Lane & Arthurs

[2006] FamCA 87

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT NEWCASTLE No. NCF554 of 2004

BETWEEN:

LANE

Father

- and -

ARTHURS

Mother

REASONS FOR JUDGMENT

BEFORE:                  The Honourable Justice Moore
HEARD:  29 August, 10, 11, 12, 13 & 14 October 2005
JUDGMENT:           28 February 2006

APPEARANCES: Mr Sundstrom of Counsel, instructed by Slater & Gordon, Solicitors, DX 1163 Sydney , appeared for the applicant/father.

Ms Arthurs, the respondent mother, appeared on her own behalf.
Ms O’Rourke, instructed by Legal Aid Commission of NSW, DX 7911 Newcastle, appeared for the children’s representative

Proceedings

Mr Lane and Ms Arthurs are the parents of two children: T (10) born … 1995 and L (8) born …1997. These proceedings relate not only to their future living arrangements but also to the future arrangements for their half-sister, G (13) born …1993.

The children live with their mother and her partner, Mr Arthurs, at O and it has now been some time since they had any contact with their father who lives at S.

G’s father, Mr R, lives in F. The Court ensured Mr R was served with the relevant documents and given every opportunity to participate in the proceedings. Those steps will be reflected in the record and it will suffice to say here that he has chosen not to do so and the question of G’s arrangements will be determined in his absence. With the exception of eight weeks when she was quite young, G has always been in the care of her mother. Mr R has had no involvement in her upbringing since her mother moved from Victoria in 1998 and it appears his contact with her since has been limited to a period during a visit she made to F in 2000 or thereabouts [an unsatisfactory experience for G] and some sparse, intermittent telephone contact.

The children have been separately represented. Ms Arthurs initially had solicitors acting for her but she represented herself at the hearing. Mr Lane was legally represented and counsel appeared on his behalf. It will be convenient in the course of this judgment to refer at times to ‘the children and their father’ which, in the main, will be a reference to T and L though context may indicate the reference to also include G.

Orders sought

In circumstances to be discussed later, the proceedings were instituted on 6 May 2004 by Mr Lane who filed an application seeking orders for the three children to live with their mother and, amongst other orders related to responsibility for their care, welfare and development, he proposed that T and L would have contact with him on alternate weekends, half the school holidays, and other special occasions and G would have the same contact with him provided she wished to do so.

The engagement of the Court in the family’s arrangements was precipitated, in part, by circumstances reflected in a Notice of Abuse or Risk of Abuse filed by Ms Arthurs on 30 July 2004. It is in these terms:
1.On or about 5 April 2004, T Lane said to her mother among other things “Every night Papa puts his hand down L’s pyjamas and touches her vagina.”
2.On or about 5 April 2004 L Lane said to her mother words to the effect “Papa says I need cream on my vagina all the time. He puts it on my vagina.” L also said to her mother “When his finger is in my vagina it really hurts. It really, really does.”
3. L’s mother said to her “Did you tell Papa not to?”
4.L said “I did. I did Mummy. I told him not to do it but he didn’t stop. He just didn’t.”
5.T also began to cry and her mother said “How long has this been going on?” Both T and L said “All the time.”
6.Papa is the children’s father, Lane, the Applicant in these proceedings.

Her response to the application, filed 29 July 2004, sought orders for all three children to live with her, she to have sole responsibility for their ‘day to day care and control’ and their long term care, welfare and development, and that Mr Lane have no contact with the children. This remained her position at the end of the hearing, though there was some indication in the course of it that she would support some contact between the children and their father. However, that appeared to be short lived because her closing submissions contained no concrete proposal for future contact between the children and their father.

On 14 March 2005 Mr Lane filed an amended application bringing about a significant change in his proposals for the three children and the catalyst for that was the release some months earlier of the first report by the Court appointed expert, to which I shall refer shortly, and his view that the children were being emotionally abused in their mother’s care. The orders he sought were for all three children live with him and have contact with their mother each alternate weekend during school terms, on their birthdays and other special occasions, and for one half of the school holidays. However, on the last day of the hearing Mr Lane sought orders (exhibit 21) which propose the children live with him, they have no contact with their mother for a period of almost four months and thereafter they have defined contact with her ‘as further ordered by the Court’. That said, his counsel submitted he would adopt the proposals put forward by the children’s representative.

Those proposals [exhibit 20] were put in the alternative, depending on the findings related to the issue of abuse, and are as set out below:
1.That the child G R born … 1993 reside with the mother.
2.That the mother has sole parental responsibility for the decisions regarding the day-to-day care, welfare and development of the child G.
3.That the children T Lane born … 1995 and L Lane born … 1997 reside with the father.
4.That the father has the responsibility for the care, welfare and development of the children T and L.
5.That the father has contact with the child G on the final weekend in each month from the conclusion of school on Friday to the commencement of school on Monday.
6.That the father shall collect the child G from the school she is attending at the commencement of contact and deliver her to the same place at the conclusion thereof.
7.That the mother is hereby restrained from being present at G's school at the times the father shall be collecting and delivering her in accordance with Order (5) herein. Furthermore, the mother shall do all reasonable things to ensure that Mr ... Arthurs is also not so present.
8.That there be an order pursuant to Section 65L of the Family Law Act for the appointment of a Counsellor by the Director of Mediation Services to supervise the orders herein.
9.That the father shall make an appointment for a child inclusive counselling session with a Counsellor appointed pursuant to Section 65L of the Act prior to his travelling with the children T and L to Mauritius.
10.That the father shall make a further appointment for a child inclusive counselling session upon his return from Mauritius with the children.
11.That the father shall facilitate such contact between the children T and L and the mother as recommended by the Counsellor appointed pursuant to Section 65L herein.
12.That the mother shall attend upon the Counsellor appointed to Section 65L herein as recommended by the said Counsellor.
13.That upon the making of these orders, the mother shall deliver all 3 children to the Chambers of the Judge to inform the children of her findings and orders in this matter.
14.That the mother shall cause Mr ... Arthurs to accompany her and the children to the meeting between the children and the Judge which shall also be attended by the father and the Director of Mediation Services of this Court.
15.That following the meeting between the Judge and the children, the father shall accompany the children T and L and the Director of Mediation Services to the Second Floor of the Court to effect a changeover of the children into the father's care following upon a child inclusive counselling session.
16.That the Director of Court Counselling shall determine in her discretion pursuant to Section 65L as to the involvement or otherwise of the mother in child inclusive counselling session as referred to in Order 15 herein.
17.That the mother shall transfer the children's belongings to the home of the father at 1.00pm on the first Sunday following the making of these orders, with the father to notify the Children's Representative of the venue for the delivery of the said items by the mother and the Children's Representative shall notify the mother in writing of the same.
18.That the father shall enrol the children in a local school and ensure that the children are known by the surname of Lane by introduction of the children by that surname, enrolment and registration in all situations requiring the disclosure or recording of the children's surnames.
19.That the mother and father shall ensure that any existing enrolment or registration requiring the change of the children's surnames is facilitated.
20.That the Director of Mediation Services shall organise no earlier than 4 weeks after the commencement of Term 1 in 2006, for the parties, Mr Arthurs and all 3 children, to be interviewed for the purposes of the preparation of a Family Report.
21.      That this matter be listed for a final hearing for 3 days, in April 2006.
22.That the parties not denigrate each other in the presence of the children and shall use all reasonable efforts to prevent any third person from doing so.
23.That the parties not discuss the Court proceedings in the presence of the children and shall use all reasonable efforts to prevent any third person from doing so, except at the initiation of the Counsellor appointed to Section 65L herein and/or the Children's Representative.
24.That upon the making of these orders, the Children's Representative shall send a copy of the following documents to the Department of Community Services at U:
a)        The Report of [Ms T] dated 11 November 2004
b)        The Report of [Ms M] dated 10 October 2005
c)        The orders herein.
In the alternative, depending on the abuse finding:
1.That the children G R born … 1993, T Lane born … 1995 and L Lane born …1997 reside with the mother.
2.That the mother has sole parental responsibility for the decisions regarding the long-term and day-to-day care, welfare and development of the children.
3.That in the event the mother separates from Mr ... Arthurs, she shall forthwith cause the children T and L to recommence use for all purposes of the surname “Lane”.

Evidence

Both parents gave evidence on affidavit and orally and a number of documents were tendered. Mr Lane called no further evidence. Ms Arthurs called evidence from Mr... Arthurs and from Dr Q, psychiatrist, whom she had consulted on one occasion on 7 April 2005.

There is also evidence from the Court appointed expert, Ms T, who is a clinical psychologist. She produced a lengthy report dated 11 November 2004 and a later shorter report dated 22 August 2005, undertaken after Mr Lane amended his application in March, though no further interviews were conducted. She gave further evidence under cross-examination at the hearing when she elaborated upon and adhered to the contents of her reports. Both Ms Arthurs and Mr Arthurs took issue with many aspects of her first report. It is understandable they might differ about many of the conclusions she drew, the assessments she made and the opinions she expressed. But her record of the interviews she conducted and her account of the chronological development of events fall into another category and there was dispute, more particularly from Ms Arthurs, about those aspects of her report also. I accept Ms T’s report does contain some factual errors [the number of visits the children had made to Mauritius and that they went there in September 2003 are examples] and, as I shall note later, I also consider there is room for departure from certain of her assessments. But in my opinion the factual errors are not of any real importance and the contentious assessments she made can be put to one side without invalidating the record she made of the process undertaken, or the interviews she conducted, or the validity of her opinions on core issues. I shall return to this topic shortly.

Finally, at the start of the hearing an order was made for a Family Report so as to obtain from the children a more contemporary view of their wishes and attitudes, having regard to the time by then elapsed since their interview with Ms T and in light of their father’s proposals at that time. Ms L, Court Mediator, undertook that task and she gave further evidence at the hearing which elaborated upon what was in her report. I accept her evidence.

Issues

The circumstances in which these children find themselves are beset by complicated dynamics which are underpinned by a variety of factors. The relationship between their parents, as parents, broke down long ago and there is now no trust or goodwill. The relationship between the children and their father has also broken down and the circumstances leading to the cessation of any contact with him are also complicated. Amongst other matters, the evidence presents a background history of the adults involved, the parents’ relationship, the deterioration of their marriage and their separation, the children’s circumstances and their contact post-separation with their father, the parents’ current circumstances and their proposals for the children’s future arrangements. The evidence reveals differences of greater or lesser significance to the decision to be made – not all of which needs to be recorded or discussed here - but one core contention in it all is the allegation against Mr Lane that he has sexually abused T and L.

Approach

The approach to making decisions about arrangements for children is to be found in Part VII of the Family Law Act 1975. The decision is not just about the immediate future but also about what will serve the children’s interests in the longer term. The best interests of the child [s 65E] are the paramount consideration. Regard must be had to the objects as expressed in s 60B [to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children], to the underlying principles, except when it would be contrary to the child’s best interests [‘(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; (b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; (c) parents share duties and responsibilities concerning the care, welfare and development of their children; and (d) parents should agree about the future parenting of their children.], and the decision must take into account the various factors stipulated in s 68F(2) in so far as they are relevant.

Given the abuse allegations, which occupied a considerable part of the evidence overall, it will be appropriate to indicate also the approach to be taken to the evaluation of that. The topic was the subject of discussion relatively recently by the Full Court in W v W (abuse allegations: unacceptable risk) (2005) FLC 930235; 34 Fam LR 129 (per Warnick, May and Boland JJ). It is not that the case creates any new principle - indeed their Honours noted [paras. 91 - 92] that certain aspects of the law relating to parenting cases involving sexual abuse are well settled - but it brought together in a summary way various earlier reported cases. In substance, a trial judge should not make a positive finding of sexual abuse ‘unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth)…is discharged’. They referred in the course of that discussion to the High Court’s ‘unambiguous statement’ in M and M (1988) 166 CLR 69; 82 ALR 577 and to Re W (Sex abuse: standard of proof) (2004) FLC 93-192). Their Honours went on to set out [para 96] the core principles relevant to the determination of the issue as stated by the High Court in M and M where the High Court affirmed that the best interests of the child remain the paramount consideration and they noted in relation to risk assessment:
‘…In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’

Their Honours highlighted issues arising from subsequent cases which demonstrate the practical difficulties in applying the principles from M and M, including B and B (1993) FLC 92-357, Re C and J (1996) FLC 92-697, K v B (1994) FLC 92-478, N and S and the Separate Representative (1996) FLC 92-655, WK v SR (1997) FLC 92-787, V and V [2004] FamCA 1081, and TF and JF and Children’s Representative [2005] FamCA 394 (now reported (2005) FLC 93-227). They noted in N and S the majority view that the High Court did not expand upon what circumstances might create an ‘unacceptable risk’ and that Fogarty J, in his dissent, discussed the meaning of the term and concluded ‘it is inevitable that Courts will have to make some effort to quantify the relevant risk’. Fogarty J went on to set out a series of questions which the Court may ask, noting that the weight to be attached to answers will vary from case to case:
‘In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?’
Their Honours concluded that they
‘....accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.’
They reinforced the difficulty in developing a precise definition of ‘unacceptable risk’ and endorsed the questions posed by Fogarty J in N and S as a helpful framework. They identified other relevant considerations in relation to contact [paras. 112 – 114]:
·   the right of children to know and be cared for by both parents does not apply when it would be contrary to their best interests;
·   some cases might also require consideration of the impact of contact upon the resident parent;
·   it will not always be possible to provide appropriate supervision; and
·   guidelines for accredited contact centres recognise that long term supervision may not be in a child’s best interests and emphasise a move towards ‘self-management’.

They concluded their discussion by stating:
‘We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement…’

Contact – why have it

The Full Court’s identification of considerations relevant to contact raises the purpose of contact between children and their parent with whom they do not live and the benefit to be had, from the children’s perspective, from such an arrangement. Generally it is agreed, by opinion across disciplines that children’s best interests are served by having contact with their parents and other members of their family, absent circumstances demonstrating the contrary. Of course this proviso is of critical importance, but while it is a commonly agreed position, it is not universally understood by any means, as some cases reflect, and it may be useful to spell it out.

A convenient source for that is the writing of eminent psychiatrists, Dr Claire Sturge and Dr Danya Glaser, who addressed that very topic several years ago in the report they presented to the Court of Appeal in the United Kingdom in the case of Re L, V, M and H (Contact: domestic violence) [2000] 2 FLR 334 [see also Journal of Family Law, September 2000, Vol 30 pp 615-629]. They set out the principles underpinning mainstream psychiatric opinion and the advice of psychologists on contact between children and the parent with whom they do not live after their parents’ separation and they assess the benefits and risks of both direct and indirect contact, amongst other things. They describe the ‘the core principles that should guide decisions whatever the nature of the case’ in this way:
·We see the centrality of the child as all important. There will be tensions around the child because, in disputed cases, the parents will hold different positions. The needs of the adult positions obscure and overwhelm the needs of the child but promoting the child’s mental health remains the central issue.
·Decisions about contact must be child-centred and relate to the specific child and to his or her specific situation, now. Every child has different needs at different stage of development. The eventual plan for the child must be the one that best approximates to these needs.
·To consider contact questions the purpose of any proposed contact must be overt and abundantly clear.
·Contact can only be an issue where it has the potential for benefiting the child in some way. Defining in what way this might be will help guide decisions about whether there should be contact and also its nature, duration and frequency. The different purposes of contact include: -
othe sharing of information and knowledge; curiosity is healthy; sense of origin and roots contribute to the sense of identity which is also important as a part of self-esteem;
omaintaining meaningful and beneficial relationships (or forming and building up relationships which have the potential for benefiting the child; this may be particularly relevant to infants);
oexperiences that can be the foundations for healthy emotional growth and development; children benefit from being the special focus of love, attention and concern and of loving and being concerned;
oreparation of broken or problematic relationships;
oopportunities for reality testing for the child; children need to balance reality versus fantasy and idealisation versus denigration;
ofacilitating the assessment of the quality of the relationship or contact – most relevant where a return to a particular parent is being considered; and
osevering relationships, for example, goodbye meetings.

They identify the benefits of direct contact:
·warmth, approval, feeling unique and special to a parent;
·extending experiences and developing (or maintaining) meaningful relationships;
·information and knowledge;
·reparation of distorted relationships or perceptions.

They identify the benefits of indirect contact:
·experience of the continued interest of the absent parent which, in a very partial way, will meet the need to feel valued and wanted, ie not rejected, by that parent;
·knowledge and information about the absent parent;
·the keeping open of the possibility of the development of a relationship, for example, when the child is older or has some specific need of that parent; and
·there may be some opportunity, through letters or phone calls, for reparation.

They go on in their report to identify the risks involved in both direct and indirect contact and the weight to be placed on a number of important factors such as significant intra-familial violence, the absence of any bond between the child and the non-residential parent, and they discuss ‘parental alienation syndrome’. They also discuss the circumstances in which the court should give consideration to a child having no direct contact with the non-residential parent.

As I read them, the objects and principles set out in the Family Law Act 1975, already mentioned, accord generally with these principles. Yet in many cases that require judicial determination in this Court, there is a marked disparity between those objects and principles and the level of parental commitment to them, to say nothing of the difficulty in devising practical means by which the objects and principles can be fostered and implemented by Court order. This is such a case.

‘Parental alienation syndrome’

On the topic of contact generally, something should also be said about ‘parental alienation syndrome’ because it was the subject of questioning and submission at the hearing. It arises from Ms T’s adoption of the term and concept in her report and in her oral evidence and her view of its application to the circumstances here. But it was not a concept accepted by Ms Arthurs or, more particularly, she does not accept there is any basis for reliance upon it here.

As is well known, the specific term derives from the writings in the 1980’s of Richard Gardner [Richard A. Gardner, "Parental Alienation Syndrome: A Guide for Mental Health and Legal Professionals"]. It applies to high conflict divorces and for present purposes it may be described as a situation where a child has been indoctrinated by the strategies of one parent to reject their other parent, with the result that the child is implacably opposed to contact with that parent, unreasonably antagonistic towards that parent and alienated from them. Mr Gardner spoke of it as
‘A disturbance in which a child is obsessed with depreciation and denigration of a parent, denigration that is unjustified and exaggerated. At the same time the other parent can do no wrong and the non-preferred parent can do no right.’

On his view of it, the defining characteristics are some or all of these:

the child is aligned with the alienating parent in a campaign of denigration against the target parent
the reasons given for the denigration are weak, frivolous, or absurd
the child’s animosity toward the target parent lacks ambivalence
the child asserts that the decision to reject the target parent is his/her own
the child persistently supports the parent with whom he/she is aligned
the child expresses guiltless disregard for the feelings of the targeted parent
the child’s statements reflect themes originating in the alienating parent
animosity extends to the extended family of the targeted parent

The solution he advocated in ‘severe’ cases is the removal of the child from the care of the alienating parent and the termination of the child’s contact with that parent for a period before gradually introducing it only after the child is settled with the other parent. That is because, as I apprehend it, the situation is considered not amenable to correction through the more usual approach of therapeutic intervention.

It is also well known that Gardner’s writings created some controversy in mental health and legal circles and there are many countervailing opinions about it. The contrary body of opinion would have it that while it has been useful in drawing attention to a type of high conflict divorce, the studies on which Gardner’s writings are based are flawed by the lack of empirical support; the term ‘syndrome’ is a medical term referring to symptoms that cluster together and is a descriptor, therefore, unsuited to discussion of complex dynamics involving at least three people; the term or ‘syndrome’ is not recognised by the American classification of mental disorders (DSMIV) or the international classification (ICD10) and nor is it generally recognised in allied child mental health specialties; over reliance could lead to stereotyping and poorly conceived intervention rather than case by case analysis and individual decision making; and the Gardner proposed intervention for ‘severe’ cases is potentially risky and has not been evaluated with controlled cases together with standardised testing of mental health outcome for the child.

Perhaps adherents and opponents would summarise their positions differently. In any event, Ms T used the term in her report and recommended an outcome consistent with the Gardner ‘solution’ and that was subsequently adopted by Mr Lane and also by the children’s representative if findings on abuse are consistent with Ms T’s opinions. Transparency requires that I say I am more persuaded to the view of the opponents which I have attempted to summarise. I draw support for that from Drs Sturge and Glaser’s report discussed earlier and also from the well respected researcher, Dr Janet Johnston, who has researched and written extensively on the topic and offers a more thoughtful analysis of a complicated issue. [see “The Alienated Child: a Reformulation of Parental Alienation Syndrome” - Dr Janet Johnston, Family Court Review, Vol 39, July 2001, 240-266; “Parental Alignments and Rejection: An Empirical Study of Alienation in Children of Divorce” – Dr Janet Johnston, J Am Acad Psychiatry Law 31:158-70, 2003].

Dr Johnston has reformulated the discourse to focus on the ‘alienated child’ rather than the ‘alienating parent’ [as she points out, alienating behaviour by one parent is neither sufficient nor necessary for a child to become alienated from their other parent] and she recognises there may be multiple reasons for children resisting contact with a parent, not all of which would qualify as ‘alienation’: these reasons include resistance that is rooted in normal developmental processes (eg. normal separation anxieties in a very young child); in high conflict marriage and divorce (eg fear or inability to cope with the high conflict transition); in response to a parent’s parenting style (eg rigidity, anger, or insensitivity to the child); arising from the child’s concern about an emotionally fragile residence parent (eg. fear of leaving this parent alone); and arising from the remarriage of a parent (eg. behaviours of the parent or step-parent which alter willingness to visit). In her work she locates a child’s relationship to each parent after separation along a continuum of positive to negative where the most positive is a healthy and valued relationship with both parents and the most negative is ‘alienation’ from one parent. Along this continuum she identifies and distinguishes alienated children from others who resist or refuse contact with a parent for what may be a variety of normal, realistic or developmentally explicable reasons. The first to be found at the positive and healthy end of the continuum is the child who has an ‘affinity’ with one parent [by reason of temperament, gender, age, shared interests, sibling preferences of parents and parenting practices] but desires continuity and contact with both parents. There is then the child who is ‘allied’ with one parent and who demonstrates or expresses a consistent preference for a parent, often wants limited contact with the non-preferred parent after separation, but unlike the alienated child may not completely reject the other parent or seek to terminate contact entirely. The ‘alliance’ may arise by reason of intense marital conflict and flawed marital dynamics [where children were encouraged to take sides or carry hostile messages] which may intensify after separation when the older child may be involved in making moral assessments about which parent caused the separation, who is the most hurt and vulnerable, and who needs or deserves the child’s allegiance and support. Strong alliances may be temporary or they may consolidate into more hardened alignments or even alienation. The key factor, Dr Johnston maintains, distinguishing these children from those who are alienated is that most ‘aligned’ children are able to acknowledge (sometimes begrudgingly) they love the other parent but do not like being with them or want much contact at this point in time and nor do they engage in the fierce, brittle remonstrations and cruel behaviours towards the rejected parent so common to alienated children. ‘Estranged’ children are those realistically estranged from their other parent for reasons related to that parent’s history of violence, abuse or neglect and, unlike alienated children, they do not harbour unreasonable anger and/or fear towards that parent. Finally, there is the truly ‘alienated’ child who stridently rejects a parent without apparent guilt or ambivalence and strongly resists or completely refuses any contact with that parent despite the presence of ‘good enough’ or better parenting and the absence of any physical or emotional abuse of the child. While there may be a ‘kernel of truth’ to the child’s complaints and allegations, the grossly negative views and feelings are significantly distorted and exaggerated reactions, beyond alliance or estrangement in the intensity, breadth and ferocity of their behaviours. It is a response to complex dynamics within the separation process itself, to an array of parental behaviours, and to children’s own vulnerabilities which make them susceptible to becoming alienated.

Dr Johnston suggests that a systems framework assessing the multiple and interrelated factors influencing the alienated child’s response is critical to effective intervention for such a child. These include background factors that directly or indirectly impact on the child [eg. history of intense marital conflict, humiliating separation, litigation fuelled by professionals and relatives, personality dispositions of each parent, and age, cognitive capacity and temperament of the child] as well as a number of intervening variables that can either moderate or intensify the child’s response to critical background factors [eg parenting beliefs and behaviours, sibling relationships, and the child’s own vulnerabilities within the family dynamics].

In her writings Dr Johnston identifies factors that may indicate risk of alienation developing, though recognising that individual cases may have a mix of these factors [child triangulation in intense marital conflict; high conflict divorce and litigation; and separation experienced as deeply humiliating]. She also discusses the range of behaviours and organizing beliefs on the part of the ‘aligned’ parent that contribute to a child becoming alienated, the ways in which ‘rejected’ parents contribute to the alienation [though their behaviour does not of itself justify the disproportionate response of the child] and the influence brought to bear by the child’s own psychological, cognitive, and developmental strengths and vulnerabilities. As she concludes one of her papers on the topic:
‘The complexity of these very challenging and demanding cases requires a full assessment to understand the multiply determined factors and influences leading to the children’s abrupt rejection of a previously acceptable and meaningful relationship. Each of these influences has their own particular weight and significance for a particular child in a particular family. No one factor produces the alienated child. A full understanding of this pathological development in the parent-child relationship, most often separation-engendered, can then lead to an effective plan and structure for legal, judicial, and therapeutic intervention directed at resolving the profound alienation of the child from the parent.’

To return to the case at hand, Ms T is quite entitled to come to the view, as she did, that these children are ‘alienated’ children. Plainly children do in some instances become alienated from one parent and one of the contributing factors [but only one] is the handiwork of the parent to whom they have become wholly aligned via a campaign of unjustified denigration of their other parent. That may be the finding here. Children’s best interests, when fully evaluated, may very well require the outcome adherents of ‘PAS’ propose as the only solution; namely, removal from the alienating parent. That is one option for consideration here. But as the work of Dr Johnston and others clearly demonstrates, there is an array of factors from several sources contributing to children resisting or refusing contact with their other parent, including the child’s own capacities and vulnerabilities, and it is not a matter of focussing solely or entirely on the behaviour and beliefs of the alienating parent. For my part, I do not find it helpful for opinion to be presented with this label attached to it under the rubric of work so notoriously controversial as ‘PAS’ and without any discussion of the body of reputable work virtually discrediting it. In my view labels such as this, or reliance on that concept in the manner it has been formulated, increase the risk of stereotyping by attracting a ‘one-size-fits-all’ approach when children present as resisting or refusing contact with a parent for no apparent good reason and, in turn, that leads to the risk of ill conceived intervention by the adoption of the T outcome ‘solution’ its proponents advocate. I prefer to consider the individual circumstances of the children and the various factors that may have contributed to bringing them to this point without the unsatisfactory baggage that concept represents and without adopting the ‘fit’ of the children’s circumstances to a ‘theoretical’ model said to be both the de-scrambler and the answer to a serious and complicated problem.

To the extent, therefore, that Ms T advanced a formulation of the concept of ‘parental alienation syndrome’, I do not accept it for those reasons. That is not to say I reject necessarily her ultimate assessment of these children as ‘alienated’ children, though there may be room for considering them as strongly ‘aligned’ rather than ‘alienated’. I should also make it clear that I do not undervalue the expertise and experience Ms T brings to her evidence. To the contrary. I regard her record of the process and interviews undertaken as reliable [it follows, for example, that when Ms Arthurs gives evidence [para 211] that the report of the account she gave of her childhood experiences is ‘false’, I reject that evidence] and I am also satisfied that in many areas Ms T has made appropriate assessments which are consistent with other evidence and presentations at the hearing. I am further satisfied she arrived at her conclusions and opinions not only from the interview process [which gave her a perspective not available to the Court, particularly her interview of the children] but by taking into account a range of materials and bringing to bear her professional expertise and experience. Her views, therefore, I regard as carefully considered and reasoned. In any reference to her report or evidence hereafter, it can be taken that I rely upon her account of what was said or done and I also rely upon the various assessments she made unless I specifically indicate otherwise. To the extent I do not adopt any part of her evidence [I have already discussed her apparent reliance on ‘parental alienation syndrome’], it does not undermine in any significant way the weight to be given to her evidence as a whole. As for her recommendations about outcome, they have been carefully considered, but of course determining the outcome is ultimately the responsibility of the Court based on the whole of the evidence, of which an expert’s evidence is but one part, which allows a perspective not necessarily available to an expert witness.

Background:

One of four siblings, Mr Lane was born and raised in Mauritius to the age of 10 years when the family left to come to Australia. He recounts an upbringing in Australia marked by feelings of difference and discrimination for reasons he related to his background and culture. After his father’s death his family returned to Mauritius over time and his mother and siblings remain living there. He reports having a supportive family. After travelling and living abroad for some years and with a marriage behind him, he returned to Australia in 1989 and has remained living here since. He started a contract cleaning business in the outer suburbs of Melbourne and it was there in 1993 he met Ms Arthurs who came to work for him.

One of three siblings, Ms Arthurs was brought up in Victoria and her family moved to live in F during her adolescence. Her parents still live in F and her siblings live in Melbourne. In her affidavit she describes having loving parents with whom she maintains regular contact, as she does with her siblings. Yet this is remarkably at odds with the account she gave of her family background to Ms T. There she maintained a negative focus on her father in giving the family history, variously describing him as ‘oppressive and aggressive’, ‘permissive …but also authoritative’, and prone to angry outbursts when he would hit her mother and her. She described her mother as a ‘doormat’ afraid of her father and that her parents had little time for children. She related feeling she was the ‘black sheep’ of the family and that her father is not her father [explaining she has a different blood group to her siblings]. She also gave an account of her parents taking in foster children for a number of years and her father’s own behaviour and her own experiences as a result. She said she feels her father took advantage of the ‘sexual behaviours’ of those children, she believes her father was sexually abusing the girls in their home [she had often seen him in the shower with them] and when asked about his behaviour towards her, she recalled having to stand naked in front of him and she remembers him ‘being in my bedroom when I was young.’ Asked if she felt she had been sexually abused by him, she replied: ‘I don't want to go there. I've only touched on this stuff in our healing. I confronted him in February last year and I said I never wanted to see him again. He wanted the girls to go to him for the school holidays and I said, 'No', because my mother is weak.’ She also related sexual behaviour between herself and an adolescent male, one of the foster children she identified as a favourite of her father’s. She denied being traumatised by this behaviour, saying she thought it was ‘something people did’. Ms T reports her speaking of this without any change of affect as though she were describing unremarkable events. She related other difficulties in the family, that she thought her mother had a ‘mental breakdown’, the imposition she felt from having to do domestic chores, and her decision to ‘more or less [run her] own life - They weren't my parents.’ She retracted, at one point, her remark that her father is not a nice person and she is scared of him by saying they had ‘resolved’ their conflict. None of this fits with her affidavit evidence of being ‘loved and looked after by [her] parents’.

Ms Arthurs became pregnant with her first child while she was at High School and just before her 17^th birthday she gave birth to N in January 1988. She lived with the child’s father, [Mr C], for a time but when N was three years of age Ms Arthurs moved out and N stayed with her father and his family. She went to live in another town with friends but she maintained regular contact with N.

She had a brief relationship with Mr R before G’s birth in February 1993 though they never lived together. When G was aged 6 months Ms Arthurs moved to Dandenong [three hours drive away] where she had obtained public housing. It was there she started work for Mr Lane. At some point after the move G was taken from day care by her father and Court proceedings ensued before she was returned to her mother about eight weeks later. Troubles with Mr R did not end, however, and Ms Arthurs relates being assaulted by him the following year. It was during this running dispute with Mr R that Mr Lane offered her accommodation and she moved in with him towards the end of 1994. Their relationship became intimate at that time, she fell pregnant and they married in March 1995. Mr R’s aggressive and volatile conduct continued over some time and it is common ground he assaulted and threatened Mr Lane on several occasions. The detail is not clear and nor is it of any real importance now, but an AVO was taken out against Mr R and he may or may not have a conviction for assaulting Mr Lane.

Obviously the general havoc created was not without consequences. As Mr Lane discussed it in interview, he was developing his relationship with G when Mr R was conducting himself (in effect) in an intrusive, abusive, volatile and threatening manner. This brought home to him the realisation that a ‘normal relationship’ with G would be impossible because of the inhibition he felt from having to take account of how Mr R felt about his role with his daughter. G was encouraged to call him ‘papa’ rather than ‘dad’, which was reserved for Mr R, and though Ms Arthurs wanted G to take his surname when T was born, he declined. Ms Arthurs completely rejects Mr Lane’s evidence in these proceedings that G [and N for that matter] were treated as ‘children of the marriage’ and she recounted a number of events over the years where he had distinguished G from T and L in a discriminatory way. Whatever the accuracy or otherwise of the examples she gave, it could hardly be doubted on all that has been presented here that Mr Lane’s relationship with G was not close before the separation and, as will be seen in due course, at G’s insistance there has been no contact between them now for more than 2 ½ years. What part the troubles with Mr R played in inhibiting the role Mr Lane had in G’s life during her early formative years is speculative, but it seems reasonable to suppose it made at least some contribution.

G’s arrangements and Mr R’s conduct were not the only Court proceedings Ms Arthurs was caught up in after her marriage to Mr Lane while they were living in Dandenong. In 1997 there were Court proceedings about N’s arrangements though ultimately in early 1998 [when Ms Arthurs with Mr Lane and the three children left Victoria] consent orders were agreed providing for N to continue living with her father and have regular contact with her mother.

In early 1998, after a holiday, the family moved to S and they purchased a block of land in the area with the intention of building a house. With G (5), T (3), and L (a few months) they rented a house and in due course a cleaning business was started. They both worked in the business in one capacity or another. By this time Ms Arthurs had completed her secondary school studies and she enrolled by correspondence at B University for a degree in psychology. That involved her being away from home occasionally when, for several years, she took the children with her. In 2001, not long before the separation, the children stayed with their father while she attended a residential.

Stressors around the relationship were evident before the move from Victoria, that is apparent, but the move seems to have been the start of a downward spiral in the marriage with further stressors from a number of areas over the period until their separation in October/November of 2001 - at least Ms Arthurs dates her unhappiness in the relationship from 1998. These are some of the likely stressors surrounding the children preceding separation:
·Ms Arthurs describes feeling isolated at S and Mr Lane says she was unhappy with the house they initially rented.
·N came to live with them in early 1999 and stayed until the end of the year when she returned to her father in circumstances of some dispute with her mother about her decision. Ms Arthurs says she wrote constantly to N and tried to maintain contact with her but received no reply because, as she came to learn, her letters had not been passed on. [Early in 2005 N contacted her mother and there was talk at the time of the hearing of N coming to join her household with Mr Arthurs and the other children at O.] In any event, in her account of the time N spent with them at S in 1999, Ms Arthurs reports N complaining about Mr Lane ‘picking on her’ and her mother ‘not standing up for her’. She said this caused her to consider her parenting and so she went to counselling and parenting courses and she did another course called ‘Journey of Positive Living’. In her discussions with Ms T, she said studying psychology had helped her learn about choices and how children perceive things and she related not wanting the other children to blame her like N had.
·Ms Arthurs says that in 2000 G was having difficulties – bedwetting, nightmares, and saying she did not want to live any more – and she arranged for G to attend counselling for some months and for her to complete the ‘Seasons of Growth’ program. A window into the unhappy atmosphere in the house can be seen from G’s comment to the reporter years later that she did not want to go home but preferred to stay at school all the time because home did not feel like ‘home’. The record of the counselling she underwent [exhibit 18] also gives an indication of her unhappiness at the time [April 2001].
·Ms Arthurs says T had difficulties around the time she started school. She described her as ‘badly behaved and outrageous’ and having lots of tantrums, throwing herself against things, kicking walls and doors, and engaging in dangerous behaviour. At school she began cutting up her uniform and claiming she was bored and her mother was called to the school because she had been in a fight. None of this behaviour was corroborated by any of T’s school reports [some were tendered] because none of her available reports reflect behaviour problems. In any event, Ms Arthurs told Ms T she made the decision to leave Mr Lane at this stage.
·An indication of the level of unhappiness and discord surrounding the children can be seen also from Ms Arthurs’ criticisms of Mr Lane during this period. Not only are there the discriminatory episodes she related of G being treated differently but also her suggestion that he spent his time playing computer games or asleep when he was not working [para 111] and that he did not help with the children or with the housework while she was studying [para 114] - ‘he started to become invisible’.
·It seems her departure in the end result was not abrupt because, on her evidence, she had let Mr Lane know for some time beforehand that she was unhappy. In her discussion with Ms T she referred to him as ‘an authority figure’ like her father, she referred to his ‘psychological abuse’ and her ‘low self-esteem’ but ‘most of it was done through myself’, she talked of feeling ‘stunted’ and feeling she could not be the kind of mother she wanted to be. As she put it, ‘There was no relationship, no family any more’. As she sees it, there had been no real discussion about their future at the beginning of their relationship and she felt she had to be grateful to him for ‘saving her’ from Mr R. Her father, she said, had made ‘threats’ that she should marry Mr Lane when she fell pregnant to him and she attributed her decision to marry him in part to this - ‘from there I felt stuck’. In her discussion with Ms T, she identified the 2001 residential course as a ‘turning point in her personality’ when she put her ‘jigsaw’ back together. If any or all of this is an indication of her feelings about the marriage before she left, it reflects an intense level of unhappiness that must have surrounded these children without, so it appears, any of it being addressed in a constructive way.
When she left she went to live with Mr Arthurs at O. He was studying psychology at university also and that is where they met. He had offered her accommodation. She introduced the children to him in October 2001. She did not fail to see the link with the offer from Mr Lane years before in her discussion with Ms T and she identified a ‘pattern of relying on males to rescue me’ though she described Mr Arthurs as ‘empowering’ and not ‘oppressive’.

As for the children’s arrangements initially, it seems that until all three children joined their mother at O at the end of the school term some weeks hence, G and T stayed with Mr Lane. In the meantime Ms Arthurs came and went and the children spent some time with her and Mr Arthurs. This early arrangement suggests Ms Arthurs had some confidence in Mr Lane’s ability to care for the children in her absence which stands rather at odds with her consistently maintained view that he lacked a proper appreciation of the children’s needs and was generally unavailable to them.

Whatever Mr Lane’s feelings about the separation – and he spoke to Ms T about his concerns for the children and his later disappointment there would be no reconciliation – he did not conduct himself in any untoward way. After all three were living with their mother and Mr Arthurs he had contact with them every weekend.

Within a very short time G was calling Mr Arthurs ‘dad’ and she had adopted his surname – this was reminiscent of early issues in her mother’s relationship with Mr Lane - and in due course the other children followed suit. The only occasion on which the children use their birth surname of ‘Lane’ is for medical appointments when their medicare card is required; in all other respects they use the surname of ‘Arthurs’. Their mother adopted that name by Deed Poll at some point. She and Mr Arthurs unhesitatingly attribute these developments to the children’s initiative and insist there was no pressure from either of them.

There was an arrangement predating separation for Mr Lane to take the family to Mauritius in January 2002. It was decided to go ahead and he left with the three children with their mother to follow. However, at the point of departure from Australia G was prevented from leaving the country, apparently a remnant from the earlier litigation between Ms Arthurs and Mr R. In the circumstances, Mr Lane was faced with an on-the-spot decision and so he made arrangements for G to be returned to her mother’s care while the issue was sorted out and he left with the other two children for Mauritius. Ms Arthurs insists she does not apportion blame for what happened but nonetheless she maintains a critical view of Mr Lane by reason of the fact that he left G and took the other two children. It emerged that Mr Lane had called her and consulted her about what decision he should make and she had told him ‘just go’ though she sees that not as support for the decision but a ‘solution’ to the problem. At any rate, she was left to explain it all to G and, on her account of it, she did so in a way that was not critical of Mr Lane, but I doubt whether that is accurate. It may well be that others, confronted with the situation as Mr Lane was, would have made a different decision. Mr Arthurs asserts that would have been the case had it been him. But it bears remembering, at least, that the situation arose from litigation to which Ms Arthurs was a party and it seems reasonable enough to observe that she might have paid more attention to G’s circumstances and sorted out the problem before G found herself in the situation she did and thus avoided any need for a point-of-departure decision by anyone. It is all water under the bridge now, but probably there were at least two consequences: the experience is likely to have left its mark on G; and it would have generated the opportunity to mount criticism of Mr Lane in the Arthurs household and portray him as uncaring and insensitive in contrast to Mr Arthurs’ qualities.

Mr Lane said the children enjoyed their time in Mauritius and, while the children make no mention of the experience during their discussions with either expert, it would seem to be so. Certainly their mother concedes this to be the case. As for Mr Arthurs’ attitude to his new partner joining the husband she had not so long ago left for a holiday, it might be inferred from what he had to say about it that he did not see it as a problem. But in my assessment of his evidence that would not be accurate; more likely he viewed it at the time with a sense of insecurity and disquiet.

On the children’s return, the contact arrangement changed from weekly to fortnightly weekend visits. This was done at Ms Arthurs’ request and her evidence [para 140] is that she told Mr Lane every weekend is too much and alternate weekends would be better for the children. Mr Lane agreed. He said he recognised that children need time with each parent at weekends. Arrangements then proceeded along those lines.

Ms Arthurs gave evidence that contact was ‘reasonably regular and incident free’ until August 2003 [para 142]. If the school reports of G and T are any indication of their general behaviour in the period to follow the return from Mauritius they seem to have been managing very well:
G
Semester 1, 2002 – ‘well mannered, likeable, hard working….usually presents work in a neat attractive manner…quite an artistic flair.. satisfied with.. progress
Semester 2, 2002 – ‘quite pleased with…continued application to work throughout the year…pleased with her increased self confidence…satisfied with…progress..

T

Semester 1, 2002 – achieved good results in all subject areas…works quietly in class and always tries hard to do her best…enthusiastic and co-operative student who wants to succeed at whatever she does.
Semester 2, 2002 – worked hard in school this year…produced excellent results in all subject areas…courteous member of our class who always tries hard to do her best work. Congratulations…

The first half of 2003 produced these reports:
(G - Semester 1, 2003) – quiet and cooperative student who always does her best…sensitive to others and works well with her peers. .gaining confidence in the whole class group and her attitude effort and work habits are to be congratulated. .. …pleasing progress in all areas….great work…

(T - Semester 1, 2003) – conscientious and hard working pupil …achieving excellent results in all subject areas…mature approach to her work and will always try her best at given tasks…shows an interest in all classroom activities …a pleasure to have in the classroom. .keep up the great work next semester…

(L - Semester 1, 2003) – steadily progressing in all areas and with more practice her knowledge of the sight words will improve…finishes given tasks...does need to take more care to make the finished product neater…caring class member who takes time to help others…enjoys telling news and sharing interesting stories with her peers…

August 2003 was the month Mr Lane left for Mauritius to visit his family again and he was away for about a month or so. In so far as they relate to the children, the arrangements are contentious. Ms Arthurs inferred from questions she asked that he had given short notice, the children were upset he did not take them, and T had been upset by his phone call during his absence. He denies this. On his evidence he had wanted to take the children but their mother had refused to allow them to go. Whatever the truth of it, it is my view of the evidence overall that they would not have been encouraged to see the trip in any light other than further indication of their father’s selfish or uncaring character.

That said, Ms Arthurs may have had the view that the period up to August 2003 was ‘incident free’ but it was not problem free from Mr Lane’s standpoint. At some stage before August 2003 [he is not specific] he alleges she had what he called a ‘little truth session’ with the children when she gathered the three children together and told them they could ask what they like and she would tell them what happened [about the marriage breakdown]. He said T changed after this from being first out of the car on contact visits to him to all three children staying back and not coming to him until after their mother left. Also, the children were making comments about him not being a good father.

Added to that, not long before the August trip there were a couple of other developments. In June Ms Arthurs started full time employment as co-ordinator of children’s services at the M District Emergency Accommodation [women’s refuge] at U. She suggests this made it more difficult for her at times to adhere to the ‘specific times requested by [the Father]’ though she does not say how that was so. Around the same time G refused to go on contact visits any longer and so there was a split in the arrangements between the three children on alternate weekends. As her mother relates it, she had been complaining about going since July of the previous year: ‘I’m sick of doing everything like making the breakfast and looking after the kids’. When she discussed this development with Ms T, Ms Arthurs told her: ‘I encouraged G to go (on contact) because I believed, if G was there, he wouldn't play 'mind games' and she is old enough to tell me. She was my eyes and ears (on contact visits). But I realised she shouldn't have to go.’ Asked about it in cross-examination, she confirmed that G had not developed other interests or had other commitments to follow with friends, for example, but that she had decided she would rather stay with her mother: ‘It was G’s view that she didn’t have to see Mr Lane because he wasn’t her real father.’ She went on to say that contact had started to ‘wane’ after they had returned from the trip to Mauritius [early 2002] which had been preceded by the airport incident and, as well as that, G had never felt attached to Mr Lane whereas she had become very attached to Mr Arthurs straight away.

Asked about her comment that G had been her ‘eyes and ears’, she sought to distance herself from any suggestion she was using G to carry information by asserting that Mr Lane was saying inappropriate things to the children and it was her belief that if G was there he may refrain from making inappropriate comments. She insisted she just conversed with G about what had happened on a weekend visit and she never reinforced anything negative she had related. But this was unconvincing and her comment does suggest she did involve G inappropriately in just such a role of transmitting to her information about Mr Lane and his household. In my assessment, it is likely the children would have been fully aware of their mother’s negative attitude towards their father and her view of his ‘mind games’ as indicated by this and a host of other statements she has made when referring to their father. It is also likely that involving G in this kind of role would have served to further undermine G’s relationship with Mr Lane when there were already difficulties in her attachment to him. As Mr Lane tells it, G had been relaying criticism being made of him in her mother’s household for some time - ‘mummy said you are not a good father’ - and making comparisons between him and Mr Arthurs where he came out second best. There is no reason to doubt his evidence about this state of affairs because the criticism is entirely consistent with her mother’s view of him and making comparisons is entirely consistent with what she and Mr Arthurs do.

After his return from Mauritius there was some discord about contact occurring on the first weekend but it did proceed on the same fortnightly basis. However, there were occasions when Mr Lane was asked to pick the children up on Saturday morning rather than Friday evening [Ms Arthurs attributes this to her work] and Mr Lane said there were problems speaking to the children by telephone.

Ms Arthurs’ evidence about this period after the Mauritius trip includes an account of complaints by the children: T was said to be upset at the way he dealt with a gift she had made for him, he insisted toys and clothing he had bought stay at his place, and there was an issue about a trampoline. Also, in her discussions with Ms T, Ms Arthurs said that in the latter part of 2003 there was quite difficult behaviour from T – telling her mother she hated her, slamming doors, punching L, and causing trouble. She had been unable to get T into counselling and she and Mr Arthurs thought, as psychology graduates, they could ‘talk her through’ her problems. That said, it will be noted that in her affidavit evidence [para 179] she put it somewhat differently: in the second half of 2003 ‘T appeared to have something on her mind that she could not talk to me about’. She made enquiries about counselling for T but there were delays and the only free counselling in the U area was with [Ms N] at the Women’s Refuge. It appears no step was taken to secure a counselling appointment at the time. No school reports for the second half of that year were made available and so there is no window into T’s behaviour during that period, at least in so far as it might be reflected in her school context. While her affidavit evidence spoke only of behavioural problems for T, when taken to this period in her evidence at the hearing Ms Arthurs gave an expanded version of what was happening; that is to say, she gave evidence ‘they had a steady decline in behaviour from about mid-2003…I had sought counsellors for them….’ She gave no account of what kind of behaviour L was exhibiting so as to warrant counselling, but this reference to ‘them’ obviously included her and put her behaviour on the same footing as T’s.

The children then spent time with their father during the Christmas holidays, including two weeks in January when they went to R before returning to their mother’s on 18 January 2004. On the case Ms Arthurs put at the hearing, the children returned from that holiday behaving differently and so the decline she had identified in their behaviour since the latter part of 2003 continued. As she explained it at one point, the children were returning from their father’s care withdrawn and not talking to her, they looked tired and they were ‘doing things’. For example, T was defiant and telling her mother she hates her, she was saying she did not want to go to school anymore, she would refuse to go to school, she would not get out of bed on time, she would go through stages where she would not eat, stages where she would try to punch L or fight with L for no apparent reason. As I have already noted, nothing was said of the things L was doing.

I am satisfied that Mr Lane approached her for a discussion after the return from R but she denied this and she denied his version of what was said. But I am satisfied Mr Lane’s evidence can be accepted. Therefore I accept he suggested to her their relationship needed to be improved for the benefit of the children, it might help if the adults had a coffee at her house and so let the children understand there was no difficulty between them, and I further accept she rejected this suggestion by telling him she did not want him anywhere near her house and she had all of the people out of her life she wanted out of her life.

There was dispute at the end of that month, the weekend before the children started back at school, about whether it was his weekend or hers. As Ms Arthurs put it to Ms T, this was the first time she had refused contact and she said she knew ‘bad stuff’ would happen as a consequence though she considered she had to ‘stand up for the kids’. There was further discord about the next weekend (early February) and a round of exchanges about it. T told her father she did not want to go as she wanted to help paint G’s room for her birthday. On her mother’s account of it, she was upset and felt guilty about not wanting to go and Ms Arthurs accused Mr Lane of ‘manipulating’ the children. The upshot was they did not go with their father on that weekend. The following weekend, which fell on G’s birthday, they did go but their mother asked for them to be returned early on Sunday to celebrate G’s birthday. T is said to have been upset on her return, reporting her father as angry about the early return and that he had refused to take them to the beach. The following weekend there was discord about arrangements proposed by Ms Arthurs so as to accommodate her going to a conference in Sydney. Tensions were increasing and Mr Lane, feeling the girls’ time with him was being reduced again, talked of taking legal action to have formal arrangements put in place. Ms Arthurs did not respond well to this and, I accept, she said he would not see them again until orders were in place or words to that effect.

In this deteriorating climate, Mr Lane contacted the school and he went to the school to see the children. On his account of it they were pleased to see him and he went again some days later, but their mother reports them [T at least] to have been embarrassed. On a subsequent visit to the school neither T nor L wished to see him and after a brief encounter, he left. A solicitor’s letter was written requesting contact proceed the following weekend [exhibit 9] and he called the Department of Community Services (DoCS) to report the children were being emotionally abused. On her evidence [para 172] Ms Arthurs contacted him and a visit was arranged for the weekend of 27 March. I accept there was an unpleasant exchange between them when he called to speak to the children and she would not then allow the contact to proceed on that weekend until he responded to a question she posed about why he would want to see them. He made a further visit to the school and left a gift and card for the children telling them he loved them.

His school visits, irrespective of the developing circumstances, were ill-advised. Ms Arthurs maintained it was unstable and irrational behaviour on his part, that he was being heavy handed and not willing to compromise or discuss things and he had threatened to get solicitors involved. I think that an overreaction though I have no doubt the children were unsettled not only by the visits but by the worsening situation going on around them.

In March or thereabouts Ms Arthurs made an appointment for T to see Ms N [para 180]. Unquestionably, open conflict was being played out by this time. In their interview with Ms T many months later, both T and L would relate a social relationship between their mother and Mr Arthurs and Ms N which included visits by Ms N to their home. Ms Arthurs tried to distance herself from any connection of that kind, but I reject that and shall return to the topic later. As foreshadowed earlier, Ms Arthurs links the counselling to difficult behaviour from T in the second half of 2003 and the inability at the time to secure counselling. T’s own view of why she was seeing a counsellor, as she discussed it with Ms T, was to say she started going when ‘John’ visited them at school earlier in the year. As for why she thought she needed counselling about it, she replied: ‘So that [Ms N] showed me stuff I should know. (Q. What sort of stuff?) Stuff like he ([the father]) was a bad person. She let me feel free and she let me let go of stuff.’

Records seem to indicate that T had her first appointment with Ms N on 28 March 2004. Ms N was not called as a witness but her records were tendered (see exhibit 13). Oddly, they consist of typed notes only and there are no handwritten notes as one more usually see to record an interview. Still, as those typed notes reflect, in the summary Ms N gave of T’s session on that day she notes having asked Ms Arthurs after the appointment whether T had ever been traumatised, witnessed domestic violence or whether she [Ms Arthurs] had ever had suspicions T had been abused or sexually interfered with in any way. It has to be said this is a remarkable enquiry in the circumstances because her notes of the session give no indication why her thinking would be along these lines. Ms Arthurs, she notes, replied in the negative but said she had spoken to the girls at all times about appropriate and inappropriate touching, there was ‘DV’ in her relationship with G’s father and ‘abuse with [the father]’ but she thinks the children would have been too young to remember. This is Ms Arthurs’ evidence of what she said to Ms N in response to her enquiry:
‘The thought has crossed my mind. I have taught the children protective behaviours and have taught the children about the human body and reproduction.’

In discussing this development with Ms T, Ms Arthurs added that she told Ms N she would ask the children about it. She did not have any concern about doing so because ‘they were the questions they were used to me asking’. The accuracy of that observation was confirmed by L’s account to Ms T of their mother’s prior questioning which I shall come to shortly. But in contradiction of her own evidence [ie the thought had crossed her mind] Ms Arthurs persistently maintained when taken to this topic that she had not considered their father had sexually abused the children prior to their statements to be discussed next. She agreed she had spoken to the children in the 12 month period prior to this about safe and unsafe touching [her earlier evidence of having done so on 12 occasions was said to be a typing error and should have read 2 occasions] but that was undertaken in a ‘general context’ and she denied it was in any way related to their father. However, her evidence about whether she had or had not considered the children may have been sexually interfered with by their father before Ms N asked her about it or before her conversation with the children [to follow] is unsatisfactory because it lacks both consistency and clarity.

In her affidavit Ms Arthurs gave evidence of a conversation between herself and T and L some days after this first session with Ms N [para 182 – 185] and it bears recording since it is the first time a statement had been made by either of the children implicating their father in wrongdoing of a sexual nature:
‘On 5 April [this is an error as the police record puts her contact with them on 4 April] T and L were giggling to each other during a conversation they were having related to a boy asking G to be his girlfriend.
I heard them say words to the effect:
“How gross it would be for G making babies”
A few moments later, L left the room and I said to T words to the effect:
Are you having a laugh about making babies?
T said:
Yeah, it’s just L. She’s so funny.
I said:
What’s so funny about making babies?
T said:
It’s just that they see your vagina and that. Oh, that’s so weird.
I said:
Do you remember how you learnt about safe and not safe touching?
T said:
Yeah and nodded her head.
I said:
Has anyone touched you that wasn’t safe touching?
T said
What do you mean?
I said:
Has anyone touched you on your vagina?
T replied
Not me but Papa does it to L all the time.
I said
What do you mean?
T said:
Every night, Papa puts his hands down L’s pyjamas and touches her vagina.
I said
How do you know that?
T said
We sleep in the same room you know. I see it. I see him do it all the time.
I said
Thank you for telling me T. I need to talk to L too.
Asked if she had ever been touched by anyone on her vagina L replied:
Papa says I need cream on my vagina all the time. He puts it on my vagina.
L began to cry and said:
When his finger is in my vagina it really hurts. It really, really does.
I said
Did you tell Papa not to?
L cried even harder and said:
I did, I did Mummy. I told him not to do it but he didn’t stop. He just didn’t.
T began to cry and I said:
How long has this been going on?
Both T and L replied at the same time:
All the time.
I said:
Why didn’t you tell me before?
T said:
We didn’t want to hurt you Mum. We knew you would get upset.’
There was some further conversation including her intention to call the police which she did. Ms Arthurs agreed her questioning had been leading, in particular she had been the one, by a question she asked, who had located touching on the vagina. As she related events that followed, she told Mr Arthurs what had transpired, they both say they felt some ‘relief’ because there was an explanation at last for the behavioural problems that had been experienced in the household.

On 4 April she contacted the police and exhibit 17 is the police record of her notification. Ms Arthurs denies being the source of what is contained in that record and she can offer no explanation for how it is that certain of the information is accurate [eg date of 15 February] and other aspects of it are so wrong and misleading. The record starts with this note:
‘On the 15 February 2004 the children stopped seeing their father and were reluctant to go with him for no apparent reason. Arthurs suspected that her daughters may have been subject to foul play and as a result has stopped her daughters seeing their father.’

The suspicion of ‘foul play’ is not supported by any detail, but as the reason for stopping the children seeing their father after 15 February it is certainly not consistent with evidence Ms Arthurs gave of offering contact after 15 February and before 4 April; for example, her evidence is that on 24 February she told their father she had a work related conference in Sydney and she proposed he collect the children on Saturday morning rather than Friday evening [para 167] and on 22 March she contacted their father and told him T had asked to see him but only for one night [para 172]. Specifically, Ms Arthurs maintains she has no recollection of saying anything about stopping contact because of suspicions of ‘foul play’ and, from her perspective, contact stopped because of the AVO subsequently taken out. The police record continues:
‘On 4/4/04 Arthurs contacted police stating that her daughters had disclosed to her that they had been sexually assaulted by their natural father. The nature of the assaults includes the father touching the girls on their vagina, masturbation and similar acts. Apparently the children stated to their mother they didn’t like tickle time and this formed the basis for the expansion of the details obtained by the mother.’
The reference to ‘tickle time’ comes completely out of the blue because that forms no part of the evidence Ms Arthurs has given here of how the children came to disclose their father’s behavior to her. She denies telling the police anything about ‘tickle time’ and she denies saying anything about masturbation. The police referred the matter to JIRT and DoCS.

When one then turns to the DoCS records [exhibit 16] there is a JIRT referral for each child dated 5 April and the record of ‘brief abuse allegation detail’ is this:
‘1. S/c have told their n/mo that they do not want contact with their n/fa because he plays ‘tickle games’ with them.
2. Further questioning by n/mo reveals the girls have disclosed that n/fa touches them on their vagina’s (sic) and that he masturbates.
3. No further questions were asked so as not to contaminate the information.
4. N/mo stated that the children are not going to have further access with their n/fa – however it is not known if there are any Family Court issues which may impact on n/mo’s decision.
5. N/mo protective.’

It will be noted that the same information about ‘tickle’ is also reflected in these notes and there is also reference to masturbation. The source of the information given to the Department is not apparent but Ms Arthurs denies it was her. She says Ms L [JIRT officer] provided the Department with the information; however, that seems unlikely given the content of the interviews she later conducted with the children. That said, it is possible the information in the Department’s record was relayed from the police record by someone and not by Ms Arthurs. Whoever it was, it is clear at this very early point from the records made by both authorities – the police and the Department - that there had been an expansion of the children’s statements to their mother, according to the evidence she has given here: that is to say, there has been included additional material about ‘tickle games’ which formed no part of what they are supposed to have said to her; questioning by their mother has revealed disclosure that their father touches ‘them’ [not just L] on the vagina [there is no reference to his applying cream]; that the children are stating they do not want contact with their father [the Department’s note]; and that their father masturbates. As for the last of these, it will be seen from Ms Arthurs’ affidavit that one of her complaints about Ms T’s report is that she has never claimed the children had been subjected to the father’s masturbation nor that they disclosed such information and she claimed not to know where Ms T had acquired that information [para 216]. Very likely Ms T got it from the record made by the Department and/or by the police of what they were told of the allegations.

G was clear about her views. She does not want to live with Mr Lane, she wishes to remain living with her mother, and in the reporter’s opinion her wishes should be given significant weight. That is supported not only by the ambivalent relationship she had with Mr Lane over the years [whatever the genesis], her age and level of maturity, as well as the particulars of her discussion with the reporter, including her perception of his attitude towards her, and her positive views of her life at present.

T’s interview threw up a variety of responses though all negative towards her father. Asked about the contact with him when interviewed by Ms T, she said ‘…I didn’t like seeing him. It’s a shock and is uncomfortable now to see him.’ Probed about her reasons, she said “Because of what he did to us, we don’t like him, it is scary seeing him. I don’t know what he is going to say or do.” By ‘what he did to us’ she meant ‘he hurt us, touched us in wrong places.’ Told of her father’s application for residence, she said she felt ‘uncomfortable, don’t like it, he scares us, he hurt us, he’s not nice, it’s unpleasant.’ Expressing her view about things staying as they are, she said ‘We love Mum and Dad we don’t want to be separated from them. Mum gave birth to us, we are growing on her and it would not be nice to separate us.’ If things were to stay as they are, she said ‘I’d love it. It would be really nice, lovely…so many good words!’ Asked how she would feel if the Judge said she and L were to live with their father, she replied ‘I wouldn’t……I’d try not to go, I wouldn’t enjoy it , I’d stay quiet, wouldn’t do anything. I wouldn’t like it.’ Asked would she go if the Judge ordered it she replied ‘No – I’d hide or run or stay put.’ Asked about good times with her father, she replied there were some good times – ‘he’d buy us stuff but never do stuff with us. He’d occasionally take us to the beach’ - but she added there were lots of bad times when she got worried and did not like it. Describing her life with her mother and Mr Arthurs enthusiastically, she said she did not miss her father at all.

Asked about her feelings towards her father’s application to live with him, L said
‘I don’t want to go cause he hurt us and abused us and started doing bad stuff when Mum was gone and we saw him on weekends…..every time he goes into town…he never gave us real love. The house we live in now loves us a lot more. Dad takes care of us. Dad talks to us re psychology. We make stuff, he lets us have guinea pigs. He never hurts us or anything.’
The reporter said she paused at that point to take a breath. Asked how she would feel if the judge decided that was to happen, she said ‘I’d sort of want to throw a tantrum’ adding ‘I don’t not like hearing about the bad stuff and sometimes I had a nice time and sometimes bad.’ and she does not like the feeling of going over to ‘[the father]’s house’ and she had been scared when her father had come to her school. She returned to her conversation about some of the good times she had had with her father and said ‘in those days he never did bad stuff to us.’ Saying she was sometimes sad ‘cause he’s my father. Why would he do that? He tricked Mum and he’s our father.’ Asked what she meant by ‘tricked Mum’ she explained ‘Mum thought he was a nice guy but he wasn’t.’ Asked how she would fee if she had to live with him, she replied: ‘Don’t really……I’d rather stay in a child care centre than go anywhere near him. If I had to go near him he’d take advantage of that and he’d abuse us for saying stuff about him. I don’t think he thinks it is true cause that’s why he’s sent us to court and stuff.’ Asked how she would feel if things stayed the same, she replied: ‘relieved cause it was all over.’ The reporter concluded L appears to have some ambivalence about her feelings towards her father.

Nonetheless, while their wishes were clearly expressed, in the reporter’s view they need to be considered in the context of all of the other evidence. She said they are very influenced by their environment and their strong belief that their father has sexually abused them. I accept that is the case – in particular, their wishes cannot be quarantined from the negative and critical environment around them when it comes to their father and his worth to their upbringing, including the months of counselling where this negative picture was reinforced. They have had no alternative or countervailing point of view for a long time and therefore no recent opportunity to test their own experiences of their father’s company. Wishes of children are to be given serious attention, as I do here, and the practical importance of their wishes becomes particularly apparent as soon as one contemplates any arrangements that are contrary to their wishes. In other words, I do place considerable weight upon the children’s views, but they are not the determining factor in deciding where their best interests lie.

the nature of the children’s relationships

This has been discussed at some length already. Generally, children’s most important relationships are with their parents, with each other, and with other significant adults in their lives.

Here, the children’s relationship with their mother remains intact and I accept they are closely attached to her. They each also have a good relationship with Mr Arthurs and I accept they are closely attached to him. Their relationship with their father, on the other hand, has been significantly impaired. It is now two years since they had any contact with him [apart from the reporting process] and in that time they have maintained a consistently negative view of him without any opportunity to take a contrary stance. That said, it should be plain from what has already been said that this state of affairs very probably has a number of causes but it is not without significance that it has been seriously undermined by the behaviour and attitudes of their mother and step-father.

As between themselves, the children appear to be close and supportive of each other. They can be taken to have what might be regarded as normal, healthy sibling relationship as sisters. As for their relationship with N, it has been some time since there was any contact with her [at the time of the hearing] and it is not known what developments there have been on that front in the meantime. Their relationship with her is not able to be assessed.

As for their other relationships, they have extended family on both sides but there seems to be relatively little contact there. They appeared to enjoy, from all accounts, the visit to Mauritius and the company of their relatives there though, like their mother’s extended family, they appear not to feature in any central way in the children’s upbringing. Mr Arthurs’ family, as he explained to Ms T, live in the United Kingdom and as far as I can tell he has no relatives here in Australia. Ultimately, there is no evidence to enable any assessment to be made about the children’s relationships with extended family on either side.

the likely effect of any changes in the children’s circumstances

The effects on the children of a continuation of the separation from their father are likely to be profound. They will grow up with no sense of who he is in reality, from their own perspective, but only the portrayal of him by their mother and Mr Arthurs and they will also grow up believing they were subjected to harmful abuse by their father, wrongly so in my opinion. Given the findings recorded so far, the status quo cannot prevail. In their interests, there must be change. The much more problematic question is the form that change should take and I shall come to that shortly.

the practical difficulty and expense of a child having contact

Neither household is in a strong financial position. But the expense of maintaining contact for the children between their parents – with whomever they live – would not be prohibitive. That was able to be done for 2 ½ years before contact arrangements were brought to an end, despite the distance between the parents’ separate residences at O and S.

The practical difficulty will not arise from distance or expense. It will arise if they have to contend with attitudes that undermine their opportunity to repair their relationships with their father and undervalue the contribution he can make to their upbringing and the sense of who they are. It will arise if it is made impossible for them to have an emotionally satisfying relationship with their father.

the attitude to the children and to the responsibilities of parenthood…
the capacity of each parent, or of any other person, to provide for the children’s needs

During the children’s earlier years, when their parents lived together, their mother took most of the responsibility for their day to day care, as would have been entirely consistent with what Mr Lane says of his own background and family experience. With Mr Arthurs’ assistance, she has continued in her role as primary carer for the past four years and more since the separation. In many respects she has cared for them well and seen to their upbringing in a reasonably responsible way. Their school records reflect happy children progressing well at school. The Arthurs household is obviously one that is focussed upon the children’s various needs and I have no doubt they derive considerable benefit from the care their mother and step-father offer. I am satisfied their mother, with Mr Arthurs, is able to meet their physical and intellectual needs. The shortcoming, and a significant one, has been a recurring theme throughout this judgement and relates to their ability to fully appreciate the children’ emotional and psychological needs in so far as they relate to their relationship with their father and his proper role in their lives. A particularly important question, given what has been said, is the ability of Ms Arthurs to meet the children’s needs in the future with this litigation behind her. That will depend, as I see it, on her ability to accept this judgment in as much as it runs counter to her own assessment of the children’s interests and the part Mr Arthurs plays in supporting that.

I am satisfied Mr Lane has been a responsible parent who has provided well for the children. He emerged from the breakdown of the marriage committed to the children and to making a contribution to their upbringing. A picture emerges of the children enjoying a variety of activities with him in times past and, if their mother’s evidence is accurate, they have spoken of good times with him in this long period of absence. There was criticism of his lack of availability to the children at times and his preoccupation with other things and it may be there is some substance to that and he will have to re-consider his approach to such matters. In the main I assess him as capable of caring for the children and meeting their various needs. But I do have some reservations about his ability to effectively manage the children’s behaviour if it is highly oppositional and defiant. There would be some risks in bringing about a change of the children’s residence and their placement with him and it takes little to imagine what sort of problems he may very well have to confront - oppositional, resisting, strong-minded adolescents put in a situation they strongly oppose and probably independent enough and capable enough to try to change that. By the same token, I do not underestimate the risks for the children of remaining living where they are if they cannot have a relationship with their father.

the children’s maturity, sex and background

These matters have been referred to earlier, some in passing, but is has to be remembered that T and L do have a mixed cultural background and have had the opportunity on one occasion to experience their father’s country of origin and all of the cultural and linguistic difference it offers to life in Australia. As it is part of their heritage they should have knowledge of it and be familiar with it because it is important to their own sense of who they are and where they come from. Only a restoration of their relationship with their father can do that.

the need to protect the children from physical or psychological harm

I have already found that that it is highly unlikely either T or L has been sexually abused or ill treated by their father and therefore there is no unacceptable risk of abuse or ill treatment from him in the future. Therefore, they need no protection from that. They do need to be protected from the further harm that will result if they are not able to restore their former good relationship with their father.

whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

It seems reasonable to conclude that leaving children with the parent who has always been their primary carer is less likely to lead to further proceedings than providing for them to make the transition to live with their other parent from whom they have been alienated or against whom they have been aligned. The adoption of the child representative’s proposed orders would certainly lead to further proceedings because there would be a further hearing some months hence. But of course while it is desirable and generally in children’s interests for litigation about their arrangements to be brought to an end, sometimes children’s best interests do require a ‘wait and see’ or ‘trial’ approach so as to ascertain what will be the most appropriate arrangement for them in the longer term and that cannot be avoided. In other words, while as a general rule this particular factor recognises that the continuation of litigation is not consistent with the best interests of children, it does not displace the responsibility under s 65E to give effect to those best interests whatever form that determination may take.

Conclusion:

This is by no means an easy decision to make and it is one that has been quite troubling. What is less troubling, however, are the arrangements for G and they can be dealt with first. The second report of Ms T and the Family report both recommended that she remain living with her mother. She does not have a strong attachment to Mr Lane and nor does he have a strong bond with her. She is 13 years of age, she is very clear in her wish not to live with Mr Lane, she has lived with her mother all her life and she has had no contact with Mr Lane now for more than 2 ½ years. In my assessment, it is neither reasonable nor practicable to remove her from her current situation where she is settled and happy and place her with someone she does not regard as a psychological parent. In my opinion, her best interests would be served by remaining in the care of her mother.

Coming to T and L, one option is to have them move to live with their father. Certainly that is what is urged by the children’s representative and by Mr Lane and by the recommendations of Ms T who was confident about the appropriateness of such an outcome for these children. Based on the various findings recorded earlier, Mr Lane would be able to care for them adequately though I do have reservations about his capacity to cope sufficiently with oppositional or defiant behaviour and there is concern about potentially risky behaviour from the children were this to be implemented. The initial impact on the children of separation from their mother is likely to be severe and there could be no certainty about how long that would endure. They would also be separated from their older sister, G, and quite apart from the difficulties they would have in adjusting to living away from their mother, they would not have the day to day company of their sister. Nonetheless, the restoration of their relationship with their father is integral to their future well-being, in my assessment, and every effort has to be made to see that it occurs.

The other option is to leave them living with their mother but, as has been made clear from what has already been said, it is not an option to leave the situation as it is and continue the long period of estrangement from their father. The question, however, is whether Ms Arthurs can bring to bear her parental support and authority to ensure that the children’s relationship with their father is restored, sustained, and not undermined in the future. It is a question I have considered at some length but I have been unable to reach any solid conclusion about it. In large part that is because she has not at this point become aware of the findings contained in this judgment, more particularly the finding related to the allegations of sexual abuse, or to absorb and come to grips with the implications of that and other findings. It seems to me there is some unfairness involved in projecting her attitude or future conduct from what has occurred thus far.

There is no ideal solution for these children but, ultimately, in a fine balance I have determined to adopt a course that differs from the expert’s recommendations and the child representative’s submissions. That is to leave the children in their mother’s care, in the household where G will remain, and to put in place orders for regular contact with their father similar to those that were in operation before the difficulties of early 2004 arose. Those orders would be interim in nature and they would have the support and assistance able to be provided by an order for supervision pursuant to s 65L. They would operate for a period, say to the end of April, in the expectation that the children’s relationship with their father will be restored forthwith following delivery of this judgment and their contact with him will proceed as ordered. In that event, the orders now made could be confirmed for the longer term. If that does not occur, there will be no option but to provide for the children to live with their father and the matter will be listed for the purpose of making those orders and any consequential orders considered necessary at that time.

It is anticipated that the children [who will be told by me in company with an experienced counsellor from the Court of the decision] will have the opportunity to meet with their father while at the Court immediately after the delivery of judgment. The orders will provide for them to spend the day with him this coming weekend perhaps taking up some of the activities they used to enjoy with him and the first weekend they spend in his care will commence the following Friday, 10 March. The orders will also provide for them to have the whole of the approaching Easter school holiday period with him when they can spend a longer period of time together. There will also be an order permitting Mr Lane to take the children on holidays to Mauritius in the future. Otherwise, I do not propose a prescriptive set of orders about counselling [that will be for the adults concerned having regard to the services available and their own willingness to engage in such a process], or prohibiting denigration of a parent [that has been made plain enough from what has been said already], or about how Mr Lane is to conduct himself while the children are in his care [there can be confidence he has the maturity and sense to ensure they are cared for without the choreography of Court orders].

There are likely to be difficulties for all concerned initially, not least of all for the children. But it is to be hoped, in their interests, with this litigation behind them there can be a new beginning without the need for any further disruption to the children’s ability to get on with their lives having both parents part of their upbringing and their future. In large part, that will lie in the hands of their mother.

For those reasons, the orders will be:

Until further order and subject to compliance with order 2 hereof, the children T Lane born … 1995 and L Lane born … 1997 live with their mother.

The children are to have contact with their father (a) initially in the Counselling rooms of the Court after delivery of judgment in the presence of a counsellor and (b) on the first Saturday following judgment from 9am to 4pm by their father collecting them and returning them to their mother’s residence and thereafter as follows:
(i)during school terms:
(a)every second weekend commencing 10 March 2006 from 6pm Friday to 6pm Sunday or 6pm Monday if it is a public holiday;
(b)at other times or otherwise as agreed between the parents.
(ii)during school holidays:
(c)for the whole of the Easter 2006 school holidays and thereafter one half of each of the school holidays during periods to be agreed and, failing agreement, for the first half in even numbered years and the second half in odd numbered years.
(d)at other times or otherwise as agreed between the parents.
(iii)by telephone
(e)with reasonable frequency for reasonable duration.

Contact is to be implemented by their father or his nominee collecting them from their mother’s residence at the beginning of any period and their mother or her nominee collecting them from their father’s residence at the conclusion of any period.

Pursuant to s.65L(1) of the Family Law Act 1975, compliance with order 2 is to be supervised by a Mediator nominated by the Director of Mediation at the Newcastle Registry of this Court and the Mediator is to give to the parents such assistance as is reasonably requested by either of them in relation to compliance with and carrying out these orders and any communication with or involvement of the Mediator is to be reportable upon further order of the Court.

The matter is to be listed for mention on a date at the end of April to be advised or earlier upon the request of either party or the supervising Mediator for the purpose of making further orders about the children’s longer term arrangements.

The father is to be permitted to take the children on holidays to Mauritius once per annum provided he gives to the mother reasonable notice of his intention and provides her with details of the flights and contact while in Mauritius.

The child G R born … 1993 is to live with her mother.
I certify that the previous 160 paragraphs are a true copy of the judgment delivered by the Honourable Justice Moore.
Associate:

[2006] FamCA 87

28 February 2006

Key Legal Topics

Areas of Law

Civil Procedure

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Standing

Procedural Fairness