Lundin & Almstedt

Case [2024] FedCFamC1F 186

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Lundin & Almstedt [2024] FedCFamC1F 186

File number(s): MLC 8679 of 2014
Judgment of: WILLIAMS J
Date of judgment: 21 March 2024
Catchwords: FAMILY LAW – PARENTING – Entrenched and protracted parental conflict – Where the mother alleges the father sexually abused the children – Where the father alleges the mother has engaged in alienation and orchestrated a false narrative of sexual abuse – No evidence to support the mothers’ allegations – Where the single expert considers the mother has promoted a false narrative – Interim orders for change of residence made – Consideration of the best interests of the children – Finding that the father did not sexually abuse the children and the mother engaged in alienation which has irreparably damaged the children’s relationship with their father – Where the court finds there is a greater risk of harm in the children remaining in the fathers care than being returned to their mother – Orders for the children to live with the mother and spend no time with the father
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA
Cases cited:

Banks & Banks [2015] FamCAFC 36

Blann & Kenny [2021] FamCA 322

Eastley & Eastley [2022] FedCFamC1A 101

Fitzwater v Fitzwater (2019) 60 Fam LR 212

Isles & Nelissen [2022] FedCFamC1A 97

M v M (1988) 166 CLR 69

Mazorski v Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division: Division 1 First Instance
Number of paragraphs: 280
Date of hearing: 11–15 July 2022; 5–7 September 2022; 12, 13, 15 December 2022; 27-28 April 2023; 3-5, 10-11, 14, 26-27 July 2023; 12, 13 and 23 February 2024
Place: Melbourne
Counsel for the Applicant: Ms Stoikovska SC
Solicitor for the Applicant: Susan Snyder
Counsel for the Respondent: Mr Burns
Solicitor for the Respondent: RRR Lawyers
Counsel for the Respondent: Ms Fisken
Solicitor for the Respondent: Stuart Family Lawyers
Counsel for the Independent Children's Lawyer: Mr Myles
Solicitor for the Independent Children's Lawyer: Victoria Legal Aid

ORDERS

MLC 8679 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS ALMSTEDT

Applicant
AND:

MR LUNDIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

21 MARCH 2024

THE COURT ORDERS THAT:

1.All previous parenting orders are discharged.

2.The mother have sole parental responsibility for the children, X born 2010 and Y born 2012 (“the children”).

3.The children live with the mother.

4.The father be at liberty to forward letters and cards addressed to the children to an address nominated by the mother, with the mother to facilitate handing same to children.

5.The mother forthwith and no later than within seven (7) days of these orders, advise the father of her nominated address and of any change of address within seven (7)…

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AGLC
Lundin & Almstedt [2024] FedCFamC1F 186
Case
[2024] FedCFamC1F 186
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the matter of Almstedt v Lundin [2024] FCCA 586 was heard by Justice Williams. The dispute between Ms Almstedt and Mr Lundin, parents of two minor children, X and Y, involved allegations of sexual abuse against the father by the mother, and counter-allegations of parental alienation by the father. The court had to decide on the veracity of the allegations, the best interests of the children, and appropriate parenting orders. The legal issues included the admissibility and weight of the allegations, the impact of parental alienation, and the children's best interests in terms of residence and contact with both parents.

The court found no evidence to support the mother's allegations of sexual abuse by the father. The expert evidence, particularly from Dr D, highlighted that the mother had engaged in parental alienation, significantly damaging the children's relationship with their father. The court concluded that the risk of harm to the children was greater if they remained in their father's care or spent any time with him. Consequently, the court ordered that the children live with their mother and have no contact with their father unless the children themselves wish to initiate contact. The court also ordered that the mother have sole parental responsibility and mandated therapeutic counselling for the children, with provisions for family therapy if recommended by the children's psychologist.

The final orders included discharging all previous parenting orders, granting sole parental responsibility to the mother, and prohibiting any contact between the children and their father unless initiated by the children. The father was permitted to send letters and cards to the children, with the mother facilitating their delivery. The mother was directed to inform the father of any changes in her address and email within seven days. Additionally, the court ordered the mother to arrange for the children's therapeutic counselling and to provide copies of the court's reasons to the children's psychologist. Family therapy was to be considered if recommended by the psychologist, with both parents to bear the costs and follow the therapist's directions. All other applications were dismissed, and the Independent Children's Lawyer was discharged upon compliance with specific orders.

Orders

Orders of the court

MLC 8679 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ALMSTEDT

Applicant

AND:

MR LUNDIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

21 MARCH 2024

THE COURT ORDERS THAT:

1. All previous parenting orders are discharged.

2. The mother have sole parental responsibility for the children, X born 2010 and Y born 2012 (“the children”).

3. The children live with the mother.

4. The father be at liberty to forward letters and cards addressed to the children to an address nominated by the mother, with the mother to facilitate handing same to children.

5. The mother forthwith and no later than within seven (7) days of these orders, advise the father of her nominated address and of any change of address within seven (7) days of any change.

6. The father advise the mother of his current email address within seven (7) days of these orders, and of any change of email address within seven (7) days of any change and the mother forthwith advise the children.

7. In the event the children express a desire to spend time or communicate with their father, the mother do all acts and things necessary to facilitate the children’s time or communication with the father.

THE COURT ORDERS BY CONSENT THAT:

8. The mother do all such things necessary to engage Dr B of C Psychology or such other therapeutic counsellor as recommended by Dr B (“the children’s psychologist(s)”) to provide the children, X born 2010 and Y born 2012, with therapeutic counselling on a regular basis as directed by C Psychology.

9. The mother be solely responsible for all costs associated with the children’s attendance upon their individual therapeutic counsellor.

10. The Independent Children’s Lawyer provide Dr B or such other psychologist(s) recommended by Dr B, with copies of the following documents:

(a) The Family Reports prepared by Dr D dated 18 October 2021, 11 April 2023 and 27 October 2023; and

(b) The Final Parenting Orders made by Justice Williams and the accompanying Reasons for Judgment.

11. In the event that the children’s psychologist(s) recommends that the children participate in family therapy with the mother and/or the father, each parent be responsible for the costs involved in their attendance with the family therapist and follow all reasonable directions of the family therapist as to attendance.

12. Both parents (if invited to participate in family therapy) be at liberty to provide the family therapist with copies of the documents referred to at paragraphs 3(a) and 3(b) herein.

THE COURT FURTHER ORDERS THAT:

13. All extant applications are dismissed.

14. The Independent Children’s Lawyer be discharged after compliance with Order 10 herein.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons that follow, I have determined the “least-worst” option for the children is for both children to live with their mother. The mother should have sole parental responsibility and the children should not spend any time with the father, unless they wish to do so. I will also make positive findings that the children were not sexually abused by their father and that the mother has engaged in parental alienation of the children.BACKGROUND The mother is aged 49 and the father is aged 56. The parties married in 2010, separated in late 2014, and divorced in 2015. There are two children of the marriage, X aged 13 years, and Y aged almost 12 years. The mother has two children from a previous marriage, Ms E and Mr F, both of whom are aged over 18. Until X and Y were removed from their mother’s care, all four children lived together with the mother. In late 2014, the parties separated and the mother obtained an Intervention Order against the father, naming the children as affected family members. On 26 September 2014, the father filed an Application for Final Orders seeking both final and interim parenting orders. The mother filed a response on 13 October 2014, which also sought final and interim parenting orders. The applications were resolved when final parenting orders were made by consent on 2 August 2016 (“the August 2016 orders”). Despite the mother’s allegations of the father’s sexual impropriety, the August 2016 orders provide for the parents to have equal shared parental responsibility, the children to live with the mother and to spend time with their father five nights per fortnight during school terms, one half of all school holidays and on special occasions. Time between the father and the children occurred substantially in accordance with the August 2016 orders until the father filed a Contravention Application on 1 May 2020, alleging the mother had failed to comply with holiday and special occasion time between the children and him. The Contravention Application was resolved by final consent orders made on 1 September 2020, which provided for the children to spend an additional 15 nights of “makeup time” with the father. Following the mother’s Initiating Application filed 18 March 2021 wherein she sought all time between the children and the father be suspended because of alleged sexual abuse of the children by the father, the application was referred to the Magellan List. On 26 May 2021, a Senior Registrar ordered the children’s time with the father occur each Saturday from 4.00pm to 7.00pm supervised by the Family Contact Service, which was particularly unsuccessful. Various procedural orders were made, numerous subpoenas were issued, and Interim Applications were filed prior to the trial commencing before me on 11 July 2022. This cycle continued throughout the hearing. In September 2022, counsel for the Independent Children’s Lawyer made an urgent application to change the children’s residence from the mother to the father, because of Dr D’s evidence during cross-examination. On 7 September 2022, orders were made by me acceding to the application.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

All relevant facts and circumstances have been addressed.CONCLUSION The inevitable and regrettable conclusion to this protracted litigation is both children should be returned to the care of their mother and there should not be any orders mandating the children to spend time with their father. As stated by Dr D during her final cross-examination, she still considers the risk to the children in the mother’s care to be less immediate and significant than the risk in the father’s care. I also propose to make orders providing for family therapy for the children in accordance with the Minute proposed by the Independent Children’s Lawyer, which includes provision of a copy of these reasons to the children’s counsellor. I will make the order as sought because Dr D identified that X’s high-risk behaviour would not necessarily abate in the care of her mother, although that would possibly mitigate against future high-risk behaviour and some form of counselling could possibly assist. I will also make an order that the children are provided with the father’s email and contact details to at least leave the door open, should they wish to contact him in the future and that he be permitted to forward letters and cards to the children, as recommended by Dr D. I propose to make orders accordingly. Parental Responsibility Because of the circumstances of this case, regrettably the only viable option for parental responsibility is for the mother, who will be the children’s sole carer, to have sole parental responsibility. Given the history of the allegations, the mother’s conduct, and the estrangement between the children and father, it is inconceivable the parents would ever be able to reach consensus about future decision making for the children. As I have determined there should be an order for sole parental responsibility, I am not required to address the statutory pathway set out in s 65DAA.

Ratio Decidendi

Legal Principle Established

I will now turn to what parenting arrangements are in the best interests of the children, noting that the father has conceded X should live with the mother. PRIMARY CONSIDERATIONS The benefit to the child of having a meaningful relationship with both of the child’s parents Ordinarily, it is in a child’s best interests to have a meaningful relationship with both parents. In Mazorski v Albright [2007] FamCA 520, Brown J at [26], described a meaningful relationship as one “which is important, significant and valuable to the child” and the word meaningful is “a qualitative adjective, not strictly a quantitative one”. In McCall & Clark [2009] FamCAFC 92 the Full Court considered the meaning of s 60CC(2)(a) and said:[119] … the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is "the prospective approach" although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents ... [122] In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests. Sadly, this is a family where the children are unlikely to have a relationship with their father in the future. During her second cross-examination, Dr D acknowledged it was highly unlikely that the children would have a relationship with their father in the future. Her opinion about the mother’s capacity to encourage a relationship between the father and their children was “limited to none”.[18][18] Transcript 13 February 2024, p.33 line 27. Whilst accepting the inevitability of the children’s lost relationship with their father, she said it was difficult to give evidence that situation was, “in any way in the children’s best interests”.[19] She described herself as looking at the family from “a harm minimisation prospective”,[20] and that she was “not feeling comfortable” with the idea of a severed relationship with a parent.[21]The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse[19] Transcript 13 February 2024, p.7 lines 41-42. [20] Transcript 13 February 2024, p.7 lines 42-43.[21] Transcript 13 February 2024, p.8 lines 1-2. I have above discussed at length the mother’s allegations towards the father and the father’s allegations against the mother and have made relevant findings. The last remaining risk issue was flagged by Dr D. Because of the children’s conduct in running away from the father’s home and in particular X being missing for several days on the streets in Sydney with children known to child protection, I must consider the real risk that both children will abscond from the father’s care, if orders were made for them to live with him or indeed spend any time with their father. This situation is entirely regrettable, but a fact of life that children with access to current technology, who have been empowered to take matters into their own hands, will again do so in the future if orders are made contrary to their wishes.