MANDEL and BLUM
[2017] FCWA 42
•28 APRIL 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: MANDEL and BLUM [2017] FCWA 42
CORAM: DUNCANSON J
HEARD: 19, 20, 21, 22 OCTOBER 2015, 16, 18, 19 FEBRUARY 2016, 5, 6 MAY 2016 AND WRITTEN SUBMISSIONS RECEIVED 4, 14 NOVEMBER AND 29 DECEMBER 2016
DELIVERED : 28 APRIL 2017
FILE NO/S: PTW 1028 of 2008
BETWEEN: MS MANDEL
Applicant
AND
MR BLUM
First RespondentAND
MR AND MRS BLUM (SENIOR)
Second Respondents
Catchwords:
CHILDREN - where interim orders had been made for reunification of children with father - where reunification was unsuccessful - where goal directed therapy did not address the beliefs of the mother and the children that the father had harmed the children - children's views - where it is not in the best interests of the children to attempt further reunification - final orders that the children live with the mother and spend time with the paternal grandparents and the father in accordance with their wishes
Legislation:
Family Law Act 1975 (Cth) s 60CC, s 65L
Category: Reportable
Representation:
Counsel:
Applicant: Mr D Smith (19 - 22 October 2015)
Mr S Walker (16 February – 6 May 2016)
First Respondent : Self-Represented Litigant
Second Respondents : Ms J Johnson
Independent Children's Lawyer : Mr A Mackie (19, 20 October 2015)
Solicitors:
Applicant: Western Legal
First Respondent : Self-Represented Litigant and DCH Legal Group
Second Respondents : Kim Wilson & Co
Independent Children's Lawyer : Legal Aid WA
Case(s) referred to in judgment(s):
Nil
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
INTRODUCTION
1These proceedings concern [Child A] born [in] 2001 and [Child B] born [in] 2004. The children are aged 16 and 12 years respectively.
2The mother, [Ms Mandel] alleged the children had been sexually abused by the father, [Mr Blum]. The father denied the allegations.
3After a lengthy trial I published my reasons for decision on 21 August 2014. I refer to them below as “the Judgment.” On 26 August 2014 I pronounced interim orders in relation to the children.
4I found that the father does not pose an unacceptable risk to the children if orders are made that the children spend time with him or live with him. I further found that the paternal grandparents [Mr and Mrs Blum (senior)] do not pose an unacceptable risk to the children.
5I found the mother believes the children have been sexually abused by the father and that her belief was genuinely held.
6I found that the reunification of the children with the father would be a very major benefit to them. To effect the reunification I then considered whether the children should continue to live with the mother while they and she receive therapy, or whether to order a change of their living arrangements. I balanced the relevant factors in s 60CC of the Family Law Act 1975 (“the Act”). Notwithstanding my finding that the mother’s capacity to provide for the children’s emotional needs was compromised and that that aspect of their relationship with her was unhealthy, I concluded it was not in the best interests of the children to remove them from the care of the mother and they should continue to live with her while the reunification process took place.
7At paragraph 955 of the Judgment I found as follows:
I remain concerned that the mother will continue to be unwilling and or unable to facilitate and encourage a close and continuing relationship between the children and the father. She will have to have psychiatric treatment. She will have to participate in therapy. She may never change her beliefs but she will have to change her mindset and her behaviours. It remains to be seen if she will do this or is able to do so. Significant therapy is required for the children and all parties. The position will have to be monitored. It is for that reason that the orders I will make are interim orders as opposed to final orders. The mother will consequently be aware that the parties’ respective applications that the children live with each of them or the paternal grandparents remain in abeyance and that those applications will not be finally determined until the reunification process has been undertaken.
8It is not necessary for me to repeat the facts set out in the Judgment. These reasons should be read in conjunction with those earlier reasons.
THE ORDERS DATED 26 AUGUST 2014
9On 26 August 2014 I made interim orders providing that the mother have sole parental responsibility for the children, but that she consult with the father prior to making any decision. I ordered the children live with the mother and spend reasonable time with the father and the paternal grandparents.
10I ordered that the parties and the children participate in therapy as recommended by the Independent Children’s Lawyer (“the ICL”). [Mr R], Clinical Psychologist was appointed as the therapist by the then ICL, Ms Young.
11I further ordered that the mother attend upon a psychiatrist for an assessment.
12Between September and December 2014 a number of events took place involving the therapist, the children, the parties and the ICL culminating in a report from Mr R dated 11 February 2015.
13Ms Cohen assumed the role of ICL in March 2015.
14At the request of the ICL, the proceedings were relisted on 13 April 2015.
15Mr R was discharged as the family therapist on 1 May 2015.
16As the reunification process had been unsuccessful the matter was programmed to a further trial.
17The ICL filed a notice of ceasing to act on 7 August 2015 and the children’s interests were no longer independently represented.
18On 16 September 2015, upon the application of the paternal grandparents I ordered Dr Kathleen Reay be appointed Single Expert Witness to give evidence as to the Family Reflections Reunification Program Inc. This program was proposed by the paternal grandparents as a further means of effecting the reunification between the children and the father. The father supported the paternal grandparents’ position.
19I refer to Dr Reay’s report below.
THE TRIAL
20The matter was listed for trial commencing 19 October 2015 with an estimated hearing time of five days.
21The father was a self-represented litigant. The paternal grandparents continued to be represented, but not by their previous senior counsel. The mother continued to be represented by her counsel, although when the trial resumed after an adjournment she was represented by different counsel. Referring to the length of the litigation involving these parties which commenced on 22 June 2010, counsel for the paternal grandparents subsequently described herself as “the last person standing in terms of solicitors and counsel involved”.
22The trial commenced on 19 October 2015. It was however adjourned part-heard as Dr Reay who was scheduled to give evidence by video link from Canada was unwell.
23On 26 October 2015, I ordered the preparation of a family report by a Family Consultant.
24The trial resumed on 16 February 2016 with an estimated hearing time of four days, although witnesses were not available on 17 February. Dr Reay gave evidence although cross-examination of her was not completed.
25On 19 February 2016, the trial was further adjourned to 5 May 2016 with an estimated hearing time of two days. Dr Reay was again not available and the trial was further adjourned to 21 September 2016, with an estimated hearing time of two days.
26On 7 September 2016, the Court was advised that Dr Reay had to retire from her position with Family Reflections Reunification Program Inc due to illness and was not available to give evidence at the adjourned trial.
27None of the parties sought to rely on any further evidence and on 20 September 2016, orders were made for filing closing submissions and the trial vacated. The decision was reserved.
28As before, I have considered all of the evidence very carefully. If I have not referred to the evidence of a witness, or part of it, it should not be assumed that I have disregarded or overlooked it.
THE ORDERS SOUGHT
The orders sought by the mother
29The orders sought by the mother are contained in a minute of orders sought within her closing submissions. The mother seeks to have all previous orders regarding the children discharged. She proposes the children live with her and she have sole parental responsibility for them although she will give the father notice of a decision intended to be made and seek his response thereto. The mother proposes the children spend time with and communicate with the father in accordance with their wishes. They should spend time with the paternal grandparents as arranged between the children and the paternal grandparents, and the paternal grandparents should facilitate their attendance at their commitments during that time.
30The mother seeks further orders concerning the provision of information, non‑denigration orders, overseas travel and an injunction restraining the father and the paternal grandfather from consuming any illicit substance while the children are in their care. The mother also seeks orders about obtaining passports for the children.
The orders sought by the father
31The orders sought by the father are contained in a minute of orders sought within his closing submissions.
32The father proposes that all previous orders in relation to the children be discharged.
33Upon making of orders, he proposes the children spend time with the paternal grandparents for 14 consecutive days. Upon the conclusion of that period, Child A live with the paternal grandparents and communicate and spend time with the father in accordance with her wishes. The time Child A spends with the mother be suspended for 30 days and thereafter, Child A communicate and spend time with the mother, subject to a therapist providing a report confirming the mother is supportive of Child A’s relationship with the father.
34The father proposes that at the conclusion of the 14 day period, Child B live with him.
35The father proposes to have parental responsibility for Child B and the paternal grandparents have parental responsibility for Child A. The father proposes that he and the paternal grandparents keep the mother informed as to the children’s progress and arrange such therapy for the children as they consider necessary.
36During the period of 14 days in which the children live with the paternal grandparents, the children should spend such time with the father as may be arranged by the paternal grandparents, the father and the children and any therapist engaged to assist the children.
37The father proposes the mother attend a therapist, other than [Mr Cole], for the purpose of undergoing cognitive behavioural therapy treatment to assist her to develop behaviours that are supportive of the children’s relationship with the father and to assist her to co-parent the children with the father. The children’s time with the mother is to be further determined after provision of a report from her therapist.
38The father makes proposals for Child B’s Bar Mitzvah. He seeks various injunctions against the mother, her husband and the maternal family, restraining her from discussing various matters with Child B, presenting him to a third party for assessment or therapy, attending upon his school without consent, initiating contact with Child B’s therapist or any other agency with regards to the wellbeing of Child B and/or Child A. The father seeks delivery of photographs and videos of the children.
The orders sought by the paternal grandparents
39The orders sought by the paternal grandparents are contained in a minute of orders sought received 3 November 2016.
40The paternal grandparents seek the discharge of all previous orders in relation to the children. They seek an order that the father have sole parental responsibility for the children and he give the mother notice of a decision to be made, consider her response and advise her of his decision.
41In relation to Child A, the paternal grandparents propose that she live with them and spend time with the father at times and on terms as may be agreed between her and the paternal grandparents.
42The paternal grandparents propose that in the event Child A wishes to communicate, or spend time with the mother, then she do so as may be agreed between her and the father and with such support as she requests from the grandparents, provided such time be supervised taking into account Child A’s age and wishes.
43In relation to Child B, the paternal grandparents propose that he live with them for a period of seven days after which time he live with the father.
44The paternal grandparents seek an order for the appointment of an ICL. If an ICL is appointed, then the ICL act as coordinator for the implementation of their orders. If an ICL is not appointed the manager of the Family Court Consultancy Service be directed to act as coordinator of the orders.
45The paternal grandparents propose that the children be collected and taken to the paternal grandparents’ home. It is proposed the coordinator would then explain to the children the effect of the orders sought by the paternal grandparents. It is further proposed that the father and paternal grandparents consult with the coordinator to arrange such therapy for the children as is considered necessary and appropriate.
46If the father, paternal grandparents and coordinator agree, the time Child B lives with the paternal grandparents may be extended or reduced before he lives with the father.
47The paternal grandparents propose any time Child B spends with the mother or maternal family be supervised and on conditions acceptable to the father in consultation with others. They propose various injunctions restraining the mother from discussing matters with the children, presenting them to a third party for therapy, attending their school or initiating contact with their therapist.
48The paternal grandparents also propose an order restraining the mother and the maternal family from attending their or the father’s home, the children’s schools or any place where the children are present. If a child should return to the mother, she must notify the father and the paternal grandparents, coordinator, or the Court and expedite the immediate return of the children.
49The paternal grandparents propose orders in relation to the children’s passports.
50By way of a notation, the paternal grandparents recommend that the mother consult with a psychologist of her choice to provide her with treatment for her diagnosis of Post‑Traumatic Stress Disorder and to give her insight as to the impact on the children of her ongoing beliefs as to the sexual abuse of them by the father.
51Also by way of a notation, the paternal grandparents propose that the mother may seek a variation of the orders upon the conclusion of therapy of not less than 12 months and upon production of a report which satisfies the Court that the children are no longer at risk of the type of behaviour which led to these orders being made.
THE ORDERS FOR THERAPY DATED 26 AUGUST 2014
52On 26 August 2014 I ordered, until further order, the children live with the mother and spend reasonable time with the father and the paternal grandparents. I further ordered that the parties and the children participate in therapy. Paragraphs seven and eight of the minute attached to the said orders provided as follows:
7The parties and the children shall participate in therapy provided by such therapist ("the therapist") as is recommended by the Independent Children's Lawyer ('the ICL') for the purpose of giving effect to the orders herein and to give effect to such therapy:
(a)the parties do all things necessary to facilitate such therapy;
(b)the parties comply with all requests made by the recommended therapist;
(c)the party with whom the children are living or spending time, as the case may be, do cause the children to be delivered to such person and/or place as the therapist may direct, including for the purpose of handover to another party so that the children may spend time with that party; and
(d)there be liberty for the ICL and the parties to apply to re-list the matter at short notice.
8The mother, the father and the paternal grandparents attend upon the therapist referred to in paragraph 7 as directed by that person and do cause the children or either of them to attend as directed.
53I ordered that the mother attend upon a psychiatrist nominated by the ICL for assessment and a copy of that assessment was to be provided to the Court and the ICL.
54Subject to the approval of the ICL, the mother was permitted to attend therapeutic counselling with a clinical psychologist of her choice.
55The ICL was at liberty to liaise with and obtain reports from the therapist and any mental health professional working with the parties and the therapists were permitted to liaise with each other.
Mr R
56Mr R prepared a report on the goal directed reunification therapy dated 11 February 2015.
57Mr R reported that despite the children saying and wanting to make contact or spend time with the father, it was not possible to assist them do so through the reunification goal directed therapy process. He found the mother and her husband, Mr L were “strictly guarding, monitoring, controlling and demonstrating strong gate keeping behaviours towards the children”. He reported they believe the father sexually abused the children and therefore believe the children need to be protected and are not allowed to see, make contact, or spend time with the father.
58Mr R reported that the children commenced spending limited time on alternate Sundays with the paternal grandparents, but this was strictly monitored and sanctioned by the mother and Mr L.
59In Mr R’s assessment the mother and Mr L did not want him to consult with the children on their own and he was not able to do so, by reason of their strong gate keeping behaviours.
60Mr R described the process to which I refer below. This included “spur of the moment” meetings on 13 October 2014 when both children met with the paternal grandparents and Child B met the father. Thereafter, Child A would not attend a further meeting with Mr R and Child B began to display anxiety related symptoms including suicidal ideation.
61Mr R described it thus:
These meetings were arranged at the spur of the moment and I did not inform the mother or [Mr L] that this would occur. After this meeting on 13/01/14 [sic], when the children went back home, things changed and a cascade of events ensued during the following week and thereafter.
62Mr R concluded that reunification therapy would not work “in this high conflict Family Court matter”. He further concluded the reason for this was that the children returned every day to live with the mother and Mr L who oppose and will do anything to undermine any development of any relationship of the children with the father, paternal grandparents or paternal family members.
63Mr R recommended that the Family Bridges for Alienated Children Program (“FBAC”) be implemented to assist the family. This involves the children being reunited with the father and paternal family and for the children to live with the father and a minimum no contact period of 90 days for the children with the mother and maternal family. He anticipated that if the program could be implemented the outcome of the reunification between the children and the father and paternal grandparents would be “very good (successful).”
64I refer further to Mr R’s report and his oral evidence below.
Dr B
65The ICL nominated [Dr B] as the psychiatrist to be attended upon by the mother for an assessment as to the following:
(a)whether the mother has a mental illness or personality disorder;
(b)if so, the nature and extent of the illness or personality disorder and:
(i) the impact this may have on her capacity to parent the children; and
(ii)the impact that this may have on her capacity to co-parent the children with the father; and
(c) whether any, and if so, what treatment is recommended.
66Dr B provided a psychiatric report regarding the mother dated 30 October 2014.
67Dr B reported that the mother’s current mental health assessment clearly meets the criteria for Post-Traumatic Stress Disorder (“PTSD”).
68Dr B opined the mother does not have a personality disorder.
69Dr B stated as the condition of PTSD had persisted well over six months, it had become chronic and is of moderate severity. He described the stimuli as “including legal matters, court buildings, newspaper stories, chance encounters with Mr Blum, the touch of Mr L when she is asleep, as well as her frequent intrusive memories”.
70Dr B reported the impact of the disorder upon the mother’s capacity to parent her children related to her perception of the consequences of any relationship the children may have with the father while still minors. Her perception is that it would involve an activation of fear of him, leading to distress and she fears that distress might lead to suicidal thinking or behaviour. The mother is concerned that any contact with the father would expose the children to an unacceptable risk of sexual abuse. At the time of the report she was coping with that stress adequately, but its ongoing nature maintained and exacerbated her fear and anxiety. Dr B stated that when not dominated by those emotions, the mother is a thoughtful, caring and competent mother.
71Dr B reported the mother had limited capacity to co-parent the children with the father.
72Dr B recommended therapy with a clinical psychologist skilled in the application of cognitive-behavioural psychotherapy to the treatment of PTSD.
73Dr B concluded his report as follows:
Firstly, I request that the court give consideration to providing that a future Clinical Psychologist and Psychiatrist (and their records) may be protected from subpoena in relation to their treatment of [Ms Mandel]. I understand that this may be problematic from a legal point of view. Nevertheless, it is my belief that the type of open disclosure of thoughts and feelings necessary to achieve progress in therapy may not be achieved unless such protection is offered.
Secondly, it is important that any family therapy or other court-mandated interventions directed at achieving contact between [Mr Blum] and [Child A] and [Child B] should be carefully planned and brought to the full attention of [Ms Mandel], in such a manner that she is able to meaningfully contribute to the process. As described above, she appears usually to be a person who is thoughtful and considered, but there is a significant probability for her capacity to work through these types of matters in a thoughtful way to be overwhelmed by sudden surges of fear. Such events will have the effect of delaying progress in therapy.
Family Consultant Herberte
74Family Consultant Herberte prepared a Family Report dated 12 February 2016. The Family Consultant reported that the children live with the mother and are happy with that arrangement. She reported they do not have a relationship with the father, whom they have not seen for almost six years.
75As to the children’s view, the Family Consultant reported “both children were adamant they want to continue living with their mother and neither want to have any contact with their father”. As to their reasons for those views, the Family Consultant reported that Child A and Child B appear to be “firmly of the view that their father has harmed them”.
76The Family Consultant reported that the children have been significantly impacted on emotionally and psychologically by the Criminal Court and Family Court proceedings. The Family Consultant expressed concern that they continue to be involved in these proceedings, in regard to their ongoing emotional and psychological health and wellbeing.
77The Family Consultant opined:
It is the Consultant's view that it will be important for the father to consider his position in regard to pursuing spending time with the children at this point in time. The children appear to hold a firm belief that their father has harmed them and expecting them to comply with Court Orders that they perceive may result in them experiencing further harm may potentially cause further psychological and emotional distress.
Dr Katheen Reay
78Dr Reay prepared a report dated 8 October 2015. Her report concerns the Family Reflections Reunification Program Inc and the possibility of it being implemented in Western Australia. Ultimately, Dr Reay could not continue as Single Expert Witness by reason of ill health. The second respondents no longer rely on her evidence, nor do they seek to implement her program in relation to Child A and Child B.
THE THERAPY
79It is not in dispute that the therapy failed. Mr R lays the blame for that squarely with the mother and Mr L. The father and the paternal grandparents agree. The position of the paternal grandparents is that the reason for the failure of the reunification is of secondary importance and the main issue for determination by the Court is whether, and in what form, a further attempt at reunification should be made.
80Having regard to the length of time the children have been involved in these proceedings, the number of professionals they have seen, and the “pressure” they spoke of to the Family Consultant, I consider it important to explore and, if possible, ascertain the reasons for the failure of the reunification therapy. This will be relevant to my determination as to whether there should be further therapy, whether a further attempt at reunification should be made, and if so, in what form.
81On 9 September 2014 the ICL wrote to Mr R briefing him as to the therapy required to effect reunification between the children, their father and the paternal grandparents.
82The ICL referred to paragraphs 954 and 955 of the Judgment and informed Mr R that the purpose of the therapy was quite specific, namely to work with the children and the parties (including the grandparents) to effect a reunification between the children and their father and paternal grandparents.
83The ICL was aware the children had not been informed of the outcome of the Family Court trial or the processes to be embarked upon. She informed Mr R she would seek his assessment as to the manner and extent to which the children should be told of the Court’s determination as to the process of reunification with their paternal family.
84The mother met Mr R on 24 September 2014 accompanied by Mr L. They were confused by his “conflicting advice.” When Mr R told the mother to tell the children they are meeting a court psychologist to reconnect with their father, both the mother and Mr L were concerned that the children might refuse to attend. To the extent that this first meeting between the mother and Mr R was an attempt to build rapport, it was not a success.
85Mr R met the father and the paternal grandparents on 28 September 2014.
86At this time the mother had not told the children about the Judgment. Her solicitor informed the ICL of this on 1 October 2014.
87Appointments had been made for the children to meet with Mr R on 3 October 2014. These were cancelled as the children had no knowledge of the trial and consequently the context or purpose of family counselling. The ICL was of the view the first conversation with the children as to why they were attending upon Mr R would be an important one.
88The mother deposed she lacked guidance from Mr R and the ICL as to what to say or how to handle questions from the children and that evening Child A was reluctant to attend.
89Mr R arranged for the mother to see him on 3 October 2014 instead. The mother did not learn about this until that morning and was unavailable at short notice.
90The mother spoke to Mr R and informed him that Mr L could bring Child B, but Child A was not willing to get into the car.
91The mother deposed Child B started to suck his shirt again that day.
92The appointment for the children to meet with Mr R and the ICL was rescheduled for 13 October 2014. On that date the children were to be informed of the trial and my findings.
93The maternal grandmother and Mr L took the children to their meeting. Shortly thereafter, the paternal grandparents arrived. Mr L had not expected them to be there. He learned that the father was on his way and he contacted the mother to let her know. She was shocked. Mr L dissuaded the mother from driving to Mr R’s office.
94Mr L said he and the maternal grandmother were asked to leave Mr R’s office, but they preferred to wait for the children. Mr R described this as strong gate keeping behaviour by them. Mr L informed the ICL he did not consider it appropriate that the paternal grandparents be in attendance as he and the mother had understood the ICL and Mr R would just be talking to the children that day.
95The ICL deposed the meeting between her, Mr R and the children went very well and the children were at no stage upset or anxious. She deposed the children wished to see the paternal grandparents and were happy to reconnect with them. The ICL deposed Child A said she did not feel ready to see the father, but Child B was keen to do so. Mr R reported that Child A later said she wanted to see her father. The mother and Mr L dispute that Child A said she wanted to see the father.
96Around 1.00 pm Mr R informed Mr L the children were to be given a break and that he, the ICL and the paternal grandparents would take the children out for lunch. Mr L asked Mr R if the father would be attending that day, to which Mr R replied, he was not. A very short time later the ICL told Mr L that Child B had decided that he wanted to see his father who was waiting outside and they were going down to see him. The father had some presents for him.
97Mr L described Child B’s face as expressionless both before and after his meeting with the father.
98The father said he had been informed by Mr R he should be available in case the children wanted to see him and he waited in the car park outside Mr R’s office. While waiting, the paternal grandparents sent him a message to say Child A was not ready to see him, but Child B wanted to see him. The father described Child B as visibly happy to see him. He said they hugged and Child B showed no awkwardness or discomfort. He described Child B as happy and comfortable. He gave Child B an electronic construction kit for a birthday present. The father said they hugged again and then again. He described this as “the three most precious hugs of my life.”
99Mr L said the ICL informed him and the maternal grandmother how well the meeting had gone. The ICL said the children knew the two families were fighting and they felt stuck in the middle. He deposed the ICL described their house as a “war zone.” After the departure of the paternal grandparents, Mr L and the maternal grandmother met Mr R, the ICL and the children. Mr R said the children had asked to see the paternal grandparents. Child B had seen his father and received presents, Child A needed more time to think if she wanted to meet her father. The children had arranged to go out with the paternal grandparents the following Sunday. The ICL and Mr R provided the children with their phone numbers.
100Mr L arranged a further appointment for the children to meet with Mr R on 21 October 2014.
101After the meeting the children told Mr L that the ICL had told them their father and grandparents were not a risk to them and that the Judge wanted them to see their father and grandparents and that they would benefit from doing so. They were also told that the mother and Mr L were not prevented from telling them about the court case.
102The mother described the children as looking exhausted when they returned home. She said Child B wanted a hug and cried when he spoke about what had occurred. He asked her to arrange for him to see his previous therapist [Ms Hackett] and she informed him that she was not allowed to do so.
103I am not convinced the mother was as calm as she said she was. She was in bed when the children told her of the days’ events and I think it unlikely that she did not react or that she responded passively. When questioned by the paternal grandparents’ counsel about whether she sought to reassure Child B after he told her the Judge thought he was lying, the mother said she could not recall.
104I think it more likely that the mother was anxious and that the children, particularly Child B, were aware of that. She sought assistance from her psychologist, Mr Cole shortly thereafter.
105On 14 October 2014 both children sent text messages to the ICL informing her that they had changed their minds about the plans made to meet the paternal family. Mr R proposed a meeting on 16 October 2014 between him, the mother, Mr L, the children and the ICL was also to be present.
106On 15 October 2014 Child B telephoned Mr R. Child B told Mr R he had heard there was a meeting the following day and he asked if it was true. Mr R told him that the meeting was for his mother and Mr L and they would tell him if he had to attend a meeting. He said that meeting was not for the children.
107On 15 October 2014 the mother received a call from her solicitor informing her that the children should attend an urgent meeting with Mr R the following day. There appeared to be some confusion as to whether the children should attend or not, but they did not do so. Mr R said the purpose of the meeting was to discuss the children’s desire to spend time with the paternal grandparents on the coming Sunday, the Sunday thereafter and to meet the paternal grandparents and the father on the Tuesday. The mother was not aware that the father would be in attendance on the Tuesday meeting with the children. Mr L disagreed that the children had said they would meet with the father that day. He informed Mr R that Child A had simply agreed to give him an update on how she was feeling about possibly seeing her father.
108The mother and Mr L were told that Mr R would not accept calls or messages from the children and that both children had sent a message to the ICL, which was “not okay.” Both Mr R and the ICL had previously provided the children with their telephone numbers. The mother and Mr L said they knew nothing about those messages. They found letters which the children sent by text to the ICL in the children’s bedrooms after the meeting.
109The father submits it appears Child B’s text message to the ICL was not composed by him, although he may have copied it verbatim. I am unable to make a finding about this.
110Mr R informed the mother and Mr L that it was proposed that the children would meet with the paternal grandparents at their home in [Suburb R]. The mother was concerned about the children returning to a location where they had been abused and said Mr R told her that there was no risk to the children in doing so.
111Mr R then told the mother and Mr L that the Tuesday meeting would be for the children and the paternal grandparents only. When Mr L told him that was what he said on the previous occasion when the ICL had taken Child B out to see the father, Mr R told him that he had to use that technique as had he not done so, the meeting would not have happened. Mr L asked Mr R about his methodology which he refused to discuss. The mother said Mr R told him to Google parental alienation which Mr R denied. He said it was possible he told them to Google Philip Stahl and Jenny Neoh.
112The mother and Mr L discussed future meetings between the paternal grandparents and also the father, with Mr R. The mother was concerned about the length of time proposed for visits and also the venue, namely the paternal grandparents’ home. She was opposed to the children meeting the father. Mr R reported of this meeting “[m]y analysis was that they did not want to listen to what the children were saying or wanting, and they showed very strong resistance or gate keeping behaviours”.
113On [Child B’s birthday] the mother found a kitchen knife in his room. She asked him about it and he told her he had put it in his room upon learning that he had to see the court therapist. He was having nightmares, thoughts and flashbacks. He again asked to speak with his previous therapist Ms Hackett, but as that was not permitted he asked to speak to [Dr Rickard], the psychiatrist who had treated him previously.
114On 19 October 2014 the children met with the paternal grandparents.
115The children’s second appointment with Mr R was scheduled for 21 October 2014. The mother went to school to collect Child B and was told by the Education Coordinator, [Ms O] to expect a call from Princess Margaret Hospital (“PMH”) Acute Response Team (“ART”) as the school had arranged for them to assess Child B. The mother saw Child B sitting on a rock with his shirt in his mouth and his shoulders slumped.
116Ms O told the mother and Child B that she had spoken with Dr Rickard who informed her that Mr R had told her that ART should not assess Child B as he would do that. Ms O had reassured Child B that Dr Rickard encouraged him to attend upon Mr R.
117The mother stopped the car on the way to Mr R’s rooms and Child B attempted to open the car door and run away. She went to the train station to pick up Child A, who was not there. Child A refused to say where she was until after the appointment was over. The mother took Child B to the appointment. Child B lay in the back of the car crying. He had to be coaxed out by Mr R. The paternal grandparents were present, which the mother said was a surprise to her as she understood Mr R intended to conduct a suicide risk assessment on Child B. Child B spent time alone with Mr R and the paternal grandparents.
118The mother said Child B complained to her that Mr R did not listen to him when he told him that the father abused him, and that what happened at the first appointment made him want to commit suicide. He said he needed Ms Hackett and Dr Rickard (his previous therapist and previous psychiatrist).
119Mr R telephoned PMH and informed them he had seen Child B and there were no acute risk issues for Child B that day.
120Child B phoned PMH himself after his session with Mr R requesting a reassessment. The PMH nurse phoned Child B back and said he reported an increase in anxiety and suicidal ideation for the last eight days. The integrated progress notes of PMH state Child B was “keen to pass on other information and symptoms.” The information was to be passed on to Dr Rickard the next day. Mr R questions whether Child B made the call to ART unassisted by the mother.
121The father submits the mother’s claim that Child B acted autonomously when calling ART lacks credibility. Although it is possible he did, I agree, it seems unlikely. I cannot be certain either way.
122On 22 October 2014 the mother received a call from [Ms Benton], a teacher who had spoken to Child B in the playground. He had told her he was anxious, depressed and “felt suicidal.” She had spoken to the ART team at PMH. The mother was subsequently told by PMH that Child B could not see Dr Rickard, as she was not Child B’s treating clinician. PMH had no ongoing role in Child B’s care, although ART could be contacted if Child B was deemed to be at acute risk of harm or suicide.
123On 24 October 2014 Child B sent a text message to Ms O asking for permission to miss the [school event] as he was feeling too sad to go. Child B would not get out of bed and attend the school event he had been looking forward to. He spoke with a Kid’s Helpline counsellor and told the counsellor that he sometimes had suicidal thoughts and plans, but his mother knew about all of them. The father questions whether the mother knew about the text message and call to the Helpline, and her involvement in them. I am unable to make a finding about this. The mother contacted [Suburb N Medical Centre] and the doctor informed her that Child B should be assessed by PMH that day. An assessment was conducted by ART at the mother’s home on 24 October 2014.
124The nurses summarised Child B’s report as follows:
[F]eeling depressed with thoughts of wanting to stab himself with a knife in the context of re-involvement with Court processes. [Child B] reports the suicidal thinking is ongoing. [Child B] encouraged and agreed to contact ART for support as required.
125In their integration progress notes the nurses noted:
He stated “he has thoughts of suicide each day” and the thoughts have come back since his reinvolvement with the court. He also stated “the thoughts are worse at home”.
126In evidence one of the nurses, [Ms M] said that in the interview as much as possible questions were directed to Child B, he engaged surprisingly well for such a young child and the mother did not prompt or speak for him.
127The mother was told ART would provide a plan for Child B after a team meeting on 27 October 2014.
128The children spent time with the paternal grandparents on 26 October 2014. Child B reported to PMH in a phone call, that he had a good day, but was “feeling like suicide” that night.
129On 27 October 2014 the mother received a call from Mr R and she informed him that Child B had been unwell mentally. By that time he had not received a copy of ART’s assessment. The mother told him that PMH were referring Child B to the Child and Adolescent Mental Health Service (“CAMHS”) which is a long term service as opposed to ART which is an acute intervention service.
130The mother deposed Mr R did not think that that was “okay” and told the mother that this was all caused by her anxiety. Mr R spoke with ART that day and requested the referral to CAMHS not occur at that time. The PMH notes record that ongoing monitoring would occur through Mr R’s regular contact and through the support network at school.
131The mother and Mr L attended upon Mr R on 28 October 2014. Mr R told them he would be away for two weeks. Mr R told the mother that CAMHS is not an appropriate referral for Child B and that she should get a referral from her doctor for Child B to see a private psychologist and get approval from the ICL. The mother deposed a discussion took place between them in which Mr R said he was developing a theory about the matter. He questioned why the children were happy in the first appointment and fine with seeing the grandparents and the father, but as soon as they came again they behaved in distressed ways.
132They discussed the frequency and duration of visits with the paternal grandparents.
133The mother deposed Mr R then asked her about the possibility of the children spending some months in the care of the paternal family and if they were okay would she change her perspective on the father. The mother was concerned about Child B’s flashbacks of abuse and memories and questioned how they would be dealt with.
134Mr R also met with the father and the paternal grandparents on 28 October 2014 and informed them that arrangements for the children to see the paternal grandparents should be made by phone with Child A.
135It is clear from the descriptions of that meeting by both the mother and Mr R that there continued to be little, if any rapport between them. Mr R was concerned that the mother and Mr L were attempting to limit the children’s time with the paternal grandparents, whereas the mother’s position was that the time was up to the children and that the arrangements should be ones they were happy with. The mother deposed that Mr R was of the view that, had he not introduced the children to the paternal grandparents, they would not have met them. Mr L took issue with that, informing him that he had conversations with the paternal grandmother about visits, before the Judgment had been handed down.
136The mother deposed:
I said, “It’s not terribly stressful the children seeing the grandparents. We told you the children were ready for that. Seeing a court therapist would not be so difficult if the therapist actually listened and was upfront with me. I feel there is no point in me saying anything as you are viewing me through the lens of maternal alienation syndrome. I can’t win. Please excuse me.”
137The mother subsequently spoke to ART who informed her that Mr R had requested they do not refer Child B to CAMHS. The mother discussed this with Ms O who informed her they could not monitor Child B on camp if he was at risk and that she should get him a referral from her doctor to take him to CAMHS.
138On 30 October 2014 the mother took Child B to see [Dr Hall] and sought a referral to CAMHS.
139On 31 October 2014 Dr Hall sent a referral to CAMHS. In the referral under the heading “Risk Factors” Dr Hall wrote regarding Child B “feels like stabbing himself”.
140The mother was told that the school had spoken to the Department for Child Protection and Family Support (“DCPFS”) about Child B. On 31 October 2014 the mother received a call from DCPFS who offered support.
141A memorandum was sent by DCPFS to the Family Court dated 3 November 2014.
142The mother deposed Child B was distressed at home. He told the mother he had waited for help with his suicidal feelings and he felt the only manageable option was to take his life. He was chewing his t-shirts again and the mother deposed he had chewed through one a day since his first meeting with Mr R. Child B later enjoyed himself at a Halloween party.
143The ICL informed CAMHS that she had to approve any referral for Child B. CAMHS would not then accept a referral without her approval. The mother was told this by Dr Rickard on 6 November 2014.
144An interagency meeting of health professionals involved in Child B’s care was to take place at PMH on 7 November 2014. Ms O was to be Child B’s voice. She asked him what he wanted the professionals to know. Child B told the mother she wrote down what he told her and he felt she had listened to him.
145The ICL set the agenda for the interagency meeting.
146On the evening of 7 November 2014 the mother found Child B with his nose and mouth covered with a small thick plastic bag. She pulled it off his face. She contacted the ART team to inform them what had happened. Child B spoke to ART and appeared calm. He stated he was then ok but gets angry easily. The father submits this was not a suicide attempt by Child B pointing to the PMH notes which record Child B did this in response to the mother setting limits around his behaviour.
147Dr Rickard wrote to Dr Hall informing her of the outcome of the meeting and a copy of her letter was sent to the parties, the ICL and others. It was agreed at the meeting that Child B would be referred by Dr Hall to [Mr G], private clinical psychologist. ART could be contacted by Child B or family members for any urgent mental health matter if his therapist was unavailable.
148On 9 November 2014 the children spent time with the paternal grandparents.
149On 10 November 2014 the mother found Child B pressing a knife to his chest. The father says this too was not a suicide attempt, again referring to the PMH notes which record this occurred in response to an altercation with his older sister. Child B was referred to Mr G and had his first appointment with him on 21 November 2014.
150Child A spent time with the paternal grandparents on 23 November 2014.
151Child B had a further appointment with Mr G on 5 December 2014.
152Both children spent time with the paternal grandparents on 7 December 2014.
153The mother and Mr L met with Mr R on 10 December 2014. The mother described this meeting as unproductive and unpleasant. She said Mr R was confrontational and told them his role was over and that he would be writing a report for the Court.
154Mr R reported the goal for this appointment was to explore the mother’s view of how she and Mr L would continue to promote a relationship between the children and the paternal grandparents, as well as telling them it would be the last face-to-face consultation. He reported the mother and Mr L telling him the children do not wish to come to appointments with him.
155Child B continued to see Mr G and after therapy ceased the mother deposed he appeared to be relieved to be “left alone”.
156In June 2015 Child A was upset about going overseas on a school exchange. Child A met with Ms Cohen, the then ICL. Ms Cohen had an opportunity of discussing my findings at a meeting with Child A on 17 June 2015. Child A expressed frustration about court orders having been made about her without consultation with her. Child A was very clear she did not want to have any form of contact or communication with the father at this stage in her life.
157 By September 2015 the children had been spending time with the paternal grandparents for about a year. On 1 May 2015 orders were made in relation to that time. The mother says, and I accept, she has supported those visits. She deposed she was supportive of the children also meeting the father’s two children.
CONCLUSIONS AS TO REUNIFICATION THERAPY
158At the time of making orders in August 2014, I discussed with the counsel for the parties and the ICL the appointment of a family consultant pursuant to s 65L of the Act. Counsel were of the view such an order was not necessary as the children’s interests were represented and the ICL, with the chosen therapist, would manage the reunification therapy.
159After the Judgment was handed down the mother did not tell the children of the outcome of the proceedings. Having regard to the terms of Dr B’s report as to the mother’s diagnosis of PTSD, his description of triggering stimuli and her intense fear, it is not entirely surprising that she did not do so. Another reason might have been that the findings I made as to unacceptable risk were contrary to her belief.
160I accept the mother’s evidence that at that time the children were settled and thriving. The mother deposed:
[Mr L] and I continued to shield them from any awareness of the legal proceedings and life was relaxed and normal for all of us.
161After Mr R was appointed he contacted the mother to arrange an appointment to see the children. At this time, the children remained unaware of the terms of the Judgment. Mr R had an initial meeting with the mother and Mr L instead.
162It is not clear if the ICL sought and obtained Mr R’s assessment as to the manner and extent to which the children should be told of the Court’s determination as to the process of reunification with their paternal family, as foreshadowed by the ICL in her letter to Mr R on 9 September 2014. It is unlikely she did because the ICL deposed that on 1 October 2014 she was informed by the mother’s solicitor that the children knew nothing about the Family Court trial and that was the first time she was informed of that.
163The children were told about the Judgment at their first meeting with Mr R on 13 October 2014. Mr R described the goal of this meeting as twofold, firstly for him and the ICL to explain the findings of the Court to the children and secondly, to obtain their views and ask them if they wanted to see, meet or speak with the paternal grandparents and/or father. If they did, he would arrange this immediately. He did not inform the mother or Mr L of any possibility of the children meeting the paternal family as he anticipated they would have influenced the children’s view and ensured that the children would not see, or have contact with them. Mr R reported “The ICL and myself explained to the children that there was a Family Court Trial, Judgment, outcome of the Judgments, misunderstandings etc.”.
164The ICL and Mr R spoke with the children for about one and half hours.
165A paragraph of the Judgment, in which I stated I did not consider the children to be at risk with the father, was read to the children. They were asked if they wished to see the paternal grandparents, which they did and Child B wanted to see the father.
166Thereafter the paternal grandparents were invited to Mr R’s rooms to meet the children and Child B subsequently met his father downstairs in the carpark. All of this happened in the space of a few hours.
167The difficulty with not informing the children of the Judgment until immediately before re-introducing them to the paternal grandparents and the father is that the children were not given any opportunity to process or come to terms with what they had just been told. It must be remembered that for many years the children believed the father had harmed them and they still do.
168Professor Bruck stated that the children had “come to believe that they were indeed victims of abuse”. The Family Consultant reported that the children are firmly of the view that their father has harmed them.
169In an hour and half they were told otherwise. The children received no therapy to deal with their beliefs.
170Dr Neoh discussed the children’s beliefs and her therapy which is set out at [790] of the Judgment as follows:
Dr Neoh was optimistic when discussing the children’s beliefs and explained her therapy in circumstances where children believe they have been abused. The following exchange took place:
You were talking before about children who have beliefs that they were abused and it kind of doesn’t matter whether or not those beliefs are true or not. Now, I don’t think anyone is suggesting that the children should be flung into a room and told it never happened, all right. And I don’t think anyone is suggesting that, because what’s important is that the children are assisted in re-establishing the relationship with their father, whatever they require to do that? --- The way you go about that with children is you don’t say this didn’t happen. You give them a really open chance to talk for the first time about those beliefs and what happens is – this amazing thing usually happens where you start out and they have – it’s like a label that you put over your belief and it’s – the belief that you were sexually abused and it’s just a label at the start, and then you just carefully tease it out about what that means and what they remember, and when they start to talk about it the obvious and the ridiculous or the unusual or the things that don’t quite fit. So “You think that happened then? How did that happen,” you know, and then it all suddenly becomes very clear to them. And once you start talking about it, it’s not important any more. It disappears.
Okay. So---?--- And so that’s how you deal with it. It’s not about truth or not truth. Children come to their own realisation about what they remember and how they remember it, but sometimes they have to be taken back to it and taken through it really sensitively, in a way that allows for all hypotheses and the child comes to their own realisation about it and becomes comfortable with it.
Okay. Now, we have heard some evidence that children who falsely believe they have been abused, and I think you said the same thing, can have the same – can be impacted in the same way as children who actually were abused --- ?--- There’s no difference.
--- in terms of lifelong consequences? --- Yes, no difference.
…
Okay. But specifically in the case of children who falsely believe they have been sexually abused, if – there is a value in allowing them to reach the point where they no longer hold those beliefs?‑‑‑Create enough doubt in their own mind about what happened so that they can be comfortable with it.
And if you can achieve that, then you don’t get the lifelong consequences of the false belief?‑‑‑Yes.
In the context of the children’s beliefs Professor Lipton said time was the “enemy of resolution and a lot of time has gone past in this matter”. He described it as follows:
Yes? --- A lot of beliefs have solidified, concretised, become part of the culture, if you like. And how to break through that, I think it’s an enormously difficult task. To my mind, quite tragic because the children’s needs are now bedevilled by their beliefs and the belief of some people as to what might have happened. So when you say if the court determines that nothing has happened, it’s more tragic.
171Professor Lipton, the Single Expert Witness, recommended as the method of reunification, goal directed therapy with the parties and the children and the establishment of gradual contact.
172Dr Neoh said:
Some therapies involve the removal of children from their preferred parent into their rejected parent’s care, particularly in the most severe cases. Other intervention includes an intensive period of therapy with a team of professionals.
173She also said that close monitoring by the Court was required and all therapy should be reportable with clear contracts with the parents.
174Dr Neoh also said:
only when the children’s feelings and beliefs are supported and explored in therapy by confronting the rejected parent or grandparent, can some of the underlying issues become uncovered.
175Professor Lipton said that he advocated a “more gentle, longer term, sensitive approach to it [relocation of the children with their father], helping children work through their anxieties, not confronting them with a fait accompli is, to my mind, a better approach”.
176He also went on to say that the other approach which he described at [871] of the Judgment could cause the children a lot of distress.
177Professor Lipton said the children should be prepared even if the “sudden death approach” is taken. He said “people have to talk to the kids”.
178Professor Bruck also spoke of a gradual approach and a very slow re-entry process where there is a lot of support. She said it was necessary to get both parents on side.
179After the first trial I gave very careful consideration to the children’s circumstances and the expert evidence. I found “[s]ignificant therapy will be required to deal with the confusion and conflict they may experience”. I found it was in the best interests of the children to spend time with the father and the paternal grandparents. I stated “that time will be introduced with appropriate therapy, the objective of which is to reunify the children with the father and the paternal grandparents”.
180I found that significant therapy was required for the children and all parties.
181The children did not receive the therapy which had been recommended by the experts. Sadly, to this day they hold a firm view that their father has harmed them.
182In the opinions of the experts to whom I have referred above, the mother should be involved in the therapeutic process. Dr Neoh said the mother’s “mindset” had to change. She said:
So, really, to get going in the scenario I put to you, you have to work intensively with mum and you really have to change her mindset, not necessarily her belief that they have been abused but her mindset about – that there’s nothing good for the children in seeing their father. You have got to change that?‑‑‑Once ‑ ‑ ‑
It’s – yes?‑‑‑Once you start and once you get past that point and then the children start to relax and feelings move positively, and then that parent can see the benefits for the children in that, that’s usually a motivator to keep – that perpetuates the good things happening.
183This was reinforced clearly by Dr B whose report dated 30 October 2014 became available after the meeting between Child B and the father. The ICL told Mr R that the mother was to be psychiatrically assessed by Dr B when she first wrote to him on 9 September 2014, however Mr R had not spoken to Dr B.
184Mr R had not informed the mother that the paternal grandparents might be present at the children’s first meeting on 13 October 2014 or that the father would be available to see them that day.
185In evidence Dr B said:
…if something is unexpected, something arises which was – which was not anticipated by [Ms Mandel], then – then the – the potential for that to cause – to precipitate severe anxiety is very high, unexpected events, particularly in this context.
186The children meeting the paternal grandparents and Child B meeting the father was clearly unexpected and not anticipated by the mother.
187Dr B said in his opinion that work with the mother “to help her meaningfully contribute to the process not only is likely to improve her adjustment, but also is to be really quite essential to the success of any reunification therapy of any kind”.
188Dr B explained that his reference to the mother making a meaningful contribution [to the reunification process] meant more than just transparency.
189In evidence he said:
– – – When – when I made this statement about “meaningfully contribute”, I – I meant something broader than transparency. You’re describing a transparent process where the therapist makes it clear to [Ms Mandel] what procedure will follow. But my concept of meaningful contribution would be rather one in which she actually would have a say in how things might proceed.
190He also said Mr R’s intervention occurred before his report which was unfortunate and perhaps if the issues raised in the report had been taken into consideration then the course of events may have been different.
191As to rapport between the mother and Mr R, Dr B said:
But much of the work in psychotherapy is working with the person to establish rapport, to identify what types of approaches may work or may not work with that particular person, to be clear about the next steps, how we will proceed, all that kind of thing. And it appeared to me, from – from what you’ve described to me and from what [Ms Mandel] stated to me about her first meeting with [Mr R], that she had not formed that rapport and did not have a useful basis for working towards an agreed goal.
192Mr R did not build rapport with the mother and Mr L. He agreed “as a general rule” with the proposition that it was all the more important to build rapport in severe cases, however he explained this was not a normal case.
193Mr R’s approach was not a gradual approach. He chose not to tell the mother that Child B wanted to see the father, so that she could not influence them. He decided on what was described as the “short, sharp” intervention which in his view, succeeded as the children began seeing the paternal grandparents. He used the “flooding technique.” He explained that without influence, the children said they wanted to see the paternal family and he had a clear view of what they wanted to do. He used that opportunity to reintroduce the paternal grandparents to the children and the father to Child B.
194Mr R’s methodology in the goal directed reunification was not explained to the parties or the ICL. The mother and Mr L asked him about his methodology and said he declined to explain it to them. The father and the paternal grandparents were also not apprised of it.
195The decision to proceed without involving the mother may well have been fatal to the process. Dr B described the process as “somewhat misconceived from the start” and he said to do it without the active cooperation of the mother is “almost doomed to failure”.
196Clearly the mother was very distressed at the way the therapy was handled and, although she suggested otherwise, it is more than likely Child B was aware of her distress. From then onwards Child B went downhill in terms of his mental health, something the mother feared may happen, as discussed with Dr B.
197Mr R attributed Child B’s regression to the behaviour of the mother and Mr L. Mr R reported the mother and Mr L consistently told him they left it up to the children to decide what they wanted to do. He said, somehow the children’s behaviours were monitored, influenced or controlled by the mother and there was therefore a stark contrast between the mother saying she leaves decisions to the children about their contact with the paternal grandparents and what the children actually expressed to him and the ICL in the first session. Mr R reported “[t]he subtle dysfunctional interactional process can place tremendous stress on the children.” He said this contributed to Child B’s symptoms which he said were a result of the family dynamics described in his report.
198Mr R reported that the mother and Mr L’s behaviour and reaction during the process affected Child B’s emotional/psychological state by reminding him how dangerous/bad the father is. This unhealthy emotional or psychological pressure resulted in Child B’s regression. Mr R did not accept that Child B was traumatised by seeing his father as he said, there was no concrete evidence that the children were abused in the past and Child B wanted to see his father. However, the evidence of Professor Bruck was that the children had come to believe they were victims of abuse.
199Mr R acknowledged this when he referred to the memories and belief of sexual abuse which he said were instilled in them.
200All of this reinforces the need for the children and the mother to have therapy prior to the children being reintroduced to the father, as recommended by the experts to whom I have referred above. Had that occurred the reunification may have had a better chance of success.
201The father is sceptical about Child B’s regressive behaviours. He submits that it is only on the mother’s evidence that Child B reacted afterwards with suicidal ideation, requiring her to seek medical intervention. His case is that such a response, to the extent that it is accurately reflected, was a response to the mother’s reaction and cues. On the other hand he is critical of her for not obtaining help for Child B’s mental health difficulties and submits she did not facilitate treatment recommended for Child B by his health professionals.
202The paternal grandparents submit that the mother caused Child B to become distressed, she did not respond to his distress or reassure him that his father was “safe.”
203The position of the paternal grandparents is to invite the Court to find that not only did the reunification process fail, but that the mother has continued to fail to give any notice to the original reasons for decision.
204I am not persuaded that the mother deliberately caused Child B to regress in the way he did. I think it highly likely Child B was aware of his mother’s anxiety. They are very close, I think it likely the mother was very upset after Child B met with his father and Child B was aware of that. The mother’s anxiety may well have contributed to Child B’s reaction. Of course one of the purposes of therapy was to address this very difficulty.
205At the time Child B regressed, a knife was found in his bedroom, he had tried to put a plastic bag over his mouth and he said the memories were coming back. It sounds very like the behaviour he displayed previously. It is possible the process of therapy caused him to retrieve those memories which had perhaps for some time been buried.
206The notes of a PMH nurse who visited Child B at home on 24 October 2014 contain the following entry: “Reports feeling sad with SI [suicidal ideation]. Reports re-emergence of unwanted memories.”
207This is a very important consideration when considering whether further attempt at reunification should take place as sought by the father and paternal grandparents. I also bore in mind the impact on the children of further interviews when I ordered a report by the Family Consultant. I considered it important that the children have an opportunity to express their views to someone independent and to make those views known to the Court. I also considered it important that the terms of the Judgment be explained to them again so that their views were expressed in that context.
208The attempted reunification with the father did not impact Child A in the same way as Child B, because she did not want to see him and did not do so. She was reluctant to attend further meetings with Mr R and did not do so. Child A was of course happy to see the paternal grandparents and continues to do so.
209The father and the paternal grandparents assert that the reunification process failed because Mr R’s work was undermined by the mother and Mr L to the point where it was ineffective. Both submit that reunification will not succeed if the children remain living in their current home environment.
210It was apparent from the mother’s answers to my questions, that she maintains her belief that the father sexually abused the children. Dr B’s report confirms and explains this. I accept Dr B’s evidence. It is highly likely both children are aware of the mother’s anxiety. Dr B agreed with the proposition that her anxiety could have an effect and rub off on the children.
211However, Dr B said he did not believe the mother would necessarily express negative opinions about positive statements the children made about the father. He thought it very unlikely that the mother’s fear that Child B might commit suicide might rub off on Child B such that he has suicidal ideation. He referred to her presentation and her description of the way in which she responded to the children in terms of not sharing all of her anxieties with them.
212The father asked Dr B if the mother could accept the possibility that the children might wish to meet him. Dr B replied that at the time he wrote his report the mother did not believe the children wished to meet him. Dr B reported the mother believed when the children are adults they will make their own decisions.
213The father asked Dr B if the children would be free or able to express an ultimate view about him. Dr B believed they would. He said the mother had clearly expressed her opinion to him that as the children became more mature they would form their own judgments, and she fully understood the reality of that situation and their choices about having a relationship with the father would be their own.
214Dr B recommended the mother have cognitive-behavioural psychotherapy, and if she did it is more likely she would participate in the reunification process in a useful way. The mother consulted Mr Cole, however Dr B reported that Mr Cole was reluctant to advocate cognitive approaches to behavioural therapy.
215The mother has not had cognitive-behavioural psychotherapy as recommended, however Dr B reported that Mr Cole told him it was difficult to treat for PTSD because of the ongoing proceedings reactivating the mother’s symptoms.
216Dr B said the mother’s anxiety should not be attributed only to the belief that abuse has occurred. The prolonged legal proceedings and events during that time have also been a cause to maintain a fear in her, such that any attempt to undo that fear is going to be difficult.
217I consider the mother has not been able, or willing to encourage or facilitate the children’s reunification with the father and is unlikely to do so without receiving appropriate therapy and being involved in the process. Had therapy been provided to the children and to the mother as recommended by the experts, reunification may possibly have succeeded. I accept however, it also may not have. Mr R took an approach which he considered to be appropriate in the very difficult and severe circumstances of this case. It did not include the mother, it did not address the children’s beliefs and hers, and it did not work.
218Child B regressed. While his behaviour might have been influenced by the mother’s anxiety, I do not consider it is contrived as suggested by the father. The reality is that this young boy suffered again. For a period of time he was once more distressed and disturbed. The improvement in Child B while the court proceedings were not ongoing was apparent. Since reunification therapy ended he has again improved and is currently thriving as is Child A.
219I am mindful that my finding that the children are thriving is tempered by the fact that they do not currently have a relationship with the father, something which I have found to be of their benefit. I am also mindful that this is something which may have long-term consequences for them.
THE LEGAL PRINCIPLES
220These proceedings are determined under Part VII of the Act.
221At paragraphs 16 to 39 of the Judgment, I discussed the relevant law applicable to a determination of parenting matters. I have had regard to the legal principles contained therein, in this decision.
222The best interests of Child A and Child B are the paramount consideration and I therefore turn to discuss the evidence in the context of the primary and additional considerations.
The primary considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
223Both of the primary considerations are relevant and they are closely linked.
224The children do not have a meaningful relationship with the father. Apart from Child B spending about 10 minutes with him in October 2014, the children have not spent time with the father since 2010.
225Dr B reported that the mother is concerned any contact of the children with the father, even if initially supervised, would expose them to an unacceptable risk of sexual harm. Upon the proposal of the mother, they will spend time with him in accordance with their wishes. As indicated below, at this time neither child wishes to do so.
226The children have a meaningful relationship with the mother and on her proposal that would continue.
227The father asserts the children are at risk of psychological harm in the care of the mother by reason of her beliefs and her influence over them. The father asserts they must be protected from harm by being removed immediately from the mother’s care and their time with her suspended until she has had therapy and provides a report from the therapist confirming she is supportive of the children’s relationship with him.
228The father submits that in perpetuating a belief that he has abused the children, the mother is herself abusing them in that her conduct including “gate keeping behaviours” has led or is likely to lead to emotional and psychological harm to the children. The father submits the mother’s reaction to Child B’s meeting with him caused Child B stress and she did not facilitate recommended treatment for him.
229The father submits that Child B was never acutely suicidal, rather he has a learned behaviour to feign suicidal symptoms, or, Child B was highly distressed and the mother neglected him by withholding psychological treatment. For those and other reasons the father submits the psychological harm caused to Child B amounts to emotional and psychological abuse, or alternatively neglect. He further submits that this form of medical abuse bears some of the hallmarks of “factitious disorder/malingering by proxy”.
230Child B reacted badly to the visit with the father, with the return of feelings of wanting to harm himself and/or suicide. The mother’s reaction to the visit may have contributed to this, but I do not accept the father’s submission that Child B’s reaction was feigned. The PMH nurses who visited Child B were satisfied that he was not prompted by the mother and professionals including Dr Hall and Child B’s teacher were sufficiently concerned to seek intervention.
231Child A described Child B’s reaction to seeing the father to the Family Consultant. She said:
I said I didn’t want to see Dad. [Child B] said yes, as Dad had his birthday present. He said he was okay afterwards but then he burst into tears when we got home. He was upset for days and he wet the bed. Mum just tried to support him. It gradually got less and less but it probably went on for about a month.
232Mr R too, was of the view that Child B should have therapy from a private psychologist. It is unfortunate that therapy came after and not before the reunification process.
233The mother deposes the children are now thriving. In her evidence she describes a happy and busy household where the children’s many friends visit and the children enjoy a variety of activities and responsibilities. I refer below to the children’s relationships with others. The children are excelling at school. Child A has travelled overseas. Child B is no longer suicidal.
234The “embattled enclave” referred to in the earlier proceedings, a phrase coined by Professor Lipton, suggests that the children are isolated or deprived. They are deprived of a relationship with the father, but in other respects, they are well provided for.
235I accept that the children are at risk of psychological harm in the future through not having a relationship with him and believing him to have abused them. I also accept that there is a significant risk to the children of trauma if they are instantly removed from the mother’s care and deprived of even supervised visits with her, their primary carer, for an indefinite period of time.
236Once again, it is necessary to balance the potential harm to the children with the benefit to them of having a meaningful relationship with both of their parents. This is the same grave dilemma in which the Court found itself after the first trial.
The additional considerations
Any view 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
237The children were interviewed by the Family Consultant who explained the father is not a risk to them and would not hurt them and therefore, it was appropriate they spend time with him. The Family Consultant reported that the children understood this and voiced their disapproval of my decision.
238Both children are strongly opposed to spending time with the father. They believe he hurt them, Child A said she was not ready to see the father. She enjoyed spending time with the paternal grandparents, but did not want an order that she do so.
239At paragraph 21 the Family Consultant reported as follows:
When asked what information she would like the Consultant to pass on to the Judge, [Child A] replied, "Tell the Judge I'm not ready to see my Dad. I don't want to see my Dad and I don't want a strict Order about seeing my grandparents - it's not that I don't want to see them. I want to live with Mum and I don't want to be pressured to do something I don't want to. Me and [Child B] have gone through so much. I just wish our views could be put forward and I wish we'd had more say in the past. I don't want to be pressured into doing something I don't want to. We shouldn't be pressured, I hope the Judge takes our views into account and doesn't just listen to the adults. They're our views. We haven't been told by Mum or Dad to say what they want us to ... And I don't want my grandparents to pressure me and [Child B] to see Dad."
240In relation to Child B the Family Consultant reported as follows:
When asked what he would like the Consultant to tell the Judge, [Child B] began crying again and replied, “Tell the Judge if I ever had to see him again I’d probably punch him in the face”. When asked why he would want to punch his father, [Child B] said, “I’m still really angry with him. I try not to think about him. I don’t want to see him. I actually want to change my name to [Child B Mandel ‘L’]. I’ve asked them to call me [Mandel] at school because [Blum] makes me feel uncomfortable.” When asked if he might want to see his father when he gets older, [Child B] replied, “I don’t know if I’ll ever want to see him. Me and [Child A] should decide if we want to see him or not, it shouldn’t be someone else’s decision about what someone else wants.”
241I consider it is highly likely the children are aware of the mother’s views about the father. Those views are shared by her husband and her family members. To that extent the children may have been influenced. I have also not overlooked that the children have not received appropriate therapy to deal with their beliefs as recommended by the experts. However, the children are now 16 and 12 years of age. They are bright and articulate. For several years they have been the subject of court proceedings. Both referred to not wanting to be “pressured”. The children want to continue living with their mother, Mr L and their siblings. The father submits the children’s views as expressed to the Family Consultant are the mother’s views and not their own. They are their expressed views, however I do accept they may not be free of influence. The children are receptive to that influence, as associated with it, is the continuity of the living arrangements which they want. The children are aligned with the mother who has been their primary caregiver since their births. I have taken this into account when consider the weight to be placed on the children’s views.
242I am also mindful that the children’s views are only one of many considerations to be taken into account when determining the best interests of the children.
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)
243The children have a close and loving relationship with the mother, with Mr L and with their half-siblings. They also have a close relationship with their maternal family. The mother describes a happy family unit with healthy relationships between the children, other adults and their half-siblings. Importantly, the children have a close relationship with each other.
244These relationships are very important and all risk being jeopardised upon the proposals of the father and the paternal grandparents. Upon these proposals Child A and Child B would also be separated from each other.
245The children do not currently have a relationship with the father and are opposed to seeing him.
246The children’s relationship with the paternal grandparents is developing well, partly because the children wish to see them and the mother is supportive of the visits. The children have spent time with the paternal grandparents since 13 October 2014, mostly together, but occasionally only Child A. These visits are important to maintain the children’s connection with the father’s side of the family. My view remains that the children enjoy and benefit from their relationship with the paternal grandparents.
247The children have visited the grandparents’ home, and they have met their step‑sister [N] and their half-sister [T].
The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
248Having regard to the mother’s beliefs and her mental health diagnosis, and in the absence of therapy, at this time she is not willing or able to facilitate a close and continue relationship between the children and the father. At best she will leave it to the children to make up their own minds and she will facilitate them spending time with the father if and when they choose to do so. Dr B reported that the mother showed a capacity to evaluate alternative courses of action in the future and he said she expressed the opinion that in the future the children would make their own choices about having relationships with their father.
249The mother remains fearful that the father has harmed, or may harm the children.
250Although this consideration applies only to parents, the involvement of the paternal grandparents is relevant. The mother is willing and able to facilitate and encourage a close and continuing relationship between the children and the paternal grandparents.
251Upon the proposals of the father and paternal grandparents, the children would be removed from the care of the mother and thereafter, communicate or spend time with her in limited circumstances. The father’s willingness to facilitate and encourage the relationship between the children and the mother may depend upon her undergoing treatment and developing behaviours that are supportive of their relationship with him and to assist her to co-parent the children with him.
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
252This is a significant consideration in the circumstances of these children. The father has been absent from their lives for over six years. The paternal grandparents have been reintroduced to their lives and there is no reason to suggest that the effect upon the children of that is anything other than a positive one.
253As to the children’s separation from their father, they have adjusted to life without him. This situation accords with their wishes and both are adamantly opposed to any change in those circumstances.
254As to the likely effect on the children of a separation from the mother, once again, the issue for determination is whether there should be a change in the children’s living arrangements, such that they are removed from the care of the mother to live, in the first instance with the paternal grandparents and thereafter in the case of Child B with the father. It was the father’s case at the first trial that the children should be removed from the care of the mother to live with him, while the reunification took place. He anticipated the process would fail if that did not occur. The process did fail, possibly partly for that reason and certainly for others as discussed above.
255Once again, the Court must consider the long-term benefit to the children of having a relationship with the father and balance that against the disruption to the children’s lives of being removed from the mother’s care and the damage to their relationship with her, Mr L and their half-siblings.
256The impact on 16 year old Child A of her removal from her family, friends and all that is familiar to her, with the possibility of only supervised time with the person who had been her primary care-giver all her life, would be profound. Similarly the impact upon Child B at the age 12 having regard to his vulnerabilities with respect to his mental health, would also be profound.
257The children would be separated from each other upon the proposals of the father and the paternal grandparents. This would not be in their best interests having regard to their close bond as described by the Family Consultant. The mother submits the father proposes to change Child B’s school. In evidence, however, the father expressed concern about Child B’s schooling, but said he had not made the decision to change schools. Currently he is excelling at school.
258The outcome sought by the father and the paternal grandparents is contrary to the children’s expressed wishes.
259In closing submissions the mother describes the orders sought by the father and paternal grandparents as “brutal” and submits they will cause significant trauma, which may have an irreparable and negative impact upon the children.
260I do not think a change of living arrangements would be a “short-term disruption” as submitted by the father. The proposals of the father and the paternal grandparents, while sincere and well meaning, are potentially traumatising and damaging to the children. They make no specific proposals for therapy for the children, except that therapy will be obtained as necessary.
261I consider it likely that the children will suffer anguish and distress, which would be to their detriment. Having regard to their firmly held views, there is a significant risk that the reunification and living arrangements proposed by the father and the paternal grandparents would not succeed and they have the potential to damage the children’s relationship with the mother and other members of the maternal family.
262Dr B said in relation to the proposals of the father and paternal grandparents to remove the children from the mother and place them with the father or paternal grandparents, “short, sharp interventions are unlikely to succeed”.
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
263The practical difficulty of the children spending time and communicating with the father relates primarily to their opposition to doing so and their firm views about him. It would be difficult to force children of the ages of Child A and Child B to live where they do not want to live.
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
264The father refers to my earlier findings in relation to both parents. He submits nothing has changed since then as the mother still influences what the children believe and what they say they wish for. The father says the reunification did not succeed by reason of the mother’s failure to cooperate with the process. Consequently, he submits the children’s living environment remains an unhealthy one.
265In evidence the mother said she will be as supportive as she can be if the children wish to see the father, but she is not supportive of a program which compels them to do so. The mother also said she “believes rationally and genuinely that her children have been abused”. In relation to the children’s emotional needs, I am again reminded of the description used by Professor Lipton that at the time the children were living in an “embattled enclave.” I refer to this above. Apart from not having their father in their lives, in all other respects the children lead happy and fulfilling lives.
266The Family Consultant reported that the children, both together and separately, insisted they have not had conversations with the mother for a very long time about their living arrangements or the Family Court proceedings. Both told the Family Consultant they thought the proceedings had been finalised a couple of years prior and were surprised to be interviewed again.
267The mother is capable of providing for the needs of the children including their emotional and intellectual needs, except to the extent that she is unable or unwilling to support their relationship with the father.
268The father has the capacity to provide for the children’s needs although I am concerned that his proposals and those of the paternal grandparents have the potential to cause the children severe emotional difficulties. Those proposals involve the removal of the children from their mother and her family and the separation of the children from each other.
269The father is dismissive of Child B’s suicidal ideation. He submits Child B was never acutely suicidal, rather he has a learned behaviour to feign suicidal symptoms. When asked about Child B’s behaviour, for example, putting a bag over his head and saying he wanted to kill himself, the father said he would not positively reinforce that behaviour and he “would take off the bag and say move on”.
270The father is firmly of the view that the mother has caused Child B to behave in the way he did. In that sense, his frustration is understandable. However, I have some reservations about the father’s capacity to provide for the children’s emotional needs, should they be removed from the care of the mother and placed either in the care of himself or the paternal grandparents.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
271Child A is 16 years of age. The Family Consultant described her as polite and friendly. The Family Consultant said Child A’s responses to questions appeared open and honest and her general conversation appeared to be emotionally and developmentally mature for her age. She reported in relation to Child B, in similar terms namely that his conversation appeared to be emotionally and developmentally appropriate for his age. The evidence of the mother suggests Child A is mature, well‑adjusted and thriving.
272The mother says since the therapy Child B is happy to be left alone. Child B’s teacher deposed that Child B is popular amongst his peers and apart from the period of time referred to above (the reunification process), is a very normal child.
273The paternal grandmother described the children as lively and intelligent and sharing an interest in the paternal family life.
274The proposals of all parties enable the children to continue to follow the Jewish faith.
If the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to employ 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
275This consideration is not relevant.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
276The mother has demonstrated an appropriate attitude to the children and the responsibilities of parenthood, except to the extent that she has not been able to facilitate and encourage their relationship with the father. The father has demonstrated an appropriate attitude to the children and the responsibilities of parenthood.
Any family violence involving the child or a member of the child’s family
277There is not currently any family violence involving the children or a member of their family.
Any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
278There is no family violence order in effect.
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
279The mother submits that final orders should be made including that the children live with her and spend time with the father in accordance with their wishes. The orders sought by the father and the paternal grandparents involve a further reunification process. Having regard to the proposals of the father and the paternal grandparents as to reunification, it is likely only interim orders would be made. The Court’s role would be to monitor the progress of the children after their removal from their primary carer.
280The children have been the subject of these proceedings since 2010. By the time the orders were made in August 2014, the children were doing well. They were then informed of the Judgment. Reunification was unsuccessful for reasons discussed above. The question now to be answered, is whether there should be a further attempt at reunification and associated therapy, or whether the children have had enough, and the rest of their childhood be free of legal proceedings. This is a significant consideration.
281The Family Consultant reported:
47It appears both children have been significantly impacted on emotionally and psychologically by the Criminal Court and Family Court proceedings. [Child A] reported that [Child B] used to act out by physically attacking her and other children, and although he no longer does that, her view is that he continues to create conflict. She also described her lack of confidence and self-esteem in the past, although she appears to be more psychologically resilient at this point in time. It is a concern to the Consultant that these children continue to be involved in these proceedings in regard to their ongoing emotional and psychological health and wellbeing.
282I have come to the view that it would be in the best interests of these children that I make orders which are least likely to lead to the institution of further proceedings and that these proceedings should be concluded.
Any other fact or circumstance that the court thinks is relevant
283Dr B reported that the mother’s PTSD is likely to persist and therapy aimed at achieving change in the specific symptoms of PTSD is indicated. He recommended therapy with a clinical psychologist skilled in the application of cognitive-behavioural psychotherapy to the treatment of PTSD.
284In the circumstances I consider the mother should undergo the treatment recommended by Dr B and I intend to order that she do so. There will however be no monitoring on an ongoing basis, nor will the Court require any further assessment of the mother. The purpose of ordering the mother to undergo the recommended treatment is to assist her in encouraging the children’s relationship with the father at a time in the future, if and when they choose to see him. If I do not order the mother to undergo this treatment, it may be that nothing will change. The treatment will give the best chance possible of her accepting any relationship between the children and the father in the future. If the mother does not comply with my order as stated below, she will be responsible, at least in part, for the consequences including any psychological difficulties the children may face in the future.
285The therapy to be received by the mother is more likely to succeed if the proceedings are concluded. Dr B said:
The prolonged legal proceedings and the events during that time have cause to maintain a fear in the mother, such that any attempt to undo that fear is going to be difficult. It is not simply a matter of whether or not she believes the abuse has occurred.
286As to the Dr B’s request that future clinical psychologists and psychiatrists and their records be protected from subpoena, I do not consider it necessary to make an order in this respect because I intend to conclude these proceedings.
DISCUSSION AND CONCLUSION
287The reunification process failed. I must consider whether to make orders for further reunification. Having considered and balanced all of the relevant matters I am not persuaded it would be in the best interests of the children to do so.
288The sad fact of this matter is that the children have been denied a relationship with their father for many years. I found it would be of major benefit to them to have a relationship with him. It is unlikely they will have a relationship with him until sometime in the future when and if they choose to make contact with him. It is possible that may not occur until the children are independent of the mother and they are able to make their own assessments of their upbringing and the events which have defined their childhood. It is likely that one day the children will read the judgments and learn of the Court’s findings. They will also learn of the father’s and paternal grandparents’ commitment to them throughout. It is impossible to predict how they will react and what impact if any this might have on their relationship with either of their parents and other family members.
289It is very important that the mother considers this and takes a long-term view of the children’s best interests to the extent that she is able to do so.
290The children’s views although not free of influence, are at this time firmly held. It would be damaging to them to make the orders sought by the father and paternal grandparents. The children are entitled to enjoy the rest of their childhoods without being the subject of court proceedings and an ever present concern that they may be forced to do something which is contrary to their wishes.
291This is not the outcome which the orders dated 26 August 2014 were intended to achieve, but to date everything that can be done has been done. It is time the children are free from the pressure they both spoke of. The children need a stable environment and an opportunity in which they can develop as adolescents, and importantly they ought to know that their views have been heard.
292I am acutely aware that the orders I propose to make will effectively exclude the father from the children’s lives until they choose otherwise.
293I do not know if the mother will ever find it within herself to encourage the children’s relationship with the father. She may not, and in that event she will be responsible for the consequences of not doing so.
294The time has come to conclude these proceedings and give the children the release from the court proceedings which have endured for the last six years of their lives.
295At the end of the day, the outcome will be that the children will continue to see their paternal grandparents, and enjoy and benefit from their relationship with them.
296I consider the father should be at liberty to write to the children and send gifts at each of their birthdays to enable them to maintain a connection with him in the hope that they will choose to see him in the future when they are ready to do so.
Section 60CC(4)
297I have discussed these matters sufficiently elsewhere in these reasons. Since June 2010 the father has had no opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with or communicate with them.
298The mother has not facilitated the father in the above, again, for reasons discussed herein.
Parental responsibility
299The presumption that it is in the best interests of the children that their parents have equal shared parental responsibility for them is rebutted in the circumstances of this case. The evidence satisfies me that it is not practicable for the parties to share parental responsibility and such an order is not therefore in the best interests of the children. There will be an order that the mother have sole parental responsibility for the children, however, she should inform the father of any proposed decision about a major long-term issue and seek his response thereto.
The children’s living arrangements
300I shall order that the children live with the mother. I shall order that the children spend time and communicate with the father in accordance with their wishes. There will be a further order that the children spend time with and communicate with the paternal grandparents in accordance with their wishes and as may be arranged between the children and the paternal grandparents. Having regard to Child A’s age, I do not consider it appropriate to make orders as to specific days and times she is to spend with the paternal grandparents. This would be unduly restrictive to her and would not accord with her wishes. I do not consider it to be in the best interests of the children to treat them separately and having regard to their close relationship, I do not consider it to be in Child B’s best interests to make orders which require him to spend time with the paternal grandparents without Child A, unless he wishes to do so.
301Having regard to the children’s ages, I consider it appropriate that the father, if he spends time with the children and the paternal grandparents facilitate the children’s attendance at sporting, schooling, social or work commitments during that time.
Miscellaneous matters
302It is in the best interests of the children that there be orders for the provision of information by the children’s school to the father and that the parties keep each other informed as to their residential addresses and contact details.
303I further consider it in the best interests of the children to make non-denigration orders and that there should be an injunction restraining the father and paternal grandfather from consuming any illicit substance while the children are in their care, or for 24 hours prior to spending time with them.
304As to travel the mother proposes to notify the father, within 21 days of her intention to remove the children from the state of Western Australia for a period greater than 21 days. This order is appropriate and the father should know of the children’s movements.
305I do not consider there should be any other restriction on the children’s travel interstate or overseas however, the children should communicate with the father and paternal grandparents while overseas, in accordance with their wishes.
306Both children should have passports to enable them to travel overseas.
307On 10 October 2016 Ms Cohen wrote to the Court offering to meet with the children for the purpose of explaining my orders to them. I am grateful to Ms Cohen for this offer, made notwithstanding the ICL file has been closed. Such an order would be in the best interests of the children. Ms Cohen is familiar with the circumstances of this matter and she has met Child A. I consider Ms Cohen can be relied on to explain the terms of my Judgment and my orders to the children in a sensitive and balanced way.
THE ORDERS
308Subject to hearing from counsel and the father, the orders I propose to make are as follows:
1All previous orders relating to the children, [CHILD A] born [in] 2001 and [CHILD B] born [in] 2004 ("the children") be discharged.
Parental responsibility, live with, spend time and communication
2The children live with the mother and she have sole parental responsibility for all long-term issues in respect of the children, save that the mother shall, prior to making the decision about any major long-term issue:
(a) give to the father notice of not less than 21 days (except in an emergency whereby notice shall be given as soon as possible) in writing of the decision intended to be made and her reasons for such decision; and
(b) seek the father's written response in relation thereto.
3The children spend time with and communicate with the father in accordance with the children's wishes.
4The children spend time with the paternal grandparents as arranged between the children and the paternal grandparents.
5During the time the children spend with the paternal grandparents, if the children have sporting, schooling, social or work commitments, the paternal grandparents will facilitate the children's attendance at such commitments.
6The father be at liberty to send letters and gifts to the children on their respective birthdays.
Provision of information
7This order is authority for the children's schools to provide to the father, at his request and expense, copies of the children's school reports, attendance records, newsletters or other notices issued by the school from time to time.
8All parties are to keep the other parties informed of their residential address, contact telephone number, and emergency contact telephone number within 14 days of any change.
Miscellaneous
9All parties be restrained by injunction and, an injunction be granted, restraining all parties from denigrating any of the other parties or a member of the other parties' family, to or in the hearing of the children.
10The mother notify the father within 21 days of her intention to remove the children from the State of Western Australia for a period of greater than 21 days.
11The father and the paternal grandfather be restrained and an injunction be granted restraining them from consuming any illicit substance while the children are spending time with father or the paternal grandparents or for 24 hours prior to spending time with the children.
Passports and overseas travel
12In the event the children travel overseas for a period of more than two weeks, they communicate with the paternal grandparents by telephone, Skype or FaceTime weekly at time(s) to be agreed and on any other occasions as initiated by the children or otherwise agreed between the children and the paternal grandparents.
13Upon the mother providing to the father a copy of the children's passport applications (for the renewal of the children's passport), the father sign the passport application and return the application form to the mother within 14 days.
14In the event the father does not comply with Order 13, subject to any other requirements of the Department of Foreign Affairs and Trade passports for the children be issued to the mother, and the necessity for the consent of the father to the issue of passports be dispensed with.
15The children's passports are to be held by the mother.
Ms Robin Cohen
16Ms Robin Cohen of Platinum Legal is requested to meet with the children to explain to them the terms of this judgment and these orders and for that purpose a copy of the judgment be provided to her.
The mother’s treatment
17The mother shall:
(a) forthwith do all things necessary to undertake therapy with a clinical psychologist skilled in the application of cognitive-behavioural psychotherapy to the treatment of Post-Traumatic Stress Disorder;
(b) attend upon a psychiatrist periodically for the purposes set out and as recommended by [Dr B] in his report dated 30 October 2014;
(c) attend all appointments with her treating clinical psychologist and psychiatrist and comply with all of his/her recommendations.
18For the purpose of order 17 above the mother has permission to provide both judgments and a copy of [Dr B]’s report to her treating clinical psychologist and psychiatrist.
Procedural
19All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
20In relation to material tendered as an exhibit into evidence in these proceedings:
(a) all parties must collect the exhibits tendered by them (“their exhibits”), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today’s date;
(b) all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits;
(c) in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.
21In the event of an appeal being lodged prior to the expiration period of 42 days, orders 19 and 20 above do not apply.
22All extant applications be otherwise dismissed.
I certify that the preceding [308] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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