided that there has been an insufficient change in D and E’s circumstances to warrant the father making a further parenting application, so his application is dismissed. I am satisfied that there is no benefit to D and E from imposing upon them, contrary to their expressed views, a regime of time or communication with Ms C. Indeed exposure of D and E to Ms C would, in my assessment, be emotionally harmful to them. They can contact Ms C in the future if they wish to do so, either individually or together, but the father should take no part in that time if or when it may occur.

Evidence

The documents relied upon by the applicant mother were her further amended initiating application filed 8 December 2017[1] and her affidavit of evidence-in-chief sworn 7 December 2017 insofar as it relates to parenting matters.[2]
[1] Folio 233
[2] Folio 235
The first respondent father relied on part D of his application in a case filed 4 October 2017 as to the orders he originally sought, and his affidavit thereto– and his affidavits sworn 13 July 2015,[3] 20 October 2015,[4] 4 May 2016,[5] and 10 April 2017[6] insofar as they related to parenting matters (which is minimal).
[3] Folio 139
[4] Folio 156
[5] Folio 173
[6] Folio 202
Ms C, the second respondent, relied on her amended application in a case filed on 1 August 2017[7] as to the orders she originally sought, and her affidavit sworn 10 April 2017 and filed 28 July 2017.[8]
[7] Folio 205
[8] Folio 204
The independent children’s lawyer referred me to the following documents during the proceedings which were common to all parties, and all parties agreed I could have reference to them:
a)the Children and Parents’ Issues Assessment of Mr V dated 15 March 2012;
b)the family report of Mr V dated 16 August 2013;
c)the reasons for decision of Johns J delivered 23 October 2013;
d)the family report of Ms Q dated 24 November 2017.

Proof and findings of fact

Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.
A statement of fact in these reasons is a finding of fact.

Impression of witnesses

The mother, father, Ms C and the family consultant were cross examined.
I found the mother to be a truthful and sound witness. She displayed insight and understanding. She was realistic and thoughtful about the disintegration of the relationship between herself and Ms C and what she can responsibly do in that regard. She impressed me as a selfless and responsible mother and an utterly exhausted litigant.
The father was an unsatisfactory witness. He was not forthright in relation to the extent to which he has or could have fulfilled his obligations to maintain D and E financially or in relation to his more general responsibilities such as attending the family counselling he was ordered to attend. He blames others. He intentionally portrays himself as less smart than he is. He is calculating, selfish and antipathetic to the mother.
Ms C was an unreliable witness. Her evidence was, in parts, intentionally misleading when referring to her mother “bringing different men home” and allowing “her friends, when [Ms C] has never heard of, to come sleepover.” She has assumed the mantle of assisting her father to entice her younger sisters away from the mother’s household and into the father’s household. Ms C is largely motivated by a desire to hurt and injure her mother as she genuinely believes the mother has hurt and injured her.
The family consultant, Ms Q, was entirely credible and her ultimate conclusions were sound. I accept her evidence. I was assisted by her evidence

The father’s application

Final orders in the parenting proceedings were made on 23 October 2013 by Johns J. With respect to the father’s time with the children, Johns J made the following relevant orders:
5. That subject to paragraph 7 hereof that there be no face-to-face time between the children and the father.
…
7. That as soon as practicable the mother engage the children D and E in therapeutic counselling, such counsellor to be recommended by the Independent Children’s Lawyer and the counsellor to explore with the children the following issues: -
(a) the nature of the children’s relationship with the father; and
(b) the possibility of the children establishing face-to-face time with the father.
…
10. That the father and the mother be jointly responsible for the costs of the counselling provided in order 7 hereof.
Those orders were not appealed by any party. Since the orders were made in October 2013, the parties have come to this court on no less than 10 occasions for defended hearings and filed dozens of documents in relation to the property proceedings. On 28 July 2017, the father and Ms C each filed an application in a case and supporting affidavits seeking, amongst other orders, in the father’s case for the two younger children to live with him, and in Ms C’s case, to spend time with her siblings. On 2 August 2017, after having the parties before me in a duty list, I ordered that the father’s application in a case, and Ms C’s application in a case, which had been amended on 1 August 2017, stand as applications initiating proceedings.
The mother and the Independent Children’s Lawyer maintain that there has not been a change in the circumstances such as to warrant a re-examination of parenting matters, vis a vis the father. The father and Ms C were provided with references relating to the principle in Rice & Asplund.
The application of the principle in Rice & Asplund was considered by the Full Court in Poisat & Poisat[9]; in that case, Strickland, Murphy and Austin JJ considered how the principle was to be applied differently at the end of a full hearing, as opposed to as a preliminary matter. Their Honours said:[10]
39. As to the submission that her Honour adopted a “two options approach” and that such an approach, if adopted, was “erroneous”, this Court made clear in Miller & Harrington, that the “rule in Rice and Asplund” might be applied either “at a preliminary stage” or at another stage of parenting proceedings. That conceptualisation of the “rule” is entirely consistent with what the High Court said in the unreported decision in Lowe, referred to earlier in these reasons. Mason CJ said (at p 11):
…It may be that in some cases the judge, in order to evaluate how strong the case is in relation to change of circumstances, needs to do little more than read the affidavits. He may need to have the benefit of cross-examination of some of the witnesses in order to evaluate how strong the case for change of circumstances appears to be. It seems to me that each case must be tailored to its own circumstances and an approach worked out which in the mind of the primary judge is best for that particular case.
(Emphasis added).
…
41. …The rule’s application recognises the benefit of the finality of litigation but also recognises that considerations acutely relevant to a child’s best interests can change, including, for example, by reference to the child’s age and level of maturity.
[9] [2014] FamCAFC 128, (2014) FLC 93-597
[10] Ibid, at [39]-[45]
In SPS & PLS, [11] Warnick J held that:
… At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
…
The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
[11] [2008] FamCAFC 16, at [48].
Although the principle in Rice & Asplund can be applied as a preliminary matter, I determined to hear the proceedings together because the mother is otherwise defending Ms C’s application to spend time with her siblings unhindered by Rice & Asplund type arguments. To avoid the possibility of another set of proceedings that the younger children would need to be involved in, the applications of the father and Ms C were heard in the same proceedings. I had the advantage of cross-examination of the parents and a family report to guide my decision in relation to the Rice & Asplund principle.

The final parenting proceedings in 2013

In the final parenting proceedings in 2013, Johns J considered what time, if any, the father should spend with the younger children D (then aged 10 years) and E (then aged seven years). In relation to Ms C (then aged 17 years), there was agreement between the parties that there be an order that she live with the mother and spend time with the father in accordance with her wishes. As I said earlier, Johns J made an order that, subject to some therapeutic counselling for the children in relation to spending time with their father, no face-to-face time be spent between the younger children and the father.
In Johns J’s reasons for judgment, her Honour was satisfied that there was a risk of psychological harm to the children if they were ordered to spend time with their father,[12] that the children were “estranged from the father” and “given the evidence of Mr V as to the levels of distress experienced by the children when contemplating spending time with the father I am satisfied that significant weight must be given to the expressed views of each of the children, notwithstanding their young ages.”[13] As to the children’s relationship with their father at the time of those proceedings and their views about spending time with him, her Honour said:
[12] At [57]
[13] At [76]
52. [Mr V] [the Family Consultant] reported that [D] also holds an extremely negative view of the father. She reported to [Mr V] that during the parties’ relationship the father was rarely at home and was uninvolved in family life.
53. [Mr V] reported that [D] was adamant that she did not wish to see the father during the preparation of the Family Report. Indeed, [Mr V] reported that “she was ‘ten out of ten’ certain that she did not want” to see him. Further, he noted that [D] openly wept when explaining her reasons for not wishing to see the father. He observed that “Her emotional distress was significant, quite evident and appeared to be very genuine.”
54. [E] was described by [Mr V] as an emotionally and developmentally immature child who at times had some difficulty articulating her comments.” Notwithstanding those apparent difficulties [E] was also adamant insofar as she did not want to see the father as part of the report writing process or to spend any time with him at all. [E] was reluctant to discuss with [Mr V] her feelings in relation to the father. When [Mr V] informed [E] of his proposal to bring the father into the room to meet with herself and [D], [Mr V] observed that [E] “became significantly distressed and openly wept.” [Mr V] asked [E] why she was so distressed and she reported “I don’t like him. I hate daddy.”
55. It is against this backdrop that [Mr V] makes recommendations which include that at this stage [D] and [E] do not spend time with their father. Ultimately, it was his view that the distress of the children arising from spending time with the father outweighs any potential benefit to them seeing him. At paragraph 86 of the Family Report, [Mr V] observed that both are “young children who are developmentally and emotionally vulnerable”. At paragraph 88 [Mr V] concluded:
The level of distress they would experience would, in the writer’s view, significantly outweigh the benefits for the children spending time with someone who effectively has not been a significant parenting figure for them. In addition, the children need the opportunity to be relieved of the emotional burden they are currently experiencing in relation to the parental conflict and dispute and how they feel about spending time with their father.
56. [Mr V] confirmed that opinion during cross-examination by the ICL, counsel for the mother and the father…I accept the evidence of [Mr V] as to the potential impact upon the children of spending time with the father.
…
70. [Mr V] was cross-examined at length as to the genuineness of the expressed views of both children. At paragraph 76 of the Family Report, [Mr V] noted there were a number of factors at play in contributing to how the children perceive the father and the idea of spending time with him. At paragraph 77 of the Family Report he noted that in relation to [D], “She could see no valid reason why she would want to pursue a relationship with somebody who had effectively never really been actively involved in her life.” Further, he noted that [D] was clearly distressed by the two issues involving the father which had occurred for her at a vulnerable time, that being his failure to attend her birthday party or to attend her when she was ill.
71. With respect to [E], at paragraph 77 of the Family Report, [Mr V] noted that in circumstances where her primary emotional attachment is to her mother and siblings (whom she understands do not like the father) it would have been difficult for [E] to develop an independent and positive sense of the father. This is particularly so having regard to her emotional immaturity and apparent limited experience of the father as an active parent in her life.
…
75. [Mr V] noted at paragraph 85 of the Family Report the impact upon the children of spending time with the father to be as follows:
[D] and [E] would experience heightened levels of emotional and psychological distress if they were required to spend time with their father in the future. In addition, the writer would foresee significant and possibly insurmountable difficulties emerging for any potential supervisor when seeking to facilitate the children spending time with their father given the presentation and the history of their past responses.
Her Honour had explained that “history” earlier in her judgment where she explained that supervised time with the father was previously ordered at an interim stage by Senior Registrar FitzGibbon; on the first occasion of that time, the professional supervisor terminated the session due to the children’s distress. After the children attended several counselling sessions at the same organisation, the organisation terminated all future supervised time with the father due to the children’s refusal to attend.[14]
[14] At [12]-[15]
In relation to the father, Johns J made several adverse findings including that he had “little insight as to the children’s emotional needs and a poor attitude to the responsibilities of parenthood.”[15] One of the main issues in the final proceedings was the father’s responsibility in terms of his financial obligations to the children. Her Honour found that notwithstanding that Cronin J had made orders for the father to pay spousal maintenance to the mother and later, arrears for spousal maintenance, the father had failed to comply with those orders and also failed to provide appropriate child support for the children after separation.[16] In relation to those matters, her Honour said:
94. I find that the father’s failure to provide appropriate financial support for the mother and the children has had a dramatic and significant impact on the children. As a consequence of his failure to maintain the children they have been required to change their residence and move from private schools. Further, I am satisfied that they have felt the direct impact of the termination of utilities at the family home.
…
97. I am satisfied that the children are cognisant of the financial dispute between the parties by virtue of their personal experiences within the household (for example the disconnection of power and telephone to the home) and also because of matters discussed with them by the mother.
…
103. The father was cross-examined by the ICL as to the reasons why the children do not wish to see him. It was put to him that he does not accept any responsibility for the circumstances of his relationship with the children. The father confirmed that he was not responsible for the poor relationship and squarely lay the blame for the difficulties in his relationships with the children at the feet of the mother.
104. Given the financial pressures which the mother and the children were subjected to in the months following the parties separation, and the direct impact that had upon the children by virtue of the necessity for them to change their residence and their schools, it is evident that the father must bear some responsibility for the consequential anger and hostility exhibited by the children towards him in the aftermath of those actions.
[15] At [109]
[16] At [93]
In relation to the mother, Johns J found “the mother to be an open and forthright witness who readily made concessions as to her conduct in relation to the children and her influence upon them in the period following the parties’ separation.”[17] Her Honour said:
114. To her credit the mother acknowledges that she did involve the children in the dispute in the months following the separation and she conceded that by January 2012 she was not at all supportive of the children having a relationship with the father. She stated that she felt harassed by the father due to his conduct in relation to the financial matters. Further she acknowledged she had a part to play in how the children now felt about their father.
…
118. Later in her evidence the mother admitted that she had not encouraged the children to spend time with the father and that she would not do so in the future. The ICL then asked the mother what steps she would take to facilitate time between the children and the father in the event they expressed an interest in seeing their father. The mother responded that she would probably organise for the children to see their father with the assistance of a friend or neighbour. She confirmed that she would facilitate the children receiving correspondence from the father stating she did not “have a problem with that.”
119. The mother’s evidence in relation to whether she would support or encourage the children’s relationship with the father was most concerning. I am satisfied that the mother does not accept the potential benefit to the children of having the father meaningfully involved in their lives.
125…I accept [Mr V’s] evidence that there has been a shift in the mother’s attitude [between the two occasions when he assessed the mother, in February 2012 and August 2013] and that such improvement is likely to continue.
[17] At [131]

The evidence in these proceedings

There is little in either the father or the mother’s evidence in the proceedings about any change in circumstances since the 2013 parenting orders. The most significant change in the lives of the younger children is that Ms C, who is now an adult, has moved from her mother’s care and is now aligned with the father (though she does not live with him).
The father still does not pay child support for the children in the mother’s care. In contrast, he appears to be able to provide for all of Ms C’s material desires. The mother continues to struggle financially. Since the final orders, the mother has periodically engaged in a variety of jobs. During her cross-examination by the father, she attributed her inability to obtain a stable position, in part at least, to the father. For example, she alleged that in one instance the father was responsible for making anonymous appointments which he subsequently never kept. She said due to her ‘wasted time’, her employer was only willing to offer her a commission-based position rather than a position that included a ‘retainer’ which I take to mean a set position, as well as a commission. I make no finding of fact relating to that allegation over and above that I find it was the mother’s genuinely held belief that the father interfered with her employment. Another example of her belief is that the father was responsible for making many calls to another employer she briefly worked for, and dropping the call whilst the caller was on hold. She says that as a result, she was let go from that job. She described the husband’s behaviour as “harassment”. There was no specific evidence about this in her material, and the father was not cross-examined about this.
The father’s July 2017 affidavit, upon which he relies for these proceedings, stated “[t]here has been substantial change in circumstances with my daughters Ms C, D and E.”[18] In that affidavit, his evidence in relation to that change in circumstances is:[19]
4. [Ms King] has been psychologically and physically harming my daughters [D] and [E] which has come to my attention [sic].
5. I am concerned for the welfare of my daughters D and E and believe the children should not be alone in the presence of [Ms King] as it has come to my attention from [Ms C King] [sic] Application in a Case and Affidavit. Furthermore my younger daughter E has a learning disabilities which [Ms King] has done absolutely nothing to help her with.
6. I am concerned that splitting up of my daughter [Ms C], [D] and [E] would have an adverse affect [sic] on my 10 year old daughter [E]. The psychological game that [Ms King] plays much fact [sic] the way in which the children mature into young adults.
The balance of the affidavit relates to property proceedings, as do all the other affidavits the husband relies on in these proceedings, except for perhaps, three paragraphs in an affidavit sworn and filed on 13 July 2015, over two years before his application. Those three paragraphs are:
25. [Ms King] has put an application for an intervention order against myself which has been fabricated to portray me as an underworld figure. This accusation has no substance. She has been trying this for the past 5 years and has showed no evidence.
26. The court has dealt with these orders seeked [sic] by the applicant.
27. Before honourable Justice Bennet [sic] it was ordered that the children seek counselling, the aim was to open up an opportunity for the children to be untied and interact with their father.
[18] Father’s affidavit sworn and filed 27 July 2017, [3]
[19] ibid
I presume that the father was referring to the orders of Johns J in 2013 in paragraph 27. In relation to his evidence about the intervention orders, the mother annexed to her affidavit, an intervention order made 26 August 2015 in which the mother, D and E, are affected family members, that is to last until 15 June 2025.[20] That order does not contain the usual exception for orders made under the Family Law Act 1975 (Cth).
[20] Annexure TK-36 of the mother’s affidavit sworn 7 December 2017 filed 8 December 2017.
The father’s affidavit evidence is insufficient to satisfy me that the Court should look again at what (if any) parenting orders should be made as between the father and the younger children. However, I will also look at the evidence adduced in the proceedings generally, including in Ms C’s case.
Under cross-examination by counsel for the mother, the father’s evidence was that there were three things that constituted a change in the circumstances since the 2013 parenting orders such as to warrant a re-examination of those orders. Those were that “the children have got [sic] older,…that time heals everything” and that “[Ms C] coming into [the father’s] life and reconnecting would give the children more assurance…that [their father] does want to see them.” Whilst the first is certainly true, it is true of all parenting matters that children get older and mature. In my view, the father has to show something more.
The mother deposes in 17 relatively short paragraphs about parenting matters, roughly less than three pages in her 40 page affidavit which otherwise deposed to property matters. With my leave, her counsel also led very limited evidence from her about how the children were progressing at school.
On 11 December 2017, the father was represented by counsel who cross-examined the mother for approximately 15 minutes. The next day, the husband was no longer represented. In those circumstances, I allowed him to ask further questions of the mother. In doing so, I overruled an objection from counsel for the mother on the basis that the mother was not prejudiced by further questions, given that Ms C was part way through her cross-examination of the mother. Again, the father’s cross-examination of the mother was short and focused more on Ms C than the younger children. In summary, the mother’s evidence as it relates to the father’s time with the younger children was:
a)She has complied with the final orders, including paragraph 7, and to that end the younger children attended therapeutic counselling on four occasions. On three occasions, she took the children to counselling and on the last occasion, Ms C took the children. After the last session, the counsellor told her that the children were going well and no longer wished to attend counselling and that there was no need to make another appointment.
b)That the younger children have very limited memories of experiences with the father and have expressed that they do not wish to see him. She has also witnessed D being distressed by the prospect of spending time with her father.
The mother also said Ms C commenced living with the father in January 2014 (just three months after the final orders were made). She said Ms C returned in December 2014 then left again in January 2015 after an “altercation” with the mother; the mother says Ms C then lived with her parents (Ms C’s maternal grandparents) for approximately two years.[21] The mother’s evidence-in-chief about when Ms C left the family home was as follows:[22]
Of all the children, [Ms C] struggled the most with the change of financial situation of the family. [Ms C] wanted to “keep up” with her friends at school and wear expensive brand name clothes. I could also no longer afford many of the extracurricular activates [sic] the children previously participated in. This created tension in my relationship with [Ms C]. In contrast to my financial position, the [father] could provide financially to [Ms C’s] liking.
[21] Ms C’s evidence in her affidavit sworn 19 April 2017 and filed 27 July 2017 contradicts that of her mother
[22] Mother’s affidavit sworn 7 December 2017, filed 8 December 2017 at [211]
The father was cross-examined by counsel for the mother about what he had done since the 2013 final parenting orders to improve his relationship with the two younger children.
In relation to the therapeutic counselling sessions attempted following the 2013 final parenting orders, the father’s evidence was that he only attended two sessions of counselling and agreed that he told the family report writer that he ceased going because it was too far away. When cross-examined, the father said “it was a long distance and it was a very unsafe neighbourhood”, that he had in fact gone there on three occasions but on one occasion the counsellor was not available. When pressed, he said it was “a little complex”, that the “community centre there is actually a lot of drug people [sic]; a lot of people with psychiatric problems”; he said “I didn’t feel safe for my own safety.” He said he didn’t have a car at the time and it took several hours to travel there. When the family consultant was cross-examined by the independent children’s lawyer, she gave evidence that the father had told her that he was not working because “it was too emotional for him”. Her view was that if the father was not working, the distance to travel would have been less of a barrier. Counsel for the mother cross-examined the father about a car purchased in 2013; although the father initially agreed the transfer document for the vehicle was addressed to him, and contained what looked like his signature, he later said he was not sure who the signature belonged to and that he had accompanied his sister to pick up a vehicle. He maintained that he has no car. Regardless of whether the father had use of a car, he did attend for two sessions and did not see the children in either of them. It was put to him that he simply “couldn’t be bothered going to [Suburb U]” after the third session, he disagreed saying that “it was very hard” for him.

The father’s evidence was that after he stopped attending sessions in Suburb U, he decided to go and see his own doctors. He said he had received counselling from two General Practitioners, Dr X and Dr Y; in total, about eighteen sessions. When asked what he had learned, he said he had undertaken counselling to try and understand why, in particular, D, with whom he said he’d had a different kind of bond from the others, did not want to see him, and he learnt that children are “very fragile”. When asked how that related to the children not wanting to see him, he said it didn’t, that he knew all along why they didn’t want to see him and it was “all [due] to the mother’s influence”. He said it was “100 per cent” the mother’s fault. When asked if he had done anything wrong, he said “I should have tried harder”, when asked what in particular he would have done differently, he said “well, I wasn’t allowed to do it”. The father was asked if he ever asked Dr X or Dr Y to go on affidavit, or prepare a report from him, the father said he hadn’t, because he hadn’t sought counselling for court, but for himself.
The family consultant’s opinion of the father’s disengagement from counselling was that D and E had viewed that as “a second rejection of them” and with the passage of time, they now viewed the possibility of a relationship with him with “disinterest”. When the father was asked, what, apart from this counselling, he had done to reduce the risk of harm that might occur if he spent time with the children, the father said “nothing”. When I clarified the question, the father’s answer was that the children were to understand that “Dad is not there to harm the children. Dad has never harmed the children.” When I asked if that was his response because he did not accept Johns J’s findings of the risk of harm, the father denied it that was the case. He said “Johns J said that because the children were very young and it was very raw. So I think that – that could have harmed them at that age, because they didn’t understand…but the [sic] six years have passed your Honour… I think that the children will understand now”. When asked if he thought the children might have a good reason for not wanting to see him, he said “I don’t see any reason.”
The father was also asked about the child support he was to pay to the mother. He agreed with counsel for the mother that he had paid child support of about $1500 in the last six years. The father agreed that he had not paid it voluntarily. The father’s evidence was that at various points, there were mistakes in the Child Support assessment, and in any event, he had been unemployed or earning an income below the threshold to pay tax. He said in the last six years he had worked a little bit on and off. When asked what his current occupation was, the father said he was a “house partner” and he relied on his partner, who he lives with for some of the time, to pay for living expenses, except for about $200 a week which would come from his own pay or from income he receives from his parents. His evidence was that he received the money through a sibling, who would give him the money in cash. He also said the $30,000 that went towards paying Ms C’s private school fees in her final year of education was paid through his brother’s bank account. When asked why he did not receive the money in his bank account, the father said he did once, but was questioned by the Child Support Agency about where it had come from. It was put to him that the real reason it was not provided to him in a bank account was because it would have gone towards paying his child support liability. Though the father denied it, I find that suggestion is correct.
The father gave evidence that in 2014 when Ms C went to live with him and moved to Z School, a verbal agreement was made with the mother that his parents would pay for the younger children to attend that school or another private school as well and “that all balanced out with the child support”. When it was put to him that such an offer was never conveyed to the mother, he disagreed. When I later asked whether it was only schooling he was prepared to provide, and not holidays or uniforms or anything else, he disagreed and said he was prepared to provide other things apart from school fees. When I asked why he hadn’t he said “I haven’t had the opportunity to” and later when asked similar questions by the Independent Children’s Lawyer, he said he “was never asked to”. He said he had asked the mother “100 times before” if he could make some payment towards the children’s school uniforms.
At one point, I pointed out he could have just paid the mother through child support, he said he could have but then made excuses like he believed the mother was earning $120,000 per annum anyway and that if he gave her the money she would misuse it and not spend it on the children. Those were not propositions put to the mother during the father’s cross-examination of her. When cross-examined by counsel for the Independent Children’s Lawyer, the father said that he was “going to pay all [the child support owing] once the Child Support Agency… [sorted] out all the proper assessment.” He said he anticipated paying about $15,000 which he was intending to borrow from his parents. His evidence was that he had asked them a couple of weeks ago for the money and they agreed that they would pay it. When questioned about why he had not paid any money already, the father said he “wanted to finish the debt from square and start from fresh and keep up with everything.”
The father was asked about any cards, letters and gifts he sent to the children, which was allowed by Johns J’s orders made in 2013. His evidence was that he had sent gifts and cards to the children, but that according to Ms C, the mother prevented the children from receiving them. He said he recalled sending dolls, books and toys to the children but alleged that he found out in January 2017 that the children were not receiving them. In response to a question by me, his knowledge or recall of the dolls which he said he purchased was vague and imprecise. The father alleged that he informed the Independent Children’s Lawyer, by then appointed for this round of proceedings, that the mother was not following the 2013 orders but had only done so by telephoning his office but never sent a letter to that effect.
During his cross-examination, a number of accusations the father made to the family report writer about the mother were put to him. His evidence was that he thought:
·that the mother “neglect[s]” and “abandon[s]” the children, and has “kept them prisoner” by locking them in the house whilst she goes to work;
·that the mother is “emotionally blackmailing the kids”; and
·that the children are “scared of seeing [him] because they will disappoint their mother and their mother has told them, ‘if you go see your father, he’s going to take you away’”.

Family Report

Ms Q prepared the Family Report[23] for these proceedings and assessed the mother, the father, and the three children in 2017. The report is sound and informative of the maturity, lifestyle and perspectives of Ms C, D and E.[24]
[23] Dated 24 November 2017
[24]Family Law Act 1975(Cth) s 60CC(3)(g).
In relation to her interviews and observations with the children, the family consultant’s evidence was:
72. [D], 14 years 2 months, presented as an articulate, bright young person who appeared to be experiencing heightened anxiety, at times becoming distressed and angry regarding her ongoing involvement in the court proceedings. [D] reported that the purpose of the interview was to inform the court of what she wants. At the outset she stated clearly that she wanted the Judge to know that she was “sick of this” and “tired” of talking to counsellors.
73. [D] described a generally positive picture of life with her mother…
74. [D] advised that although she had no concerns for herself with her mother she is worried about her mother being “stressed out and tired” due to the length of the court proceedings…
…
78. [D] advised that she was not willing to spend time with her father, describing him as a “stranger” to her. She stated she did not want to undergo an observation with her father advising that she had nothing to talk to him about. [D] advised that her mother has told her to spend time with her father and sister if she wants to but she felt that it should be her own choice and that she would continue to refuse to spend time with her father regardless of the outcome of court proceedings.
79. [D] advised that her “advice to the Judge” would be to be “more understanding” about how life has been for her and to “finish the court stuff”, as she feels that she is continually being “interrogated” about her family life and to allow her to make her own decisions when older about spending time with her father. [D] became particularly distressed and advised that she wants a “normal life” and that she did not want to “deal with all this” again.
80. [E], 11 years 5 months, presented as a lively, likeable child…
81. [E] described a positive experience with her mother…
…
85. [E] advised that she was not interested in spending time with her father believing there would be nothing to do although she appeared to express some interest in whether he would look different. She advised that “as long as I’m with [D], everything’s fine”, and “if [D] is ok, I’ll be ok with it.”
…
91…On [the father’s] entry, [D] and [E] both ignored their father, he crouched down in front of them and attempted to engage them in conversation, however [E] coldly asked “what do you want?” before quickly responding with “I don’t care” as [Mr King] attempted to speak. [E] appeared quite stressed while [D] completely disregarded her father while he spoke. [D] then stated something inaudible to her father before turning to the writer and asking “are we done now?” in an angry tone. The observation was stopped as both children appeared quite stressed and [D] asked to leave.
When the father cross-examined the family consultant, he asked if it was possible that the children were coached when they came in to see her in November 2017, she acknowledged that the possibility could not be eradicated but in her view, the children were not coached. He also asked the family consultant to clarify how E portrayed her views about him in the interview; the family consultant said E had very little recollection of him, that she “basically views her father as a stranger” and that she did not think poorly of him, rather “she was completely indifferent.” The father did not otherwise challenge her evidence. When cross-examined by the independent children’s lawyer, the family consultant said the children’s attitudes of indifference suggested that the allegations of ongoing denigration of the father lacked credibility because the children’s memories of those things had faded and in their interview with her, they had expressed no real concerns about the father, but were “just absolutely disinterested in having a relationship with their father”.
In her report, the family consultant said of the children’s relationship with their father:[25]
94. Since the making of the final parenting orders [Mr King] appears to have demonstrated limited commitment to the rebuilding of his relationship with the children as provided for within those orders. His reported attendance at only two [therapeutic counselling] sessions based on his assertion that the distance was too great suggests a distinct lack of child-focus in his decision making and a lack of insight into the impact on the children of his withdrawal from that process. While the children were of an age, at that time, to engage in the therapeutic process, they have subsequently perceived this as a second rejection from their father and are now in adolescence whereby developmentally they are less likely to be forgiving of their parents.
95. Despite the length of time since separation, the level of hostility and mistrust between the parents, fuelled by the financial matters, has continued to fester and appears to have become entrenched behaviour which is likely to undermine their capacity to effectively co-parent. While [Mr King] asserts that he has not exposed the children to his negative views of the mother, the derogatory language used by [Mr King] was shared with that of [Ms C King] suggesting that she has been exposed to his negative views.
…
100. While there appears to be limited allegations of risk to the children in the care of the father this assessment would suggest that an introduction of time with the children would be difficult to achieve given the level of indifference that the children demonstrated in relation to their father. The children have not spent time with their father for a considerable period since around August 2011 and they appear to be closely aligned with their mother who has provided for all of their needs since separation. While [Mr King] recognised that he had a limited relationship with his youngest daughter prior to separation he did not appear to consider the impact on the children of the application he has made to the court of preventing the children from having access to their primary parent, despite his apparent lack of engagement in the children’s life.
101. The children’s attitude towards their father appears to be a realistic estrangement given they have not experienced him as a reliable and concerned care-giver in their lives and his behaviour subsequent to separation appears to have strengthened this view of him. [Mr King] does not appear to have been responsive to professional advice and supports that could have led to attempts at reunification with the children. Instead he has seemingly relied on his daughter, [Ms C], to adopt his narrative towards the mother and this manipulative style of parenting for the serving of one’s own needs could be defined as emotional abuse. While their mother may be responsible for failing to promote the children’s relationship with their father, her position could be perceived as a protective act designed to shield the children from their father’s undue influence.
102. It would appear that therapeutic intervention has been attempted on two occasions, which has been unsuccessful in building a relationship between the children and their father, as the children are highly aligned to their mother. [D] in particular perceives that her father has had his chance to repair their relationship and she is unwilling to engage in therapeutic interventions to rebuild this relationship. While [E] appears likely to be more open to this she is highly reliant on her mother and sister for emotional reassurance and in the absence of their support she is unlikely to engage willingly in spending time with her father. The longer term impact of the children’s current loyalty bind is likely to become more apparent as they progress through adolescence and it would be of benefit to the children if they were to access counselling to attempt to ameliorate the impact of their early experiences.
[25] Family Report dated 24 November 2017
When cross-examined by the independent children’s lawyer, the family consultant confirmed her views and said that it didn’t appear that the father hand changed his attitudes since the last proceedings nor had he gained any understanding of the impact of his behaviour on the children. The Independent Children’s Lawyer relies on the reasons of Johns J, the evidence of the Family Consultant and the two reports produced by Mr V in the final proceedings in 2013.
In her evidence, the family consultant also considered the allegations made by Ms C. Although the father did not say at any point in the proceedings that he relied on Ms C’s affidavit or evidence to support his case; he did say in his final submissions that he supported Ms C’s submissions and wished to add to them. In Ms C’s submissions, she said she supported the father’s case. The father altered his proposal for time in order to avoid competing with Ms C for the same block of time with the younger children. As I have said earlier, much of his cross-examination of the mother related to Ms C, and not the two children who were the subject of these proceedings.
Although Ms C’s evidence is not part of either parent’s case about the time the father is to spend with the younger children, much of her evidence was focused on that evidence. That is understandable given that Ms C makes numerous allegations about her mother in her evidence, including that the mother made her and her sisters fearful of their father,[26] that the mother constantly swore at the children,[27] that the mother physically disciplined her as a child[28] and attacked her as recently as December 2016.[29]
[26] Ms C’s affidavit sworn 10 April 2017, filed 28 July 2017 [3]
[27] Ibid, [16]
[28] Ibid, [23]
[29] Ibid. [22]
Whilst ordinarily I would not look beyond the evidence before me in a particular case, I could not fulfil my mandate in making orders for the father’s time in the best interests of the younger children without considering the veracity of Ms C’s evidence. That evidence is before me in any event because of Ms C’s application. In those circumstances, I propose to consider Ms C’s evidence in the context of the father’s application for time as well as in the context Ms C’s application for time. First, I will set out Ms C’s application.

Ms C’s application

In the previous final orders, Ms C was a minor who was a subject of proceedings between the parents. In these proceedings, Ms C, now aged 21 years, has made an application to spend time with her younger siblings. The mother does not oppose the concept of face to face time between the girls but seeks that Ms C’s time with the children be supervised. In the witness box, the mother’s evidence was that the children have access to a phone and an iPad and they have Ms C’s number. She says they are able to call or FaceTime with Ms C if they wish to, but in the last 11 months, they have not chosen to do so. The father supports Ms C’s application to spend time with her siblings and, as I said earlier, he amended his application so that their proposed times to see the children do not overlap. The independent children’s lawyer’s proposal is that the children spend time and communicate with their sister in accordance with their wishes.
Ms C’s living arrangements have been somewhat unstable since the 2013 orders. At that stage, Ms C had been living with her mother since separation but in early 2014, Ms C moved to live with her father during her final year of high school because, as Ms C put it, it was “geographically easier and more convenient to live with him” whilst she was completing her VCE at Z School. Ms C said she moved back in with her mother after the school year ended but left after three weeks “due to a serious incident”. She then lived with her maternal grandmother until July 2016, when she moved back in with her mother and sisters at Suburb F. Ms C said she did this because she missed her sisters. That arrangement ended in December 2016 after an incident to which I will refer later. Since then, Ms C has lived sometimes with her father and sometimes with her boyfriend.
Ms C’s evidence about why she made an application to the Court was as follows:
25. …I feel as though I have escaped the toxic abuse of the [mother’s] family and that I can now be healthy, safe and free. I feel I owe this this [sic] to my sisters, to save them from the amount of trauma that was inflicted by my mother. I feel so scared for them and guilty as if I have left them behind. I have not seen my sisters since the night I had the operation because [Ms King] threatened to put an intervention order against me if I tried contacting the girls. She has me blocked from sending text messages, making phone calls, blocked on social media, Instagram. I have absolutely no way of getting through to them. I fear for [D’s] mental health, she is very sensitive and emotional in nature. I fear for [E’s] development and emotional abuse. My mother brainwashes [E] the most because she is easier manipulated being developmentally delayed and youngest. I am fearful of the people that my mother would allow to hit the girls. I am fearful of [Mr W] being around my sisters.

Ms C’s evidence in these proceedings is concerning. It paints the mother as a neglectful and spiteful woman, more concerned with assuming “control” in the household and gaining some financial advantage than in the wellbeing of her children.
In relation to the father, Ms C’s evidence about how the mother behaved was that:
2. …I had previous problems with her prior to the incident largely due to her odd behaviours. She started bringing different men home. She would ask my siblings [D] and [E], “so girls, what do you think? Do you like this man? Do you want a new daddy?” we found this totally odd as we already had a father.
3. My mother would make us fearful of my father, saying that he was going to kidnap us from school and take us to Turkey to live for ever [sic]. I found out that it was infact [sic] my father who put hold on [sic] our passports. This was the beginning of many incidents of psychological battery and bullying. Her behaviour would often spiralled [sic]out of control.
…
18. My mother engages in Voodoo and fortune telling, tarot card reading etc. I remember my mother laughing about putting a rat inside my dads [sic] parents [sic] house where his sister and family lived. I also found a Voodoo doll for my dad in the needle box when I was getting a pin for my dress one day.
…
20. My mother constantly conditions my sisters and I of how bad my father is. I too was brainwashed until she began to forget the lies she told and her stories kept changing…
Ms C also gave evidence that the mother was a poor parent:
9. On the [sic] daily basis, my mother leaves for work at 8:30am and returns home at 9pm Monday to Saturday at [Company AA]. She would work numerous after work hours and be home very late. Until I would return from work at 5pm on weekdays and 9pm on Thursdays and Fridays. My mother would leave [D], my 13 year old sister, in charge of taking care of [E] and feeding her whatever she could find – most likely 2 minute noodles – the nights I finished late. [D] would have all the pressure on her as well as doing her homework and walking herself and [E] to and from school. I would prepare dinner every single night, and if there weren’t any groceries, I would resort to buying take-away. I gave my mother my Cenrelink [sic] card so that she could use the money to spend on the girls and to get food etc. I never saw the fridge getting filled. My mother never cooked because she didn’t eat dinner, she usually starves herself with coffee all day. I would find [sic] in the backyard smoking all night and talking on the telephone. This is hardly a role model for my sisters.
10. [E], my youngest sister, has been having difficulties with her homework. She struggles to do basic requirements and has poor linguistic skills. She also has trouble with verbally expressing herself, following [sic] by getting easily frustrated when not understood. I began helping her with homework most nights. There are constant files being sent to the house in regards to [E’s] development and programs that are recommended for her. My middle sister, [D], and I recognised the concerns and when confronting my mother about it, she would shrug it off. I would bring it to her attention numerous times and on one occasion she laughed saying, “I hope if [E] is disabled that Centrelink can give me back-pay and I’ll be the full-time carer.” Again hardly something that is what a mother should be saying or doing.
…
12. My mother soon began coming home at 12-2am every night for 4 weeks in a row. I would finish work at 9pm so my sisters would be home all day by themselves with no meal arrangements. Her phone would be off when I’d call her. I once resorted to calling her boss as I assumed they were together. He passed the phone to my mother, she argued with me over the phone that I had no right to call her, that I “am not the mother.” And that she “doesn’t need to be questioned or answer” to me. My mother also would make arrangements for her friends, whom I have never heard of, to come over and sleep over. I was very unpleased [sic] about these behaviours of hers and felt it was very disrespectful to not notify me or my sisters as common courtesy. I was always worried about who they were would they do [sic] and what their background was none of which was ever explained to me.
…
14. As per usual, on a night I tried helping [E] with her homework again and my mother said, “Leave her, don’t get involved, its my kid.” I was very confused as to why it seemed she purposely didn’t want [E] to get better with her difficulties. I confiscated [E’s] iPad everyday after school until she completed her homework where I would then return it to her. My mother soon found out I was doing this and threatened for me to not ever touch her things and “not to discipline her kids!”
…
16. My mother would constantly swear at my sister’s [sic] and myself. Her words are very sexual. For example, one night she couldn’t find her iPhone 5 charger. [D] didn’t even have a phone so it could not have been her that touched it. [E] has an iPad that requires the same charger my mum uses so she sometimes takes it. Whilst I was watching a movie with [D] and my boyfriend in the lounge room, my mother stormed out of her bedroom screaming, “Where’s my f***ing charger?!” She then grabbed [D] by the arm and slapped her bottom 3 times very hard. [D] ran to her room crying and embarrassed [sic] She then went for [E] and hit her a few times until she confessed she had taken it.
17. The next day when I confronted her about hitting my sisters, she got in my face and began poking my chest with her finger in my face saying, “You don’t tell me what to do, go f*** off.” She also broke one of my fingernails by twisting my fingers.
…
24. I am fearful of my sister’s being along [sic] with her as I believe [Ms King] is in the most unstable state she has ever been. My mother has episodes of heightened confidence where she claims that she is perfect and she never makes mistakes and that she could’ve been the chosen one, being a Prophet. Some days she would lock herself in her room and not come out until the morning. Some days she would be very excited for small reasons and act very cheerful. She regularly has an outburst of hitting the girls and verbally abusing them using sexual terms. The girls spend all their time at either school or in the house. My mum is also reluctant to take them to my grandma’s house as my aunty drops off her son there and insults the girls. When the girls would ask to do something with their weekend, my mum would say, “With what money? Do you want me to prostitute myself?” This would drown them in guilt to ever ask again. I feel there is no other caretaker more suitable in my family other than my dad and hope my mother has no one from her family to care for my sisters.
There were other allegations made by Ms C, some more historic, some which she said occurred whilst she was a young child or during her early teenage years. She also accused the mother’s family members of being complicit of the mother’s behaviour, saying they “share the same views” as the mother.
She made similar reports to those outlined above to Ms Q. Of particular concern were her reports that the mother neglected the children because she was “working night and day”, did not spend time with the children, and the children were not appropriately fed and are “malnourished in the care of their mother.[30] She reported that the mother was working full time and “fooling” her family to obtain money from them but also claiming benefits which she then would not use to support the children.[31] Ms C also reported that she thought her mother had Borderline Personality Disorder and Bi-polar Disorder.[32] Another concerning aspect was her report that the mother was physically abusive to all of the children throughout their life and had been “bashing” her on a weekly basis.[33] She said she had not previously disclosed any of this in the previous proceedings when she was twice assessed by Mr V or otherwise. She explained that her failure to disclose was because she had an “attachment to the abuser” and “repressed memories” about her childhood.[34] She said it was not until December 2016 that she had an “awakening” about the abuse she and her sisters suffered at the hands of the mother.[35]
[30] Family Report dated 24 November 2017, [49]
[31] Family Report dated 24 November 2017, [36]
[32] Family Report dated 24 November 2017, [57]
[33] Family Report dated 24 November 2017, [48]
[34] Family Report dated 24 November 2017, [48]
[35] Family Report dated 24 November 2017, [48]
In relation to the previous proceedings, Ms C alleges that she lied to the family consultant, Mr V. She said that the mother had told her and the younger two children not to “make [the mother] look bad” and in relation to their father, she had told them to do “whatever you have to do, make it convincing”. Ms C also gave evidence that her mother told her to make “the [younger] girls fall in line”. Ms C said she and her sisters were coached by their mother to give more believable answers such as not providing an outright denial to a question like “does Mum hit you”, but saying “only if like, she does something naughty and a slip [sic] on the wrists or a pat on the bum” to make their responses seem more “reasonable”. Ms C said she practiced this technique with her mother. When asked why she lied, Ms C said she “was always trying to protect my Mum and never dob on her to authorities”. She also gave evidence that the mother said if she did not lie, she would never love her or forgive her and that she would hurt Ms C and her sisters even more. When asked whether she meant physical harm, Ms C agreed.
In the previous proceedings, Johns J’s had the benefit of cross-examination of Mr V, and in her reasons, she noted that he was cross-examined extensively about the genuineness of the children’s views at that time. As I earlier stated, the view of Mr V, as conveyed in her Honour’s reasons, was that the children’s distress about seeing their father appeared genuine and not the product of directions or undue influence from their mother.[36] Johns J accepted the evidence of Mr V and was satisfied that the children had been estranged from their father.
[36] At [73], [99] – [100]
Ms C was cross-examined by counsel for the mother about whether other aspects of Mr V’s assessment of her position in the 2013 proceedings was accurate, namely that she “appreciated that her mother had been under some emotional pressure, because of what had occurred with the parental separation and the significant changes that had emerged with their financial circumstances”. Ms C said “there was some truth to it in the sense that there were changes in the financial circumstances. The minute that my father – my mother separated, I immediately had to get a job and, from that day onwards, I had to support myself.” When asked if that was because the mother’s financial resources were limited, Ms C’s response was “I saw that my mother no longer wanted to cater to me”.
In her reasons for judgment, Johns J had found that the father had, at the time of separation, withdrawn all financial support to the mother and the children and that the children had been aware of this. Ms C acknowledged, in these proceedings, that the mother had been borrowing money (from family members), and that the children “never really went without” and were housed and fed by the mother. But she criticised the mother for “completely cut[ting] [her] off” and telling her to “get a job now and pay for your own things”. When I asked what “completely cut me off” meant, Ms C said she had to pay for her own movie ticket if she wanted to see a movie with her younger sisters. When I asked how many times that occurred, she said once, and then acknowledged that it was possible that her mother just didn’t have another $15 to pay for her ticket, as well as tickets for the younger sisters. Ms C then said it wasn’t so much that her mother told her she didn’t have any money, but of the mother excluding her from things by saying something along the lines of “we’re going to get McDonald’s. No, I’m not going to buy it for you”. She said she was “excluded” by the mother.
The mother’s evidence was that Ms C’s allegations were “fabricated and designed to hurt [her].”[37] The mother alleges that Ms C’s allegations were directed at her “as a way to gain the [father’s] approval.”[38] The mother was clearly wounded by Ms C’s evidence in spite of maintaining that much of it was false.
[37] Mother’s affidavit [216]
[38] Mother’s affidavit [217]
In the witness box, the mother described Ms C as “troubled”. She said Ms C had “been through a lot” and now her relationship with Ms C was “damaged” and she expected it would “take years” for the relationship to mend. My impression is that the mother’s attitude was reasonable. The mother’s evidence was that she done the best she could for Ms C. She says when Ms C was distressed and cutting herself, she took her to BB Group (a mental health service for young people) for therapy. When Ms C got older and went to nightclubs, she says she told Ms C no matter how late it was she could ring the mother for help. The mother says she tried to support Ms C as best she could, “financially and emotionally, [she] was there for her”. She said Ms C “was angry with [the mother]” and “knew [the mother] couldn’t give her everything.” She said whatever money she had, she prioritised Ms C over her two younger children; so much so that whilst the younger children missed out, Ms C still got what she wanted.
To the extent that the evidence of mother and daughter conflicted, I accept the mother’s evidence over Ms C’s evidence. The mother was a straightforward and apparently truthful witness. Ms C, on the other hand, had an attitude of resentment towards the mother and impressed me as wanting to demonstrate support for her father by belittling her mother.
The family consultant described Ms C as exhibiting poor mental health at the assessment in November 2017 and said that she appeared distressed and cried consistently throughout the interview. The family consultant’s view was that Ms C’s presentation was consistent with a child who become alienated from one parent (the mother). In her oral evidence, the family consultant said:
I think it’s very easy to align a child who has that experience [of being in a high conflict family] to you very quickly because they’re used to that black and white way of thinking that one parent is all good one parent is all bad. They don’t live in the grey area where, you know, people can make mistakes and are fallible. So they’re quite – that shifting of allegiance is – is unfortunately quite easy to do, to a certain extent. And those children often experience quite – exhibit quite poor mental health, quite high levels of anxiety, low levels of self-esteem and difficulties in relationships, and they – they carry that through all the different spheres of their life. And unfortunately that becomes a very sort of dogmatic this is – this is now my belief that parents are all bad, and it’s – it’s very, very difficult to shift, your Honour, once that’s in place.
The way that she presented to me was somebody who – a lot of the time I felt that things were being almost sort of made up on the hop as we were talking, when she felt that – when questions were taking a direction that she – she hadn’t quite predicted, she seemed quite sort of frozen by it, and she just then reverted and fell back onto just damning her mother completely, that everything was her mother’s fault. She spoke a lot about having repressed memories about – she used a lot of psycho jargon – psychobabble jargon – in terms of talking about having repressed memories, the cycle of abuse, having attachment to her abuser, rather than kind of relaying experiences as from a lived perspective. It was very much this kind of textbooky sort of psychological speak that just didn’t really fall as genuine as you – as you were talking to her.
When cross-examined by the independent children’s lawyer about whether the family consultant was surprised by Ms C’s change of allegiance, she said “[n]ot particularly. It’s – it’s not uncommon for children who have been – Ms C was – was a pawn in her parents’ conflict at that stage. She had been embroiled in her father’s extramarital affairs. She had been used by her father against her mother at that stage, then she had had this very short period of time with her mother and then back with her father where there was almost a kind of objectification of the children in that, you know, it was about – it wasn’t about what sort of emotional warmth he could give to the children, or that Ms C was saying her father would give, it was all about material possessions.”
The family consultant went on to say that the father and Ms C had a “shared narrative” in relation to the way they talked about the mother and the younger children and the terminology they both used. In relation to the language they used, the family consultant said “they both used the expression ‘100 per cent’ lots of times in the conversation.” In relation to the proceedings, she said both the father and Ms C expressed “the view that the father needs to be involved urgently because there needs to be monitoring of the children with their mother, and they need to be monitored at all times in the care of their mother.” The family consultant also described Ms C and the father providing “lots of critique about the mother being money hungry, thinking the dad had a golden goose. There was lots of moneys being spent on the mother rather than on the children.” The family consultant said she got the sense from the father that he would provide the children with more money and more things, and described the possibility of having things like new phones, new clothes and new makeup as a significant lure for adolescent girls. She agreed that that was a significant thing for Ms C, who has now aligned with the father.
The family consultant’s opinion was that Ms C is “prepared to lie for her father” and that she held “significant concerns about the veracity of what [sic] [Ms C] said to [her] at [the] interview”. I concur with that view.
I find that Ms C’s evidence was intentionally misleading. For example, in cross-examination it became apparent that where she had deposed to her mother “bringing different men home”, she was not suggesting that her mother was having sex with them, or even bringing them into her house. When asked, what does “bringing them home” mean, she said “Just the ordinary, common usage of those words?‑‑‑As in drop – picking her up, dropping her off at 10 o’clock at night and then the girls would wake up, and we would see them just outside the front yard talking and being close together and things like that – come to the front door, and then she would leave them at the door.” In that example, Ms C agreed that that she had not been telling the whole truth through her description.
In relation to her allegation that her “mother also make arrangements for her friends, whom I have never heard of, to come and sleep over”, Ms C admitted in cross-examination that she was referring to two occasions, on one occasion her mother had told her the name of the person who stayed over, and on the second occasion, Ms C could not be certain if they had in fact stayed overnight but thought they had because she hadn’t heard them leave after they came in. She also admitted she did not ask her mother if the person had in fact slept in their house. When asked if she had deliberately set out to show that her mother was promiscuous, Ms C agreed. It was an example of Ms C being prepared to lie in her father’s case.
I find the allegation about her mother engaging in voodoo (see paragraph 62 above) was equally misleading. When first asked how often her mother engages in voodoo, Ms C said that once every six months her mother went to a fortune teller. She then added that her mother had a voodoo doll of the father. She said, her mother “says, “I’m going to curse your dad,” and she will say, like, some bad thing and try to cast it upon Dad and say, “I wish I could cast a spell,” and she has pictures of my dad. She has a voodoo doll with pins in it and she sees her fortune teller. She always asks about my dad in them and what’s going to happen to him and things like that.” It was put to her that the mother did not have any photographs of the father and the allegations were just nonsense, Ms C disagreed and said the mother “does rituals, also, where she burns certain things and gets maraca – like, shaky things shaken all over her, and she says words in the process. Tarot cards and all – everything.” Ms C did not put any of this to the mother and I am of the view that like the allegations that suggested her mother was promiscuous, Ms C was bending the truth to fit her narrative, it may be true that her mother sees a fortune teller every six months but I find the allegations about the mother otherwise engaging in “black magic” or “voodoo” to be extremely unlikely.

Further, there were instances when Ms C was in the witness box where I found her evidence to be implausible. For example, when she was cross-examined by the father, she was asked why she returned to her mother’s care after living with him whilst she completed year 12. She said “I left because my mother had called me, and she said, “Quick, [Ms C], I’ve just spoken to my lawyers and my solicitors and they said you have to get out of there. Your dad’s going to do something. He’s going to – he knows something and you have to get out of there. Get all your stuff. Get out of there immediately”. And I said, “Why?” She said, “Right now. He’s coming home,” And for some reason just instilled fear in me. I’m thinking, “Why is she behaving like this?” So I just left.” I find in that instance, Ms C was simply lying.

The two alleged incidents of family violence committed by the mother

Apart from the allegations already canvassed above, there were two other incidents Ms C deposed to that occurred after the 2013 final proceedings, one on 2 January 2015 which led to her moving to her grandmother’s house and the other on 28^th of December 2016 which caused her to leave her mother’s house for the last time.
Ms C’s evidence[39] was that on 2 January 2015, the mother took away her keys, phone and wallet and made her leave the house. She says after she went for a walk, she found her mother’s friend, Mr W, at the front door. She says he was verbally abusive and told her to pack her bags and leave the house. Ms C deposed to being grabbed by her arms by Mr W, who squeezed her arms and “scratched” and “kicked [her] shins” as she tried to free herself of him. She says she ran upstairs to her room and started packing her bag but Mr W followed her upstairs and threw her perfume bottles across the room. She says as she ran down the stairs, he chased her, screaming “I hope you get raped!” three times. She says as she left, she told her mother she would not forgive her for letting Mr W speak to her that way and deposes to feeling “scared and unprotected.” She says afterwards she was “scared to walk on the sidewalk with any man approaching me” and suffered “severe anxiety” from her “fear of being raped or attacked by a man.” She also deposes to later seeing Mr W “stalking” the father’s house and taking photographs of him.
[39] Affidavit at [4]
The mother’s evidence was that it was Ms C that attacked her and Mr W in front of the younger children. She said the altercation occurred when two carloads of men came to pick Ms C up and one of them went into the mother’s room. She said she told them Ms C could not go out and the man in her room was abusive towards her. She said she called Mr W for assistance and when he was there, Ms C attacked him to the point where he could not breathe and the younger siblings witnessed this and were upset by it. When Ms C cross-examined her mother about this, she used text messages that the mother agreed she sent to various family members. The mother alleged that Ms C had obtained those by logging into the family’s iCloud account after she left the home. The mother maintained that she did not “allow” Mr W to attack Ms C. The mother’s evidence was that though she had forgiven Ms C for the first incident, she did not allow her to live with them for a time as because she did not want to expose the younger children to any further aggression Ms C might display towards her. She said for a while, Ms C lived with her grandparents but eventually moved back in with her.
The second incident Ms C deposed to, occurred on 28 December 2016 in the early hours of the morning, after she returned home from her boyfriend’s house. She says the mother confronted her because she was angry about Ms C returning home so late. She says the argument occurred in front of D and escalated quickly. She quotes her mother as saying, “You’re just finally happy because you’re getting some d**k! You love to fight with me Ms C, don’t you? …” Ms C says she gathered some clothes to leave the house but as she did, her mother threatened to slash her tyres. She says her mother went to the kitchen and came out with a knife and pointed it as her, demanding that Ms C hand over the car keys. Ms C says the mother got hold of the keys from Ms C and then locked her out of the house. Ms C’s evidence is that she began knocking on the window in the hopes that one of her sisters would open the door. She says her hand went through the window and her arm felt “completely drenched in hot liquid and [there was] a pool of blood at [her] feet”. Ms C says she called for help and asked her mother to call an ambulance but her mother said “call them yourself” and then turned off all the lights in the house and the front porch light. She says she could hear D crying hysterically in the house. She says her mother left her there whilst she tried to call the ambulance. Her evidence is that 10 minutes later, her uncle picked her up and took her to the emergency department where she remained until 6 pm the following day. She says the following day she went to the mother’s house to gather her belongings, she says whilst she did this her mother was screaming “F**k off and never come back”. She says she then left with her uncle.
The mother’s evidence was that Ms C was arguing with D, not her. She says she told Ms C not to fight with her sister as D was “very sensitive”. She says Ms C was unhappy and left the house and after she had done so the mother locked the doors. She says Ms C then tried to go back inside, she says Ms C was screaming and swearing and smashed a panel of glass next to the front door and injuring herself. The mother said she then called her brother asking for assistance, something she says she did often, when she had issues with Ms C. The mother agreed that it was Ms C’s uncle who took her to the hospital and that she did not visit Ms C during her stay. She says she did not do this because she believed Ms C was angry with her and thought she would verbally abuse her in the hospital, she said she was embarrassed to go. The mother’s evidence was that she knew Ms C was safe with her brother so she did not visit.
The mother’s evidence was that two weeks after Ms C left the home she “broke into the house” (or entered it with her key) and took what she wanted, including rings, clothes and shoes that belonged to the mother and E’s iPad. The mother says she knew it was Ms C who broke in because Ms C later returned E’s iPad via the mother’s brother. In relation to the rings, the mother says Ms C knew that she intended to gift one to each of the children but took them anyway. Ms C was not cross-examined about the mother’s rings, but it was put to her that she had stolen E’s iPad. Ms C’s response was that she did that to “give it to my uncle to show him what has been happening”.
Ms C, in her assessment with the family consultant had identified this second incident as triggering an “awakening” to the mother’s abuse. Ms C was cross-examined by counsel for the mother about her actions following that incident. It was put to her that she regarded the situation her sisters were living in as “critical” and that they were being “abused” and “neglected” and she agreed. She was asked why then, it took four months before she commenced proceedings. Ms C’s response was as follows:
Because in that time, before I took it to court, I was dealing with my uncle, who was – who my mother is residing in his home and he has put us in his home so that me and my sisters can be altogether once and for all, once again. And so I turned to him, instead of taking it to the police or authorities. Like, I never have taken any abuse to the authorities before. And he was going to manage it. And he said, “I will get your things. I will keep an eye on your mum.” And he was going to settle it, and he said, “You should be able to see your sisters whenever you want.” And that’s when he had no longer any control. That’s when I said, “Well then I have to take it to the court.”
The family consultant reported what D and E had both described feeling “scared” on one occasion when Ms C was angry and banging on the windows and doors.[40] In her evaluation, the family consultant stated that the allegation that D and E were living in fear in the mother’s care was not apparent at the assessment and that it appeared that D and E had instead been frightened by what they perceived to be Ms C’s violence when she left the mother’s house.[41] Instead, she opined that E shared a warm relationship with the mother and D was confident in challenging her mother’s authority without fear.[42] She said that the mother presented with no overt signs of experiencing mental health issues that would suggest further psychological assessment would be of benefit to the court.[43]
[40] Family Report dated 24 November 2017, [75] and [84]
[41] Family Report dated 24 November 2017, [98]
[42] Family Report dated 24 November 2017, [98]
[43] Family Report dated 24 November 2017, [99]
I prefer the mother’s evidence in this regard.

The mother’s attitude towards Ms C

The mother’s evidence is that the last time she had spoken to Ms C before the trial was earlier in 2017. She says she sent Ms C a text message, “I said have you calmed down? When you’ve calmed down, let’s meet up. I want to see you. I still love you. I don’t like your actions. I don’t like your decisions – what you’re doing. I don’t have to like them, you know. They’re your decisions. I’m here to let you know but I still love you and I’m going to be there for you.” The mother’s evidence is that she also spoke to Ms C after their interviews for the Family Report when they saw each other in the car park. Her evidence was that she said to Ms C, “you’re still my daughter… you can turn around and hug me. We don’t have to tell anyone. Hug me now. I love you. You’re my child at the end of the day.” She said Ms C’s reaction was to cross the road and walk away. The mother’s evidence is that E then comforted her.
The mother’s evidence is that the cause of her fallout with Ms C was her objections in relation to Ms C’s boyfriend. The mother’s evidence is that at first she had been supportive of Ms C’s relationship with her current boyfriend but she later discovered that he had “a past of drugs”, “trouble with the law” and was “bad [at] paying bills”. She said she when she saw Ms C’s boyfriend yelling at Ms C, she was “devastated”. The mother said she told Ms C, “you’re [sic] clever girl than that. You’re wiser than me. You’re clever. You’re at school. Why are you doing that? And that’s when our relationship, your Honour, damaged, because [Ms C] didn’t like that. And I, you know, I said don’t rush it. She wanted to marry him. I said I don’t want you to get married. That’s just me. I don’t want my daughter to get married young. I got married young. Go out. Learn.” Responding to Ms C in cross-examination, she said, “[t]hat’s our arguments, [Ms C], and you know that.”
The mother’s evidence is that she had even assisted Ms C’s boyfriend with some assault charges that were laid against him where the victim was his mother. She said that Ms C and her boyfriend had approached her for help and the mother asked Mr Morgan to assist him, but he advised that he should seek assistance from Legal Aid instead. Ms C was cross-examined about this issue by the mother’s counsel but her evidence was that her boyfriend only had toll and parking fines and otherwise had not been charged with any criminal offences to her knowledge. None of the parties obtained objective evidence about this.
Clearly the mother’s relationship with Ms C is extremely damaged. It is the mother’s evidence that she has been extremely hurt by the allegations Ms C made in her affidavit and by her actions otherwise. When cross-examined by the independent children’s lawyer, the mother gave evidence that Ms C had contacted her boss and “humiliated her” by asking him if he was “having all these things with [her] mum”. The mother said she was so embarrassed that she resigned but her boss told her, “[d]on’t be. She’s just a young girl. She’s going through that. Leave it.” The mother gave evidence that Ms C had also embarrassed her in front of Mr W and at her niece’s wedding. She says that Ms C had “pushed [her] to the max” and was “stressing [her]”. The mother’s evidence was that she loved Ms C but could not forgive her. Her evidence was that Ms C needed to grow up and face the fact that she had hurt her and her family members. When asked by the independent children’s lawyer if she thought that her feelings about Ms C were influencing the younger children, she said the younger children would not know her feelings.
The mother’s evidence is that she wants Ms C to have a relationship with her sisters. She says she seeks that Ms C be supervised when with her sisters because “[e]ach time she has spoken to them, she has upset them. She’s talking bad about me. She’s talking about [the father]. They don’t want to hear that. If [Ms C] speaks to them just about herself and the girls, they would love that.”
The family consultant’s oral evidence was that at the assessment, the mother fluctuated about Ms C. She described times when the mother was saying that the children would “be sisters long after I am gone. I think it’s really important that the relationship is rebuilt” and times when talking about the allegations that Ms C had made about the maternal family when the mother “became quite distressed and angry” and said things like “I can’t have her back with all of this. The whole family is devastated, but she’s still my daughter.” The family consultant opined that that was “indicative of the emotional turmoil [the mother was] actually feeling about the loss of her daughter.”
The family consultant also said in discussion between the family consultant, the mother and D, “the mother was very keen that the children had some kind of relationship with each other” and the mother was “trying to persuade [D] to ring her sister to reconcile their differences. She was overly pushing [D] at that stage”. The family consultant advised that she asked the mother to stop that behaviour. The family consultant’s view was that the mother “may have been attempting to present herself in a positive light, that she wanted [D] to contact her sister, but very quickly fell apart and turned into a little bit of a confrontation between mother and daughter.”
The independent children’s lawyer cross-examined the mother about how she interacts with the younger children about Ms C. The mother’s evidence was that D and E each have the means to communicate with Ms C, D through a phone and E through an iPad, and could do so when they wished to but neither had expressed any wish to do so since Ms C left their home in December 2016. The mother’s evidence is that she had, on several occasions encouraged the younger children to contact Ms C, most recently after the family consultant interviewed them, but they did not want to. She agreed she had never simply taken the younger children to see Ms C or encouraged them to send her cards or gifts; her evidence about why that was the case was that Ms C had in the past attacked her and she did not want the younger children to be exposed to that. She says that Ms C comes up in conversation with the younger children all the time.
When asked by the independent children’s lawyer whether the mother would facilitate time with Ms C first by paying for them to see a counsellor together and later by allowing Ms C to spend unsupervised time with them, she agreed but thought that Ms C should contribute to payments for the counsellor. She said Ms C could see her younger sisters but should be prevented from bringing them into contact with their father. She was also adamant that Ms C not be allowed to drive the younger children anywhere and agreed that she would take the children to a public location where they could meet with Ms C.
The mother’s reluctance to allow the children to see Ms C unsupervised or in private is, in my view, well founded.

The children’s attitude towards Ms C

The family consultant interviewed D and E separately and observed all three sisters together. Contrary to Ms C’s allegations, the family consultant’s opinion is that the views expressed by both D and E were genuine and their own.
The family consultant reported that during her interview, D advised she was upset with Ms C for having to come back to the court as she felt Ms C understood how upset this made her.[44] She further described her interview with D as follows:[45]
75. [D] advised that she had enjoyed a close relationship with her sister, [Ms C] and that they used to spend a lot of time together until [Ms C] became involved with her current partner. [D] advised that she “really loves” and misses her sister. She advised that her mother and sister got on well until she returned from her father’s care after completing Yr 12 living with him. [D] believes that her mother and sister had argued because [D] had given her sister “attitude” after an argument about her not spending enough time with the younger children due to her boyfriend. [D] advised that [Ms C] had got angry because their mother would not tell [D] off and had been “yelling” before leaving the house “very angry”. [D] advised she felt “scared” by her sister banging on the door, yelling and screaming to get back in to the house until the police came to the house.
76. [D] advised that she had liked her sister’s partner initially until she was exposed to arguments between them where she felt unsafe as they have argued while they were driving and [Mr CC] has stopped the car in the road, got out of the car and walked away, with her sister trying to get him back in the car. [D] also advised that on one occasion [Mr CC] had told her he used to “smoke weed” and that her sister argued with him for telling her about this.
[44] Family Report dated 24 November 2017, [75]
[45] Family Report dated 24 November 2017
The family consultant described the interview with E about Ms C as follows:[46]
83. [E] advised that [Ms C] “used to be so nice” when she “hanged out” with her sister before her current boyfriend [Mr CC] arrived and that since [Ms C] had become “selfish and rude”, never wanting to spend time with her sister and was always with [Mr CC]. [E] advised that [D] and [Ms C] argued about this before her sister left the home and that after she had left [Ms C] had told her sister ([D]) that she would come to her school and embarrass her.
84. [E] reported that after her sister left home she had returned and stolen her IPad, which was subsequently returned to her by her Uncle. [E] believed that the difficulties between her mother and sister originated from when her sister “checked” her messages and had discovered that [E] had referred to [Ms C] as a “pig” after the argument. [E] advised that when her sister, [Ms C], had left she had felt “scared” by her sister being angry, banging on the windows and trying to get into the house but that the police came and her mother had put cameras in the house which made her feel safer. [E] became quite distressed in discussing her sister and advised that she does not want to spend time with her sister at the moment. She advised that although her mother says she should spend time with her and still loves her that she made her mother “very sad”.
[46] Family Report dated 24 November 2017
The family consultant reported the following in relation to her observations of D and E with Ms C:[47]
89. The children were initially observed with their sister, [Ms C]. [D] immediately started to cry, becoming increasingly distressed and angry towards her sister, while [E] appeared initially open to her sister’s affections before becoming defensive on behalf of [D]. [Ms C] appeared at a loss in how to communicate with the girls in the face of their obvious distress, repeatedly asking them similar questions about school while [D] cried. [D] advised [Ms C] that if she had wanted to make contact with her she would have done and repeatedly advised [Ms C] that she wanted nothing to do with her, their father or with her partner. [Ms C] attempted to reassure [D] by advising that she would not have to spend time with her partner and attempted to hug her, however [D] began to sob loudly and physically prevented [Ms C] from touching her while asking her to leave. [D] challenged [Ms C] about a conversation where she had threatened to attend [D’s] school to embarrass her and [Ms C] appeared to be denying this had occurred, although due to the level of distress demonstrated by [D] it was not possible to fully hear all of what [Ms C] said. [D] asked [Ms C] to leave, saying “go with dad, have your happy life, I don’t want to see you, I don’t need this, I want a normal life”. The observation was concluded as [Ms C] was unable to reassure [D] sufficiently and [E] was also becoming distressed.
90. Due to [D’s] distress the mother was brought into the playroom to reassure [D] prior to the observation with her father being attempted. [D] while still sobbing argued with her mother about not speaking to [Ms C]. [Ms King] attempted to persuade [D] to telephone her sister to resolve their issues, which [D] resolutely refused to do, shouting at her mother. [Ms King] attempted to engage the writer in the discussion and was guided to attempt to reassure [D], however [D] and her mother continued to challenge each other, both appearing frustrated with the other. [D] repeatedly advised that her sister does not care about her and that she did not want to talk any further about it.
[47] Family Report dated 24 November 2017

In her oral evidence, the family consultant stated that her concern about Ms C spending unsupervised time with her sisters was that D and E would be exposed to Ms C’s negative views of the mother and the “strength of [Ms C’s] kind of alienation from her mother” could negatively affect her sisters “trajectory”, particularly, she said, D’s. She said that she had been hopeful that Ms C would demonstrate that she was capable of quarantining her feelings from the children. But, as I have set out above, that clearly did not occur during the family consultant’s observation of the children together.
The family consultant opined that D and E exhibited genuine distress and hurt at their loss of a relationship with their sister, with whom they have clearly enjoyed a close relationship prior to the current conflict.[48] The family consultant noted that the children expressed fear of their sister’s behaviour towards their mother and it appeared that they had both been frightened by what they perceived to be their sister’s violence at the point of her leaving the maternal home.[49] In her oral evidence, the family consultant described D as having “a very strong mind” and expressed “strong views that she didn’t want to see [Ms C]”. The family consultant described E as “more forgiving” of Ms C, and said that at the observation, E had greeted Ms C and was “very affectionate with [Ms C] until she saw [D] fall apart and then she just jumped to [D’s] defence”. The family consultant opined that E’s primary relationship was with D. She reported E advising her that “as long as I’m with [D], everything’s fine”, and “if [D] is ok, I’ll be ok with it” at the interview. [50]
[48] Family Report dated 24 November 2017, [103]
[49] Family Report dated 24 November 2017, [98]
[50] Family Report dated 24 November 2017, [85]
Ms C cross-examined the family consultant about whether the children had been coached by the mother for the assessment. Although her cross-examination was, at times, difficult to follow, it seemed that she was suggesting that the impact of the mother’s abuse could present differently in D and E. The family consultant’s evidence was that if Ms C “was suggesting that [D] was demonstrating fear during that interaction with her mother, I assure you she was not.” She explained that “[D] was challenging her mother, and she was very vocal in that and she was so dysregulated that any attempts to have coached her would have gone out of the window at that stage. She was not in control of her responses.”
The family consultant said that on balance, her recommendation was for Ms C to have professionally supervised time with the children to monitor the success of that time but acknowledged that it appears that since her assessment, Ms C’s relationship with her mother appeared to have deteriorated further. In her report, she had said that while D demonstrated resistance to spending time with her sister it would be of benefit to them both if D was assisted in moving past her angry response before this becomes entrenched and is a further significant loss to D and E.[51] However, during cross-examination she reconsidered her position and said that in hindsight, any engagement by D and E should be subject to their wishes, particularly D’s as she had expressed “strong views that she didn’t want to see her sister.”
[51] Family Report dated 24 November 2017, [103]
The family consultant’s view about orders as to communication between the children was that the current situation was that D and E were not being prevented by the mother from contacting Ms C and indeed had the tools to contact her. Her view was that, in the case of D, “in reality you’re talking about a 14 year old who will find a way to contact her sister if that’s what she chooses.” Her opinion was that any constraint the mother places, or is ordered to place on communication between D and E and their sister would be unsuccessful.

Conclusion on the father’s application

In relation to the father’s case, there is insufficient evidence from all sources to satisfy me that the parenting arrangements between himself and the younger children should be re-examined by the Court. I find that there has been no change in circumstances since the determination of 2013 which require the interests of the two younger children to be re-assessed by the Court with a view to ordering time or communication between the father and the younger children. The determination in 2013 highlighted deficits in the father’s capacity to parent and that the children did not want to spend time with him. The evidence before me does not indicate that has changed. Insofar as Ms C has now left the mother’s household and is aligned with the father, none of that evidence from or about Ms C persuades me that the Court should look again at the benefits of the father having time with his younger children.

Discussion on Ms C’s application

In relation to Ms C spending time with her sisters, I find that if that were to occur, regardless of whether that time was supervised, Ms C is likely to expose D and E to her negative views of the mother and to a lesser extent, may bring them into contact with their father. Even if Ms C does not bring her father into face to face contact with her sisters she will talk to her sisters about the father. On the evidence, I am satisfied that Ms C has constructed a narrative to justify and legitimise her place in the father’s household, in which household she has far greater access to material benefits and far less personal responsibility than she would have if she lived with the mother. There is no indication that the three sisters share an emotionally neutral space in which the younger girls can enjoy Ms C’s company. In many ways D and E sound more grounded and mature than their older sister. Inevitably, Ms C will try to justify her choice to her sisters which will lead to an impasse. My conclusion is that face to face time between Ms C and either or both of D and E is not going to be of benefit to the younger girls, now or in the foreseeable future. Indeed, it is likely to upset and destabilise them.
Apart from the fact that the younger children are disinterested in a relationship with their father, I am satisfied that any contact between the younger children and the father is likely to have a negative impact on the mother’s parenting capacity. It was the opinion of the family consultant, with whom I concur, that the mother was exhausted by ongoing proceedings and that was likely to have impacted on her emotional availability to the children at times. I find that the mother would also be negatively impacted by the prospect of the children seeing their father and by seeing Ms C if she believed, as I think she does, that Ms C will try to function as a conduit between the father and the younger girls.
The family consultant did not see Ms C quarantine her feelings from the younger children during her observations and her description of Ms C’s reaction to D’s distress gave me the impression that Ms C was inept at reacting to that situation.
I have grave concerns about Ms C’s own mental health. Ms C’s presentation in evidence was as one would find in a “classic case” of alienation and as the family consultant described, Ms C appears to have “quite poor mental health, quite high levels of anxiety, low levels of self-esteem and difficulties in relationships”, the last of which clearly now affects her relationship with her mother and sisters.
In deciding any parenting order in relation to children, the court must regard the best interests of each child concerned as the paramount consideration.
Whenever the court considers making a parenting order, a rebuttable presumption is engaged to the effect that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents. Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents. The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child, being matters such as education, religion, culture, health, name, and changed living arrangements, and also in respect of decisions which do not relate to such significant issues. I do not apply the presumption in this case because no party seeks to alter parental responsibility being solely with the mother. Even if they did, I am comfortably satisfied that it would be contrary to the interests of the children to do so.
When determining what is in the best interests of the D and E my primary considerations are to assess whether it is to their benefit to have a meaningful relationship with both parents and to assess what is necessary to protect them from physical or psychological harm, abuse, neglect or family violence. Of the two considerations, I am required to give greater weight to keeping the girls safe from harm, than to them maintaining a meaningful relationship with the father.
There are several additional considerations which provide helpful perspectives into what is in the girls’ best interests.

The children’s views[52]

[52] Family Law Act 1975 (Cth) s 60CC(3)(a).

I am satisfied that D and E express a clear wish not to see their sister Ms C. I accept that their views are their own. I accept that the anguish observed by the family consultant when the girls were with Ms C was authentic. Given that they are respectively aged 15 and 12 years, their views should be given significant weight.

The nature of the relationship of each child with the parents and others[53]

[53] Family Law Act 1975 (Cth) s 60CC(3)(b).

D and E are emotionally and in every other way dependent upon the mother. They are estranged from the father and his family.
I have discussed the family consultant’s evidence of her observations of Ms C with her sisters (see paragraphs 99 to 107). I accept that the young girls do not wish to see Ms C at this stage. They are estranged from her.
Ms C will always be their older sister and, I suspect, five or six years hence, when all of them live and function independently of their parents, the sisters might be able to re-establish a mutually beneficial relationship. In the meantime, however, the lack of relationship between Ms C and her younger sisters is more of a loss to Ms C than to them. D and E appear to have an appropriate relationship with one another and with their mother. The mother and each other is their major source of security and these relationships should be protected.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child[54] and the extent to which each of the parents have fulfilled or failed to fulfil his/her obligations to maintain the child[55]

[54] Family Law Act 1975 (Cth) s 60CC(3)(c).

[55] Family Law Act 1975 (Cth) s 60CC(ca).

The father’s support of the children post separation has been pitiful. He has paid only that which was compulsorily taken from his refund and, thereafter, ensured that monies could not again be attached. On the other hand he has given Ms C material benefits and seen her educated at a fee paying private school. D and E well know that Ms C is enveloped in their father’s family who cater to all Ms C’s material needs in stark contrast to the lack of support for D and E. That Ms C is complicit in this, puts a significant distance between her and her sisters.

The likely effect of any changes in the children’s circumstances[56]

[56] Family Law Act 1975 (Cth) s 60CC(3)(d).

These orders reflect the status quo. If the attitude of D and E was to change and either wanted to spend time with Ms C, I am confident that the mother would let them.

The capacity of the mother, father and Ms C to provide for the needs of the children including the emotional and intellectual needs of each child, and the attitudes to the children and the responsibilities of parenthood demonstrated by each parent[58]

[58] Family Law Act 1975 (Cth) s 60CC(3)(i).

The mother is doing an admirable job of providing for the emotional and physical needs of D and E. As I have said, she impressed me as a selfless and responsible mother.
The father is resourceful, intelligent and has access to funds which he could (but won’t) pay to the mother for the direct benefit of D and E. The father’s capacity to care for the children and minister to their emotional, physical and intellectual needs is impaired by his inability to prioritise the interests of his younger daughters above the ill will and antipathy he bears the mother. He currently does nothing which is positive for D and E.
Ms C presents as misguided and troubled. I accept the evidence of the family consultant that Ms C is exhibiting poor mental health. The observation by the family consultant of the girls together was eloquent of Ms C having no capacity to cater to the emotional needs of her younger sister. She impresses as a young woman overburdened by her own problems. She deserves attention and requires nurturing and care. However, my focus is on the best interests of her sisters and not on her best interests. Ms C has the potential to be a much better person than her evidence is this proceeding tends to indicate.

The benefit to the children of having a meaningful relationship with both parents and/or with Ms C[59]

[59] Family Law Act 1975 (Cth) s 60CC(2)(a).

The young girls’ relationship with the mother is central and essential to their wellbeing. Any attack on or compromising of that relationship is a direct attack on the emotional wellbeing of each girl.
The girls are estranged from the father. I am not satisfied that a meaningful relationship between D and E and the father would be beneficial for those girls.
I do not identify any benefits for the young girls in having face to face contact or regular communication with Ms C.

The need to protect D and E from physical or psychological harm from being exposed or subjected to abuse, neglect or family violence

I am satisfied that the imposition on D and E of regular face to face time or communication with Ms C, contrary to the views of each of them, would put them in harm’s way. It would be emotionally fraught to a degree that is abusive and psychologically harmful. It would also be destructive of their relationship with the mother in the context of her obligation to comply with any such order and the potential to face applications for non-compliance which I am confident Ms C would take and be assisted by the father to take.
I am confident that, if either D or E want to see Ms C, they will be able to contact her but, unless or until that occurs, the youngest sisters should be left well alone.
Whilst not separately listed in s 60CC, in this case the matter of the sibling relationship is a central issue of which I have particular regard especially to the importance of a meaningful relationship between siblings in the context of this case (to borrow the words of s 60CC(2)(a)). To the extent such a consideration goes beyond s 60CC(3)(b)(ii) it is a fact or consideration relevant and can be considered under s 60CC(3)(m).

Conclusion on Ms C’s application

For the forgoing reasons, I find that the children’s best interests are served by making no order for time or communication between the younger children and Ms C.
I am of the view that the mother has (in the unique circumstances of this case) appropriately put, in the children’s hands, the decision of whether to contact their older sister, and for the remaining years of their childhood that should remain the case. However, in order to safeguard against the risks associated with Ms C spending time with the younger children, I propose to restrain Ms C and the father from bringing the father into contact with the children during any time spent between Ms C and the younger children.

The mother’s application

The mother’s application is resolved save that she seeks a moratorium from further parenting applications by the father, without leave of the court, for a period of four years. She seeks this as a parenting order which is in the best interests of the children rather than as a consequence of the vexatious nature of proceedings within the meaning of Part XIB or Section 118 of the Act. I have regard to whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children
The order sought by the mother would last until after D attains the age of 18 years but would also cease to have any effect, apropos D, after she turns 18. It would last until E is 16 years old.
The father has energy for litigation in his own right and through Ms C. The mother’s concern about the father taking further unmeritorious proceedings is, in my assessment, soundly based. Her ability to recoup costs expended by her in disposal of any such proceedings is illusory. However, on reflection I am not persuaded that this is the appropriate time to make the father’s rights to make further applications subject to him first obtaining leave of a judge, which effectively limits his access to the courts.
I do assess the father’s parenting application in these proceedings as vexatious within the meaning of Section 102Q of the Act in that his application for time with the children was pursued without a reasonable foundation in any change of circumstances and for the purpose of harassing and exhausting the mother. This finding carries no consequences at this point in time as a result of the terms of s 102Q.

Costs

I will hear the parties’ submissions on the question of costs in the light of these findings, orders and the terms of s 117 of the Act.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the amended reasons for judgment of the Honourable Justice Bennett delivered on 25 September 2018.

Associate:

Date: 27 February 2019

[57] Family Law Act 1975 (Cth) s 60CC(3)(f).