MALAVE & RATCLIFFE (No.3)

[2018] FCCA 328

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALAVE & RATCLIFFE (No.3) [2019] FCCA 328

Catchwords:
FAMILY LAW – Parenting – alienation – hybrid case of alienation, realistic estrangement and enmeshment – 13 year old girl – youngest of five siblings, all of whom are estranged from their mother – repeated attempts by the court to assist with restoring the relationship between the girl and her mother – mother not taking appropriate steps to restore the relationship – change of residence not ordered.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100; [1938] HCA 34

Malave & Ratcliffe [2015] FCCA 201
Malave & Ratcliffe(No.2) [2017] FCCA 1074

Applicant: MS MALAVE

Respondent: MR RATCLIFFE

File Number: MLC 5843 of 2012

Judgment of: Judge Riley

Hearing dates: 1 November and 6 and 7 December 2017

Date of last submission: 7 December 2017

Delivered at: Melbourne

Delivered on: 15 February 2018

REPRESENTATION

Counsel for the applicant: Mr Williams

Solicitors for the applicant: Pearsons Lawyers Pty Ltd

Advocate for the respondent: In person

Solicitors for the respondent: None

Counsel for the independent children’s lawyer: Ms Carter

Solicitors for the independent children’s lawyer: Victoria Legal Aid

ORDERS

1. There be no orders in relation to X born on (omitted) 2001.

2. Y born on (omitted) 2004 (“Y”) spend time with her mother in accordance with Y’s wishes.

3. The mother be at liberty to send letters, cards and gifts to Y.

4. Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

NOTATIONS

(A)Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

IT IS NOTED that publication of this judgment under the pseudonym Malave & Ratcliffe (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5843 of 2012

MS MALAVE

Applicant

And

MR RATCLIFFE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed by the mother for parenting orders in respect of X born on (omitted) 2001 (“X”), who is now 16 years old, and Y born on (omitted) 2004 (“Y”), who is now 13 years old.  Ultimately, the mother did not pursue her application in respect of X.  Basically, the mother seeks orders for a change of Y’s residence. The mother maintains that such an order is necessary because the father has alienated Y from her.

2. Y is the youngest of five children.  As well as X, Y’s siblings are Ms A, who was born on (omitted) 1993, and who is now aged 24, Ms B, who was born on (omitted) 1994, and who is now aged 23 and Mr C, who was born on (omitted) 1997, and who is now aged 20.  None of the five children presently have a relationship with their mother. Ms A and Ms B were 19 and 18 years old respectively at the time of separation.

3. Following separation in 2012, the five children lived with their father and had a strained relationship or no relationship with their mother. Ms A has now moved out of home and lives with her boyfriend.  Ms B has now (employment omitted) and is training away from home.  Y is now living with her father, Mr C and X.

4. These are the third set of written reasons for decision in relation to this family. The first written reasons were handed down on 5 February 2015 in the matter of Malave & Ratcliffe [2015] FCCA 201 (“the 2015 reasons”) (exhibit 4). They followed eight days of hearing in December 2014 (“the 2014 proceedings”). The 2015 reasons were in accordance with the recommendations of the family consultant, Ms J, but contrary to the position of the independent children’s lawyer and the mother.

5. The 2015 reasons did not support a change of residence.  The court found in the 2014 proceedings that this was not a case of severe alienation, but a hybrid case of some alienation, some enmeshment and some realistic estrangement.  The court considered a great deal of research in the 2015 reasons and concluded, in accordance with Ms J’s evidence, that there is a dearth of soundly based longitudinal studies about the short and long-term effects of particular responses to possible cases of alienation.

6. The orders arising from the 2015 reasons required the parents and Y to attend therapeutic counselling and, after six months, for Y to commence seeing her mother for gradually increasing periods, culminating in Y seeing her mother on an ongoing basis from 10am on Saturday until 6pm on Sunday on alternate weekends. 

7. The parents decided not to attend therapeutic counselling.  Instead, they entered into a parenting plan. In addition, they agreed that the parents, X and Y would go (hobby omitted) from time to time.  For a while, that arrangement seemed to be promoting a reconciliation between Y and her mother.  However, the arrangement then collapsed, with both X and Y refusing to see their mother.

8. The 2014 proceedings also dealt with property issues.  It was necessary for the family home to be sold. The orders required the proceeds of sale of the family home to be apportioned between the parents 65:35 in the husband’s favour.  Unsurprisingly, the sale of the family home has apparently caused the children a measure of distress. 

9. On 1 April 2016, the mother filed a contravention application and an application in a case.  Those applications were determined on 25 May 2016.  The mother’s contravention application was withdrawn by consent and orders were made by consent for the parents, X and Y to attend therapeutic counselling with Ms L, and for Y to spend time with her mother in accordance with the orders made on 5 February 2015 and in accordance with Ms L’s recommendations.  Those orders did not achieve anything of significance.

10. The mother filed an initiating application on 24 August 2016, which instigated the current proceedings.  The matter proceeded as a final hearing on 19, 20 and 21 December 2016.  A family report prepared for that hearing recommended that there not be a change of residence and that Y and X should see their mother in accordance with their wishes and with the support of therapists outside the court arena.

11. On the final day of the hearing, after the family consultant had been cross-examined, the mother objected to the family consultant’s evidence.  In effect, I upheld that objection, largely because the family consultant appeared to have misunderstood her role.  She had said in cross-examination that her role was to amplify the voice of the child.  Obviously, her role was to make recommendations in the best interests of the child, and the child’s wishes were only one factor to be taken into account.

12. Orders were made for a further family report to be prepared by a different family consultant, and for the final hearing to resume on 1 and 2 May 2017.  The further family report was prepared by Dr S.  He recommended in writing that there not be a change of residence.  However, during cross-examination, he was taken to a passage in the 2015 reasons in which the court said that it was crucial that the father understood that it was imperative for Y’s normal psychological development that Y have a relationship with her mother.  Dr S then said:

    if the court regards the central issue in this matter [as] being that the child needs to re-establish a relationship for the purposes of prevention of mental health or prevention of psychosocial problems, then I think [a change of residence is] the only option, based on what we have available to us.[1] (emphasis added) 

    [1]     Tr. p.222, l.31-34

13. Rather than making final orders in relation to the 2016 application, the court made interim orders on 24 May 2017, and adjourned the further hearing of the matter to 1 November 2017.  The court gave written reasons for the interim orders, which were published as Malave & Ratcliffe (No.2) [2017] FCCA 1074 (“the interim reasons”).

14. The interim reasons particularly noted that, in the 2015 reasons, the court said:

    526. From the mother’s side, things also need to change.  Ms J said very clearly that, if the mother does not accept responsibility for her actions, any therapeutic process would be doomed.  The mother must acknowledge that she has been violent and abusive for there to be any hope of improvement in her relationships with her children.  The mother ought to apologise to her children for her behaviour.  Unlike her apology about cutting off the services, her apology needs to be genuine.  As Ms B noted very early on, the mother lacked insight.  She will probably need professional assistance to understand the impact of her actions on the children and to properly word any apology. (emphasis added)

15. That statement was based on Ms J’s statement in her oral evidence to the effect that:

    If a person is unable to take responsibility for their actions, then working with them is going to be extremely difficult… that would hinder any therapy, any therapy at all from working…

16. The interim orders provided for the mother to apologise to Ms A and Ms B, thereby taking responsibility for her actions, and for Ms A or Ms B to supervise time between Y and her mother for two hours on alternate weekends for about six months.  Ms A and Ms B gave appropriate undertakings to the court to facilitate that arrangement. This was an opportunity for the mother to restore her relationships with Ms A and Ms B, as well as Y.

17. The mother provided a so-called “apology” to Ms A and Ms B. However, it was wholly inadequate.  Ms A and Ms B wholly complied with their undertakings to the court.  The time between Y and her mother proceeded as ordered.  However, by the time of the final hearing on 1 November 2017 and 6 and 7 December 2017, the relationship between Y and her mother had not improved.

18. At the final hearing, the mother continued to press for a change of residence for Y, and the father continued to say that Y should see her mother in accordance with Y’s wishes.  (Taking into account the 2014 proceeding, this matter has had 16 days of final hearing.)

X

1. X is a very troubled young man.  He has made a suicide attempt in (omitted) 2015, has made one other suicide attempt and has spent nearly six months in a psychiatric hospital.

2. In the 2014 proceedings, the father made some vague allegations that the mother had sexually abused Mr C and X prior to separation in 2012.  The father reported the alleged abuse to the police on 14 May 2012.  The police interviewed Mr C and X but not the mother.  The police did not pursue the matter.  The father did not press the allegations in the 2014 proceedings.  The court concluded that the father had made the sexual abuse allegations without a reasonable foundation.

3. More recently, X has alleged that his mother sexually abused him prior to the parental separation in 2012, which occurred when he was 11 years old. The abuse was said to consist of the mother watching him in the shower and putting her hand on his groin twice when he was 10 or 11 years old. X was interviewed by the police on 25 June 2015, when he was 14 years old.  The video of the interview is exhibit 6.  It was played to the court. The mother denied the allegations.

4. The police decided not to lay charges against the mother, on the basis that there was no reasonable prospect of conviction.  The police record of the decision not to prosecute included a note that Mr C, who had also been interviewed, said that he had not been sexually assaulted by the mother and he had not seen her sexually assault X. The record also indicated that X’s inability to clearly particularise the alleged incidents would be likely to cast some doubt over his evidence. 

5. In all the circumstances of this case, and on the limited evidence available, I am not able to form the view on the balance of probabilities, and bearing in mind the Briginshaw[2] standard, that the mother sexually abused X.  That is not to say it did not happen.  Obviously, the mother and X know exactly what happened.  Unfortunately, there are some situations where the court is simply not able to make a finding one way or the other, and this is one of them.

   [2]     Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100; [1938] HCA 34

Y’s mental health

1. The mother conceded in the 2014 proceedings that Y had suffered from anxiety prior to separation.  The mother said that she attempted to deal with this by offering reassurance, but not professional assistance.  Since then, Y has received professional assistance for anxiety, as discussed below.

Issues with the mother’s parenting

1. The 2015 reasons made a number of findings about the mother’s parenting.  While acknowledging that no parent is perfect, those findings included:

   a)the mother getting Y to school late on 117 days in a 16 month period;

   b)the mother providing the school with no explanation for Y being absent from school on 12 days during the same period;

   c)the mother not assisting at home with Y’s speech therapy and being largely uncontactable when the speech pathologist from the Department of Education attempted to liaise with her;

   d)the mother leaving it to the school to give X breakfast for 12 months and leaving it to the school to supplement Y’s lunches;

   e)the mother, on her own admission, hitting Ms B with a wooden spoon on a number of occasions between the ages of eight and 12;

   f)the mother punching Ms B in the face, causing her to have a blood nose (the mother only admitted to a slap across the face);

   g)the mother throwing a portable CD player at Ms B (the mother only admitted to throwing it on the bed);

   h)when Ms B’s psychologist reported the mother to the Department of Human Services, the mother complaining about the psychologist to the Australian Psychological Society saying the psychologist was having an affair with the father;

   i)the mother hitting X in the head with a closed fist (the mother only admitted grabbing him by the hoodie until it pulled on his throat);

   j)on her own admission, and to the knowledge of some of the children, the mother having extramarital affairs;

   k)the mother making it possible for Ms A and Ms B to find emails she had sent in connection with her online affairs;  

   l)the mother leaving pornography lying around where the children could see it (the mother claimed she kept it in a padlocked box);

   m)the mother calling Ms A a “mole” and Ms B a “slut”;

   n)after moving out of the family home, the mother without warning disconnecting the electricity, gas, internet, telephone and Foxtel, and taking the large family car;

   o)following separation, the mother attempting to collect Y from school in such a manner that the school telephoned the police; and

   p)following separation, the mother confronting Ms A at (store omitted), where she was working, and causing a scene in front of customers.

The first family report

1. The first family report was dated 24 September 2012 and was prepared by Ms B.  Ms B was not cross-examined in the 2014 proceedings.  Ms B said in her report:

   During the appointment for this report, [the mother] presented as calm and coherent, but with a level of limited insight about the welfare of the children. [The mother] emphasised [the father’s] role in purportedly alienating the children from her. Instead of discussing their development with a focus on their needs, [the mother] emphasised the children’s relationship with her and focussed on attributing [the father’s] role as the cause of the difficulties.   For example, in relation to Ms B, [the mother] said ‘I had a good relationship with her until 3 years ago. [The father] undermines my authority with her … she says she doesn’t want to see me again.’ (emphasis added)

2. Ms B noted that:

   a)Ms A reported that:

   i)the mother had often yelled; and

   ii)since separation, X had begun to sleep through the night and was no longer having tantrums;

   b)Ms B reported that:

   i)the mother yelled all the time and would refuse to cook dinner; and

   ii)since separation, Mr C had started eating again;

   c)Mr C reported:

   i)since separation, X and Y were sleeping better;

   ii)the mother used to yell a lot; and

   iii)the mother sometimes hit Mr C when he was younger;

   d)X reported:

   i)before separation, they sometimes had Weet-Bix for dinner, but now the father cooks; and

   ii)the mother had punched X in the face, thrown a telephone at Mr C and thrown a CD at Ms B; and

   e)Y reported:

   i)it was better after separation because the father made breakfast, got everyone to school on time, gave hugs and said good night; and

   ii)the mother yelled a lot and swore at, and smacked, everyone.

3. Basically, all of the children thought the family home was much calmer and kinder without the mother in it.

4. Ms B observed a close and positive relationship between the children and their father.  During her observation of the mother and the children, Ms B described the atmosphere as anxious.

5. Ms B said that:

   While [the mother] denies the claims [of neglectful, abusive and inappropriate parenting], she also acknowledges that the children’s relationships with her - particularly Ms B, Mr C and X – [are] in need of repair. However, instead of assuming some responsibility for the difficulties with the children, [the mother] seems to accuse [the father] of alienation.   It was noted in the Department of Human Services documents that [the mother] declined the offer of professional family support. [The mother’s] own family history suggests ruptured relationships with significant caregivers, as well as sexual abuse that seems to have been inconclusively addressed. … (emphasis added)

   …  the assessment of statutory authorities, [and] reports by [the father] and all five children at interview for this report, suggest that [the mother’s] ability to provide competent parenting has not always been consistent. (emphasis added)

   …

   It is more likely that [the mother] has enduring personality features that might compromise her functioning in intimate relationships such as marriage and parenting.  If this is so, then professional input that provides skill development in communication and behaviour management around parenting may benefit [the mother] and facilitate the repair of her relationships with the children. Professionals such as Ms S … and Ms L … who have experience in family law matters, would be appropriate. (emphasis added)

6. Ms B recommended that Mr C, X and Y continue living with their father, Mr C spend time with his mother in accordance with his wishes, X and Y spend time with their mother from 10am until 6pm each Sunday, and, after the mother had received parenting counselling, alternate weekends from Saturday to Sunday and two overnights during school holidays.

Ms S’s report

1. Ms S spent some time with the family.  She provided a report dated 27 March 2013 to the independent children’s lawyer.  She said:

   X has had a recent experience of inappropriate behaviour between his mother, the maternal grandmother, and his father at his recent primary school graduation celebration. This altercation [in] his view “ruined his day”.  He experienced his mother being aggressive towards him and he asked for an apology from her at a recent visit.  He advised that his mother raised her voice to him and on his request to be taken home his mother refused, and drove him to his uncle’s home.  He advised that his maternal Uncle “grabbed him” on his arms whilst [he] was in the [car and] held him in an aggressive manner taunting him by allegedly saying “you’re not a big man now”.  X spoke of being quite shaken by this event and this has created for him more anger towards his mother. (emphasis added)

   …

   X is also dyslexic and struggles with his academic work and is showing signs of childhood depression.  He would benefit [from] a referral to a childhood depression service.  … (emphasis added)

   X was intermittently visiting his mother … but has ceased his visits from the beginning of 2013.  He has spoken to his mother on the telephone but this in my opinion will diminish over time.

   X would benefit [from] a 6 month suspension of visits to allow his depression to be assessed and treated and for [the mother] to consider if she can acknowledge the impact of her alleged behaviour upon X. (emphasis added)

   …

   [Y] is a girl who wants to have a “good mum” but to date this has not occurred.  She would benefit [from] a slight reduction in her time to reduce the stress on her experiencing conflict.  She sees [the mother] as favouring the boys in the household and sees herself as invisible at times.  Although she did not object to overnight stays, she is unnerved by her mother’s erratic and “crazy” behaviour.[Until] this behaviour is managed by [the mother] and [Y] can experience her mother as a positive person she will continue to be anxious hence no overnight is recommended at this time. (emphasis added)

   For [Y] to maintain a level of relationship she would benefit [from] a reduction of the frequency of the visits and to supplement them with a facilitated visit with the writer in a joint session at times. … (emphasis added)

The psychiatric assessments

1. Dr D psychiatrically assessed both parents, the mother on 7 March 2014 and the father on 20 March 2014. He considered that neither parent had a mental disorder or psychiatric condition.

Parenting Enhancement Program

1. Ms I, pursuant to court orders, provided a Parenting Enhancement Program. The independent children’s lawyer advised Ms I by letter dated 2 October 2014 that she intended to apply to the court for orders that Y live with her mother and sought Ms I’s views on that course.

2. Ms I replied by email dated 2 October 2014 as follows:

   I would support your views in relation to concerns that the father continues to obstruct any attempt to support [Y] to spend time with the mother.

   It is my view that there is value in a relationship with the mother, and given the extraordinary efforts to provide alternatives for [Y] to spend time with her mother, it appears clear that this is likely to not succeed whilst she remains living with the father.  If the Court supports the child living with the father, it is on the understanding that it is unlikely that [Y] will have any time or relationship with the mother.  If the Court supports the view that the child has the potential to benefit from a relationship with the mother, it is likely that this will only occur with a change of residence.

   Certainly the question of a change of residence is a complex one, and very much determined on the testing of evidence, and would require a comprehensive assessment that would be the subject of a Family Report, although it may be valuable to consider the question of residence whilst the child is living with the mother in the interim.

Ms V’s psychological report on Y

1. The father took Y to a psychologist, Ms V, without the mother’s permission or involvement.  Ms V said in a report dated 21 November 2014, which is exhibited to her affidavit sworn on 1 December 2014:

   [Y] presented for counseling by herself and she continues to attend therapy without the presence of her father or siblings in the room.  I have seen [Y] on a weekly basis.

   [Y] presents as a quiet child who is mature for her age.  She communicates in a thoughtful, well-considered manner.  She is currently extremely concerned that she will be made to spend unsupervised visits with her mother and is very distressed about being made to do so.  She describes feeling very unsafe and scared, this is particularly the case, as her brother X will no longer be with her on any such visits. (emphasis added)

   [Y’s] anxiety level is particularly severe in relation to supervised access, where she describes having nightmares the evening before visits, being agitated and anxious on the day prior to visits and unable to concentrate on her studies.  She describes having stomachaches and ‘butterflies in her stomach’ on the day prior to access and on that day.  [Y] becomes quiet and withdrawn when discussing these sessions and describes … being fearful of being forced to interact with her mother by people supervising the access visits and continues to feel unsafe until the visit is concluded.

   [Y] displays the following DSM anxiety symptoms in relation to the supervised access visits and are as follows:

   A.Excessive anxiety and worry (apprehensive expectation), occurring in more days than not for at least 6 months, about a number of events or activities (such as school work or school performance).

   [Y] experiences excessive anxiety and worry over supervised access and unsupervised access with her mother, as is preoccupied with feelings of being unsafe.

   B.The person finds it difficult to control the worry.

   [Y] is unable to get the worry out of her mind.

   C.The anxiety and worry are associated with three (or more) of the following six symptoms (with at least some symptoms present for more days than not for the past 6 months). Note: Only one item is required in children.

   1.Restlessness or feeling keyed up or on edge.

   [Y] feels agitated and restless prior to supervised access visits.

   2.Being easily fatigued.

   3.Difficulty concentrating or mind going blank.

   [Y] is unable to concentrate at school prior to supervised access visits.

   4.Irritability.

   5.Muscle tension.

   [Y] suffers from stomachaches and ‘butterflies in her stomach’ prior to and during supervised access visits.

   6.Sleep disturbance (difficulty falling or staying asleep, or restless unsatisfying sleep).

   [Y] has difficulty falling asleep the [night] before supervised access visits and describes having headaches often on those nights. (emphases in the original)

   [Y’s] anxiety is severe and she attends weekly counseling sessions in order to manage her condition.  Her mental health will be gravely affected if she is forced to have unsupervised access visits with her mother. (emphasis added)

   She will also benefit by being reassured that she will not be coerced or forced to see her mother during supervised access if she feels too fearful of the visit.  This is likely to be helpful in her becoming more trusting of those adults who supervise access and eventually less anxious during access visits with her mother.

The second family report

1. Ms J provided a second family report in the context of the 2014 proceedings.  It was dated 2 December 2014.  Ms J recommended that Y continue to live with her father, and continue with the PEP program with a view to achieving reunification with her mother.  Ms J said:

   98.If it is found that [the father] has alienated Y from [the mother] then there needs to be a resolution to this. There would need to be a weighing up as to whether there is a risk that Y may suffer more damage if removed from the care of [the father] and from her siblings who she has lived with all her life as opposed to the risk of emotional damage to Y if she is unable to re-establish her relationship with [the mother]. Given that it is highly likely that Ms B was abused through her childhood and that X also suffered some abuse post separation then some of the fears held by the children and by [the father] about Y being with [the mother] may be based on fact so rather than being unrealistic (delusional) fears there is some basis to some of the fear felt by the four older children. It is my view that Y may suffer a great deal of emotional damage if she was separated from her siblings. At the current time Y suffers anxiety (regardless of how this came about) so to remove her from her siblings would in my view result in Y’s anxiety greatly increasing. She would find herself without sibling support so she would have a sense of isolation and despair. In addition, nothing is known about [the mother’s] partner Mr J who Y has not even met. (emphasis added)

   99.It is my view … on balance that some abuse of some children has happened but it is difficult to establish the extent. Taking into account that Y has not lived with [the mother] for two and a half years, she is currently rejecting [the mother] and she has not met [the mother’s] partner Mr J and there may be a risk to Y based on some of the claims made by the older siblings, Y’s anxiety may increase drastically and Y would be separated from her four older siblings who she has some dependence on including support. Y would be separated from the parent she has been dependent on for the past two and a half years.

   100.It is my view that at this time Y should live with [the father]. This must be on condition that Y continues to attend the PEP at the Family Law Centre with Ms I.

   101.It is my view that Y should continue in the PEP with Ms I as some progress had started but was then disrupted. Ms I is a very experienced practitioner who clearly assessed some concerns about [the father’s] attitude toward Y re-establishing her relationship with [the mother]. It is my view that [the father] and [the mother] must follow directions from Ms I if Y is to have any opportunity to re-unite with [the mother]. [The father] must put aside his hostility toward [the mother] and also toward Ms I which would then demonstrate how genuine [the father] is in facilitating Y to re-establish her relationship with [the mother]. It is my view that Y should attend therapy as advised by Ms I and if possible perhaps the four older children may also be included but this should be at the direction of Ms I. Clearly the four older children require some assistance to understand that Y should have the opportunity to re-establish her relationship with [the mother] and [the father] also needs to support this with the four older children. [The father] must not allow any negative responses from the four older children to Y.

The third family report

1. A third family report, dated 23 November 2016, was provided in the context of the current proceedings.  It is unnecessary to name the family consultant who prepared it.  As mentioned above, it recommended that X and Y spend time with their mother in accordance with their wishes, with the support of therapists, outside of the court area.  The mother objected to that family report, and the court accepted that it should not place any weight on it.

The fourth family report

1. A fourth family report, dated 20 April 2017, was prepared in the context of the current proceeding.  It was prepared by Dr S.  He said:

   83.The previous evaluations undertaken including the report of Ms B dated 24 September 2012. She has raised concerns about the mother’s insight regarding the welfare of the children. Statements of the children quoted by Ms B are similar to those statements made by the children in the current evaluation. A further family report was undertaken by Ms S. Broadly speaking she has supported the previous findings, with concerns regarding the mother’s parenting and also indication of the difficulties in the relationships between the children and the mother. There has been a subsequent report by Ms I dated 25 August 2014. She has raised concerns regarding the father when he is dealing with the children, particularly in relation to the mother, effectively raising concerns about his boundaries and tendency to denigrate the mother with the children.

   To summarise the results of the current family evaluation:

   (i)...

   (ii)The evaluation did not raise the mother’s personality or mental health functioning as markedly dysfunctional or as causal to the maintenance of refusal. This does not exclude the possibility that her parenting in relation to the children in the past has been problematic. ...

   (iii)...

   (iv)The evaluation with the children was indicative of accounts by the older children that suggested some concerns about the mother’s parenting, however it is also likely that the children were exposed to the parents’ poor marital functioning. …

   (v)It has been previously found in court proceedings that the mother has been somewhat neglectful and abusive of the children, and that the father has filled the responsibility of a parent, except the responsibility of ensuring the children have a relationship with their mother. Prior to the separation, the father left too much of a burden of childcare to the mother. In the current matter, there appears to be current alignment and enmeshment, and some realistic estrangement. There has been intervention at various different levels, with experienced practitioners, but no positive outcome.

   (vi)In this matter, the mother’s faults both as a parent and in the marriage, which may well be significant, have come to have been demonised by the father and ultimately the children. Ultimately this process is damaging to the children and to the parents.

   (vii)There has been a broad range of research in the domain of refusal and alienation, although the research is of variable quality. Nevertheless, it should be recognised that there are matters where there is clear evidence of alienation, refusal for sound reasons such as where there has been abuse, and there are also hybrid cases. It is likely the current matter is a hybrid case, where it is likely that there have been parental difficulties, but that since there has been also alienation.

   (viii)As such, this matter presents as a hybrid process, where there has been a combination of realistic estrangement and alienation following the parental separation. The literature is clear regarding the effects of alienation and highlights the negative consequences long-term for children with respect to mental health functioning. Hybrid matters are more complex, less described, and the outcomes are less clear, however similar principals apply, in that the alienation identified is damaging for children’s mental health and personality functioning in the long term.

   (ix)In this matter, despite the perceived difficulties that the children have reported in relation to their mother, redevelopment of relationships that are appropriate to each child, with the mother, would be appropriate for the development of the children in the future, with the caveat that mental health issues in X in particular need to be given the highest priority.

   (x)Appendix 1 outlines research in relation to the effects of alienation. The literature does not direct clinicians or the court regarding matters similar to the current matter.

   (xi)At question in this matter would be whether reintroduction of the relationships between the mother and the children, in particular Y, would lead to exacerbation of mental health difficulties in others in the family. I would suggest X, may be inappropriately placed to restore time at present with his mother, due to his mental health difficulties.

   (xii)In this matter, however, the family processes are sufficiently established that it is reasonable to be pessimistic that the Court ordering time will lead to re-establishing the relationship between Y and her mother. I would not consider it is appropriate for the Court to order time in relation to X, apart from the possibility of an order that suggests that time could occur if his mental health improves, based on the opinion of his treating practitioners.

   84.Based on the current evaluation, with Y in particular, but the family more generally, it is unlikely that further intervention will make a difference. The children present as psychologically vulnerable, and despite the risks associated with the maintenance of the current arrangement, which essentially supports refusal of the children and some aspects of alienation from the mother, it is unlikely that a change of residence or forcing time between the children and the mother would be appropriate. Similarly, further intervention, as indicated, is unlikely to make a difference with the children in the short term.

   85.If the court saw it as appropriate to order time, in relation to Y, time could be ordered by the Court on a limited basis, such as two hours every fortnight, over a period of six months. Supervision would be appropriate and re-evaluation in six months. … As indicated, I am pessimistic about this outcome, however. .... (emphasis added)

Oral evidence of Dr S in May 2017

1. In the interim reasons, the court said:

   47.It can be seen that, in his written family report, Dr S did not support a change of residence.  Indeed, Dr S did not consider, in his written report, that any intervention was likely to make a difference.  In his oral evidence, Dr S explained that, by “any intervention”, he meant any orders for Y to spend time with her mother.  He also confirmed that he was very pessimistic that anything could be done to restore the relationship between Y and her mother.

   48.However, counsel for the mother read to Dr S various extracts from the 2015 judgment about the importance to Y of having a relationship with her mother.  The mother’s counsel then asked Dr S about the possibility of Y living with her mother for a period of time.  Dr S said he was aware of cases in the Family Court where that type of intervention had been successful.  Dr S later said:

   I think if the court regards the central issue in this matter [as] being that the child needs to re-establish a relationship for the purposes of prevention of mental health or prevention of psychosocial problems, then I think [a change of residence is] the only option, based on what we have available to us.  There may be other intervention programs overseas and so on, but I don’t think I can see anything apart from this which makes a difference.  There are dilemmas and I think one of the dilemmas is that if, in fact, Y … is not able to maintain her relationships with her siblings, that that has significant consequences as well, and that’s one of the downsides of the intervention.10 (emphasis added)

   10    Transcript page 222.

   49.Dr S also spoke of the long-term psychological risks to Y if she did not have a relationship with her mother, as well as the short-term risks if Y were forced to live with her mother.  Dr S said that the risks if Y were forced to live with her mother included the stress of being separated from her father and siblings, and the risk that she may come to harm if she ran away from her mother’s home.

   50.The court put to Dr S a low-risk scenario whereby Y would, at least initially, spend two hours per fortnight with her mother doing an activity such as (hobby omitted) under the supervision of either Ms A or Ms B, and, rather than disposing of the matter on a final basis, the court would keep the proceeding on foot, so that the matter could be brought back to court at short notice if need be.  The court explained that the matter could be brought back on a contravention application, or as an urgent interim hearing, at which time the court could order a change of residence. 

   51.Dr S said in response to this option:

   The advantage with that – if we’re looking at pros and cons is – is obviously it’s much less disruptive to everybody and that it allows the normal kind of development of a relationship rather than a – all at one type relationship or a sort of intense period of time.  The difficulty, of course, is what we outlined yesterday, really, which is that the nature of the relationships may not alter.  However, as you’re saying, it’s a low-risk option, these sort of things like (hobby omitted) or activities such as that.  What I’m wondering with that is if we were going to put in that kind of low-risk option that that could be coordinated and managed to some degree by someone like Ms L who could assist the family to develop that.  … 11

   … And that may include, of course, Ms A and Ms B in that process because it sounds to me like – and certainly that was my clinical impression that they were … the ..... most supportive of Y having that relationship with the mother.12

   …

   … So I’m still pessimistic but that doesn’t mean that such a proposal wouldn’t work.  … if the court was seeing this as … the less dramatic or the less risky option and that it still allows for the potential for a change of residence, then I would consider that that’s probably appropriate.  But … if this development of the relationship didn’t occur … then I think a change of residence then would be appropriate.

   …

   … what I was trying to reflect is that there has been extensive intervention; nothing has worked.  And so as I said yesterday, I think that further intervention has low likelihood of making a difference and I would suggest that that remains the same.  ...

   11    Transcript page 287.

   12    Transcript page 288.

Dr S’s oral evidence in December 2017

1. There was a false start to Dr S’s oral evidence in December 2017, possibly due to him not being told by the independent children’s lawyer the date when he was required.  Whatever the reason, Dr S had not read the material when he was called to give evidence on 6 December 2017.  He assured the court that he would be ready to give evidence at 10am the next day.

2. The independent children’s lawyer put to Dr S that there were two options.  The first was that the court decided that enough is enough, and that Y’s relationship with her mother be allowed to be severed.  The second option was that there be a change of residence.  Dr S said that, in theory at least, there was a third option, which was that Y spend time with her mother for brief regular periods without supervision.  However, Dr S did not hold high hopes of it succeeding.

1. Dr S said that, if the change of residence option was chosen, it would be helpful to have someone like Ms L engaged to assist, and it would be helpful for the court to revisit the matter after a period of time. 

2. Dr S said that, from a psychological perspective, it would not be helpful for Y not to have a relationship with her mother. Dr S said that, if there were a change of residence, Y would inevitably feel distressed for a period of time, and experience a significant emotional impact.  Dr S told the court of a case he knew of where a 14 year old and a 12 year old successfully changed residence, with child protection services making constant checks.  Dr S said that, if there were a change of residence, it would be appropriate for Y not to see her father or siblings for between three and six months, to enable the transition to occur.  Dr S considered that would have a massive impact on Y.  It was put to Dr S that, as X attends the same school as Y, it would be necessary for Y to change schools if there were a change of residence.  Dr S accepted that.

3. Dr S said that, in the short term, a change of residence for Y would be enormously stressful and difficult for her.  However, he said that, if the change of residence were successful in terms of overcoming Y’s reluctance to see her mother, it could create some problematic dynamics for Y in relation to her father and siblings. Dr S said he could not predict the outcome of that.

4. Dr S said that other children had made a successful transition with a change of residence, but the process for Y would be a very difficult one.  Dr S said that, if good resources were provided to Y and her mother, that would maximise the possibility of a successful outcome.  Dr S agreed that any change of residence should be for six months, rather than three, in all the circumstances of this case.

5. Dr S said that, in alienation cases, the need to restore a relationship with a parent could outweigh the usual reluctance to separate siblings, because, from the perspective of psychological development, the relationship with a parent is extremely important. 

6. Dr S said that changes of residence have been successful even where a child has said that he or she will run away. 

7. Dr S said in relation to the evidence before the court about the sessions between Y and her mother under the supervision of Ms A or Ms B:

   I think it’s indicative of the fact that … the circumstances there were difficult.  The mother may not have always responded appropriately.  I don’t think it necessarily alters dramatically my opinion … about how difficult the process … of relocation would be for her.  I think it will be difficult for both parties.  How successful it is – I’m really not certain.  … I don’t think we can put a number on it.  … I think that there are some problems in the mother’s ability to cope with Y when she’s provocative.  I think she will be provocative, as we’ve seen … and the mother will need assistance in coping with that.  At the same time, she appears to have sought out that assistance, and I have some confidence in Ms L’s ability to assist the mother through that process.  So I think there will be challenges.  I suspect that the mother … is up for those challenges and would cope, but equally we don’t know entirely what the child’s reaction would be.  But that’s, I think, taken for granted in these situations.[3]

   [3]     Tr, p.525, l.16-30

The mother’s apologies

1. In the interim reasons, the court said:

   93.During the last day of the hearing, counsel for the mother said that the mother had not had an opportunity to apologise.  Counsel for the mother said that the mother had discussed the issue at length with Ms L, and the mother would apologise to the children when they were in a session convened by Ms L.  It is completely unrealistic to think that the children will ever participate in a session with the mother and Ms L. In the circumstances of this case, the only viable way for the mother to apologise is by letter.  She would do well to seek Ms L’s assistance with the wording of any letters she writes.

   94.The court made findings in the 2015 judgment about what the mother had done to Ms A and Ms B that might warrant an apology.  The court may or may not have been correct in those findings.  However, the mother knows exactly what she did, and so do Ms A and Ms B, because they were there.  The mother should apologise to Ms A and Ms B for what she has done.  Whether her apology covers everything will be a test of her insight.

   95.It does not seem to me to be appropriate at this point to make orders conditional on the mother apologising to Mr C and X.  Although I consider that it is very unlikely that the mother did sexually abuse Mr C or X, a thorough apology to them could potentially raise issues of self-incrimination.  They are complications that are best put to one side for the time being.  Having said that, if the mother wishes to also write letters of apology to Mr C and X, she is obviously free to do so.

2. The mother did not obtain Ms L’s assistance with the wording of the letters.  Instead, she took legal advice, and decided to write identical letters of apology to Ms A and Ms B in the following terms:

   Dear [Ms A/Ms B],

   I understand that we have had our differences over the years and at times, you have not agreed with my behaviour as a parent. I want to convey to you, the fact that I love you and I am sorry if my conduct has caused you distress or in any way hurt you, as it was never intended. After all the issues we have had, I am hopeful that we can move forward and our relationship can develop in a positive way.

   [signed]

   Love from your Mum.

3. Obviously, saying we have had our differences over the years is not an apology or an acknowledgement by the mother of her responsibility for her conduct.  It suggests, at best, that both parties were equally responsible. Saying I am sorry if my conduct has caused you distress is not an apology or an acknowledgement by the mother of her responsibility for her conduct.  It is saying that if, for some unknown reason, Ms A or Ms B felt distress caused by the mother, then she is sorry about their distress.  She is not actually acknowledging that she did anything wrong and not actually apologising for any particular actions on her part. 

4. The letters the mother sent to Ms A and Ms B were not meaningful apologies, and did nothing to improve the mother’s relationship with Ms A or Ms B.  Nevertheless, Ms A and Ms B did abide by their undertakings to the court for one or the other of them to supervise Y’s time with her mother for two hours each fortnight. 

The mother’s affidavit

1. The mother swore an affidavit on 19 October 2017. It recounted, in a very matter of fact manner, the bare bones of what occurred at each session with Y.  There was no hint of any emotion and, except as set out below, no description of any conversation.  The mother said that, at Y’s request, she bought her a budgie and, on another occasion, went halves with Ms A for a denim skirt for Y. The mother expressed the opinion that the time with Y had progressed well.  In relation to the session on 11 October 2017, the mother said that Ms A explained that she could not continue to supervise, as it was impacting on her prospects of a promotion at work.  The mother then said Y said:

   What do I have to do to make you let go? I don’t want to see you.

   and the mother replied:

   But I wish to see you.

Ms A’s affidavit

1. Ms A swore or affirmed an affidavit on 30 October 2017.  Ms A said in her affidavit that:

   a)she had to spend an hour before each session with Y calming and encouraging her;

   b)at the first session:

   i)Ms A paid for Y to play (hobby omitted);

   ii)the game was played largely in silence;

   iii)afterwards, while having coffee, the mother told a story about someone whose favourite thing was pornography;

   iv)the mother suggested that the next session should involve a movie, but Ms A disagreed, as it would not involve any interaction;

   v)Ms A told the mother that her apology was unacceptable;

   vi)the mother said that the apology was a legal requirement and said, What am I apologising for?;

   vii)Ms A said, If you don’t know then that says it all;

   viii)Ms A asked the mother about her overseas holiday and said that the family had been unable to go overseas because of the legal proceedings;

   ix)the mother said that the legal proceedings were the father’s fault, and offered to take Y overseas;

   x)Y then said, I don’t want to go overseas with you, I want to go with my family, I don’t even want to be here or see you. Why can’t you understand I don’t want to see you?;

   xi)the mother then said, But I want to see you;

   c)at the next session:

   i)they went to a coffee shop;

   ii)there were long periods of silence;

   iii)the mother read a newspaper and appeared to not want to be there; and

   iv)the mother spotted a friend and went away to talk to her for five minutes;

   d)at the next session:

   i)they had breakfast;

   ii)the mother refused to pay for Y;

   iii)the mother made little attempt to speak to Y;

   iv)the mother mostly spoke to Ms A about the mother’s rabbit; and

   v)they did some shopping, with the mother making little effort to communicate;

   e)at the next session:

   i)they had coffee, and the mother only paid for herself;

   ii)Y asked Ms A to buy her a skirt;

   iii)the mother and Ms A paid half each, which worked out to $17 each; and

   iv)the mother made little attempt to engage with Y;

   f)the next session was uneventful, with the mother paying only for herself and Y refused to interact;

   g)at the last session:

   i)Y was angry because it was on a week night;

   ii)both the mother and Y were resistant and uncooperative;

   iii)after Ms A said that her work and study commitments made it impossible to continue to supervise, Y yelled at her mother, Why do you keep doing this? I don’t want to see you;

   h)Ms B was on a temporary placement in New South Wales and would be back home before Christmas;

   i)the sessions were awkward and there was no substantial interaction between Y and her mother;

   j)Ms A had attempted on many occasions to reconcile with her mother, but found the sessions distressing and no longer wished to have a relationship with her;

   k)the mother’s apology was insulting;

   l)the mother had no idea what she was apologising for, which, in Ms A’s opinion, was either denial, or a complete lack of insight;

   m)the apology put the blame on Ms A for not liking the mother’s parenting style;

   n)the apology was not individual, as Ms B received an identical letter;

   o)Ms A said that she wanted an apology for:

   i)the lies the mother told in court, especially about her violent and aggressive verbal abuse at her workplace in front of customers and staff;

   ii)the mother calling Ms A a slut and a mole when she was a teenager;

   iii)the mother restricting food and damaging her self-esteem; and

   iv)the mother refusing to help Ms A with the other children when their father had a heart attack and was in hospital; and

   v)the mother poisoning Ms A’s dog.

2. Most of the issues that Ms A wanted the mother to apologise for have been addressed in previous reasons.  However, the poisoning of the dog is a new issue.  The mother said in her oral evidence that she had never before heard an allegation of her poisoning Ms A’s dog.  She said that, as far as she was aware, the dog was still alive. 

3. Ms A said in her oral evidence that the dog was still alive, but it had had health problems since 2007.  She said the mother would put bags of garbage outside and a possum would get into the bag.  Ms A said that the mother decided to put rat bait in the bag, to kill the possum.  Ms A said that she asked her mother not to, because her dog, being a (omitted) dog, would also get into the garbage bags. Ms A said that the mother did put rat bait in the garbage bag, the (omitted) dog did get into it, and the (omitted) dog did get sick and has had health problems ever since.

4. Having seen everyone give evidence, I accept Ms A’s evidence about this matter.  That is, I accept that the mother took a risk with the (omitted) dog’s health when Ms A asked her not to.  Ms A obviously loves her dog.  It was very thoughtless and unfeeling on the mother’s part to deliberately expose Ms A’s dog to danger, particularly when there were other available solutions, such as putting the garbage bag in a bin.

5. Now that Ms A has explained exactly what she would like an apology for, the mother might like to try again, this time with the assistance of a family relationships expert rather than a lawyer.  There are no guarantees it would work, but at least it would be a step in the right direction.

Ms B’s affidavit

1. Ms B swore an affidavit on 30 October 2017 in which she said:

   a)she received an apology from the mother that showed no insight, was impersonal and was identical to the apology received by Ms A;

   b)during the first session supervised by Ms B on 25 June 2017:

   i)Ms B tried unsuccessfully to engage Y and the mother in conversation together;

   ii)the mother became agitated when Y would not speak to her; and

   iii)the mother told Y that, if she did not speak to her, Y would have to live with her;

   c)during the second session on 23 July 2017:

   i)the mother attempted to engage Y in conversation but she read her novel; and

   ii)Ms B attempted unsuccessfully to engage both Y and the mother in conversation;

   d)during the third session on 23 July 2017, the mother bought Y a budgie from (omitted);

   e)during the fourth session on 29 October 2017:

   i)Ms B suggested to the mother that she could be supportive of Y as a mother, by taking her to get her hair done, or buying her clothes;

   ii)the mother said that she would have to speak to Ms L about that; and

   iii)the mother bought herself and Y a coffee, and Ms B bought herself breakfast, which she shared with Y.

The father’s affidavit

1. The father swore an affidavit on 30 October 2017 in which he spent numerous paragraphs recounting what Ms A and Ms B had told him about the sessions they had supervised.  As we have evidence directly from them, it is preferable to rely on their own evidence. 

2. However, the father did say that Ms B was only temporarily interstate.  He also said that:

   a)Y did not want to see her mother and only went so that her sisters would not get into trouble;

   b)Y was anxious, irritable and distressed before each session with her mother;

   c)to deal with her distress, Y organised an appointment with Dr M at (omitted) in (omitted); and

   d)Dr M had written a letter on behalf of Y to pass on to the independent children’s lawyer.

3. The father exhibited to his affidavit Dr M’s letter dated 28 September 2017.

Dr M’s letter

1. Dr M’s letter dated 28 September 2017 said:

   28^th September 2017

   To Whom It May Concern

   Dear Sir/Madam,

   Re: Y
   DOB: (omitted) 2004
    (omitted)
   Medicare No. XXX

   Mob. No. (omitted)

   This is to certify that I have known Y, age 13 yrs, and her brother since 2012, in my capacity as their general practitioner at (omitted) Medical Centre, and more recently in the “youth clinic” at (omitted).

   Y has had a recent exacerbation in her anxiety. In the past, precipitating factors have been her history of childhood trauma and family sexual abuse, parental separation, and a complicated family dynamic. Further questioning revealed that Y’s mother has again applied for access and/or custody.

   The psychological strain of having to deal with the legal matters associated with the charges previously laid against her mother, have in the past led to a re-traumatising situation for both Y and her brother. I consider this should be avoided at all costs. As an informed, mature minor, Y is asking that access/custody by her mother be denied and I would support her in this request.

   Thank you for your assistance with this matter.

   Yours sincerely

   [signed]

   Dr M
   M.B.B.S., B.Sc (Hons) DRACOG
   Prov. No. XXXXX XXX

Dr M’s oral evidence

1. Dr M did not swear or affirm an affidavit.  However, the independent children’s lawyer subpoenaed him.  He was treated as the father’s witness and he was cross examined by the mother and the independent children’s lawyer.

2. Dr M said that:

   a)he is a medical practitioner;

   b)he has been a general practitioner for 30 years;

   c)for the last 10 to 12 years, he has been the medical director of an adolescent clinic;

   d)he said that the adolescent clinic does about 80% mental health work, with the balance being contraception, sexual health and other issues;

   e)he said that he does not have psychological or psychiatric qualifications, but he has done some courses which enable him to charge Medicare for some psychological services;

   f)he has administrative responsibility for some psychiatrists and psychologists;

   g)he has treated Y as a general practitioner;

   h)he has never met the mother, as far as he knows;

   i)he had not read any of the court documents relating to this matter;

   j)the father probably made the appointment for Y on 23 September 2017;

   k)the father stayed in the waiting room while Dr M spoke to Y;

   l)the father spoke to Dr M about writing a letter;

   m)the practice notes recorded the father telling the nurse with whom he made the appointment that Y and her siblings were sexually abused by their mother;

   n)he had not made a comment either way about Y being sexually abused by the mother;

   o)he had comprehensive notes in relation to X;

   p)when asked about the reference in his letter to charges laid against the mother, he said he had documents from (omitted) Health Service that state that X was sexually abused by his mother;

   q)he only found out on 23 November 2017 that there were no proven charges against the mother;

   r)he accepted that no charges had been laid against the mother at all; and

   s)he has no expertise in alienation cases.

The mother’s oral evidence on 1 November 2017

1. The mother denied that she had been agitated in one of the sessions with Y that were supervised by Ms B.  She denied telling Y that if she did not talk to her, she would have to live with her.  Instead, the mother said that she told Y it was in her best interests to chat to her because then they could avoid going back to court.  The mother said that Y’s response was to say that she did not want to see the mother. In relation to the proposal for a haircut, the mother said that Y said she did not want one because she needed to feel safe.

2. The mother said that when Ms A and Ms B were relaxed, they and Y spoke happily to her.  When Ms A and Ms B were tense, Y would not speak.  The mother said that, during the sessions supervised by Ms A and Ms B, Y had conversed with her in a relaxed manner on perhaps six occasions for two or three minutes.

3. The mother agreed that Ms A had told her that her apology was unacceptable and that conversation occurred in front of Y.  The mother agreed that Y had said, Why can’t you understand that I don’t want to see you? and the mother had said, But I want to see you. The mother said that she attempted to speak to Y, but would let her silence go for 10 or 15 minutes so as to not hassle her.  The mother said that, since the interim orders were made, she had seen Ms L 10 or 12 times.  She said that, during the sessions with Y, she sometimes used the newspaper as a conversation starter.

4. The mother said that she sometimes paid for coffee and so on during the sessions, and also said to the cross-examiner, Did you want me to pay every single time?

1. The mother conceded that during the last 30 years, she had put out rat poison, but denied that she had done so since Ms A's (omitted) dog had been alive.  The mother said that the father put rat poison on the balcony and the dog ate it.

2. The mother said that Ms A said to her that she did not consider that the mother had given her much of an apology and the mother explained that the apology had to be written in those terms because of the legal action.  The mother said she asked Ms A what she felt the mother needed to apologise for, and Ms A said, If you don’t know, I’m not going to tell you.  The mother maintained that she did not know what she had to apologise for and said that she was seeing Ms L to get an understanding of the situation.  She said that she drafted a letter of apology, showed it to Ms L, and she had said to get legal advice.

3. The mother said that, when she said in her affidavit that the time with Y had progressed well, she meant that she had actually been able to see Y.  She agreed that it was often awkward and said that Y was often rigid.  The mother said that Y sometimes looked anxious.

4. The mother conceded that, in one of the sessions, she told a story that involved a person looking at pornography, which he described as his favourite thing.  The mother conceded that Y heard the story.

5. The mother said that, at Ms L’s request, she had written detailed notes of each session with Y within an hour or so of it finishing.  She said that she sent the notes to Ms L and to her solicitor.  She said that Ms L wanted to see the notes to help with the discussion about how things were going in the sessions with Y.  The mother’s notes became exhibit 9.  They are broadly consistent with the accounts given by Ms A and Ms B.  They describe strained interactions.

Ms B’s oral evidence

1. Ms B said that Ms A, Mr C and X had all told her that they did not wish to have a relationship with their mother, and Y was probably aware of that.  However, Ms B said that they had been supportive of Y having a relationship with her mother.  Ms B said that it is important for a girl to have a relationship with her mother, but in this case, whether it was a good thing depended on how the mother behaved.

2. Ms B was asked to produce her mobile telephone and identify any message that she sent her father on 25 June 2017 at about 11.30am.  At first, Ms B said that she did not think that she sent any messages to anyone at about that time.  However, when the telephone was produced to the court, the following appeared:

   a)the father texted Ms B at 11:25 saying, Good luck;

   b)Ms B then sent the father a photograph of herself and Y and said, Off to see psychotic the bitch;

   c)at 12:45, Ms B sent her father a text saying, She just had a go at me. She’s a fucking cow;

   d)the father replied, Write down what she said, Isn’t it nice to bring it all back. Such good memories (lol);

   e)Ms B replied, She spent most of the time trying to talk to me;

   f)the father said, Tell me later. Don’t be seen texting; and

   g)Ms B said, Oh no.  She wants me to back away.  She only wants to speak with Y.

The father’s oral evidence on 6 December 2017

1. The father was cross-examined at length.  Most of his evidence was similar to evidence that he has given in the past.  He said that the mother is an extreme danger to the children.  He maintained that X had tried to commit suicide twice because of his mother’s actions towards him.  He said that a whole range of professionals had assessed the mother as being a danger to the children.  He was not able to substantiate that allegation.  He said that, if the court ordered that there be a change of residence, he would notify DHHS immediately and he would not comply with the order.

2. In relation to Ms B’s text to him, in which she said, Off to see the psychotic bitch, he said that was just Ms B’s sense of humour, and she uses abusive terms about him as well.  He said he asked Y not to use her phone during the sessions with her mother, and told her many times to talk to her mother.

3. In relation to Dr M saying in his letter that the mother had been charged with offences, he said that Dr M had the facts wrong, and the father had corrected Dr M’s understanding after his letter was prepared.  Nevertheless, the father attached that letter to his affidavit.

Ms A’s oral evidence on 6 December 2017

1. Ms A said in oral evidence that she had tried on numerous occasions to keep the relationship with her mother going, but she just got burnt each time.  Ms A said that she does not like her mother and she thinks she is a liar.

2. Ms A said that she thought that Y did not wish to have a relationship with her mother.  However, Ms A said that she told Y not to be rude to her mother during the supervised sessions.  Ms A said that she told Y that, if she wished to have a relationship with her mother, Ms A would support her.  

Proposals

1. The independent children’s lawyer and the mother jointly sought the following orders:

   1.All previous parenting orders in respect of the child Y born (omitted) 2004 be discharged (the child).

   2.The child be delivered to Ms L at 6:15pm this day at the practise address (omitted), to enable Ms L to explain these orders to the child.

   3.The child live with the mother from 6:15pm this day for a period of 6 months until 5.00pm on the 7th May 2018 during which time the mother have sole parental responsibility for Y, provided that she communicates with the father about any major decisions in accordance with Pavli & Baffa [2013] FamCA 144; (2013) 48 FamLR 677.

   4.Pursuant to s.68B of the Family Law Act 1975, the father be and is hereby restrained by himself, his servants and agents from communicating directly or indirectly, approaching or removing or attempting to remove the child from the mother’s care or the care of any other person with whom she has placed her, such restrained to include any form of electronic, telephone, email or sms communication.

   5.Pursuant to section 68C of the Family Law Act the child be deemed a protected person and the father be deemed the Respondent.

   6.The mother ensure that the child sees Ms L for therapeutic counselling at least once per week for a month and [then] with such frequency as directed by Ms L at the mother’s expense.

   7.Prior to the 7th of May 2018 the Father [and] Mother attend upon Dr S with the child for an updated family report for delivery to the court 5 days prior [to] the next return date at the equal cost of the Mother and Father.

   8.The further hearing of all extant applications be adjourned the [blank] day of [blank] 2018.

   9.Each party be at liberty to file a further affidavit 7 days prior to the next return date.

   10.The independent children’s lawyer and Ms L be permitted to exchange information in relation to Y.

   11.Dr S and Ms L be permitted to exchange information in relation to Y.

2. The father proposed that Y spend time with her father in accordance with her wishes.

Best interests of the child            

1. Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a 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; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly 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

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)to have the support, opportunity and encouragement necessary:

   (i)         to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

   (ii)    to develop a positive appreciation of that culture.

   (4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

   Note:The text of the Convention is set out in Australian Treaty Series 1991 No.4 ([1991] ATS 4).  In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website (>

   Section 60CA of the Act provides that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

2. Section 60CC(1) of the Act relevantly provides that:

   Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

   The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.

3. Subsection 60CC(2A) provides that:

   In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   I will address the relevant considerations in order.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

1. In general, it is in a child’s best interests to have a relationship with each of his or her parents.  A relationship with each parent assists with the child’s proper psychological development. In that sense, Y would benefit from a relationship with her mother. However, in the present case, the mother has certain deficits as a parent. Consequently, the benefit to Y in having a relationship with her mother is somewhat reduced.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. As discussed previously, the mother has physically assaulted Ms B and X, she has been neglectful of her children and she has been abusive, particularly by calling her daughters sluts and moles.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. Y has expressed strong and repeated views that she does not wish to see her mother.  Given that Y is now approaching 14 years old, in normal circumstances, considerable weight would be given to her views.  The matter is complicated by the fact that Y’s views have, to some extent, been formed by her father’s alienation of her from the mother.  However, as previously discussed, this is not a case of pure alienation.  It is a hybrid case involving some realistic estrangement and some enmeshment as well as alienation.  In the circumstances, it is appropriate to give considerable weight to Y’s views. 

Section 60CC(3)(b) the nature of the relationship of the child with:

(i)         each of the child’s parents; and

(ii)    other persons (including any grandparent or other relative of the child)

1. Y has virtually no relationship with her mother.  She seems to have a good relationship with her father and her siblings.

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i)         to participate in making decisions about major long-term issues in relation to the child; and

(ii)    to spend time with the child; and

(iii)   to communicate with the child

1. The mother has made strenuous efforts to be involved in Y’s life, particularly through repeated applications to the court. However, the mother has not availed herself of opportunities provided to her by the court that may have assisted in her relationship with Y. In particular, the mother did not persist with therapeutic counselling following the 2015 reasons, and did not make a proper apology to Ms A and Ms B following the interim orders in 2017.

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. The parties did not focus on this issue in the present proceedings.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)         either of his or her parents; or

(ii)        any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. As explained by Dr S, changing Y’s residence would be likely to be extremely distressing for her in the short-term and may be of no benefit in the long-term. 

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. This was not an issue until it became apparent in closing submissions that, if the court ordered a change of residence, the mother intended to move with her new partner and Y to an unspecified country town in (omitted) Victoria.  The idea was that Y would change schools and that it would be more difficult for her to run away from the mother if she were far from her father’s home in the (omitted) suburbs of Melbourne. It was not explained whether the mother intended to remain in (omitted) Victoria after the initial period of six months.  Obviously, if Y did remain in (omitted) Victoria at that point, it would make seeing her father and other family members difficult.  If Y did not remain in (omitted) Victoria, she would have to change schools again.

Section 60CC(3)(f) the capacity of:

(i)         each of the child’s parents; and

(ii)    any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

1. The father seems to be well able to provide for Y’s needs, except the need for a relationship with her mother.  As discussed previously, the mother has a somewhat compromised ability to provide for her children’s needs.

Section 60CC(3)(g)           the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The parties did not focus on this factor.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i)     the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)    the likely impact any proposed parenting order under this Part will have on that right;

1. This factor does not apply in this case.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. The father now appears to be appropriately discharging most of the responsibilities of parenthood.  However, prior to separation, he left most of the parenting to the mother.

2. As previously discussed, the mother has not always properly discharged her responsibilities as a parent.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

1. This issue has been discussed previously.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

(i)         the nature of the order;

(ii)    the circumstances in which the order was made;

(iii)       any evidence admitted in proceedings for the order;

(iv)   any findings made by the court in, or in proceedings for, the order;

(v)    any other relevant matter

1. This issue has been discussed previously.

Section 60CC(3)(l) 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

1. It would be preferable to make the order that would be the least likely to lead to the institution of further proceedings in relation to Y. However, it is unclear what that order would be.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

1. The other relevant facts and circumstances have been discussed elsewhere.

Equal shared parental responsibility

1. Section 61DA of the Act provides as follows:

   (1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

   (2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)family violence.

   (3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

2. The mother’s violence towards Ms B in particular has rebutted the presumption of equal shared parental responsibility.  In any event, as the parents are unable to deal with each other in a reasonable and constructive manner, equal shared parental responsibility is not viable.

Equal or substantial and significant time with each parent

1. Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent. As the parents will not have equal shared parental responsibility in this case, it is unnecessary to consider equal or substantial and significant time.

Conclusion

1. This is a very sad and difficult case.  As discussed previously, the mother is not an ideal parent, but nor is she a demon. 

2. The court has given the mother two opportunities to attempt to restore her relationship with Y and with her other children. The first involved therapeutic counselling with Ms L, but the parents decided not to avail themselves of that option.  The second required the mother to give a meaningful apology to Ms A and Ms B.  Instead, the mother gave them a wholly inadequate apology.  As Ms J observed long ago, without a meaningful apology, any attempts to restore the relationships in this case would be most unlikely to succeed.

3. Ms B noted in the first family report prepared in this matter that the mother lacked insight. Unfortunately, subsequent events have shown that the mother continues to lack insight.

4. Ms B and Ms J both recommended that Y spend limited time with her mother. Ms J was opposed to a change of residence. 

5. More recently, Dr S, in his written report, was opposed to a change of residence.  However, after being read a passage from the 2015 reasons, Dr S said that IF the court considered a relationship between Y and her mother was imperative, then a change of residence would be necessary, but it may not succeed in establishing such a relationship. Dr S emphasised that a change of residence would be extremely difficult for Y in the short-term, and may not be successful in any event.

6. I do not consider the change of residence is in Y’s best interests.  I do not consider that the mother has the parenting skills or insight to enable a change of residence to restore her relationship with Y. In my view, a change of residence would be extremely distressing for Y and the chances of it restoring Y’s relationship with her mother are negligible. 

7. It is unclear whether Ms B will be returning to the family home.  While there would be benefits for Y if Ms B did return to the family home, at least for a while, it would not alter to my conclusions whether she does or not. Similarly, while there were some differences in the evidence, it is unnecessary to make findings about them, because they are not sufficient, either way, to alter my conclusions.

8. I accept that the consequence of not changing Y’s residence is that she is unlikely to have a relationship with her mother, at least until Y is an adult. I also accept that Y not having a relationship with her mother, particularly in her teenage years, could have an adverse impact on her psychological development.

9. However, weighing up the risks and benefits of the various courses of action available in this case, I do not consider that a change of residence is in Y’s best interests.  There will be orders for Y to spend time with her mother in accordance with Y’s wishes, and for the mother to be at liberty to send letters, cards and gifts to her.

10. I remain optimistic that, if the mother were to send a meaningful apology to Ms A and Ms B, it may be possible for the mother to restore her relationships with them, and through them, with Y, and, indeed, with Mr C and X.  However, that is entirely a matter for the mother.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:       15 February 2018