MARTIN & MARTIN

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARTIN & MARTIN

[2013] FCCA 1698

Catchwords:
FAMILY LAW – Parenting – whether or not the children have been alienated from the mother by the father – whether or not the children have been abused in the mother’s household – whether or not the children have been psychologically abused by the father – the role of religion – interim orders made to be reviewed in 6 months time.

Legislation:

Family Law Act 1975, Pt.VII, ss.60B, 60CA, 60CC, 61DA, 64, 65D, 65DAA

Waterford & Waterford [2013] FamCA 33
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR & GR [2010] HCA 4
AMS & AIF (1999) 24 Fam LR 756
Goode & Goode (2007) 36 Fam LR 422

Applicant:

MS MARTIN

Respondent:

MR MARTIN

File Number:

DNC 355 of 2008

Judgment of:

Judge Harland

Hearing dates:

23, 26, 28 & 29 August 2013

Date of Last Submission:

29 August 2013

Delivered at:

Alice Springs

Delivered on:

23 October 2013

REPRESENTATION

The Applicant:

In Person

The Respondent:

In Person

Counsel for the Independent Children's Lawyer:

Ms Elliott

Solicitors for the Independent Children's Lawyer:

Elliott Barristers & Solicitors

ORDERS

That all previous parenting orders be discharged.
That the mother have sole parental responsibility for the children [Y] born [in] 2001 and [X] born [in] 2000.
That the children live with the mother.
That the children spend no time with their father for six months.
That the father be restrained from attending the children’s school.
That the father be restrained from allowing any of his family members and friends, including his wife and Mr W, from contacting the children by any means whatsoever.
That in the event the children do not leave court with their mother today, Order (8) will come into effect.
That a recovery order do issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)Find and recover the said children [Y] born [in] 2001 and [X] born [in] 2000;
(b)To stop and search any vehicle, vessel or aircraft; and
(c)To enter and search any premises or place in which there is at any time reasonable cause to believe that the said children may be found.
That the children are to be delivered to MS MARTIN (the mother) or to some other person(s) she nominates in writing to receive the children on her behalf at such place as the applicant mother and officers giving effect to the Recovery Order may agree.
That MR MARTIN (the father) is prohibited from removing or taking possession of the children.
That if MR MARTIN removes or takes possession of the children, he may be arrested without a warrant.
That the Recovery Order remains in force until the children are recovered pursuant to this order.
That the Recovery Order is to be re-executed without application at any time if necessary within a period of six months from the date of this order.
That the mother do all acts and things to sign all documents necessary to cause the children and herself to attend for family therapy, which such therapist to be nominated by the Independent Children’s Lawyer within seven days and thereafter the mother will cause the children to attend at such frequency nominated by the family therapist.
That the father is restrained from interfering with the family therapy and shall do all acts and things necessary to cooperate with the family therapy.
That in the first instance the mother shall be responsible for the whole of the costs of children’s therapy.
That the father shall reimburse the mother for one half of the therapy within seven days of receiving the invoice.
That the Independent Children’s Lawyer and the Family Consultant explain the nature of these orders to the children today.
That the Independent Children’s Lawyer may provide a copy of this judgment to:
(a)The children’s family therapist (together with the expert reports prepared in this case);
(b)The Australian Federal Police, the Northern Territory Police and the Office of Children and Families.
That the mother is at liberty to provide a copy of the orders (not the judgment) to the children’s school.
The father is at liberty to provide a copy of the judgment to any counsellor he sees for therapy in relation to the issues raised in this judgment.
That the matter be listed for mention on 13 May 2014 at 9.30am to review the following:
(a)The progress of the children’s therapy;
(b)Whether or not orders should be made for the father to spend time with the children;
(c)What conditions, if any, should be placed on the father’s time with the children.
That the Independent Children’s Lawyer have leave to relist the matter at short notice.
That pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Martin & Martin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 355 of 2008

MS MARTIN

Applicant

And

MR MARTIN

Respondent

REASONS FOR JUDGMENT

Introduction

This is a very difficult case. The mother initially commenced proceedings by filing a contravention application in May 2012. This application was discontinued in November 2012. She filed an initiating application in September 2012. The parenting proceedings concern what is in the best interests of [X] born [in] 2000 and [Y] born [in] 2001.
The mother alleges that the father has alienated the children from her. As will be seen from the rest of this judgment I am satisfied that this is the case.
The respondent father is seeking an order that the children live with him 100% of the time. He says the mother abused the children. He seeks to assure the court that if the children get what they want they will see their mother at his encouragement. He is essentially asking the Court to trust him.
The mother seeks orders that the children live with her and spend no time with the father and his family for a period long enough to enable her to re-establish her relationship with the children and with the assistance of a family therapist. The mother acknowledges that this will initially be very difficult for the children and herself but is confident her relationship with the children can be restored.
Neither parent was legally represented at the final hearing. The Court was considerably assisted by the Independent Children’s Lawyer, Ms Elliot.
Although unrepresented, and clearly nervous at times (as is to be expected), both parents were able to present their cases and cross-examined each other, the supporting witnesses and the experts.
The parties separated in 2005. There were proceedings in this Court in 2008.
The orders made in 2008 provided for the children to live primarily with the mother and spend substantial and significant time with their father.
Both parties filed case outlines. I have considered those outlines and the documents they relied on.
In accordance with the interim orders made on 8 December 2012 the mother has been attending supervised visits with the children at CatholicCare once a week. Those visits have not been successful.
On 18 December 2012 the father was ordered to nominate three psychologists to provide counselling to children. He did so and the mother chose Ms C in accordance with those orders.
Both parties provided evidence that they attended Anglicare Resolve.
Orders 11, 12 and 13 of the orders made on 10 December 2012 are significant. The father has breached those orders.
All findings of fact in this case have been made on the balance of probabilities.

The mother’s evidence

The mother relied on her affidavit sworn and filed on 24 June 2013. The mother believes that the father had alienated the children against her. She says the children have used grown-up phrases such as they don’t believe her home is a “good environment for the children”, the mother believes that this is coming from the father. She says both girls, but particularly [X], is very defensive of the father whenever he is mentioned. The mother says this has concerned her as she has always tried to maintain a situation where the girls could feel that both their parents love them very much.
She says [X] told her that she does not want to live with her because she does not provide a good environment for her and her sister as she smokes and sometimes swears. The mother complains that the father has repeatedly told her and sent her texts saying she is a “rotten woman with a rotten heart” and has told her that she is not going to Heaven, because she no longer attends church.
The mother expresses her concern about the letters that the girls have written about what she refers to as the father’s “religious brainwashing” of the children. She says the children have told her in the past that smoking is evil and that she needs to repent in order to get into Heaven. She says that over the years the father has sent her many texts messages along those lines.
She attended the father’s home in May 2012 to collect the children and says she was not allowed to see them, the father threatened to call police.
She said that this time she rang and spoke to Ms V who is the mother of the father’s two older children [A] and [B]. She says Ms V told her that she was concerned that the father had influenced [X] and [Y] against their half siblings by telling them they are going to hell because [A] was living with her boyfriend who was not a Christian and [B] is not going to church.
The mother collected [Y] from her primary school on 21 May 2012. She took [Y] to see Ms K. She says that [Y] told her she enjoyed the session with Ms K.
The mother annexes a transcript of a phone call and a series of text messages between [Y] and her father which she discovered after the maternal grandmother told her [Y] had brought a mobile phone from her father’s home. I will refer to these in some detail later in this judgment.
She says that the father told her that the only good thing she has done is to give birth to the children.
The mother spoke to [X] on 19 August 2012. She says that [X] told her that they did not want to have anything to do with her until their father had 100% custody of them.
She expresses concern about [Y] reporting to Mr R a distorted version of events with respect to a box jellyfish sting.
The mother also expresses concern in her affidavit about the level of involvement the children have in these proceedings. She says the father has shown them text messages she has sent the father and that the children know about things the mother has said in her affidavits filed during the course of these proceedings.

The mother’s oral evidence

The mother gave evidence that the children grew up in a Christian household when the parents were living together. She denies the father’s characterisation of her as someone who brought Christians into the church. She says she cared about people. The mother is still a Christian. She no longer goes to church but this does not mean she is no longer a Christian. She stopped going to church in 2011 when she started working two jobs so she could save for a trip with the girls to Canberra.
The mother says she continued going to the same church the parties went to when they were together which was [name and location of church omitted]. She says the father has gone to several different churches since 2005. She says she is baffled as the churches she has gone to have not preached the kind of judgments the girls have expressed to her.
The mother agrees the children have a strong religious faith. The mother allowed the father to take the children to church at their request on her weekends unless the mother had other plans.
The mother is concerned that the religious beliefs the girls are being taught are distorted. She says she supports them being Christian but wants them to receive counselling to address their distorted beliefs and restore her relationship with them. If the girls are returned to her she plans to take them away initially.
The mother says that if the girls are returned to her she will be able to make arrangements with her work to be able to be at home for the girls after school. This is something they like about their father’s home. Although their father works shift work their step-mother is at home after school.
The mother said that the if the children remain living with their father and they say they don’t want to see her she will respect that but wants to keep informed of their lives by receiving school reports and keeping in touch with their progress.
The father cross-examined the mother. He asked about the mother’s second marriage and said the children wanted to know. I warned

Mr Martin that he should not relate to the children what has happened in court as that would be highly inappropriate. I told him that the best approach would be to tell the children as if they have questions about the mother they should ask her.
A repeated theme by Mr Martin throughout the hearing was that he had to go on what the children had told him. The father appeared unable to accept that the children may tell him what he wants to hear rather than what actually happened[1]. He also complained that CatholicCareNT’s notes were inaccurate because they did not reflect what children had told him[2].
[1] Transcript dated 23 August 2013 page 44-5
[2] Transcript dated 23 August 2013 page 45-6
The father asked whether or not the mother thought that the children call her a devil because she is the devil or because of her character, given she is now smoking and drinking. This is an example of the father’s lack of insight. The reasoning behind the name calling is not important. The critical issue is the fact that the girls refer to their mother that way.
The father also stated that as recently as the night before he had queried the children about issues including whether or not the mother and grandmother had smoked in the car.
The mother agreed during cross-examination that she handed the passports to the children when the father collected them. Unfortunately this is likely to indicate to the children that the arrangement was permanent. The mother says she wanted to ensure the children had ID.
The father asked the mother about brainwashing, the mother answered that she feels the father has been alienating, brainwashing and manipulating the children. The father says his family and the children and friends have been praying to her “for the good outcome” and he asked if his character features that of a brainwashing manipulator and alienator of the children. He pointed to his comment in his affidavit that he is endeavouring to restore the relationship between the mother and the children. The mother replied that saying and doing are completely different things and that she does not believe that he is encouraging the children to restore their relationship with her.

The mother’s supporting witnesses

The mother relied on an affidavit filed by her mother Ms S on 20 November 2012. She denies that the children were kicked out of their home. She says she and the mother only smoke outside. Ms S also says that the mother rarely drinks alcohol. She says she did not drink to the extent the father claims and points out that the father would not know what her drinking habits are. The father did not cross-examine her about his allegations that she has stalked his family.
Ms S was cross-examined. She confirmed the mother’s version of events with respect to the argument the mother and [X] had on the evening on 12 April 2012.
Ms S confirmed that she looked after the children from after school until their mother came home from work. She says they did not mention anything about wanting to live with their father. They seem normal and content. I accept her evidence.
The mother also relied on an affidavit of Ms R filed on 24 June 2013. Ms R is a close friend of the maternal grandmother and has spent regular amounts of time at her home where the mother and the children also lived in for many years. Ms R says she never observed any behaviour which was indicative of abuse or neglect and the children appear to have warm and loving relationship with both their mother and maternal grandmother.
Ms R was cross-examined. She said she knows the girls well and the girls were happy and never saw any signs of abuse. I accept her evidence.

13 April 2012

The events on 12 and 13 April 2012 are significant as they lead to the girls living with their father full time.
12 April 2012 is when things really came to a head. The mother says that she was trying to be considerate of [X]’s wish to live with her father and said that if that was what she really wanted that she could. The mother says she spoke to [Y] about this as well and told them that whilst they were staying with their father she needed them to think about the decision. The mother says she also told them that they could come home whenever they wanted to. She says that at the time she thought this was the only way to defuse the situation which was extremely upsetting. The mother says this arrangement was only meant to be temporarily and she categorically denies kicking the children out of the house.
The mother delivered a letter to the father on 20 April 2012. She says that when she delivered it she also spoke to the girls privately and she told them that the situation was temporary and that they would live with the father for a month and they should use that month as a break to think about things and that when they returned they could discuss the issues. The mother said she told them that she would take their wishes into account.
The mother says that on the night of 12 April 2012 she and [X] had an argument. The argument was because the mother wanted [X] to ring the father to confirm contact arrangements for the holidays and [X] did not want to. This was an example of poor judgment by the mother. It is not appropriate to have children act as go betweens in these types of matters. [X] told her mother she wanted to live with her father. The mother checked with [Y] and she wanted to follow her sister. She says she let them go to try and defuse the situation. She told them to think about it overnight. They still wanted to go in the morning. The mother says she did not indicate how long it would be for. It was another mistake in judgment for the mother to give the choice to the girls. She admits she told them that she thought it was best that they not see or call each other for a while. The mother says she told them that this would always be their home and they should use this time to think about what they wanted. She told them she would talk to their father.
The mother categorically denies kicking the girls out. She says she never told them they could not come back.
The mother says she and her mother were at the back door. The father came to the front door and did not come into the house. The mother did not see Mr W who had accompanied the father. Mr W’s evidence does not assist as he could not remember the sequence of events.
With respect to the incident on 13 April 2012 father says he heard 80% of what the mother said that was why he needed clarification from [X]. The father conceded that there have been previous occasions when he has collected the children to spend time with him when they have been emotional with lots of hugs and kisses and tearful goodbyes. He says he has every right to lavish love upon his children in whatever way upon the children as they are a blessing to him.
Mr W was cross-examined about that day. He went with the father to the mother’s home on 13 April 2012 to collect the girls. He said the girls were distressed and upset when they came to the car the father said to the girls that the mother said “Take your things. Never come back, never contact me or SMS me.” The father then asked the girls if that was what the mother said. Mr W was uncertain if that was the sequence of events as to whether the girls relayed what their mother said and father confirmed it or whether it was the other way around.

I accept the mother’s evidence that she did not tell the children that they could not come back. However from her own evidence it is conceivable that the girls thought their mother was telling them it was permanent. I do not accept the father’s evidence where it conflicts with the mother on this issue.

The father’s evidence

The father’s case outline refers to the children suffering emotional and physical abuse inflicted by their mother in around 2006.
The father relied on three of his affidavits filed during the course of the proceedings. Those affidavits were filed on 26 July 2012, 25 March 2013 and 31 July 2013. The father’s affidavit mostly contained argument and submission not evidence.
The father also relied on the notice of child abuse family violence form which he filed on 5 November 2012. In that form he states that the allegations in his affidavit are based on stories the children told him. He also says that for a period of six years or more the children told him after they came to live with him that they have been smacked across the face causing bleeding in the mouth, forced to eat a bar of soap, being hit on the upper chest and the ongoing grounding of the children in their bedroom.
The father’s affidavit of 25 March 2013 is only a page and a half. It is in the nature of a submission rather than evidence. It talks about the girls not wanting to live with their mother because her lifestyle is not “based on Godly principles any longer, resulting in palpable tensions leading them to being denied the freedom to worship God in her home.” He also complains about psychologist Ms C. He talks about the children having the right to choose and that they should not be forced against their will to “comply with other options”. He refers to the orders that he seeks which include the children considering spending time with their mother once she has apologised to them for “the harsh treatment given to them which caused the break in their relationship”. The father also talks about that in the event of the children being ready to visit their mother that a wholesome atmosphere be guaranteed and says for example they should not be exposed to smoking, bad language, intoxicated guests or bad attitudes. He also sought an order the children not be required to undergo any form of therapy as “they have displayed a loving and respectful attitude towards the mother and a high level of maturity in the decisions they have made.”
The father’s affidavit sworn and filed on 31 July 2013 is more detailed. He said that after the last few court appearance in April 2013 [X] told him more about the alleged abuse they suffered when living with their mother in [omitted]. He says he did not include this information in his previous affidavit as he only received this information and “I immediately questioned my youngest daughter about the report and she confirmed it.”
He complains about the mother and maternal grandmother stalking his wife and the children. He did not cross-examine the maternal grandmother about this.
In his affidavits the father complained at some length about Mr R, including that he was biased against him. He also justified the use of the children’s word “evil” to describe their mother. He claims that

Mr R told him that the children chose to live with him after the first report. I do not accept the father’s evidence on this point. The father did not take up the opportunity to cross-examine Mr R with respect to his complaints about him even though he was given the express opportunity to do so.
The father also complains about Ms K and Ms C. Again his affidavit is more in the nature of submissions rather than providing the court with evidence. He complains that therapists have failed in their duties. The father denies interrogating the children. I find that he does interrogate the children and I will address this is further details later in the judgement.
He goes on to criticise the mother saying that she “use to be a child of God when we were a family and she brought many people to Christ, but now she chose the lifestyle that is to the opposite which raises many questions…”. He complains that she remarried and did not change her surname. I pointed out to him that this is not unusual particularly where there are children as mothers often want to keep the same surname as the children.
The father again complains that the six years or more the children were subjected to poor parental management from the mother. If this was the case the father would have made an application to the court before now.
The father’s evidence with respect to the allegations of abuse is inconsistent. On the one hand he says he did not raise allegations until recently because he says he did not know about them. However it is clear from the 2008 family report that he was making many of the same allegations back then.
On the first day of the hearing the father complained that the CatholicCare records were inaccurate. He said he based this on his conversations with the girls. Towards the end of the day it became apparent that the father had not inspected the documents produced by CatholicCare. It is concerning that the father would make serious allegations when he has not looked at the evidence. The CatholicCare notes were tendered and marked exhibit “ICL 4”. Having read those records I am satisfied that the supervisors acted appropriately and professionally. At times the girls’ behaviour was clearly challenging.

The father’s oral evidence

Ms Elliot asked the father about the statements by the girls dated 4 October 2012 annexed to his affidavit. They are addressed to “Your Honour”. The father said the girls asked him what to call the Judge. He agreed that this happened after he received Ms D’s report and the recommendations she made. The father claims that he unintentionally involved the girls. I do not accept his evidence. The father has blatantly involved the girls in these proceedings, not just once but on many occasions, including after he had been warned on several occasions about the harm the girls would suffer by being involved in the proceedings. The father places a lot of emphasis on what the girls say and distances himself from it but saying that it was what the girls say not him.
The father claims that on 13 April 2012 he heard the mother tell the girls never to come and not to call or visit. He says [X] confirmed it. I do not accept the father’s version of events.
The father says he told the girls they were making it harder for him and that they had to tell him something. It is of no surprise that the girls’ then start telling the father what he wants to hear by saying their mother hurt them[3].
“…
ICL:See, you didn’t let them see their mother, either. It wasn’t – you didn’t even let them go for lunch or dinner to their mother’s, either, did you?
Mr Martin:Like I said ..... [first name omitted], it was not my call.
ICL:Whose call was it?
Mr Martin:They asked me to protect them because something did happen. So I said, “Okay. I’m going to follow this up properly so that I won’t get in trouble. So I have to go and see the authorities, see what my options are, because I don’t want to get caught, because there is a – a court order is – is in place.”
[3] Transcript dated 26 August 2013 page 113
…”
The father conceded that the children love their mother[4].
[4] Transcript dated 26 August 2013 page 114
“…
ICL:Then why can’t they see her?
Mr Martin: Okay. The reason why is this: that love to them is because she gave birth to them, but they don’t like what she does, or she did.
…”
The father claims that he encourages the girls to see their mother but that they tell him they are not ready to see her. The father went on to say that if they don’t see her they will get him into trouble. He confirmed this and said that is “exactly” what he says to them. The father did not accept that by saying this that the girls might say negative things about their mother to please him.
The father was then asked questions about the girls’ beliefs. Initially when asked where the girls would have learned that a person who smokes and drinks won’t go to heaven, the father said he was not the only one hanging around them. As he was asked further questions on the topic it was clear that the father holds this belief himself. He considers drinking and smoking to be ungodly. He was then asked if he thinks it is worrying for the girls to think that their mother is going to hell. He replied that that was why they pray for her every day. He appeared to lack any appreciation for how distressing that must be for girls.
It is clear from the notes the girls wrote a year ago that this is what the girls were thinking but he has not addressed it with them in any meaningful way. The father says “it is the bible’s word, not his that says things are either from God or the Devil”. He tried to downplay the girls’ references of their mother being evil like the devil by referring to the reference to the devil in the media.
He acknowledged that the girls think that their mother and maternal grandmother are not going to heaven but says he does not think that. The father was not able to give a coherent answer as to how he is addressing that. He then said that the girls were “not exactly 100% wrong”. He went on to say that is why they pray for them every day. Just one of the prayers is for them not to go to hell. Another is that the mother changes “to be a much better person”.
The concerning aspect of this evidence is that by praying for the mother and maternal grandmother every day in this way. The father tried to distance himself from this by saying that they pray generally and that he does not tell them what to pray for. I do not accept this.
The father would not accept that the girls’ loving their mother is different to loving a Christian on the street. His evidence in this regard was quite extraordinary. The court can have no confidence that the father will encourage the girls to have a meaningful relationship with the mother despite his protestations to the contrary.
The father’s case is essentially that once the proceedings have ended he will ensure that the children see their mother. When pressed his evidence is clear that he will not force them to see their mother.
It is clear from the father’s answers during cross-examination that whilst he would formally comply with an order to take the girls to therapy if the girls live with him he would likely sabotage the therapy as he has done previously.
The mother then cross-examined the father. The father claims that he rang up the Department of Children Services and police stations with respect to the alleged abuse. The father has not provided any independent evidence of this and I am not satisfied that he did so as long ago as 2008. The father then said that she was emotionally not physically abusive which contradicts evidence in his affidavits.
In answer to the fact that in Mr R’s 2012 report he says there is little to substantiate the claims of abuse and points to the children’s conflicting versions. The father simply says that the information is coming from the children and that he is not putting words into the children’s heads as others are claiming. The father says that there can’t be fire without smoke. He says as the girls are asking him to protect them there has to be something to it and that the mother is denying everything.
The father was clear that there are some things the children have to do even if they don’t want to such as going to school but when it comes to following court orders “this is a bit sensitive”. He says he can follow the court orders but he cannot speak on behalf of the children.
The father says that the maternal grandmother had been stalking his family and particularly his wife. He failed to ask a single question to the mother or maternal grandmother about this. The grandmother is a [occupation omitted] which is next door to the [omitted] where the father’s wife works. The father conceded that he could not offer any alternative explanation to the children or his wife thereby encouraging more fear and suspicion of the maternal grandmother. The maternal grandmother did not approach the children or the wife on these occasions.
The father says that if the court makes a finding that no abuse took place when the girls were in the mother’s care he will find that very hard as he says he knows the abuse took place.
The father conceded that he has sent the mother text messages calling her a rotten woman with a rotten heart and telling her that she will not go to heaven because she does not attend church.
The father also acknowledged sending the mother a text message before the children came into his care on 5 April 2012. The timing and content of the text message is significant. It says:
“[first name omitted], the children in the world know that you have one rotten heart especially God. Repent from your wicked way. This is a warning to you from God through me. Stop showing like you are in control. There will be time you will say sorry to God and I know it is coming so soon for you. Repent if you want to go to heaven.”
(The mother says the father deliberately spells her name as [omitted] rather than [omitted] to indicate she is a low person).

Transcript of conversation between the father and the girls and text messages

The father confidently denied that the mother’s transcription of the recorded conversation which was annexed to her affidavit was accurate. After the recording was played in court it was clear that the transcript was accurate. The father’s ability to deny the accuracy of things in the face of clear evidence is concerning[5].
[5] Transcript dated 26 August 2013 pages 132-5
The text messages are also concerning because the father required [Y] to justify to him why he should collect her. The Independent Children’s Lawyer cross-examined him about this issue[6].
[6] Transcript dated 26 August 2013 page 139
“…
ICL:there’s some texts about “can you call me on my mobile phone”. “Dad, pick me up”. Now, you say to her on page 5, you’ve texted this: “Give me your reason why you want to come to dad”, right. And this is the answer: “I need you and you mean everything to me and your love is deep”. [Y] said that to you on a text. Do you remember that?
Mr Martin: Yes.
ICL: Yes. You then say, “You must give me a better excuse why you want to come to me”, and she says, “You are the best thing that every happened to me and I’ll do anything to live with you”. Do you remember that?
Mr Martin:Yes.
ICL:Why did you need a second reason?
Mr Martin:This is assurance. It’s just the main thing for a father.
ICL:Assurance for you?
Mr Martin:Yes, just making sure that is this what’s she’s seriously saying what she wants to ‑ ‑ ‑
ICL:Yes isn’t enough? She has to say you are the best thing that every happened to me. She has to say that?
Mr Martin:Well, at the time, yes, I need it.
…”
The father’s focus was on his own needs above his children’s. The father was asked about a note [X] wrote to her mother and maternal grandmother where she referred to leaving the house because she wanted to but that she loved both her mother and grandmother and would see them soon. The father was insistent that the girls said these things to keep their mother happy and that they told him that it was not in their hearts. He would not accept that the girls could be telling him what he wants to hear. The other concerning aspect of the father’s evidence on this point is that he challenged the girls about the letters and asked them if they meant what they said.

Equal time agreement

The parties attended mediation in 2010. They reached agreement on a week about arrangement. The mother wanted consent orders made reflecting the new arrangement. The father insisted that the agreement reached at mediation was not to involve court at all.
Exhibit “M2” is the handwritten agreement dated 6 March 2010. Paragraph [7] of this agreement states that the agreement will not take effect until the current orders are amended. Again the father’s evidence did not stand up to scrutiny when he was shown the document.
In his written evidence the father says the girls told Mr R in 2008 that they wanted to live with him. This is not what Mr R says and I accept his evidence over the father’s.

The father’s supporting witnesses

The father relied on three witnesses in his case.
The father relied on the affidavit of Mr W sworn and filed on 30 July 2013. His affidavit refers to history of his relationship with the father and his family and their Christian worship. He talks about observing the girls to be truthful and honest and fully exemplifying “the Christian principles they have both embraced.”
Mr W says that the girls had told him before 12 April 2012 that they wanted to live with their father. Mr W also revealed that he had seen the reports, at least by Ms C and Mr R’s most recent reports.
Mr W also said that young children do not fast in the church and that there should be no pressure on anyone to do so as that would be legalism which he says has no place in a “genuine Christian environment”. He said that the fasting could be more of a family matter rather than a church matter.
Mr W has also seen the prayers the girls have written. It is clear that

Mr W is closely involved with the father and his family and has given assistance to the father in these proceedings. The Independent Children’s Lawyer asked Mr W if there was a practice in his congregation that people who live ungodly lives are to be shunned. His answer was “absolutely not”.
Mr W was asked if a court ordered the girls live with their father and see their mother could he see the girls visiting their mother knowing the father as he does. Mr W replied that he could not as it was question of knowing the girls as he does that to him that would be going backwards to prescribe visits with their mother.
The father and Mr W complained about the girls not being able to attend the father’s wedding and be flower girls. The mother says she was only given a few days’ notice and that she already had arrangements which she could not change. Mr W conceded in cross-examination that he was not aware of that as the father had only told him that the mother did not let the girls attend. It is clear that Mr W is an advocate for the father’s cause.
Ms O also swore an affidavit which was filed on 31 July 2013. She is a Children’s Ministry coordinator at the church that the father and the children attend and she talks about the father and his family being devoted members of the church and that the girls are committed members of the church and are involved in every ‘kid’s church’ activity and program. She talks about the father’s wife loving the girls as if they were her own children.
Ms O was cross-examined. She sees the father and his family at church and sometimes at their home. She confirmed she would be surprised to hear that the children were rude to their mother. The children have asked her to pray with them that they may remain living with their father.
Ms O said the church does not teach that the person is evil, it teaches that the habit is not right. She said if the children came to her and said their mother is evil like the devil she would tell them not to say that and that their mother is their mother no matter what she has done and they should love and forgive her. She said she would be concerned to hear children say that about a parent. She was an impressive witness.
The father’s wife Ms M also swore an affidavit filed on 31 July 3013. She met the father and the girls in July 2008 in Indonesia. She married the father in November 2008 and complains about the mother preventing the girls from attending the wedding. The father also complained about this in his affidavits. The mother’s explanation to this is that she was given very short notice.
Ms M says that the girls were always begging her husband to ask their mother if they could stay longer with him. She complains about the mediation, where the parties agreed to enter into an equal time arrangement but that this did not happen because the mother wanted court orders reflecting this. She says “the children were so disappointed with their mother”. She also refers to the girls telling

Mr R in their first interview that they wanted to live with their father full time. I have no doubt that this is what she has been told and that it is wrong.

She also said “the children had expressed that if their mother had taken some measures to repair their relationship, then the children would want to re-establish contact with her.” This is a sentiment that the father has expressed as well which is somewhat problematic as it assumes that the mother has acted in such a manner that requires forgiveness. It also seems implicit that she would have to embrace their style of Christian worship because to not do so would mean that she would continue to be “ungodly”.
The father’s wife was cross-examined. She was critical of the mother not implementing the 50/50 agreement reached at mediation. It is significant that she did not know that the father had agreed at the mediation that he would get consent orders made reflecting the new agreement. This is an example of the father’s manipulation and control where he allows his wife and children to blame the mother unfairly.
It is clear that the father has also told his wife that the girls have wanted to live with him full time since at least when they were interviewed by Mr R in 2008. This is clearly not correct. She did not believe that the father said that the court orders have no power when it was put to her. She said she did not know about [Y] fasting so that her father would not go to jail. She said it was the girls’ decision and not their father’s position that they remain living there. Ms M conceded that it is not good that the girls refer to their mother as being evil like the devil and she says they pray for their mother to repent. She says when the girls say negative things about their mother she encourages them to pray for her. She said that if orders are made the girls must spend time with their mother they will encourage the girls but will not force them.
Ms M agreed that the father has two other children living in Melbourne who they have not seen since 2008.
Ms M gave her evidence as best she could. It is clear that the father has been selective in what he has told her. What the girls told Mr R in 2008 and the 2010 mediated agreements are two obvious examples. Naturally enough she believes what he husband tells her and supports him.

The role of religion

The mother says that the father has sent text messages to her telling her she needs to repent or she will go to hell and that she is evil. He sent the text message some time before 12 April 2012 in the first part of that year.
It appears to me that the messages the girls are interpreting from their religion are distorted and negative. I am satisfied that the father has encouraged the girls in this belief as it suits his purposes.
It was telling that one of the father’s own witnesses’ Ms O, was concerned about the children’s views and was unaware of it. Given her position in the church she is well placed to know the proper teachings of their church.

The notes by the girls

One of the concerning aspect of this case is the level of the girls involvement in the court proceedings as evidenced by the statements the girls have made addressed to the court.
Letters written by the girls were tendered “ICL3”. These letters are disturbing to read. [X] refers to their mother being nice in public but like the devil at her home. [X] says that in their daily prayers their father often asks them to pray for their mother to be a better person. [X]’s letter is addressed “dear your honour” and she expresses hope that I will agree with her. [Y] addresses her letter the same way. She also put her thumbprint on it. [Y] talks about her father being the best thing that has ever happened to them and about how everything would be fine if their mother just left them alone. [Y] talks about not being happy at her mother’s home from day one. She then lists the things she says her mother has done wrong. The letters were undated but were annexed to the father’s affidavit filed on 26 July 2012. The complaints the girls refer to are the same as have been ventilated elsewhere.
The second letters addressed to the court are dated 4 October 2012. [X] refers to her mother and as having previously been a godly person. [X] complains about the mother being quick tempered, smoking, drinking, swearing, being violent and lying to them. [X] talks about the mother not being fit to look after them. Towards the end of the letter she writes that the court needs to know that her “wonderful family” will be going to Japan and that they need their mother to cooperate otherwise she would waste their father’s money and “cause further scars in our hearts”. Again this is suggestive of inappropriate involvement in the adult dispute particularly with reference to the holiday and their father’s savings. [Y] refers to her mother abducting her from school. She also refers to their mother refusing to find the passports and refers to “poor daddy, he already booked the tickets”. [Y] also refers to her mother as not using her new husband’s surname. She refers to her mother screaming down the phone when she was talking to her father. Presumably this is referring to the phone call which was recorded where there was no screaming at all. [Y] refers to her father being a hero and ends the letter by saying we demand to live with dad 10,000%.
The final letters were written over the weekend during the course of the final hearing [X]’s statement is a series of complaints dating back to 2007. [Y]’s statement is similar. It includes the complaint about the mother not letting her go to church with father in 2012 but omits the fact that it was the mother’s birthday that day and she had made plans. Both complain about the mother lying and smoking.
The father was cross-examined on Monday morning. He produced two more statements by the girls which he says they did over the weekend[7]. He was cross-examined.
[7] Transcript dated 26 August 2013 page 102-4
“…
ICL:When were these written?
Mr Martin:These were written in the weekend, based on what I had asked them truly was there anything major happen or anything they could remember of – in the sense of their mother have hurt them in whatever way that I need to at least share with the court.
…..
ICL:And the case started on Friday?
Mr Martin:They start writing I don’t know when, because I just said – I just said to them, “Just take your time. Remember, try to dig as much as you can, because I need to present this to the court.”
ICL:Yes. And you asked them to write it down?
Mr Martin:Yes. I didn’t help them. They just ‑ ‑ ‑
ICL:Right?
Mr Martin:‑ ‑ ‑ in their room, and wrote this down.
ICL:And you asked them to remember?
Mr Martin:I just said, “Just be in your room, try to dig exactly –” well, just whatever they can remember of what took place.
ICL:And so on Saturday or Sunday you told them that you were in court and that the court was hearing the matter?
Mr Martin:I didn’t say that. I just need some information to say that anything at all happened to you guys because I need the information.
ICL:Yes because you were in court?
Mr Martin:I didn’t say I was in court.
ICL:Well, where did they think you had been on Friday?
Mr Martin:Well, I didn’t tell them that I was in court. I just said I need the information.
ICL:But you told them that you needed it to tell the judge?
Mr Martin:I just need the information to tell the judge. From there they can go that I was in court, but I – yes.
ICL:Okay. So do you remember what exactly you said? Is what you said now exactly what you said to them – can they remember, can they write it all down?
Mr Martin:I just said I need some information because something had happened, but I didn’t provide enough information. I just remember back is there anything that you can share with me what to place in ....
ICL:Okay?
Mr Martin:So something had happened, but it didn’t tell me enough.
ICL:Okay. So in one way – I will rephrase that. So this is the sum of the complaints of the children against their mother. Is that what you understand this to be?
Mr Martin:As far as I know they were just providing me with information. I can’t remember back. I’m not telling them exactly what happened. I just said sit in your room, just remember back.
ICL:Yes. I understand that, but you were asking them to remember everything negative that happened at their mothers?
Mr Martin:Anything that would hurt them emotionally or any physical abuse, something in that strain – but don’t make it up. I said it has got to be factual.
ICL:And for the purpose of telling the judge?
Mr Martin:Simply – I didn’t tell them this, but in my observation when I cross-examination the mother, the mother indicate that nothing at all happened. So that doesn’t make no sense to me.
…”
The father arranged for the girls to see Ms D. Paragraph [6] of her recommendations:
“That parents and significant others not to place the children in the middle role by soliciting information about the other parent...”
The father was cross-examined about this. His answers are telling[8].
[8] Transcript dated 26 August 2013 pages 104-5
“…
ICL:Do you remember that?
Mr Martin:Well, if it’s written there. Yes. Well, I totally agree with that.
ICL:Yes. Well, what were you doing on Saturday?
Mr Martin:Well, what I was going to achieve there was that – to justify that there was something actually happened that is beyond my control. It’s them, and, yes, I have been supporting the girls, not forcing them to get some sort of information about them. It’s just that I need some sort of evidence, but it has got to be factual evidence, not making it up just to please me.
ICL:Mr Martin, on Friday a psychologist, Ms K, gave evidence. Do you remember that?
Mr Martin:Yes.
ICL:Do you remember what she said about anxiety in your girls?
Mr Martin: Yes.
ICL:What did she say?
Mr Martin:Well, anxiety like what they just described. I mean, they’re not happy. They’re ‑ ‑ ‑
ICL:Do you remember what she said that [Y] told her? That she had been anxious since the separation? Do you accept that?
Mr Martin:Yes. I can understand why she’s anxious. I mean, the two parents are fighting and it’s not healthy for them. I know that.
ICL:And if you ask things about the mother, that heightens the anxiety. You would agree with that?
Mr Martin:I wouldn’t agree to a certain extent.
ICL:To what extent?
Mr Martin:Well, things are described here in court isn’t exactly what happened at home. They are perfectly happy. Like I said, if you need anything we will let you know, but I said I’m not going to force you any information out.
ICL:Yes, but can I just ask you this? Why are you discussing the court with them? I don’t know what that was. Why are you discussing the court with them?
Mr Martin:I just simply asked for some sort of evidence that that ‑ ‑ ‑
ICL:Why?‑‑‑
Mr Martin:Because this is beneficial for the court to know exactly what ‑ ‑ ‑
ICL:What about beneficial for the girls?
Mr Martin:Well, this is towards their interests as well at the end.
ICL:You have read the report of your own psychologist, the one you paid for who said don’t do this, and you’re doing it anyway?
Mr Martin:Well, I don’t know what else to say, [first name omitted]. In cross-examination, I mean, I know the judge already read all my affidavit, but to say that there’s nothing happened. I simply – I wasn’t even – I said, look, there has got to be some sort of evidence, more stronger evidence to say that something has actually happened.
ICL:So you were looking for stronger evidence than has been before the court?
Mr Martin:Because they have never provided such strong evidence because I never forced them to report anything. I was there just to comfort them.
…”
These exchanges are concerning as it shows that the father is willing to involve the children in the proceedings despite the advice he has received about how damaging this is to the girls and in breach of court orders. It is clear that the father has placed these girls under enormous pressure.
I do not accept that the girls wrote the notes without prompting from the father.

Supervised time

On 26 January 2013 the father contacted CatholicCare NT Contact Centre to complain that he was not happy about the fact that the girls had to stay for the duration of the visit. This suggests that the girls have been complaining to their father about this, rather than the father encouraging the girls with respect to this, he has been doing the opposite. On [date omitted] 2013 it was [X]’s birthday. The worker noticed that [Y] was starting to open her birthday card but stopped when she looked at [X], [X] shook her head.
For the visit on 20 April 2013 the mother brought the girls two magazines and T-shirts. During the visits [Y] asked [X] if she was allowed to read the magazine before she picked it up and looked at it. On 13 April 2013 the father said he would not be bringing the girls until after the final hearing as he thought the orders had been dismissed. The Independent Children’s Lawyer confirmed that this was not the case and the orders remained in place. During the visit on 6 April 2013 the girls said that they didn’t want to be there and that the court could not make them and the court had to respect their wishes. I assume that their father and step-mother said this as is not something they would have heard from anyone else. During the visit on 3 May 2013 the children again complained about the court not being able to force them to come, the court having no idea about how to raise children. Again I have to assume that this is coming from the father. On 4 March 2013 the father advised the centre that the girls would not be attending the centre as they were going out with friends.
Exhibit “ICL4” is the notes from centre care. It is clear that those visits have been very difficult for the mother given the strength of the girls’ negativity towards her. One example is [X] saying to her mother during the visit on 15 June 2013 that she did not want to see her mother until she was dead. It is also clear that the workers have had to admonish the girls about being rude to their mother. This is entirely appropriate at the end of the visit on 1 June 2013 the worker told the father that the girls had forgotten their manners and were being very disrespectful and rude. [X] responded that she would tell her father as they could not talk to them like that. All of the visits were similar in time with the girls refusing to engage with their mother despite their mother’s efforts. It is to the mother’s credit that she persevered with these visits. During the visit on 20 April 2013 [X] complained that they didn’t want to be there and their mother was forcing them. The worker told her that the mother was not forcing them and that the court had made the decision.

Expert evidence

The court heard evidence from four experts. In addition to these in the report prepared by Ms D, a psychologist engaged by the father, was tendered into evidence as exhibit “ICL2”. The father did not call Ms D to give evidence in his case presumably because the report does not support his position.

Ms D

Ms D notes in her report that the father reports that he believes the children are experiencing significant trauma in relation to the current spend time with arrangements. She saw both girls on 12 June 2012. [X] did not want to meet her on her own. There was a joint session with the girls. Ms D noted that it was evident in [X]’s presentation that she had painful emotions about her parent’s separation. [X] says she remembers being taken from the home at night by her mother to her grandmother’s house and not seeing her father for a long period. She was distressed when talking about the transfers between houses.
[X] said that she wanted both parents involved in her life but wanted to live with her father and see her mother occasionally.
Ms D assessed [X]’s anxiety levels and found that she was in the moderately elevated range which is much higher than one would expect from a girl her age. Her score for depression was within the mildly elevated range and her score for self-concept was much lower than expected.
[Y] also expressed the wish to remain with her sister when interviewed. Ms D also assessed [Y] and found that her score on the anxiety scale was much higher than expected for her age and it indicated an increased level of physical symptoms of social anxiety issues and separation panic. Her other results were in normal limits.
Ms D noted that both girls were experiencing higher levels than normal for stress and anxiety and ongoing treatment and management was highly recommended. She also recommended [X] receive treatment for depression. Both children reported harsh parenting by the mother.
Ms D made seven recommendations. The second recommendation included making appropriate reports to child protection agencies or police with respect to the girls’ disclosures. The seventh recommendation was that the girls receive regular counselling.
Recommendation six was the most important which reads as follows:
“That parents and significant others not to place the children in the middle role by soliciting information about the other parent or sending messages through them to the other parent about adult matters.”
The father did not do anything about the recommendations.

Ms K

The mother relied on the affidavit of Ms K which was filed on 29 November 2012. Although she was called as the mother’s witness, she is an extremely experienced psychologists and it is appropriate that her evidence be dealt with under this heading.
Ms K prepared a report dated 12 November 2012. She refers to the unremitting family conflict as being distressing and stressful for all family members. She refers to this as criminal adding to the events on 12 and 13 April 2012 when the girls went to live with their father. She reports that the mother saw this as temporary but that the girls saw this as permanent. The mother brought [Y] to see her on 23 May 2012, two days after [Y] returned to her care.
Ms K reported that [Y] was comfortable and spoke freely about the current situation, she noted that although she had not formally assessed her it appeared that she may have an anxiety condition and appears to have had a panic attack recently. She noted that this is very concerning and may have been from long-standing duration starting from when the parents separated. She noted that the parental conflict was causing psychological damage to [Y].
Ms K says it is clear that the children are demonising their mother and idealising their father. Ms K says “this is unhealthy and not reflective of the true family situation. For psychologists this is a red flag.”
Under the heading “Impressions Gained” Ms K refers to the children being at risk of becoming alienated from the mother she goes on to say “the purposes of this current report an alienated child is one who persistently expresses strong, negative feelings (such as anger, hatred, contempt, and fear) and beliefs that appear to be irrational, distorted or exaggerated and significantly disproportionate to the child’s actual experience with the target parent.” If there is not quick intervention the children may lose their relationship with their mother and that relationship may not necessarily be regained.
Ms K said it appeared from this history that the children were in an untenable loyalty conflict and that when their mother engineered the end of this dilemma by allowing the children to go and choose to live with the father it must have given the children great psychological relief. The children are aligning themselves with their father which diminishes their anxiety but could create long-term psychological problems for them including “fragmented sense of self, and the rest of their emotional development and difficulty forming trusting, authentic connections with their peers.”
Ms K refers to the research noting that the typical personality of the aligned parent includes narcissistic vulnerabilities and that typical personality predispositions of the alienated parent include passivity and intermittent withdrawal. She described the mother as submissive and somewhat conflict avoided which may have contributed to some of the difficulties she is now facing with the children.

Ms K opines that the father would need to be assessed to see if he has narcissistic personality traits. She comments that children
“…become emotionally dependent upon and inextricably tied to the aligned parent do so because to receive any semblance of nurturing from the narcissistically fragile or wounded parent they must be highly attuned to that parent’s needs and demonstrate loyalty by treating the others as the enemy. If they fail they are threatened with emotional or physical abandonment. Whether this is true in the relationship the children have with their father needs to be assessed but it would seem that their spiritual faith and beliefs might lead them to think they would suffer severe consequences if they did not align with their father.”[9]
[9] Page 3 of Ms K’s report dated 12 November 2012
She also refers to research showing children in the age range of 8 to 15 years old are the most susceptible to being vulnerable to alienation. This is the age range of the girls.
“This is because they have achieved developmental stage when they are more pressured by loyalty demands from their opposing parents. At this time in their lives they can maintain a consistent stance of anger and are more likely to make rigid moral judgements of the parent. Rarely can younger children present as fully and consistently alienated unless they have older siblings whom they emulate or who keep them under strict control. Teenagers can align themselves with the more financially able parent offers the best goodies or makes fewer demands.”[10]
[10] Page 4 of Ms K’s report dated 12 November 2012
Under the heading “Recommendations” Ms K says if the current situation continues the children’s healthy psychological development is at risk. Symptoms found in alienated children include depression, withdrawal, somatic complaints and aggression.
Ideally an experienced family therapist would work with all members of the family. One of the goals would be to shift the children’s and the aligned parent distorted view of the other parent being all bad by changing those views into more realistic and measured ones based on the children’s actual experience of both. A change of residence should be considered if the aligned parent continues to be emotionally abusive for example making repeated malicious, unsubstantiated allegations of abuse and continues to inoculate negative beliefs the children.
Ms K is an extremely experienced child and family psychologist. Ms K was first cross-examined by the Independent Children’s Lawyer. Ms K said [Y] appeared comfortable and happy to talk to her. She says she encouraged [Y] to talk in an open-ended way before asking her some to specific questions.
When Ms K wrote her report she stated that she was keeping some information from [Y] confidential that the agreement at the time in the context of her providing counselling to [Y]. When she was in the witness box she was happy to reveal that information and as the counselling did not go ahead and she thought it was important information that would assist the court.
The first thing [Y] told her was that she had been picked up from school by her mother as she had been staying at her father’s home. She said she was very stressed out and that she was crying a lot and had trouble breathing. [Y] said this had been going on for a long time ever since her parents had separated.
[Y] referred to the argument between her mother and [X] before they went to live with their father. She said she understood why her mother got angry and also said that she thought the best outcome would be a 50/50 agreement between the parents. [Y] said she loved her mother very much. She misses her father a lot when she was with her mother. She says she prays a lot for her mother. [Y] said she was concerned about her mother’s smoking and drinking and sometimes swearing. [Y] wanted them all to be in heaven together. Ms K had the impression that there was a strong spiritual focus and that there was a concern about repentance and what was going to happen to the mother. [Y] was very concerned about her mother that she wanted her mother to be well looked after and to repent so that they could all be together in the afterlife[11].
[11] Transcript dated 23 August 2013 page 74
[Y] referred to the time when the mother attended the father’s home with a letter and threatening to send people to court. [Y] did say she was kicked out.
Ms K agreed that having such beliefs would be worrying for a child. The Independent Children’s Lawyer put to Ms K that there were two solutions, one was that the mother would repent and the other that [Y] would stop loving her mother to ease the burden on herself. Ms K said that she thought in more broad terms than there was a great conflict of loyalty.
[Y] felt like she had this worrying anxiety ever since her parents got divorced. Ms K also said that she had the impression from the mother that the mother has tried to be flexible and accommodating around the father’s request to see the children but he was not. On the one hand when the children were with the mother they have been asked to think for themselves. In the father’s care on the other hand where those decisions are being made for them and there are more rigid rules. When children are anxious it is easier to be in a situation where there are clear and defined rules about what you do and don’t do and about what’s right and wrong. She believes that the children have probably chosen to go with the father because it relieves the anxiety because with the father it is very black and white. This is consistent with the evidence in this case.
It is Ms K’s view that the longer this goes on, the more difficult it would be to achieve reconciliation between the girls and their mother because the girls become very entrenched in those beliefs and those beliefs are being reinforced, it starts to become their belief system. [Y]’s view has changed radically from wanting an equal time arrangement when she saw Ms K to not wanting any time with her mother at all.[12]
[12] Transcript dated 23 August 2013 page 77
Ms K noted that Ms D diagnosed the children of having anxiety conditions which have not been treated. The way the girls are managing that is avoiding conflict and in order to avoid conflict they avoid seeing the mother because that creates conflict. In the short term the girls would be appearing to be doing well because they have had some relief. She went on to say[13]:
[13] Transcript dated 23 August 2013 page 78-79
“…
Ms K:I think in the short term – in the short term what might happen is that the children will actually appear to be doing quite well, because their anxiety will be being managed because they’re no longer exposed to that sort of conflict. But I think in the long term it’s actually going to be incredibly psychologically damaging, because what the children are now starting to do is to basically be told that their lived experience of their mother, and their own childhood, is actually not as they – they’re being told that it’s not what they perceive it to be, but as something quite different. And so then that’s going to have an impact on their own sense of self and identity. It’s also going to have an impact on their personality development, their moral development, or, you know, cognitive development, all those sorts of things will be affected. And in the long term their choice of partners and relationships will be affected as well, in my belief.
…
---Well, this whole situation needs to be managed in a different way, I think. And I made some recommendations in that report, that initially there needs to be very, very thorough psychological assessment of both parents to see – to look at what factors are actually contributing to this alignment that has occurred. Then there needs to be, you know, very extensive counselling conducted with all family members to enable this demonising of the mother to be reduced, because my feeling is that this is highly exaggerated, there’s no real basis for why these children are not seeing their mother.
…
ICL: If a court made an order that the children must do this or must do that, would that have a similar effect in reducing the anxiety of the children, that it wasn’t their choice, someone had imposed that choice upon them?
Ms K: Only if the aligned father was willing to support that. I mean, if there continued to be a message being given that, you know, that despite what the court says, you know, you don’t have to listen to this or take any notice of this, then no, that would not relieve tension, in fact it would increase tension. So there would need to be a willingness on the part of the aligned parent to participate in this process of reconciliation. And to believe that that’s actually the right, and the thing that’s in the best interests of the children.
…”

Ms K stated that a person associated with the court should give the children information about the court outcome as if the mother told them they may see that as more evidence of the mother denying their wishes. They may receive the information from someone associated with the court more objectively. Being involved in the court proceedings and being asked questions by the parents only heightens the anxiety. They need to be protected from the proceedings rather than being involved in it.
Ms K also said that it would be incredibly anxiety provoking for the children for the choice to be left up to them as to whether or not they would see the mother. The easiest thing for them in that situation would be not to see the mother of all. She said this was because the people with untreated anxiety conditions avoid the feared object and by avoiding the conflict, would be avoiding the mother because there would be external conflict to them in terms of where they live and also internal conflict. They may start to remember the aligned lived experience as opposed to what they have been saying has happened. There is evidence that this has already happened to [Y]. Avoidance is a strong manager of anxiety. This is what the girls have been doing.
From a psychological perspective she said the aligned parent would need treatment to look at why the aligned parent had acted in a particular way and involved the children in the court proceedings as recently as yesterday. Ms K said if a parent refused to participate in the treatment then she would recommend the children be removed from that parent and that the only contact be once a parent had received treatment. The children will need intensive therapy and they would otherwise need to be brought back by police so there is not an option in running away. She also notes that it is concerning that [Y]’s view has changed so much since May 2012 in circumstances where she hasn’t spent much time with the mother at all.
With respect to the children’s behaviour at the CatholicCare Contact Centre there were two explanations for it. One would be that the children are now in avoidance mode and their behaviours in refusing to look at their mother, refusing to speak to her and so on, is a manifestation of that. The other is that the children might be acting out their understanding of what would please the father. Ms K said much of the research about aligned parent shows that they sometimes have a narcissistic aspect of their personality where the children need to look after them emotionally. She thought there would be a bit of both of these operating.
Mr Martin then cross-examined Ms K. He said that [Y] had told him that Ms K had asked how good mum was and about the father’s bad character. Ms K said she would not have asked those sorts of questions, that is not the kind of questioning that she does with children and that she said she did not ask value laden questions. The father also said that [Y] asked Ms K to stop questioning her. Ms K replied that [Y] did not do that and that she thought that [Y] wants to please him and so she could be telling him what he wants to hear because that is not what happened at all during the session.
Ms K said she was trying to establish a rapport with [Y] as she was going to be undergoing ongoing counselling with her. She would have noticed if [Y] was feeling uncomfortable and would have talked to her about it, but that that was not what had happened during this session.
Ms K further confirmed in answer to my question that she picked up on the non-verbal cues from [Y] as well as the verbal cues and that when she said [Y] was relaxed and talkative she was referring to both verbal cues and how [Y] was sitting and the tone of her voice.
Ms K confirmed that the focus of further session was to establish a rapport with [Y] and that she was also concerned that [Y] felt a bit ambushed because she didn’t know that she was coming to counselling.
She also confirmed that it is very common that children want to please their parents.
Ms K was an impressive witness. I accept her evidence.

Ms C

Ms C was one of three psychologists nominated by the father. She was chosen by mother. Ms C explained she is located in a building with five other psychologists. She employs [names omitted]. There are other psychologists in the building who have their own practices. This is a common arrangement and in order to save on costs and to provide peer reviews they share some administration expenses such as reception services and billing. On occasion they need to cross refer clients and they also carry out peer reviews once a month. Ms C stated that there is a strict ethical code that the psychologists have to abide by published by the Australian Psychologists Association. No identifying information is ever used when conducting peer reviews. Ms C also said that she has been living and working in Darwin for 30 years. As it is a small community it is necessary to be aware that confidentiality is even more critical than it is in a big city. She would not be able to run a reputable practice if she was not able to maintain the confidentiality. Ms C explained that she does not even have access to the patient files of her employees let alone independent psychologists in the building. Client files are kept separate from the administration billing files. It is a requirement that those files are kept in the individual psychologist’s office under lock and key. It is understandable that a layperson such as the father would be concerned about the independence of the psychologists when seeing that Ms C and Ms K have offices in the same building. However I am comfortably satisfied that they maintain entirely separate practices. Both are extremely experienced psychologists and well regarded in Darwin.
Ms C also confirmed that it is standard practice when there was a court order for her to provide therapy for the children that she would be provided with court documents by way of background. An order was made in this case providing for exactly that.
Ms C says that the father was very negative from the very beginning and he did not perceive that the children needed counselling regardless of what anybody said. His view was that the children needed a holiday and needed to be left alone.
Exhibit “ICL6” is a letter from Ms C to the Independent Children’s Lawyer dated 25 February 2013 she reports interactions with the father when the father raised concerns about the fact that her office is in the same building as Ms K but says he was satisfied when she explained they had separate businesses and that she was bound by professional ethics and confidentiality. She says that he went on to say that “the children did not need counselling, I don’t care what anyone else says”. Ms C says she referred to Ms D’s report indicating that the girls needed counselling and also the reference to Mr R’s report referring to the children needing counselling. The father again said that the children did not need counselling, they just needed to be left alone to heal. He said he would not support counselling and that he brought the girls reluctantly. Ms C noted that the children were also unhappy about attending counselling and blamed their mother for it. She said the children presented with clinical symptoms which were indicative of parental alienation. Both showed reflective support of their father and no guilt over poorly treating their mother. Ms C said the children were accusing her of being aligned with their mother was a typical response of children have suffered “a reasonably long period of indoctrination”. The father refused to make further appointments. On 23 February 2013 the father emailed Ms C informing her that he was not going to use her service anymore because of her conflict of interest and because she appeared to favour the mother interests instead of “impartially caring for my children”. He also stated that the children were upset about her line of questioning which he found disturbing. Ms C states “Mr Martin is clearly interrogating the children about the therapy as he found the therapy wanting because this did not align with his view.” Ms C said that drastic steps needed to be taken in order to avoid the mother’s relationship with the children being damaged beyond repair. She said she believed that whilst the children would be traumatised by being removed from their father she thought the trauma would be short lived because up until a year before they had enjoyed a positive loving relationship with their mother. Ms C also thought that Mr Martin would not cooperate with any therapists aimed at resolving the parental alienation.
Ms C did not independently assess the children for depression and anxiety but found that the girls presentation was consistent with Ms D’s observations and were concerning. It was clear from the beginning of the session that the girls did not want to attend. They were quite angry and they thought it was just another example of the mother’s continued harassment of family. Ms C had to spend a considerable amount of time talking to the girls about the orders and explained it was the court that made orders requiring them to come and that the court was very concerned about them and concerned that they have a relationship with both parents. She went on to explain to the girls her job was to support them through the process and to acknowledge with them that it is difficult and challenging. The girls were quite inflexible in their response. At the beginning of the session the girls were hostile and then moved to quite open anger and accused Ms C of being on the mother’s side. Ms C believes that the anger was masking their anxiety which was quite high.
Ms C explained that when children present like this it is important the counsellor persists. Some inexperienced counsellors end the session. Some children become distressed but that it is the normal approach. She says it is important to acknowledge the children’s distress but to keep going with the intervention. Ms C had the impression at that time that she would not see the children again.
[Y] insisted that she had been kidnapped by her mother from school and that she was screaming on the telephone. [Y] was referring to the conversation of 22 May 2012 which was recorded. Ms C challenged her about this saying that she listened to the recording and did not hear any screaming. [Y] replied “yes, I was screaming stop, my father told me I was screaming.” This is very concerning because it is a stark example of [Y]’s reality shifting. It is clear on the recording that [Y] was actually pleading with her father to listen to her and was not screaming at all. At that stage Ms C was interviewing [Y] on her own.
Ms C said both girls denied there being any happy times with her mother at all. This is clearly not an accurate reflection of their experiences of their mother. The girls are at this critical stage of their development when they start to question and look at things. This development may be disrupted and even stopped because they are being told that what they have actually experienced is not real the girls may have difficulty in the future distinguishing between what is real and what isn’t. They may be very easily influenced by others. They could have problems with decision making and problem solving. Their sense of self could be fractured and these problems would go on into adulthood. The girls were very black and white, they would not make any concession that perhaps they had had good times with their mother at all. Ms C says she raised with the girls that from what she’d read their mother said she had smacked them but never hit them. Ms C asked them where this is coming from, the girls replied “Dad told us everything” and “Dad’s the one that told us that mum had actually been the person that had hit us.” Ms C recorded in her notes the following which she took contemporaneously, “Dad told us everything about court. Dad told us mum was the one that, you know, had been abusing us. Mum is the one that took us to Ms K and kidnapped me from school.” These disclosures by the girls are significant. They are further examples of the father’s inappropriate influence on the girls.

Mr R observed that the children refused to enter the indoor children’s playroom and refused to engage with the writer. They appeared to be clutching bibles. Both children were hostile and argumentative with their mother. [X] was openly rude and hostile with her mother. She insisted that the mother did not care about them and only wanted to look good in front of others.
The mother tried to talk to the girls in a calm and reassuring manner. She had to defend herself whilst expressing love for the girls.
Mr R ended the observation after 20 minutes as he thought his presence may be contributing to the hostility the girls displayed towards their mother. The staff and the mother reported that this was typical and that after an initial period of arguing the girls would sit in silence reading their books. Staff said the girls would refuse to have anything to eat or drink and would refer to the mother as being taken over by the devil. The mother confirmed in her evidence that the girls often brought their bibles with them and spent most of the time during their visits reading.
The mother said that during the visits the girls told her that if she really loved them she would stop the court proceedings and let them live with their father 100% of the time. They also said that they did not want anything to do with anyone associated with her and that appeared to include the staff at the Centre.
Mr R notes that rather than the supervised contact helping restore the girls’ relationship with their mother it has provided another forum for the girls to vent their anger and hostility towards their mother. Counselling has also not assisted because the father is opposed to it.
Mr R concludes that the father has alienated the children from their mother.
Mr R outlines the options and the difficulties with those options. Removing the children from their father and placing them with their mother will increase the stress on the whole family for a period and will test the mother’s ability to cope. There is a degree of the uncertainty as to the outcome. There will need to be orders restraining the father from coming into contact with the girls for a period and it will be necessary to give police the power to retrieve the girls. He did not make a clear recommendation.

Mr R’s oral evidence

Mr R was cross-examined. He said that the children presented as normal happy children in 2008 for the first report interviews. He said they spoke openly about issues. The general tone of the girls’ presentations was that they were upset that their parents had separated and would like them to get back together. Religion was not a feature in those interviews but parental conflict was.
At paragraph [31] of his 2008 report, Mr R described the presentation of the children. He confirmed that the children were happy and normal and spoke openly with him. [X] said she wanted to “spend a little more time with her father”. [Y] was unsure. She was very young at the time. He also confirmed that religion was not a factor but the ongoing high conflict between the parents was. The children wanted their parents to get back together. This is very common.
He confirmed the view he expressed at paragraph [44] of his 2008 report that the mother presents as more child-focussed than the father and is more balanced in her description of the family circumstances. That is still his view now.
I prefer the evidence of Mr R to the issue of the girls’ views in the 2008 report to that of the father’s.
When preparing his 2012 report Mr R was aware of the letters the girls had written which were annexed to one of the father’s affidavit. He said the notes are concerning because it shows the girls’ involvement in parental issues and it also consolidates and validates their views. There is also the concern about the context in which the notes were written. Mr R says the notes indicate that there has been some influence imposed on the children in order for them to write the notes.
Mr R confirmed that although the father raised concerns with him about the mother abusing the girls “physically, mentally and spiritually” there is little to substantiate his claims. He raised some of these claims in 2008. Mr R again confirmed that the father seemed not to have taken any steps such as making notifications. There was nothing to substantiate the father’s claims.
Mr R was asked about the influence of religion on the children. The Independent Children’s Lawyer told him that the evidence during the hearing revealed that the children pray for their mother on an almost daily basis that she change her lifestyle. Mr R said:
“I believe it simply reinforces the children’s views and, once again, just exposes them to adult concerns in this situation. I think it – effectively, it undermines their regard for their mother and views her in – as they’ve referred to her as being evil and devil-like at times and it’s just consistent with that.”
At paragraph [22] of his 2012 report Mr R commented on the marked element of moral judgment in the way the children perceive their mother. Giving oral evidence he confirmed that this moral judgment of a parent is not normal for children of their age. There might be an element of disapproval of a parent smoking or drinking but the level of outrage the girls express is extreme.
Mr R agreed it would be frightening for the children to believe that their mother will go to hell.
For the 2012 report the children presented with little affect. They were very firm and appeared angry. This is an unusual presentation which caused him further concern. Mr R confirmed his conclusion remains that the father has psychologically abused the girls.
Mr R explained that having a relationship with both parents enhances a child’s sense of identity and they have the benefit from what each parent can give them.
Mr R suspects that there were issues with the mother’s relationship with the children prior to April 2012. The children were still struggling with their parents’ separation and challenging the mother more. Mr R believes that the fact that the children now have a hostile, negative relationship with their mother is due to the father’s influence.
Mr R’s third report consists of his observations of the girls and the mother at CatholicCare Contact Centre. He considers continuing this contact is destructive. It is just further entrenching the conflict and hostility.
If the children remain living with their father and have no relationship with their mother Mr R says it is difficult to their future psychological development.
Mr R was told about the phone call which was played in court and [Y]’s insistence that she was screaming because her father told her she was when there was no screaming on the recording. He said that it will raise issues of trust between the parent and child but also places a child in a vulnerable position as she progresses through life.
Mr R refers to the children’s religious views as cult-like and says he does not have the answers as to how to get them out of that mindset. He notes the children have seen several counsellors and have been resistant and the father will not support it. He is also of the view that if the court orders the children to live with their mother the father will be opposed to it and the children will be aware of that.
Mr R was made aware of the phone call where the father reminds [Y] she is fasting so he does not go to jail. This concerns him about the level of psychological abuse of the girls. He confirmed that other interactions between the girls and the father in the phone call and text messages also confirms the father’s psychological abuse of the girls.
Mr R also confirmed that it is very common for children to tell their parents what they want to hear. If the children live with their mother he believes there will need to be a period of no contact with the father for at least six months. If the children living with their mother does not work the worst case scenario would be violence between the children and the mother. This is due to the level or acting out with girls trying to provoke the mother into sending them back to their father. There would have to be an ongoing recovery order which the police could act on.

Mr R says it is very difficult to predict what will happen. He says one possibility is that the father might punish the girls and cut them off which would be devastating for the girls. He says counselling is not a panacea. It may or may not work. The only other option he could see would be to remove the girls from both parents and place them in a neutral setting.
It is fair to say that Mr R was the most pessimistic of the experts about the outcomes regarding which one is chosen.
Ms Martin did not have any questions for Mr R.
Mr Martin only asked Mr R a couple of questions which is surprising given the extent of his complaints about Mr R in his affidavits including the father’s allegation that Mr R was biased about this. I warned the father that he would not be able to make certain submissions if he did not put his complaints to Mr R. He still chose not to ask further questions.
At the beginning of the final day of hearing the father said that he had thought a lot last night and would arrange serious counselling with his church pastor. He says his church does not teach that the mother is evil and the pastor could address that with the children. The difficulty with this submission is that the father has known that the girls have been calling their mother evil for a long time and he has not done anything about it. What he is suggesting is too little too late. Pastoral counselling is not going to be enough.
The father said the girls should be free to make the decision to see their mother. The difficulty with this proposition is that it is doubtful the girls could ever freely express a wish to see their mother in the father’s household. They are so acutely aware of their father’s wishes. Regardless of what he says to the court I am satisfied that he does not want the children to see their mother. If they see her they may begin to recover their own memories rather than the distorted ones they have adopted.
Mr R’s view was that the girls were extremely well prepared for the interview with him. He noted that the girls did not display any emotional affect.
The father complains about the mother abusing the children spiritually. He does not explain what he means by this. If anything the mother supported the girls spiritually by allowing the father to take the children to church during her time.
It was clear from the father’s evidence and his submissions that he does not accept the expert evidence. He cannot see that he has psychologically abused his children. I cannot be confident that he will engage with therapy and address his behaviour and attitude.

Legal Principles

The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (“Cth”) (“the Act”). The court must regard the best interests of the children as the paramount consideration: section 60CA. What it means in the individual cases is informed by a number of statutory provisions.
The objects set out in section 60B(1) help clarify what Part VII aims to achieve when it talks about best interests. There are also principles that underlie these statutory objections: section 60B(2). Section 65D of the Act gives the court the power to make a parenting order which is defined by section 64.
In deciding whether to make a particular parenting order section 60CA requires that I must consider the matters set out in section 60CC(2) being the primary considerations and section 60CC(3) being the additional considerations.
There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to section 60CC indicates, are consistent with the first two objects of Part VII, as stated in section 60B that the best interests of the children are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The concept meaningful relationship has been considered in number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in section 60CC(3) which I will refer to later in these reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence the extent that doing so is consistent with the children's best interest being treated as paramount.
Section 61DA(1) provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children of family violence (section 61DA(2)). The presumption may also be rebutted if the court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (section 61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an order to equal shared parental responsibility I am then required by section 65DAA(1) and (2) to consider whether to make orders that the children spend equal time and if not equal time then substantial and significant time with each parent.
For a parenting order to involve the children spending substantial and significant time with a parent section 65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR & GR [2010] HCA 4 the High Court found that section 65DAA(1) requires a court to consider both whether the best interests of a child is served by an order for equal time and that is it reasonably practicable for a child to spend equal time. Both elements must be present in order for a court to make an order for equal time. At paragraph [13] of the judgment the High Court said:
“Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.12 If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”
The High Court also addressed the relationship between section 65DAA(1) and section 61DA(1) at paragraph [15]:
“Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”
Whilst that is the paramount consideration it is not the only consideration. In AMS & AIF (1999) 24 Fam LR 756 at [144] His Honour Justice Kirby said:
“…a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.”[footnotes omitted]
The Full Court in Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 mandated that this legislative approach must be followed in all parenting cases.

Application of legal principles to the fact of this case

Primary Considerations

Turning first to the primary considerations, up until April 2012 the evidence is that the children enjoyed a meaningful relationship with both their parents. The concept of a meaningful relationship has been examined at some length by the court in several decisions including Mazorski & Albright and McCall & Clarke.
It is of great concern that the girls now only have a hostile relationship with their mother. None of the girls’ complaints about their mother are sufficiently credible to justify their stance. No explanation was ever given for what spiritual abuse the mother is alleged to have committed.
I need to determine whether it is in the girls’ best interests for them to be given the opportunity to renew their meaningful relationship with their mother. I find that it is as the girls had a good relationship with the mother before the April 2012 incident. The mother has made mistakes. She is not a perfect parent however I am not satisfied that she has behaved in such a way to justify the girls’ rejection of her.
The second primary consideration is the overwhelming consideration in this case. As much as the father would have the court believe that the mother has abused the children, there is no credible evidence of the mother abusing the children.
There is however overwhelming evidence of the father’s abuse of the children. Numerous examples have been out in this judgment.

Secondary Considerations

There is nothing in the evidence to support the girls having a reasonable basis for their hostility with their mother. The girls’ views of both their parent are extreme. As the experts have said in this case, it is not normal for children to idolise one parent and demonise the other. Yet that is what these girls have done.
The father’s evidence about the girls being abused by their mother is unconvincing. He says he is merely reporting what the girls are telling him but that is not true. He has questioned them repeatedly. The girls are aware that he wanted more detail from them to support his case. Whilst children might disapprove of a parent smoking it is extreme to call a parent evil because of it. The father tried to distance himself from the girls’ comments later in the proceedings and said this is something they would address through counselling at the church. I do not think the father is genuine about this. If he was he would have addressed it a long time ago. I find that he encouraged the girls in this thinking as it consolidated their alliance with him.

There is overwhelming evidence that the father has psychologically abused the girls. Examples of this include:
a)Requiring [Y] to justify to him why he should come and collect her;
b)Requiring [Y] to pray and fast for him not to go to jail. This would have been a frightening prospect for [Y]. Instead of providing [Y] with comfort and support he feeds into that fear;
c)Reinforcing the girls’ negative view of their mother by having them pray for her on a daily basis. I do not accept that this is a positive or benign gesture in the context of this case;
d)Questioning the girls and requiring them to give him better evidence. The girls writing letters to the court is part of this. I do not accept that they did this without his indirectly or directly influencing them to do so.

Children’s views

Despite the girls’ ages this is a case where I cannot place weight on the girls’ views. This is because of the father’s psychological abuse of them.
The girls’ views of their mother are not based on their real experiences of her. Up until 12 April 2012 the girls had good relationships with their mother. I accept that the girls wanted to spend more time with their father. I also find that the father was influencing them at this time.
There is evidence that the girls have been so manipulated that their views have been coloured by that.

The nature of the children’s relationship with each parent and other significant people

The evidence indicates that the children currently have unhealthy relationships with both their parents.

The willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent

This is a very concerning aspect of the case. The mother has shown an ability to do this. When the children wanted to go to church with their father during her time she facilitated that. The one time she didn’t was when it was her birthday and she had plans. Instead of simply respecting this, the father still came around.
The father has shown no ability to facilitate the children’s relationship with their mother. He has done the opposite and has undermined their relationship for a long period of time.

The likely effect of any changes in the children’s circumstances including separation from a parent

There is no doubt that the children will find the move to their mother’s home and separation from their father traumatic in the short term. However is it clear from the expert evidence that if the girls are going to have a chance they need to be placed with their mother and receive intensive therapy which I am confident the mother will provide for them.

The practical difficulty and expense

This is not relevant to this case except perhaps with respect to the costs of the therapy. Although no submissions were made about this in my view both parents should contribute to this therapy. To ensure there are no delays I will order that the mother pay for the therapy in the first instance and that the father reimbursement the mother for half of the cost.

The capacity of each of the parents to provide for the children’s needs including their emotional and intellectual needs

Both parents are able to provide for the girls’ physical and intellectual needs. I find that the mother can also provide for their emotional needs. The father cannot. I will not repeat the comments I have made elsewhere about the father’s conduct.

The maturity, sex, lifestyle and background of the children and their parents

One of the issues in this case which has made it more difficult is the girls’ and the father’s religion. Ordinarily this would not be an issue but it appears that the girls’ religious views have become distorted. The father has done nothing about this. It has suited him because it has fed into the girls’ negative and highly morally judgmental views of their mother.
Whether or not the mother used to be the type of Christian the father describes her to be does not matter.
I accept that she is Christian. Many Christians do not preach to others and do not go to Church regularly or at all. This does not mean according to ordinary Christian doctrine that they are going to hell.

Whether it would be preferable to make an order which is least likely to lead to further proceedings

These proceedings have been stressful for all involved. In most cases it will be in the children’s best interest to end the litigation.
I have decided that rather than simply making final orders at this stage it will be necessary to review the progress of family therapy in six months time. The father will not be spending any time with the girls during this period. This is necessary to give the therapy the best chance to work. Hopefully by the end of that period the father will be able to spend time with the children. That may be on a supervised basis at first. Much will depend on the therapist’s view.

Family violence

There are no issues of family violence.

Conclusion

This difficult case involves stark choices for the court. I am satisfied that if the girls were to remain with their father they will not have a relationship with the mother and will suffer long term psychological harm. I cannot be satisfied that the father will do anything to rectify the situation. Even if the father was to take the girls to therapy that is not enough. He would have to refrain from questioning the girls afterwards. He would also need to actively encourage the children to positively engage in the therapy.
This is not simply a case of the girls acting on their wish to live with the father and the mother needing to accept it. The mother says if it was simply the children’s wish then she would respect it but the children have been alienated from her and their views are distorted and unhealthy. The girls views have become more fixed and negative whilst in their father’s care with only very limited contact with their mother.
I am comfortably satisfied that the father has been highly manipulative and emotionally abusive of the girls. I am not sure whether or not he recognises this. This has been evident through the phone recording, the text messages and the letters the girls sent the court. The father has placed enormous pressure on the girls. He ignored Ms D’s recommendation. He sabotaged the girls’ therapy with Ms C and breached court orders with respect to the therapy and not talking to the girls about the proceedings.
I am comfortably satisfied that the father has been working towards having the children live with him full time for several years. The incident in April 2012 gave him the perfect opportunity to put his plan into effect. The father appears to have an enormous capacity for manipulating those around him and even convincing himself of a version of events that best suits him. This is illustrated by his capacity to deny versions of events when the evidence is clearly before him. The transcript of telephone call is just one example.
There is a risk that moving the girls’ residence will not work and that the girls will be further traumatised. In light of the expert evidence I think it is in the girls’ long term best interests to make this move to give the girls a chance of repairing their relationship with their mother and psychological recovery.
I recognise that the girls will find my orders difficult to accept and they may run away from their mother. It is for this reason that I will make orders for a recovery order to issue without further application to the Court being necessary for the next six months. It is important that the father and the girls realise that if necessary the police will return them to their mother. It would be preferable to avoid this but it is necessary as I have no confidence that the father will willingly return the girls if they run away from their mother.
The mother has continued to see Ms K on a few occasions to gain assistance and understanding of long term issues for the girls. She is aware of the challenges she faces.
For the reasons given above I make the orders which appear at the beginning of these reasons. It is necessary to make orders restraining the father from having any contact with girls for a six months period in order to give the family therapy a chance to work.
It is also necessary to make a recovery order which can be executed without court order for that six month period. This is because there is a risk the girls may run away from their mother. The girls and the father need to know that there is no benefit to them in doing this as if necessary the police will return them to their mother.
This case will be reviewed in six months. The father would benefit from getting counselling to look at his behaviour. This is something that the father needs to decide for himself rather than being compelled to by court order.

I certify that the preceding two-hundred and ninety-one (291) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate:

Date: 23 October 2013

[2013] FCCA 1698

23 October 2013

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