MATHIESON & MAYBERRY

[2019] FCCA 1700

FEDERAL CIRCUIT COURT OF AUSTRALIA

MATHIESON & MAYBERRY [2019] FCCA 1700

Catchwords:

FAMILY LAW – Parenting – 12 year old child resistant to spending time with her father – allegations of parental alienation – no order for change of residence.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC(2), 60CC(2)(b), 60CC(3)

Applicant: MR MATHIESON

Respondent: MS MAYBERRY

File Number: CAC 1607 of 2017

Judgment of: Judge Hughes

Hearing dates: 6, 7 & 8 May 2019

Date of Last Submission: 8 May 2019

Delivered at: Canberra

Delivered on: 21 June 2019

REPRESENTATION

Counsel for the Applicant: Mr Haddock

Solicitors for the Applicant: Infinity Legal

Counsel for the Respondent: Mr Millar

Solicitors for the Respondent: Robinson McGuinness

Counsel for the Independent Children's Lawyer: Ms Mistry

Solicitors for the Independent Children's Lawyer: Legal Aid ACT

ORDERS

1. All previous orders in relation to the children [X] born … 2001, [Y] born … 2002 and [Z] born … 2006 are discharged.

2. The parents shall have equal shared parental responsibility for the children.

3. [X] and [Y] shall live with their parents on a fortnight about basis, with changeovers to occur on Sunday evening.

4. [Z] shall live with her mother.

5. [Z] shall spend time with her father at least twice each month, for at least two hours at a time, on dates and at times agreed between [Z] and her father.

6. In addition, unless otherwise agreed by the parents, [Z] shall spend at least two hours with her father on Christmas Day and her father’s birthday.

7. The mother shall take all reasonable steps to support and encourage [Z]’s relationship with her father.

8. The parent with whom the children are living will support and facilitate the children speaking with the other parent by telephone and/or Skype/FaceTime at any reasonable time.

9. Neither parent shall denigrate the other parent, or members of their family, to or in the presence of the children, or allow any other person to do so.

10. Neither parent shall discuss these proceedings with the children, or in their presence, except to explain the parenting arrangements.

11. This order authorises all medical and health practitioners engaged in the care of the children (or any of them) to provide to both parents all information and reports about the children’s health and wellbeing upon either parent’s request.

12. This order authorises the principal of any school attended by the children to provide both parents with information and notices, including but not limited to, reports, updates, invitations and photograph order forms for the children.

13. Both parents are at liberty to attend any events and functions at the children’s schools to which parents are invited, and any sporting or extracurricular activities in which the children are involved.

14. Each parent shall notify the other, within 48 hours, of any change to their home address, email address, mobile telephone number or other contact details.

15. Each parent will inform the other as soon as practicable if any of the children are seriously ill or injured or require admission to hospital.

16. In the event either parent intends to travel internationally with the children:

    (a)the travelling parent shall provide to the non-travelling parent at least eight weeks’ notice of their intended travel and a proposed itinerary for the travel;

    (b)the travelling parent shall provide to the non-travelling parent at least two weeks prior to the departure date:

    (i)a comprehensive itinerary for the trip;

    (ii)contact details for the children while overseas, including a telephone number and email address; and

    (iii)a copy of a comprehensive travel insurance policy for the children for the duration of their travel.

    (c)each parent shall provide the necessary consent for the travelling parent to obtain passports and visas for the children; and

    (d)the children’s passports shall be provided to the travelling parent at least seven days prior to departure.

17. Each party may provide a copy of these orders and reasons for judgment to any therapist or counsellor engaged to provide assistance to either parent or the children.

18. Otherwise, all extant applications are hereby dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1607 of 2017

MR MATHIESON

Applicant

And

MS MAYBERRY

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings concerning the parties’12-year-old daughter, [Z].  The mother alleged [Z] is resistant to spending time with her father despite her efforts to facilitate that relationship.  The father alleged the child has become enmeshed in the mother’s hostile attitude to him and argued that the only way she will be able to have a meaningful relationship with him is if she lives with him for several months without any contact with her mother, to break what he believes is an unhealthy dynamic between them.

2. The proceedings also involved competing property applications but they were resolved by consent orders made on the last day of trial, 8 May 2019.

Background

1. The applicant father is aged 54.  He was a public servant but stopped working at the time of separation in November 2016. The wife is aged 46.  She is a public servant. 

2. The parties began a relationship in 1996 and began living together in … 1998.  They married in … 1998 and separated in November 2016.  They remained living under the one roof until the wife and children moved out of the former matrimonial home at the end of May 2017.

3. The parties have three children:

   [X], born … 2001, aged 17

   [Y], born … 2002, aged 16 and

   [Z], born … 2006, aged 12. 

4. For six or seven years before the parties’ separation, the father worked as a public servant and was away from home for long periods.  His work roster was generally five weeks on and five weeks off.  The mother was, by necessity, the primary caregiver to the children. The parties disagree about the extent of his involvement in the care of the children and the running of the home when he was not away.  The father said he took over full care of the children each time he returned home.  He conceded, however, that he was often exhausted upon return and slept a lot during the first few days.  The mother agreed the father assisted when he was home but said his involvement in the care of the children was nowhere near what the father asserted.  She said that until two years prior to separation her work hours were from 9am until 3pm and she dropped the children to school and picked them up each afternoon, including when the father was home from work.  Two years prior to the separation, she began working longer hours and the father did, then, collect [Z] from school and drive the boys to their extracurricular activities.  However, he was convicted of drink driving in … 2016 and his driver’s licence was suspended for six months.  During that period he was unable to drive the children to their activities.

5. The father said he was shocked when he received a text message from the mother on 3 November 2016 telling him she wanted to separate.  The mother said he cannot have been shocked as the marriage had been in trouble for some time, even if the father refused to acknowledge that.  The father told Dr A, a clinical psychologist engaged by the parties in these proceedings, that the first real indication he had that the mother was going to end the marriage occurred during a family holiday to Country B shortly before separation.  It seems from the evidence, however, that the father was angry at the mother forcing the separation and taking the matter out of his hands.

6. The parties continued to live in the home together after separation.  The mother moved into [Z]’s bedroom.  It is clear on both parties’ evidence that this was a tense time.  The mother said that she repeatedly asked the father to move out as his income was significantly greater than hers and she could not afford independent accommodation.  She said he refused. 

7. The father complained that the mother arranged outings and trips away with the children which excluded him.  The mother agreed she sometimes did that to relieve the tension in the house.

8. The parties participated in formal mediation on 19 May 2017 as a result of which they reached an agreement in relation to parenting and property matters.   They agreed the children would live with the mother, spend five nights a fortnight with the father during school term and live on a week about basis with each parent during school holidays.  They also agreed to a “nesting” arrangement which meant that the children would stay in the family home and each parent would move in and out of the home to care for the children during their agreed periods.  The mother said this was a temporary arrangement until she could find alternative accommodation.  The father said he expected it to continue.

9. The mother moved out of the former matrimonial home on the last weekend of May 2017.  She said the situation at home was unbearable and to relieve the pressure she moved to her sister’s home.  The father said he was shocked to come home and find that furniture and personal property of the wife and children was gone.  The mother said she took her belongings and some of the boys’ belongings, but left [Z]’s bedroom virtually unchanged.  The children then began spending five nights a fortnight with their father.

10. The father said the mother had failed to prepare the children for moving out which caused them unnecessary distress.  He was told by [Z]’s school principal that [Z] missed two days of school soon after the mother moved out with the children and that, on another day, she was too upset to stay at school and her mother had to pick her up.[1]  The father said the mother did not tell him that [Z] had missed any school.  The mother said the children knew they were moving out and helped to pack some of their things in advance.

    [1] Father's affidavit filed 21 December 2018 at paragraph 78

11. The wife said there were delays in formalising the agreement reached at mediation and, in the meantime, she developed concerns about the parenting agreement the parties had reached and decided not to sign the terms of settlement.  She said the husband then refused to settle the property proceedings.

12. [Z] did not adjust well to spending time with her father after the parties’ physical separation and became increasingly resistant to spending time with him.  The parenting agreement was for the children to spend time with their father from after school on Thursday until the commencement of school the following Monday and overnight on Wednesday in the alternate week.  The mother said [Z] was increasingly reluctant to go to her father’s home on Thursdays and, on about four or five occasions between late June and October 2017, the father returned [Z] to her on the Thursday night.  The father agreed that was so.  On each occasion, [Z] went back to her father’s home after school on Friday and spent the weekend with him with her brothers.  The mother said she persisted trying to get [Z] to go on the Thursday but [Z]’s resistance increased and, on 10 August 2017, [Z] became so distressed on Thursday morning that the mother was unable to take her to school.  She stayed home from school that day but went to her father’s home for the weekend that afternoon.

13. The father formed the view that [Z]’s reluctance was deliberately or unconsciously encouraged by the mother and influenced by the mother’s attitude toward him.  The mother denied that.  She said she believed the father did not handle [Z]’s reluctance well and made inappropriate comments to [Z] when she wanted to go home early, such as repeatedly telling her that he missed her and that she was breaking his heart.

14. [Z] often sent her mother text messages while she was with her father, telling her she felt uncomfortable and unhappy and wanted to come home.  The mother encouraged [Z] to stay and enjoy herself with her father.  She frequently told [Z] to go and speak to her father and suggested she give him a hug so she would feel better.[2]

    [2] See for example Annexure A to the mother's trial affidavit filed 17 January 2019.

15. On a date which is not clear but seems to be August 2017, [Z] sent her father a text message on Thursday morning to say she did not want to go to his home that afternoon.  The father sent a text message in response saying:

    What is going on I thought you were looking forward to seeing me and spending time with me you should never feel scared of me not want to talk to me.

16. [Z] responded:

    I get scared that you will get angry at me and you don’t listen to what I want.  I want to come Fridays instead of Thursdays.

17. The father responded:

    I need you to FaceTime me and tell me that because I believe that message was sent by your mother and not you so please FaceTime me so I know this is what you want.  I have never got angry with you.[3]

    [3] Annexure C to the mother's affidavit filed 17 January 2019

18. During cross-examination the father said he could not recall whether [Z] spoke directly with him that day as he requested.  He said he still did not know whether any of the messages sent by [Z] to him were genuinely from [Z] or were written by the mother on [Z]’s phone.  This revealed an extraordinary level of distrust given [Z] also made similar comments to him in person. 

The proceedings

1. The father commenced proceedings on 1 September 2017 seeking orders for the three children to live with each parent on a week about basis.  The mother filed responding material on 3 October 2017.  She sought orders for the children to live with her and for the boys to spend time with their father in accordance with their wishes.  She sought leave to file an amended response in relation to [Z]’s arrangements once the parties had participated in a child inclusive conference. 

2. The first return date was listed on 4 October 2017.  A series of incidents occurred in the preceding days.

3. In accordance with the agreement reached between the parties at mediation, [Z] was due to spend a week with her father during the school holidays, commencing on Monday, 2 October 2017.  [Z] went with her father that day but in the evening sent text messages to her mother saying she wanted to come home.  The mother encouraged her to stay and to enjoy herself.  As [Z] became more upset the mother encouraged her to go downstairs and sit with her father.  A copy of the text messages is annexed to the mother’s affidavit filed on 17 January 2019. 

4. Late that evening the father returned [Z] to her mother.  He dropped [Z] off but didn’t get out of the car.  The mother said he drove away at high speed, screeching his tyres.  The father denied that.  The mother said that, when she came inside, [Z] was very distressed and said:

   Dad was yelling at me saying ‘this will all change when I take your mother to court and the judge will make you spend more time with me than her.  I bet the other kids at school with separated parents don’t behave like this.  This is all your mother’s fault and one day I’ll tell you what really happened with our marriage’. [4]

   [4] Mother's affidavit filed 17 January 2019 at paragraph 59

5. The mother said [Z] was extremely upset and took several hours to settle down enough to go to sleep.

6. The next day the mother started a new job.  The mother and children were living at that time with the maternal aunt, Ms C, her husband, Mr D, and their children.  [Z] was still asleep when the mother left for work.  Mr D was at home with the children.  The father was due to collect [Z] at 10am.  The mother said she received several text messages from [Z] saying she was too scared to go with her father that day.  The mother was involved in training and was unable to speak with [Z].  She messaged Mr D and asked him to speak with her. 

7. Mr D affirmed an affidavit which was filed on 17 January 2019.  He was not required for cross examination and I accept his evidence.  He said he received a text message from the mother at about 9.30am asking him to speak with [Z].  He went to [Z]’s room and found her lying on her bed, crying.  He asked what was wrong.  He said [Z] took some time to calm down but then told him that her father was coming to collect her.  She said she did not want to go with him because she was still upset about “what happened last night”.  Mr D asked what happened last night.  [Z] said words to the effect of:

   Dad was yelling and swearing at me and saying bad things about mum. He said everything is mum’s fault and that I can blame mum for everything.  He is taking mum to court and that I will be with him more than I will be with mum, just like it is now, but he will have me all of the time. [5]

   [5] Affidavit of Mr D filed 17 January 2019 at paragraph 10

8. Mr D said [Z] also said the following:

   I can’t tell him what I want because he doesn’t listen to me.  I don’t want to make him sad because he always tells me that his heart is broken. 

   I’m scared of him now because he’s different.  Sometimes he is happy, and then he becomes angry and starts yelling and swearing at me and about mum.  Then he is happy again and then he starts yelling and swearing about mum.[6]

   [6] Ibid at paragraphs 9 and 11

9. Mr D said he encouraged [Z] to see her father but she was adamant she did not want to go.  He said to her “[Z], if you don’t want to go and see your dad, he deserves to be told.  And you should call him and speak to him over the phone rather than send him messages”.  He said [Z] agreed and spoke to her father using FaceTime.  Mr D said he left the room to give them some privacy.

10. Mr D said [Z] came into the family room after the call and told him that her father didn’t listen and was still coming to get her.  She was upset and asked Mr D to call her father.  Mr D said he went outside and called the father.  He said the father seemed angry and was “raving” about the mother and said “Ms Mayberry is to blame for all of this.  She didn’t have my permission to move out of the house in the first place”.  They had a conversation at the end of which the father confirmed he was still coming to collect [Z].  Mr D asked him to come at 11am rather than 10am to give [Z] time to shower, get dressed and have breakfast.  The father agreed.  Mr D said he subsequently developed concerns about making [Z] available, given the level of her distress and the lack of acknowledgement about that by the father.  He said his daughters had friends who had stayed overnight and he did not want a scene at the house in front of them.  He left the house with [Z] before the father arrived.

11. At 10.45am the father rang to say he was at the front of Mr D’s house and that unless he made [Z] available immediately he would report him to police.  Mr D, did not make [Z] available.   He received a call from police later in the day.  A welfare check was conducted and [Z] was interviewed by police.  The police case summary of the incident is annexed to the mother’s affidavit filed on 17 January 2019.  The notes of the interview with [Z] are as follows:

    Police spoke to [Z] who stated:

    – Dad is sometimes very angry and says bad things about mum

    – She is sometimes scared of dad and does not enjoy staying with him

    – She wants to stay with her mum at Mr D’s place for a few days

    – She does not want to go back with her dad

12. [Z] did not see her father that day.

13. The proceedings were listed the following day, 4 October 2017.  Various interim orders were made by consent. The orders required the parties to arrange for [Z] to obtain a mental health plan and a referral for therapeutic counselling. During school term the boys were to spend every second weekend with their father from Thursday to Monday and overnight on Wednesday in the alternate week.  [Z] was to go from Friday to Monday and from after school until 7pm on Wednesday in the alternate week, extending to an overnight stay when her therapist recommended that occur.  The consent orders required the father to return [Z] to her mother overnight if requested by [Z].

1. The interim orders also provided for [Z] to spend three days and two nights with her father during the holidays from Friday morning, 6 October 2017 to Sunday afternoon, 8 October 2017 when the boys were also in his care.  All three children were to spend time on a week about basis with each parent during the long summer Christmas school holidays, subject to the recommendations of [Z]’s therapist.  All of the orders were made by consent except that the father wanted [Z] to immediately spend overnight on Wednesdays each alternate week.

2. The parties were ordered to attend a child inclusive conference with a family consultant in January 2018.

3. Despite the consent orders, [Z] spent virtually no time with her father.  The mother said [Z] kept referring to the events of 2 October 2017 and said she was scared to go with her father.  The mother said she had great difficulty getting [Z] to go to school on the days she was due to be collected by him.  She said [Z] became extremely upset, crying and insisting she did not want to see him.  The mother said that, even when she managed to calm [Z] down, she sometimes could not send her to school because she was in such a poor emotional state and had red, swollen eyes and a blotchy face from crying.  The mother said she could recall [Z] only attending one Wednesday afternoon visit with her father.

4. On Wednesday 25 October 2017, [Z] was due to spend time with her father.  Although [Z] protested about going to her father’s home, she went to school.  Later that morning the mother received a text message from the father telling her he had been to the school and spoken to [Z] and they had agreed they would speak again in the afternoon and [Z] would decide then whether she was going with him.  The mother’s friend, Ms E, often collected [Z] from school when the mother was at work.  The mother messaged Ms E to let her know that [Z] might be going with her father that afternoon.  Ms E went to the school to collect [Z] in the event she did not go with him.  The father said that the arrival of Ms E guaranteed [Z] would not go with him and blamed the mother for sending her.  The mother said she felt she had to make some arrangement because the father was going to give [Z] the choice of going with him or not.  I accept it was reasonable for the mother to send Ms E but it would have been better if Ms E had not made it known to [Z] that she was there.

5. From late October 2017 the father began attending [Z]’s school assemblies and visiting her at the end of the school day before she was collected.  He said the school principal had suggested that as a way of maintaining a connection with [Z]. 

6. [Z] was due to be with her father on the weekend of Friday, … 2017 to Monday …, the latter date being [Z]’s birthday.  The father said he received a text message from [Z] on Friday saying she would not go home with him that afternoon.  He went to the school to speak with the principal about whether or not he should attempt to collect her after school.  The principal took [Z] out of class to speak with her father.  The notes from the school file indicate that [Z] was happy to speak with him and greeted him warmly but stated clearly that she was not going home with him.  The principal noted that [Z] mentioned a birthday celebration arranged for her by her mother the following day.  The principal noted the father remained calm and did not react to that information but, after [Z] returned to class, the father queried why a party would be planned when [Z] was due to be with him.[7]

   [7] Annexure F to the father's affidavit filed 21 December 2018

7. The mother said she already knew [Z] was not spending time with her father that day as [Z] and her father had exchanged text messages early that morning which ended with [Z] saying she did not feel ready to go with him but might come on the Sunday.  She said the father seemed to accept that because he sent her a text message saying, “OK I’ll see you at school”.  The mother said she invited her family over to have  birthday cake with [Z] on the Saturday in the hope it would encourage her to go to her father’s home on the Sunday for a similar event.

8. Both parties took steps to implement the orders made on 4 October 2017 for counselling for [Z].  A mental health plan was obtained from [Z]’s GP and a referral was made for [Z] to see a counsellor, Ms F.  [Z] saw Ms F on 14 and 21 November 2017.  The counsellor noted on the first day that it was difficult to distinguish [Z]’s account of why she was not seeing her father from the mother’s description. The father relied on this as evidence of the child adopting the mother’s views and attitudes to the father but it is also consistent with the mother relaying [Z]’s concerns, which she shared, based on what she had been told by [Z] and having witnessed [Z]’s distress.

9. The mother said that, after [Z]’s second appointment, Ms F recommended that [Z] should be given a break and not be pressured to spend time with her father. 

10. The father said that during a conversation he had with Ms F in November 2017 she advised him to not discuss with [Z] any issues surrounding the parents’ separation and recommended that he stop attending the school.  An appointment was made for him to meet with [Z] during a session with Ms F on 13 December 2017. 

11. The father said he had stopped attending the school on Ms F’s advice and hoped that the meeting on 13 December would provide a breakthrough.  Unfortunately, at the end of November 2017, Ms F advised the father she was leaving the clinic and would not be able to see [Z] any more.[8]  Despite this, the father blamed the mother for the counselling coming to an end.  He said, “[Z] only consulted with Ms F twice before Ms Mayberry stopped the therapy”.[9]

    [8] Father's affidavit filed 21 December 2018 at paragraph 126

    [9] Ibid at paragraph 122

12. The father’s solicitors wrote to the mother’s on 30 November 2017 proposing that a psychologist, Ms G, be appointed as [Z]’s therapist and advising that a tentative appointment and been made for 12 December 2017.  The mother said that was the first she knew about Ms F not being available to continue as [Z]’s therapist.  She said she tried to speak with Ms F and finally received a return phone call on 6 December 2017.  She said that Ms F told her during that phone call that she was no longer able to meet with [Z] because the father had been threatening towards her which resulted in the centre at which she worked deciding to ban him.  That was denied by the father and there was no independent evidence of it. 

13. The mother (who was self-represented for financial reasons from around this time) wrote to the father’s solicitors on 6 December 2017 to advise what she was told by Ms F.  She expressed regret because, she said, [Z] had begun to feel comfortable with Ms F.  She said she told [Z] that Ms F was unwell but [Z] did not want to start the process all over again with a new psychologist.  She said she agreed to [Z] seeing Ms G but was unable to get an appointment until early January 2018.  She sought an assurance from the father that his behaviour would not interfere with the new counsellor’s work with [Z].

14. [Z] met with Ms G twice in January 2019 and on a third occasion after that.  The mother said [Z] became increasingly reluctant to attend.  The mother made a separate appointment to meet with Ms G to talk about [Z]’s refusal.  She said Ms G told her that not much could be done if [Z] refused to attend.

Child Inclusive Conference

1. The child inclusive conference occurred on 24 January 2018.  At that stage, [Z] had not spent time with her father, other than their interactions at [Z]’s school, since the beginning of term 4 in 2017.  The father told the family consultant, Ms H, that he believed the mother was deliberately discouraging [Z] from spending time with him.  The mother said she was unable to compel [Z] to spend time with her father despite strong encouragement.  She told Ms H the father was a loving parent and that there were no risks to any of the children in his care.

2. The father said he believed that the mother had mental health issues because of what he described as severe mood swings during the relationship.  He told Ms H that he believed [Z] was becoming unbalanced and was starting to mimic the behaviour of her mother by refusing to respond to his text messages.  He said that, when [Z] spent time with him, the mother would contact [Z] by text message and encourage her to come home.  I reject that.  Despite the volume of text messages that came into evidence, none of them matched that description, except possibly one in which the mother said, “I miss you too”, in response to [Z] telling her mother that she missed her.  However, in the same text message, the mother encouraged [Z] to settle down and enjoy the time with her father.  There is no evidence of mental illness on the part of the mother.

3. [Z] participated in an interview with Ms H.  Ms H reported on that interview as follows:

   17.    [Z] appeared to have a quiet demeanour; however she was confident in her communication.  When asked why she was attending the conference, she said that, “It is because Dad wants me to go to his house but I don’t want to because he scared me by what he said to me.”  [Z] said that her father said to her: “You used to be very confident.  Mum has done all this to the family.  Your Mum is making you not want to come to me.”

   18.    [Z] said that her mother has stopped encouraging her to spend time with her father, “because she doesn’t want to push me to do anything I don’t want to do.”

   19.    When asked if there was there anything that would help her to spend more time with her father, [Z] said, “It doesn’t feel like home there; I don’t know when dinner or bed time is; there is nothing organised; I don’t know what I can do, or what I can’t do there.”

   20.    When asked if there is anything that makes her sad, [Z] said that, “When Dad just tries to make me do stuff.  When I want to go to Mum’s and he won’t let me.”

   21.    [Z] said that she feels worried that “he will do it again (say bad stuff about me and Mum).”

   22.    [Z] said that whenever she has concerns, she talks to her mother.

   23.    [Z] said that, she liked to spend time with her father when “it was all ok and everyone was ok with things.” She said that when she spent time with her father, she liked: “to play with her dog, enjoyed taking the dogs for a walk with him; enjoyed visiting her Aunty Ms J with him and going for a swim in Aunty Ms J’s pool.”

   24.    When asked what she did not like about spending time with her father, [Z] said, “Just the mean things he said.”

   25.   [Z] said that the last time she spent time with her father was at the start of Term 4 2017, when she visited his house for dinner.  [Z] said that it was a good visit, except her father “got a bid mad that he didn’t get to spend more time with me.”  When asked how her father behaves when he is “mad”, [Z] said that he argues with her and says things like “You’re always with your Mum even when you’re with me.  You’re always texting her.”  [Z] said that she feels sad for her mother and herself when her father says things like that.  

   26.    [Z]’s wishes for her family are: “No one would say mean stuff; everything would be organised; and, we’re all just happy.”

4. Both [X] and [Y] participated in the interviews.  [X] spoke favourably of his time with each parent.  [Y] also spoke about enjoying his time with each parent.  He commented that the routine of the mother’s house “makes things easy”.[10]  In relation to his perspective on [Z]’s difficulties, Ms H reported as follows:

   [Y] said he does not understand what is happening between [Z] and their father.  He said he wishes his parents would stop arguing and not take the issue with [Z] out on each other.  He said it is not their fault that she does not want to spend time with their father, it is [Z]’s fault.  [Y] believes his father ought to give [Z] some space and time and she would move closer to him.[11]

   [10] CIC memorandum 25 January 2018 at paragraph 34

   [11] Paragraph 36

5. Ms H recommended both parents participate in a post-separation parenting program.  She suggested the parents could benefit from using a web-based parenting application to improve the communication.  In relation to [Z]’s time with her father, she recommended the mother be clear about her expectation that [Z] will spend time with him.  She encouraged the father to allow time for [Z] to re-establish trust in him and for him to desist in making comments to [Z] about the time she spends with him.  She commented that some girls of [Z]’s age may feel greater affinity with their mothers as they approach adolescence.  She recommended the parties consider giving [Z] the opportunity to gradually begin spending time with her father again, starting with a period of several hours, focused on activities they both enjoy.  She said that forcing [Z] to spend longer block periods of time with her father may be counter-productive.[12]

   [12] Paragraph 38

6. When the proceedings were next before the Court on 30 January 2018, an independent children’s lawyer was appointed for [Z].  The matter was listed for a three-day hearing on dates to be advised and trial directions were made.  A family report was ordered.  All previous orders for [Z] to spend time with her father were suspended.  It was noted that the Court expected the parties would, through the counselling process with Ms G, find a way for [Z] to spend regular time with her father, even if initially limited in time.  The proceedings were adjourned to 3 May 2018 for mention or interim hearing.

7. On 3 May 2018 interim orders were made by consent which provided for [Z] to spend time with her father every second Sunday from 3pm to 7pm at the home of the father’s sister, Ms J.  [Z] had always had a good relationship with her aunt and cousins and the parties hoped [Z] seeing her father at their home would help break the ice and enable her to reconnect with her father.  From 1 June 2018 [Z] was to spend every second Friday from after school until 7pm at the father’s home.  In the event any contact was cancelled, the child was to spend make up time with her father the following Friday.  By consent, the orders restrained the parties from discussing the arrangements with [Z] except for the purpose of facilitating handover.  The parties were to attend a dispute resolution conference in July 2018 with a view to increasing [Z]’s time to include overnights.

8. Notations were made to the consent orders of 3 May 2018.  The first noted the mother had taken [Z] to two appointments with Ms G and had cancelled two appointments.  The second noted the father might press an application for a change of residence if the child was not made available to spend time with him.  The last noted the mother would encourage [Z] to spend time with her father and would take her to the handover point regardless of whether she was distressed or expressed a desire not to attend.  The proceedings were adjourned to 3 August 2018 for mention or interim hearing.

9. The first time [Z] was due to spend time with her father in accordance with the orders of 3 May 2018 was 6 May 2018 at the home of her paternal aunt.  The mother said [Z] was resistant to attending but she managed to persuade her to go.  Upon arrival at her aunt’s home, [Z] saw her father’s car parked in the driveway and refused to get out of the car.  The mother went to the front door and spoke with the aunt.  The father then came out of the house and went to the car to speak to [Z].  He was unable to persuade her to come inside. The mother said she waited at the front door and tried to speak to the father when he returned.  She said he spoke over the top of her and told her he was going to apply for a change in [Z]’s residence for a period of six months.  The mother wrote to the father’s solicitors expressing frustration about the situation that day.   She said she expected to drop [Z] off to settle in to play with her cousins before the father arrived.  I agree that is likely to have been more successful.

10. On 9 May 2018, the father’s solicitors wrote to the mother and told her that, because [Z] did not spend time with her father on 6 May 2018, he would collect [Z] from school on Friday, 11 May 2018.  They insisted the mother not discuss that with the child.  The mother said she complied with that request and did not tell [Z] that her father would be collecting her from school that day.  On the contrary, she told her she should walk home from school.  She did however notify the school principal that [Z]’s father would be collecting her.  The school principal had a conversation with the father that day and told him that she would advise [Z] at 2.45pm that he was coming to collect her.  The father apparently made no objection to that course.  When the father attended the school to collect her, [Z] refused to go with him.  She became so distressed that her father drove her home.  The mother had not attended the school nor had she arranged for anyone else to attend to collect [Z].  This incident, like various incidents before the proceedings began, is an example of the father being unable to compel [Z] to spend time with him, despite his criticism of the mother being unable to do so.

11. On Sunday 20 May 2018 [Z] was again due to spend time with her father at the home of her paternal aunt.  The mother said [Z] became very distressed and refused to get in the car.  She said the only way she could have got her into the car was to resort to physical force which she was not prepared to do. 

12. The father’s solicitors gave notice to the mother that he intended to collect [Z] after school on Friday, 25 May 2018.  Again they told the mother she should not tell [Z] that her father was going to collect her.  The mother said she was not prepared to lie to [Z] again.  She pointed out that, two weeks earlier when she lied to [Z] about how she was getting home, [Z] became so upset that her father drove her home in any event.  She said she was worried about the pressure on [Z] and asked for suggestions about how she should deal with the situation.

13. On that Friday, 25 May 2018 [Z] asked her mother whether her father was picking her up from school.  The mother said he was, and reassured [Z] that she would be fine and that the visit was only for a short time.  [Z] became upset and said she didn’t want to go because she was scared.  The mother said she kept reassuring her but [Z] worked herself up into an hysterical state.  She said that, at one point, she was forceful in her language and [Z] screamed at her “NO!!”  The mother said she felt she had pushed [Z] too far and that she could not keep pressuring her.  She was unable to get [Z] to attend school that day. 

14. The mother wrote to the father, the father’s solicitor and the independent children’s lawyer that day, explaining what happened and asking for advice about what she should do.[13]  She reiterated that she remained committed to [Z] spending time with her father but said she believed it would take some time and a change of tactics.  The independent children’s lawyer responded to remind the parties that counselling had been ordered and suggested that perhaps the whole family, including both parents, could attend an outing to present a united front to [Z].  The father’s solicitors responded and advised they would probably file an application given the mothers admitted contravention of the orders.  They agreed with the suggestion by the independent children’s lawyer in the very short term.  The mother did not agree.  She said she had previously made that suggestion to [Z] without success.  She also said she felt there would be underlying tension in any event which would make all three children uncomfortable.

    [13] The letter at annexure J to the mother's affidavit filed 17 January 2019 is incorrectly dated 23 May 2019, rather than 25 May 2019.

15. [Z] attended school on Friday 1 June 2018, and Friday 8 June 2018.  The father attempted to pick her up after school on each of those days but [Z] refused to go with him and walked home.

1. On 14 June 2018, [Z] told her mother she would not go to school the following day because she knew her father would come and want her to go with him.  She complained that the previous week when he tried to pick her up from school, he had asked her a lot of questions and got angry with her.

2. On the morning of Friday, 15 June 2018, [Z] engaged in a text message conversation with her father as follows:

   [Z]:I don’t want you to pick me up

   Father:Why is that.  What’s the matter??

   [Z]:I’m scared that your gonna get mad because I don’t want to come with you

   Father:Why would you think that I just want to see you and spend some time with you

   [Z]:Because you started getting mad last week

   Father:No I didn’t get mad I was a bit sad cause I was looking forward to the afternoon together

   [Z]:I’m not ready to come yet

   Father: When do you think you might be ready it’s been a long time already and I don’t understand why I love you lots and want to spend time with you like we always did.[14]

   [14]  Father's affidavit filed 7 December 2018 at Annexure E

3. [Z] refused to attend school that day and did not spend time with her father that afternoon.

4. The father then began attending school most mornings and afternoons to see [Z].  He said that she ran up to him every day and gave him a hug and a kiss.  He said they had a short conversation and [Z] appeared untroubled by the contact.  The mother said [Z] expressed increasing discomfort over time and said she felt she had to stand with her father and talk to him, rather than play with her friends.

5. On 26 June 2018, the father filed an application in a case seeking orders for [Z] to live with him for six months during which she would spend every second weekend and Wednesday afternoons with her mother.  After six months, he proposed that [Z] would live for equal time with each parent at the same time as her brothers.  He proposed that [X] and [Y] spend equal time with each parent for two weeks at a time. 

6. In support of his application, the father filed an affidavit in which he said he had spent no meaningful time with [Z] in accordance with the orders of 3 May 2018.  He said he believed the mother was actively discouraging [Z] and interfering with his time with her.

7. On 30 July 2018 the mother filed a response to the father’s application in a case.  She sought orders for equal shared parental responsibility for [X] and [Y] and sole parental responsibility for [Z].  She proposed an order which required her to encourage [Z] to have contact with her father and to facilitate any time sought by [Z]. 

Interim orders of 3 August 2018

1. Both applications came before the Court on 3 August 2018.  Interim orders were made by consent that day which provided for the parties to have equal shared responsibility for all three children.  [X] and [Y] were to spend equal time with each parent on a two week about basis.  The orders provided for the mother to ensure [Z] attended upon the school counsellor or another counsellor to be agreed for the purpose of therapy concerning the separation of the parents and the separation of [Z] from her father.  The sessions were to occur at least once each week.  The parties were also required to attend upon a counsellor fortnightly to learn means of assisting [Z] to recommence regular time with her father.  From 13 August 2018 the father was permitted to attend [Z]’s school on one day a week and, from 1 September 2018, two days a week, to spend some time with her before school.

2. On 3 August 2018, final hearing dates of 4 to 6 February 2019 were allocated.  Further trial directions were made and the proceedings were adjourned to 6 November 2018 for mention or interim hearing.

3. On 8 August 2018 the mother booked an appointment for [Z] to meet with Ms K from Region L Psychology.  On 31 August 2018, three days prior to the appointment, she received a phone call from Ms K’s office saying they were unable to assist because the parties were involved in family law litigation.  The mother said she had informed them of that when she made the appointment.

4. On 3 September 2018, the mother made an appointment for [Z] to meet with a psychologist, Ms M, from Clinic on 17 September 2018.  On that date Ms M spoke with the mother for about 45 minutes and met briefly with [Z].  She said she was unable to proceed until she received signed consent forms from both parents and had a copy of the court orders.  The mother said she was not informed of those requirements when she made the appointment.

5. On 19 September 2018, the mother signed the consent forms and emailed them to Ms M.  She said she repeatedly contacted her office and eventually an appointment was made for 12 October 2018 but was subsequently postponed to 26 October 2018.

6. The mother said that during this period she had no concerns about [Z] meeting with the father at school.  She said the visits appeared to be going well and [Z] made no comments which caused her to think otherwise.  The father alleged the mother was delivering [Z] late to school to minimise his time but the mother disputed that.  She said she had to be at work at 8.30am and always dropped [Z] off between 8.15am and 8.20am.  I accept that.

7. When the parties returned to Court on 6 November 2018, further interim orders were made by consent.  They provided for [Z] to spend time with her father from after school until 7.30pm each Thursday between 15 November 2018 and 21 December 2018 and on … 2018 to celebrate [Z]’s birthday (which was the following day), unless [Z]’s psychologist recommended in writing to the contrary.  During the approaching Christmas school holidays [Z] was to spend time with her father for three hours on Christmas Day, for six hours each day between 6 and 13 January 2019 and for eight and half hours each day between 14 and 20 January 2019.  During the latter period [Z] was to spend overnight with her father on each Monday, Wednesday and Friday.  She was also to spend a block period with her father from 9am on 29 January to 5.30pm on 1 February.  The consent orders provided that, if [Z] became distressed in her father’s care, he was to return her to the mother. 

8. The orders provided for [Z]’s counselling with Ms M to continue.  Ms M was to be given a copy of the orders and asked to explain the arrangements to [Z]. The independent children’s lawyer was to obtain a report from Ms M as to [Z]’s progress and Ms M’s recommendations about [Z]’s contact with both parents.  Each parent was to take reasonable steps to implement those recommendations.  In the event [Z]’s time with her father did not occur, he was at liberty to have the proceedings relisted on an urgent basis.

9. Interim restraining orders were also made on 6 November 2018.  They ostensibly restrained the parties engaging in certain behaviour but most were, in fact, directed at the mother.  They restrained the parties from:

   a)discussing the contact arrangements or the Court proceedings with [Z];

   b)arranging any activity for [Z] which falls in the father’s scheduled time with her;

   c)denigrating, harassing, abusing, insulting or criticising the father in the presence or hearing of any of the children; and

   d)discouraging or negatively influencing [Z]’s time or relationship with her father.

10. The mother arranged for [Z] to meet with Ms M on 8 November 2018 to have the orders explained but when they arrived, [Z] refused to get out of the car.  The mother went in and spoke with Ms M who then came outside to speak with [Z].  Ms M had not received a copy of the orders and was unable, therefore, to explain them to [Z].  Ms M sent an email to both parents later that day, 8 November 2018, confirming that [Z] had indicated to her that she was not willing to engage in therapy.  Ms M recommended the therapy be put on hold because progress was not likely to be made unless [Z] was a willing participant.  She recommended that [Z] be made aware of all contact with her father prior to it occurring and that she should not be lied to.  She suggested the parents try to find a psychologist [Z] is comfortable with and trusts, such as a school counsellor.

11. The mother wrote to the independent children’s lawyer on 9 November 2018 to advise that [Z] had refused to attend the appointment the previous day and that Ms M had not received a copy of the orders.  She asked how the orders should be explained to [Z], given the restraining orders prevented her from discussing the arrangements with her.   The independent children’s lawyer replied that she had been unable to forward the orders to Ms M, as she had not provided her email address until after the scheduled appointment.  She said there seemed little point in sending them to Ms M’s in the circumstances.  The independent children’s lawyer suggested the mother bring [Z] to meet with her to have the orders explained.  That did not occur for reasons I will explain shortly.

12. On 13 November 2018 the parties had scheduled appointments with Ms N for the preparation of the family report. The mother met with the family consultant at 11am.  [Z] was not due to attend until 1pm.  The mother had arranged for her parents to collect [Z] and bring her in for the appointment.  The night before the appointments [Z] told her mother she did not want to go.  The mother said she made it clear to [Z] that it was important that she attend.  During the mother’s appointment [Z] sent text messages saying she was not going to come.  The mother sent her mother a message asking her to pick [Z] up early, assuming more time would be required to get her to the appointment if [Z] was resistant.  Ultimately the maternal grandmother was unable to facilitate [Z]’s attendance.  The mother left the appointment and went to collect [Z] herself.  When she arrived home [Z] was lying in bed crying.  The mother tried to persuade her to cooperate and told her Ms N was very nice but [Z] still refused.  The mother said [Z] told her “I have told everyone before.  I don’t want to do it again.  I don’t want to be in a room with him”.[15]  The mother subsequently instructed her solicitors to ask for a further appointment for [Z] on a different day but that was not able to be accommodated by the Court.

    [15] Mother's affidavit filed 17 June 2019 at paragraph 170

13. The mother then re-engaged her former solicitors.  They wrote to each of the other parties on 14 November 2018 to discuss how to proceed.  They pointed out that [Z] had attended upon four different counsellors or psychologists, had previously met with the independent children’s lawyer and had met with Ms H for the child inclusive conference in January 2018.  They observed that [Z] seemed to have become extremely resistant to meeting with professionals and expressed scepticism about whether the mother would be able to garner [Z]’s cooperation with attending at the office of the independent children’s lawyer.  They suggested the independent children’s lawyer meet with [Z] at her school or by telephone.  The independent children’s lawyer arranged to explain the orders by telephone to [Z].  That occurred after school on 4 December 2018 but [Z] hung up on the independent children’s lawyer before the conversation ended. 

14. The following day, 5 December 2018, the independent children’s lawyer wrote to the parties to advise she had only been able to explain some of the orders to [Z].  The mother’s solicitors wrote to the other parties on 6 December 2018 seeking their agreement for the mother to explain the orders to [Z] because she understood that [Z] was not to see her father until the orders had been explained to her.

15. On 7 December 2018, the father filed a contravention application alleging the mother had breached the orders on 6 November 2018 by failing to make [Z] available to spend time with him.  He also filed an application in a case seeking orders for all three children to live with him from 6 January 2019 and prohibiting the mother from contacting [Z] by any means whatsoever.  Both applications were listed on 18 December 2018.

16. [Y] graduated from high school on Thursday 7 December 2018.  The mother planned to attend the graduation ceremony and formal with [Z] that evening.  She did not expect the father to collect [Z] from school that day because [Z] was still unaware of the orders and the father had not attempted to collect [Z] since they were made.  The mother went to collect [Z] from school and offered a lift home to two of [Z]’s friends.  As they were getting in the car the mother noticed a woman approaching and apparently videoing her on her mobile phone.  She then saw the father standing at the window of her car and recognised the woman as the father’s sister, Ms J.  The mother expressed surprise about them being there, given [Z] did not yet know about the orders.  She said she told the father that, had she known he was coming to collect [Z], she would not have attended.  Ms J asked [Z] whether she would like to go with her and the father to [Y]’s formal.  The mother said she encouraged [Z] to go and said she would see her later at the formal but [Z] refused.  The father agreed the mother told [Z] she could go but said it was not in an encouraging manner and [Z] became upset.  The mother said Ms J stopped videoing when [Z] began to cry.  The mother eventually drove away.  The father said she drove away so abruptly that the car bumped his sister and almost ran over her foot.  The mother denied that. She said she drove away slowly but heard Ms J yell out something like “That’s physical abuse”.  The father said his sister said words to the effect of “Be careful, that’s assault”, but did not yell it. He conceded [Z] may have heard it which suggests it was said loudly.  Ms J attended Court every day of the hearing to support her brother but did not give evidence.  No video of the incident was produced. I infer that neither the video nor Ms J’s evidence would have assisted the father.  I am satisfied on the evidence of both parties that the incident was very tense and demonstrated to [Z] that the dispute had spread to family members apart from her parents.    

17. The following Thursday, 13 December 2018, [Z] refused to get out of bed, expecting her father would turn up at school that afternoon.  The mother pressed [Z] and eventually obtained her cooperation.  She dropped [Z] to school at 8.45am.  That afternoon [Z] ran away from school.  She ran home but the father was waiting for her in the driveway.  She hid in an alleyway near the mother’s home.  The mother was at work.  She spoke to [Z] by telephone and insisted she go home and speak to her father.  She assured her that everything would be alright.  [Z] hung up on her mother.  The mother sent an email to the independent children’s lawyer asking her to call [Z] to encourage her to go home with her father.  She received an automated “Out of office” reply.  [Z] did not go home until after her father had left.

18. The following Monday, 17 December 2018, the father went to see [Z] before school.  [Z] hid in the toilets while two of her friends kept watch.  The father left when the bell rang 40 minutes later.  [Z] told her mother about it that afternoon.  The mother said she became cross with [Z], told her she was being silly and that she should just have a chat with her father before going off to play.   She said [Z] complained that she talks to her father but he then stands and watches her.  The mother said she thought [Z] would be more comfortable if her father spoke to her briefly and then let her go and play with her friends.

19. On 18 December 2018 the contravention application and application in a case filed by the father on 7 December 2018 came before the Court.  The father withdrew the contravention application.  Orders were made requiring the mother to take reasonable steps to ensure [Z] met with the independent children’s lawyer the following day, 19 December 2018.  It was noted the Court would attempt to have an addendum to the family report prepared if Ms N was able to meet with [Z] and carry out an observation of [Z] with each parent prior to the final hearing.  As mentioned earlier, that was not able to be done.

20. The independent children’s lawyer met with [Z] at 9am on 19 December 2018 and explained the orders to her.  The next day, 20 December 2018, the father went to the school to collect [Z].  [Z] ran away from school and did not spend time with him.

21. On Christmas morning [Z] protested when her mother reminded her she was going with her brothers to spend three hours with her father.  When [X] and [Y] began to get ready, the mother told [Z] to get ready.  The boys joined in the encouragement.  [Z] went with her brothers and stayed at the father’s family Christmas for two and half hours.  The father said she appeared relaxed and happy during that time.

22. [Z] was due to spend time with her father for six hours each day between 6 and 13 January 2019.  The mother said the father did not come to collect her on 6 January.   On Monday 7 January 2019, [Z] had a sore mouth for which she was prescribed antibiotics the following day.  She did not go to see her father on either Monday or Tuesday but spent six hours with him on Wednesday, 9 January 2019.  On 10 January 2019, [Z] refused to go with her father but the mother was able to drop her at the home of the paternal aunt, Ms J, at 11am and [Z] stayed there with her father until about 5pm.

23. On Friday 11 January 2019, the mother went to work but when [Z] refused to go with her father, she came home again to try to persuade her to cooperate.  She was not successful.  The mother asked the father to meet her at her former rental property in Suburb O the following day because she had recently moved but was still packing up boxes.  [Z] resisted but the mother was ultimately able to get her into the car and drove to Suburb O. They were late meeting the father.  As soon as the car stopped, [Z] got out and ran away.  Both parents looked for her.  The mother was able to contact her by phone but [Z] refused to say where she was.  The mother eventually found her at the home of the maternal aunt, Ms C, at about 11.30am.  She said [Z] was hot and a bit sunburnt but otherwise unharmed.  She chastised [Z] for running away.

24. [Z] was due to spend time with her father for seven consecutive days between 14 and 20 January 2019 and overnight on the Monday, Wednesday and Friday of that week.  She went with her father on Monday 14 January but refused to stay the night.  She stayed for dinner and the mother collected her at about 7.30pm.

25. The mother said in her evidence that she was worried about [Z] running away and about the impact of the tension between her and [Z] on their relationship.  She said [Z] is normally a compliant child and had never before had behavioural issues.  She said she felt it was counterproductive to keep trying to force [Z] to spend time with her father. She said [Z] had said more than once words to the effect of “I don’t like the spotlight being on me.  I keep telling all these people the same thing”.

26. The father remained firmly convinced that the source of the problem was the mother’s lack of support of [Z]’s relationship with him, and her subtle encouragement of [Z]’s resistance.

The family report by Ms N

1. The family report prepared by Ms N, family consultant, was issued on 26 November 2018. Ms N met with the parties on 12 November 2018 in person and had a follow-up interview with them two days later on 14 November 2018. 

2. Each party outlined the history from their perspective.  At the time of the interviews the husband was not working.  He told Ms N that he had not worked since separation in February 2017 because of the stress arising from the separation and that he had no plans to return to work.[16]

   [16] Family Report 26 November 2018 at paragraph 7

3. At the time of the report the mother was working from 8.30am until 3pm on Mondays and Wednesdays and from 8.30am until 5pm on each other weekday.  [Z] was spending time with her father twice a week at school before school commenced.  [Y] and [X] had been living on an equal time basis with each parent since August 2018.

1. The father told Ms N that throughout their relationship the mother belittled him and suffered severe mood swings.  He said he believed the mother was manipulating [Z] into not wanting to spend time with him and was undermining their relationship.  He said the mother had smothered [Z] in the post-separation period, which caused [Z] to lose confidence in herself.  He said this behaviour included co-sleeping with [Z] and communicating with her excessively when she was at his home.  The mother agreed she and [Z] shared a bed.  She said she had been unable to afford to buy separate single beds for her and [Z] and they slept together in a queen size bed.

2. The mother told Ms N she believed the father was alcohol dependent and alleged that, on some occasions, his behaviour was threatening and aggressive.  She alleged the father had put emotional pressure on [Z] by making her feel guilty for not wanting to spend time with him, telling [Z] he is sad about her not spending time with him and telling her he was going to Court to make her spend time with him.  The father conceded to Ms N that he had told [Z] he felt upset about her not spending time with him and had asked her why she did not want to. He also conceded he told [Z] he was going to Court to stop her mother interfering with his time with her.[17]  

   [17] Family report at paragraph 64

3. As mentioned earlier, the mother had arranged for the maternal grandmother to bring [Z] to the interviews with Ms N.  [Z] refused to attend and was not interviewed for the purpose of the report.  Ms N interviewed [X] and [Y] individually and carried out an observation of both boys with each parent.  Both boys reported a positive relationship with each parent.  Both were aware of the conflict between their parents.

4. Ms N said there appeared to be no significant risk of harm to [Z] from a relationship with her father but believed she was at risk of emotional harm because of the difficulties she had experienced in the previous 15 months.  She also said that [Z] seeing her father twice a week before school did not constitute a meaningful and significant relationship with him. 

5. Ms N expressed the view that it was inappropriate for the mother to continue to share a bed with [Z] given she was almost 12 years old.  She said such an arrangement may compromise [Z]’s capacity to develop emotional independence.

6. Ms N noted that information from the child inclusive conference on 24 January 2017 and from the police report of 3 October 2017 both indicated that [Z] may have been exposed to her father making negative comments about her mother.  She said that either parent denigrating the other to [Z] is likely to dilute [Z]’s capacity to develop a positive sense of identity.[18] 

   [18] Family report at paragraph 137.

7. Ms N noted the father had not worked since February 2017 because of stress.  She queried whether the stress he was experiencing had also reduced his ability to be attuned to [Z]’s needs.

8. Ms N said the father’s proposal to have [Z] live with him for six months with limited time with her mother might help to address the problem of [Z] spending no time with him but said “[Z] may find such a sudden complete change in parenting arrangements overwhelming and this could be psychologically harmful for her”.[19]

   [19] Ibid at paragraph 141

9. Ms N said it seemed that the mother’s proposal for [Z] to live with her and for her to encourage [Z] to spend time with her father seemed to be based on a desire to protect [Z] from emotional harm arising from being pressured to spend time with her father.  She said there may be merit in the mother’s proposal given it had not been possible for either parent to enforce the time between [Z] and her father.

10. Ultimately Ms N said it was difficult to identify any approach which was likely to be successful.  She said in some circumstances a swift approach can be more successful than a gently graduated approach which can increase anxiety and signal to the child that there is a need to proceed cautiously.  She said the proposals of each party had some merit, the key being whether the breakdown in [Z]’s relationship with her father was the result of interference by the mother or arose from the nature of the relationship itself.  Given she did not meet [Z], she declined to make any formal recommendations.

11. Ms N was not required for cross-examination.

The first hearing date

1. On 4 February 2019, the first day of the trial, I expressed reservations about proceeding with the hearing in circumstances in which the father was pressing for a change of residence with no contact between [Z] and her mother for six months when there was no evidence from an appropriately qualified expert about the child’s views and the potential impact on her of such drastic action. The parties agreed to engage a single joint expert to prepare a report.  The trial dates were vacated and the final hearing was listed instead for three days commencing on 6 May 2019.  Following submissions, interim orders were made for [Z] to spend time with her father in accordance with her wishes but expected to be at least twice each month.   The mother was restrained from co-sleeping with the child.    

2. The parties engaged a clinical psychologist, Dr A, who met with the parties and [Z] and prepared a report dated 23 April 2019, released by the Court on 24 April 2019.   I will return to that report shortly.

3. [Z] started high school at School P on 4 February 2019.  Her father sent her a message that day.  The mother encouraged her to reply which she did later that evening.  The mother sent the father a photo of [Z] in her new school uniform. 

4. On 11 February 2019 the father sent [Z] a message while she and her mother were watching a movie.  The mother stopped the movie and said they could resume watching once she had responded to her father, which [Z] did.

5. The mother said she continued to look for ways for [Z] to spend time with her father and made suggestions to [Z], who remained resistant.  The mother said [Z] became very distressed at times and said she was scared someone was going to come to school to take her away.  She also said she was unable to concentrate because she was worried about what was going to happen.  The mother said she did her best to reassure [Z].  She also encouraged [Z] to see a psychologist or counsellor to help her deal with what she was experiencing but [Z] was not amenable to that suggestion.

6. In mid-March 2019 the mother moved into a new rental property in Suburb Q in which each of the children have their own bedrooms.  She said that [Z] has happily slept in her own room since then.

7. On the father’s birthday, … 2019, [Z] asked her mother whether she could stay home and work on two assignments.  The mother initially refused but, ultimately, she and [Z] reached an agreement for [Z] to stay home and work on her assignments on the condition she went to her father’s birthday dinner that evening.  That afternoon [Z] tried to renege on the agreement.  The mother was firm with [Z] and told her she would take away her phone and iPad if she failed to honour the agreement.  She then deliberately stayed at work to prevent [Z] having another opportunity to get out of the arrangement.  [Z] went to her father’s birthday dinner with her brothers. Members of the extended paternal family were also present.  The father said [Z] seemed perfectly relaxed during the event.

8. The mother said she took the opportunity of speaking to [Z] about her father during a game of backgammon on 25 April 2019.  She said she told [Z] that her father loves her and wants to spend time with her and that she needed to have a relationship with him and had to think of ways to do so.  She said [Z] seemed to be listening but at one point said “I don’t want to and you know why”.

9. The following day, Friday, 26 April 2019, [Z] attended another paternal family dinner.  This was a celebration of the paternal grandmother’s recent release from hospital. The mother said [Z] expressed reluctance about going but she, the mother, told her that her father and grandparents wanted to see her and that she had to go.  She said she then refused to engage with [Z] any further about it.  When [X] and [Y] got up to go, so did [Z].

Report by Dr A

1. Dr A is a clinical psychologist practising in Sydney.  She was engaged by the parties to prepare an expert report addressing, in particular, how to manage [Z]'s refusal to spend time with her father.  She was asked to assess whether there was any aspect of either parent’s psychological health that may affect their ability to provide for [Z]’s well-being and whether there would be any long-term adverse psychological impact on [Z] if she were required to live in her father's sole care for three to six months.

2. Dr A departed from her usual practice and did not conduct any observations of [Z] with each parent because she thought the observation session was likely to be volatile and the observation would be an unreliable indicator of the attachment between [Z] and her father.  She also decided not to interview [X] and [Y] as they had been interviewed for the family report in November 2018.  Dr A acknowledged these matters were a limitation to her report.

3. Dr A reported on the personal and relationship history given by each parent.  She said the father’s affect and presentation was unremarkable except that he appeared to be very angry towards the mother and what he saw as her alienation of [Z] from him.  When asked whether he felt he had contributed to the problems within the marriage, the father responded "probably because I wasn't doing things at a fast enough rate to please her".  When asked whether there were any positive attributes of the mother, the father initially responded “I don't know” but went on to say she was a good mother to the children, provided a good structure and meant well.

4. Dr A asked the father what he thought had contributed to [Z]'s rejection of him.  She asked in particular about the events of 2 October 2017.  She said the father told her he and [Z] had had a great day.  He said that at dinnertime [Z] went upstairs to get changed and, after she had been gone for a while, he went upstairs and saw her on FaceTime with her mother and saw that she was crying.  He said he spent some time talking to [Z], trying to find out why she was upset, but she would not say.  He said he drove her home and, on the way, told her he was very disappointed that her mother had deliberately contacted her to discourage her spending time with him.  He said he explained to [Z] that he was going to Court to stop her mother interfering with his time with her.  The father acknowledged to Dr A that this would have upset [Z].  He conceded that things escalated dramatically from that point. 

5. The father told Dr A he believed that [Z]’s resistance to spending time with him was because she felt she had to emotionally support her mother who did not like being left on her own.  He said he believed the mother had taught [Z] to run away from him.  I reject that.  [Z] running away from school or from her father created a burden for the mother.  He also expressed a fear the mother would also “lure the boys away" from him.  This is an irrational fear given their ages and the history of their time with him.

6. Dr A asked the father what he thought the risks were to [Z] in his proposal for [Z] if she were to live with him and have no contact with her mother for a substantial period.  He said he had lost sleep worrying about how it was going to work.  He acknowledged there was a risk [Z] would run away.  He said he would try to comfort [Z] and try to get her to talk to him about what was going on.  He said he believed that [Z] would be relieved and happy once she was beyond the control of her mother.  He expressed fear that, if this did not occur, [Z] may never recover her relationship with him.  He said he hoped [Z] would eventually settle into the same routine as her brothers and spend equal time with each parent. 

7. Dr A said the mother presented as calm, composed and sociable and her affect was unremarkable.  The mother described herself as quite a shy and reserved person but who was also very organised and highly functional.  She said she sometimes felt overwhelmed and anxious about a pending Court event.  She said she had seen a psychologist, Ms K, at the end of 2018 in accordance with Court orders to help her facilitate [Z]'s time with her father.  She said she did not find the therapy helpful.  In her oral evidence, Dr A said she felt the mother was rather dismissive of the counselling.  However, in her oral evidence the mother clarified that Ms K had indicated there were limits to what she could do in the situation without also seeing [Z].

8. The mother told Dr A there were good aspects to the parties’ marriage but problems arose from the father's "defensive and aggressive" behaviour.  She said the father sometimes had an outburst in which he said things such as “fuck you" to her in front of other people, typically at social functions.  She said she felt embarrassed by that and it made her disinclined to socialise with him with others.  She said that, over time, she began to prefer home life when the father was away to when he was home.  Like the father, she identified a family holiday to Country B as the point at which things came to a head.  She said the parties attended couples counselling at Relationships Australia but it was not helpful.  She said she was aware that the father blamed her entirely for the relationship breakdown and for [Z]'s behaviour.  She said she had tried to speak to him face-to-face about [Z]'s difficulties but he became angry and she did not persist.  She said the parties generally communicated by text message.  She said that their communication was sometimes effective, such as when [X] recently broke his wrist and required surgery.  She said the parties communicated well about that.

9. The mother described [Z] as shy and reserved in situations in which she is not comfortable but relaxed, confident and gregarious with people she knows well.  She said [Z] has a close and stable friendship group.

10. When asked to reflect on how the situation with [Z] had developed, the mother said that she believed it was partly due to the fact that [Z] was not used to being cared for by her father and that, well before any Court proceedings, the father would return [Z] to her when she became upset.  She said the father would berate [Z] about her behaviour, saying other children would not behave like that, which genuinely upset [Z].  She said things escalated in early October 2017 when the father spoke harshly about the mother and told [Z] he was taking the mother to Court.

11. The mother acknowledged [Z] was having almost no contact with the extended paternal family.  When asked whether [Z] was still close to her paternal cousins, the mother shrugged and said “She is okay with them".  Dr A said the mother's body language suggested an indifferent or negative view.  In her oral evidence, she said this was an example of what she described as the mother's “double-bind” communication in which she said one thing but her body language communicated something different.  I do not place any weight on this observation because the mother was not given the opportunity to respond to it.  Dr A did not put it to the mother during her interview and only mentioned it during her oral evidence, which occurred after the mother’s evidence had finished.  

12. When asked by Dr A about her proposal to deal with [Z]’s situation, the mother said she had reached the view that it would be best to let [Z] decide whether and how she has contact with her father.  She said she would continue to encourage [Z] to see him and hoped the father would maintain communication with [Z] and invite her to things.  She said she believed that if [Z] was forced to see him, she would run away more often, which raised concerns about [Z]'s physical safety and mental health.  The mother was asked whether she thought there were any risks to [Z] from having no contact with her father.  She said she did not believe [Z] would have no contact with him.  She said that, although the father believed she is responsible for [Z]'s behaviour, she is not happy about her not seeing her father and will not simply let it go.  She said she did do not know whether there would be long-term risks to [Z] if she had no contact with him.  She said she had spoken to a number of people about the issue and two people, in particular, had spoken of the negative effects of being forced as a child to see a parent.  She said she believed that forcing [Z] would result in a worse outcome for her.

13. When asked whether she thought she had contributed to the situation, the mother said she said she did not know what she could have done differently.  She said she thought the parties’ initial agreement for all of the children to spend five nights a fortnight with their father was probably too long for [Z] given she was not used to being cared for by him and that they should have adjusted her arrangements at that time.  When asked to reflect on her own behaviour, she said perhaps she should have persevered with the counselling with the father at Relationships Australia at around the time of separation.

14. When asked about the father’s proposal, the mother said it horrified her.  She said she thought that if [Z] was forced to stay with her father she would suppress her feelings but would run away.  She said there might be some advantages in the proposal if [Z] was younger but, as a 12 year old girl who was going through huge hormonal changes, she felt it was important for [Z] to be kept “grounded and solid" and that the father's proposal was too big a risk to take.[20]  She said she was very worried about the psychological impact of the proposal on [Z].  She said the father did not acknowledge the impact of his angry outbursts and the discomfort they cause.  She said the boys still occasionally made comments about their father's negative behaviour.  The mother said she did not know how the father would deal with [Z] if she were resistant to living with him and believed that he would quickly become agitated and aggressive.  She expressed some scepticism about the benefits of psychological therapy because of [Z]'s resistance to that in recent times, but said that, if they could find someone that [Z] was comfortable with, she would not oppose it.

    [20] Report of Dr A at paragraph 106

15. Dr A asked the mother whether she was overly emotional in her communication with [Z] when she was with her father.  The mother said she was not an emotional type of person and was quite strict.  She said she had said on occasion "I miss you too" in response to [Z]’s statement to that effect, but consistently encouraged her to stay with her father and reiterated that her father loves her and just wants to spend time with her.  She said on occasion she had become angry with [Z], and told her she was being ridiculous. She denied deliberately organising attractive alternatives for [Z] if she did not go with her father and denied ever responding to the father's messages on [Z]'s behalf.

16. Dr A asked the mother about co-sleeping with [Z].  The mother said it came about because of the situation in the household at the time of separation.  She said she did not think her sleeping in the same bed as [Z] had any bearing on her behaviour.  In her oral evidence Dr A said this was an extraordinary lack of insight on the part of the mother.

17. The mother said she believed that [Z] would eventually spend time with her father as long as he stays in contact with her.  She said she believed [Z] needed a final resolution because the pressure of the uncertainty was too much for her.

18. Dr A said she spent a long time with [Z] as she felt [Z] had developed a good rapport with her.  She said [Z] made direct eye contact, was at times tearful and sad and at other times upbeat, happy and laughing.

19. [Z] told Dr A about her love of sport, music and animals.  She spoke about her family and friends.  She told Dr A about her recent Year 7 camp.  She said she would normally worry about going away but was able to go and was so tired she fell asleep each night.  She said she found it helpful having peer support students from Year 10 also on camp. 

1. I take no issue with Dr A’s assessment of the different parenting styles.  However I note that the father also responded to [Z]’s emotionality by reducing his expectations about when she would spend time with him.  Before there were any Court proceedings, he voluntarily returned [Z] to her mother on four or five occasions when she was upset.  It seems he responded in a similar manner to the mother in those instances.  Once the proceedings commenced, various approaches were adopted over time and these were reflected in interim orders, most of which were made by consent.  As noted by Dr A, the parties were motivated by good intentions and a desire to find something that would work for [Z] and enable her to re-establish her relationship with her father.  In my view it is unreasonable to criticise the mother for changing her expectations of when [Z] would spend time with her father when the father, the independent children’s lawyer and the Court all participated in determining the course taken on each occasion. 

2. If there is no change of residence, [Z]’s well-being will depend to a significant extent on the capacity of the mother to find a way to facilitate [Z]’s relationship with her father.  There is a glimmer of hope in this regard because, despite the difficulties, the mother had some success in getting [Z] to spend time with her father in the months leading up to the trial.  [Z] spent three days with her father during the January 2019 school holidays and went out to dinner with him and members of the extended paternal family on two occasions in April 2019.

3. If there is a change of residence, [Z]’s well-being will depend to a significant extent on the capacity of the father to manage [Z]’s reaction.  She is likely to be volatile and oppositional and experience intense emotional distress.  The father’s capacity to manage this is completely untested.  His responses to questions by the mother’s counsel and the independent children’s lawyer about what he would do in particular circumstances, such as [Z] running away, did not inspire confidence.  He reiterated that he would talk to [Z] to try to understand what was upsetting her but, on all the evidence, this approach is unlikely to be successful or even desirable.  Dr A said this plan of the father was misconceived and likely to make the situation worse because one of [Z]’s expressed difficulties was having the spotlight on her about the situation.

4. My concern is that the essential element described by Dr A for a change of residence to be successful is a specific management plan for dealing with the short-term risks arising from [Z]’s likely rebelling against the situation.  The father had no clear plan about how to manage this.  For instance, he said [Z] would have no communication with her mother for several months but she would continue to have her mobile phone and iPad (with which she communicates with her mother frequently even when she lives with her).   Dr A agreed it would be impossible to prevent [Z] attempting to contact her mother and her mother would have to ignore those calls no matter how distressed [Z] sounds, which would be extremely difficult and distressing for the mother as well as [Z].

5. The father suggested [Z] could attend functions and events hosted by members of the external maternal family.  When asked whether he would allow [Z] to go if her mother was attending those events, he said he could see no reason not to.  This is inconsistent with his plan for no contact with the mother.

6. Dr A agreed the father would have to perform a difficult and delicate task of, on the one hand, comforting [Z] in her distress and, on the other hand, enforcing strict rules about communication with her mother.  She agreed that he would have to put aside his feelings of anger and frustration with the mother in order to deal with [Z]’s needs.  I have no confidence in his capacity to do that.

7. The last relevant consideration requires the Court to consider whether it would be preferable to make an order that is least likely to lead to the institution of further proceedings.  I accept the submission by Counsel for the mother that further proceedings are unlikely if the orders sought by the mother are made because [Z]’s time with her father would be largely subject to her wishes and there would be little point in contravention proceedings in that scenario.  On the other hand, given [Z]’s likely reaction to an order for a change of residence, there is a reasonable likelihood of further proceedings in that scenario.  I accept the logic of the submission but the avoidance of further proceedings is a less significant matter in my determination than others.

Discussion

1. Despite the father’s scepticism and, to some extent, Dr A’s assessment, I am satisfied on all of the evidence that the mother genuinely wants [Z] to have a happy and healthy relationship with her father and is at a loss to know what she can do to facilitate it.  I am satisfied she has not deliberately taken steps to undermine or frustrate their relationship.  It seems likely on the evidence that a number of things contributed to [Z]’s resistance to spending time with her father, including the following:

   a)[Z]’s older brothers were born one year apart but are four and five years older than [Z] respectively.  By virtue of their ages and gender they are closer to each other than to [Z].  This is likely to have engendered a greater closeness between [Z] and her mother.

   b)The father was away for as much time as he was home from when [Z] was aged four or five years old.  This means [Z] did not have the same level of familiarity with him that she would have had if he had worked locally and come home each night after work.  As previously stated, I do not accept the father’s evidence that he took over the primary care of the children each time he returned from work, but it is common ground in any event that the longest [Z] has ever spent away from her mother is six nights.

   c)The mother moved into [Z]’s room at a time when the tension in the house was high.  This is likely to have reinforced the closeness between [Z] and her mother and perhaps created an emotional alliance with her mother and an emotional distance from her father.  This was not planned.  It came from a pragmatic decision by the mother to leave the marital bed and there was no other convenient place to sleep.  The co-sleeping continued when the mother and children moved to the home of the maternal aunt in May 2017 and even when they moved into separate rental accommodation.  This was unnecessary as, at that time, both boys had their own bedroom and could have shared a room which would have made separate rooms available for the mother and [Z].  Both Dr A and the family consultant, Ms N, were critical of the mother continuing this practice given [Z]’s age and given she was not spending time with her father.  The mother demonstrated a lack of insight by not dealing promptly with that matter when she received the report by Ms N in January 2018.  However, this issue was satisfactorily resolved by the time of trial.

   d)The tension between the parties at separation was exacerbated by the father’s anger and poor behaviour, such as harassing the mother at the boys’ sports game and spitting at her.

   e)The father said his anxiety and depression since separation have made it difficult to maintain a routine when the children are not in his care, but he said he has a good routine when they are.  He said he has learned through sessions with his counsellor and psychologist that having regularity and routine in his life is helpful.  I infer that immediately after the parties’ physical separation the father did not have a good routine, even when the children were with him.  During the child inclusive conference in January 2018, [Y] spoke about everything being calm in the mother’s house because she has a good routine and said things happen when they are supposed to.  [Z] told the mother very early on after the physical separation that part of her discomfort was that she did not know when mealtimes were at her father’s house and did not know what she was supposed to be doing at any given time.  This may have contributed to a feeling of uncertainty or discomfort in her father’s care.

   f)The arrangements agreed between the parties for the children to spend five nights a fortnight with their father were likely to have been too long for [Z] at that stage and in the context of the family’s history and the tension between the parties.  The boys also found the arrangements less than ideal but were able to express their views, which the parents took into account.  Ultimately, an arrangement was arrived at which was satisfactory to the boys and to both parents.  The parties seem to have attempted to do the same with [Z] by, for instance, the father returning her to her mother when she requested, but this did not lead to the identification of an arrangement which suited both parents and [Z].

   g)[Z] appears to be a particularly sensitive child.  The incident in October 2017 when her father drove her home and yelled at her on the way, blaming the mother for the situation and telling [Z] he was taking the mother to Court to stop her interfering with their relationship was profoundly distressing to [Z].  It frightened her and made her resistant to spending time with him again.  It is also clear from what [Z] said to the family consultant, Ms H in the child inclusive conference in January 2018 that [Z] was very uncomfortable about her father saying negative things about her mother.

   h)The father’s distrust of the mother continues.  Even during cross-examination he said he did not know whether any of the messages sent by [Z] to him were actually written by [Z] or the mother.  This is despite [Z] telling him the same thing in person and refusing to go home with him after school even when the mother was not present.  Dr A said the father presented as highly critical of the mother and quite emotionally aroused in relation to his attitude to her and his annoyance at the legal dispute.  She said she did not think he had difficulty with anger management or impulse control but she observed in him a level of emotional arousal and emotional intensity which, she said, is likely to be perceived by [Z] as anger.

   i)Despite [Z] repeatedly trying to explain to her father how she feels, there is no evidence the father has ever acknowledged her feelings.  On the contrary, he has denied her experience by telling her he has never been angry with her.

   j)According to Dr A the attempts by the parties and the Court to try different approaches have led to an unintended consequence of signalling to [Z] that, whether or not she spends time with her father depends on her emotional response to it.

2. The mother was criticised for some of the things she said to [Z] in her text message exchanges when [Z] was wanting to come home.  On at least one occasion when [Z] said she missed her, the mother replied “I miss you too”.  It was submitted that this would have increased the emotional pressure on [Z] and caused her to be worried about her mother.  That may be so.  I am satisfied on the evidence, however, that the mother did not often tell [Z] that she missed her.  When she did, it was amongst other text messages which were trying to distract [Z] by asking her about what she had for dinner, what activity she had engaged in with her father, encouraging her to go and sit with her father, to give him a hug, to talk to him and reassuring her that she would be fine.  In one message she told [Z] that if she went and talked with her father “You might feel better”.  She was criticised for saying “might” rather than “will”.  The mother conceded that, with the benefit of hindsight, she could have chosen her words better but she was responding intuitively to her daughter in the moment and in an effort to try to make her feel comfortable enough to stay with her father.  I accept her evidence about that.

3. The father also responded intuitively to [Z]’s resistance in a way which was not helpful by telling her that he was sad and that she was breaking his heart.  Dr A described as “a perfect storm” the myriad of influences which led to the situation which was presenting at the time of trial.

4. To their credit the parties have tried different approaches including, on the recommendation of a counsellor, taking the pressure off [Z] altogether and giving her a break to be followed by a gradual build-up of time.  That was not successful, nor was the approach of not telling [Z] her father would collect her from school.  Dr A said the fact that so many different approaches were tried was ultimately not helpful because it communicated to [Z] that the time she spends with her father depends on her emotional reactions.

5. Dr A said she thought there was no real prospect of [Z] maintaining a meaningful relationship with her father if the current situation continued or the orders sought by the mother were made.  She said this would lead to a complete breakdown in the relationship between [Z] and her father with consequent long-term risks to [Z]’s psychological health and her capacity to form healthy relationships with others.  She said it would allow [Z] to remain separated from her father and extended paternal family, all of whom are important in the development of [Z]’s sense of identity.

6. Dr A said the risks to [Z] were not confined to her relationship with her father because there were other matters about which the mother was unable to garner [Z]’s cooperation.  They included facilitating [Z]’s attendance at school, meetings with her psychologist, a meeting with the independent children’s lawyer and her attendance at the family report interviews with Ms N.  However, all of these were connected to [Z]’s relationship with her father.  There is no evidence the mother is unable to get [Z] to do other things she may not wish to, such as attending the doctor or dentist or go on school camp.

7. The father’s proposal to remove [Z] from her mother’s care altogether for several months is in line with the approach often recommended in cases of parental alienation.  However, Dr A agreed that this is not a typical alienation case in which one parent has deliberately undermined the relationship with the other.  The fact that the mother has actively facilitated the boys’ relationship with their father illustrates this fact.  I am satisfied on the evidence that the mother genuinely supports [Z] having a meaningful relationship with their father and would be relieved if this occurred. 

8. My impression of the father’s evidence is that he is desperate to find a solution to what seems to be an intractable problem and that he has faith in what, in theory, appears to be a good solution but which, in practice, is likely to be highly challenging for even the most skilled and experienced parent.  The father seemed convinced that by calmly talking to [Z] he will get to the root of the problem and sort it out.  The mother has engaged in calm conversation with [Z] repeatedly over the last two years with the same aim but without success.  It is unlikely the father will do better.  The mother has also been firm with [Z] to the point of [Z] becoming highly distressed, crying hysterically and being unable to go to school. 

9. The remedy proposed by the father and supported by the independent children’s lawyer exposes [Z] to a range of short-term and potentially long-term risks.  These include the risk of harm arising from [Z]’s determination to run away if she were forced to live with her father.  There is also the risk that the experience will be emotionally overwhelming for her, as predicted by Ms N.  If the plan to restore [Z]’s relationship with her father through a change of residence does not work, the net effect may be worse than not attempting it, because any residual willingness for [Z] to re-establish a relationship with her father may be eradicated in the process.

10. Counsel for the mother submitted that for such a dramatic undertaking to be sanctioned by the Court the father would need to be in robust mental health.  I agree.  The evidence is that the father suffers from anxiety and depression which has been so debilitating that he has been unable to work in the two years since the parties’ separated.  He said he copes better when the boys are with him for two weeks at a time as he needs to be organised but still struggles to some degree when they are not present.  [Z] is likely to be highly distressed, angry and uncooperative with him following any change of residence.  She is likely to run away and display other challenging behaviour.  I am not persuaded husband has the personal resources to manage this behaviour.  While Dr A supported the father’s proposals as representing the only way of giving [Z] the opportunity to have a relationship with her father, she was not confident it would work.  She said that, ideally, the change of residence should have happened shortly after separation:

    In my view the optimal time for such a change of residence has passed and to impose a change of residence now will represent some risk.  The Court is fundamentally left with the choice to either favour short-term harm versus long-term risk of harm.[46]

    [46] Report of Dr A at paragraph 196

11. Dr A agreed with the proposition put by Counsel for the mother that the plan may not work and that, ultimately, the cure may be worse than the problem.  She said this is why she referred to the Court having to choose between two undesirable courses.

12. At the end of the day I am concerned that the proposed change of residence would be emotionally overwhelming for [Z], would not be well managed by the father, would not be successful and that [Z] would suffer emotional and potentially psychological harm from the attempt.  I am also concerned that, if the attempt fails, it may ultimately lead to a complete breakdown in the relationship between [Z] and her father.

13. The mother had some success in persuading [Z] to spend time with her father in the months leading up to the trial.  I am satisfied she can be trusted to quietly persist in encouraging [Z]’s relationship with her father and to encourage her to spend time with him, even if it is on [Z]’s terms.  [Z]’s brothers are also likely to continue to be a positive influence in that regard.

14. Ultimately, I am not prepared to force the issue by ordering a change of residence because I am not persuaded that this will meet [Z]’s best interests.  Apart from the issue of spending time with her father, [Z] appears to be a happy and well-functioning child.  She is actively engaged in sport, enjoys school and has good friendships.  All of that will be jeopardised by the upheaval of a change of residence, even on a temporary basis. 

15. The mother proposed orders which would require [Z] to spend time with her father in accordance with her wishes but to occur at least twice each month and for a period of at least two hours on a school day or four hours on a non-school day.  In my view, it would be better to set a minimum period of two hours for all visits, as time during school holidays or on weekends is likely to be more relaxed than on a school day but a minimum of four hours may be too long for [Z] initially. 

16. Both parents proposed detailed orders for time on special days such as Mother’s Day, Father’s Day, birthdays and Christmas.  I am not prepared to make those orders for the older children as [X] is almost 18 and [Y] is almost 17.  They are old enough to determine what time they spend with each parent outside their general living arrangements.  Given the history, it is likely they would spend time with each parent on those days in any event.  In relation to [Z], in my view it is best to keep the orders as simple as possible.  However, I will order that [Z] spend at least two hours with her father on Christmas Day and on the father’s birthday.  [Z] spent time with him on Christmas Day 2018 and on his birthday in … 2019 so that should not be too difficult. It is also important that [Z] celebrate some special occasions with him.  The parties may agree to change the specific day those events are celebrated if, for instance, one of the parents are away from Canberra on the relevant day.

1. Both parties proposed a range of orders about notification of illness in the children, international travel, non-denigration and the like, which I will make.

2. The mother must now ensure [Z] spends at least two hours with her father at least twice each month and she must support and encourage their relationship.  It is then be up to the father to gently rebuild his relationship with [Z] by engaging in activities of interest to her without putting emotional pressure on her.  Hopefully, the time will gradually increase to include overnights, holiday time and time on other special occasions.

3. It may be helpful for the father to obtain professional advice about how he might engage with his daughter.  I will make orders permitting either parent to provide a copy of these orders and reasons for decision to any counsellor or therapist engaged by any member of the family.

I certify that the preceding two hundred and thirty-one (231) paragraphs are a true copy of the reasons for judgment of Judge Hughes

Date:  21 June 2019