MELLER & MELLER
[2014] FCCA 1739
•6 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MELLER & MELLER | [2014] FCCA 1739 |
| Catchwords: FAMILY LAW – Parenting – three children aged 16 years, 14 years and 11 years at hearing – eldest daughter had spent no time with mother since March 2011 – middle daughter and son had spent no time with mother since October 2011 – allegations of mother assaulting children – allegations of mother exposing children to violent partner – chronic conflict between parents – allegation that father has either alienated children against the mother or aligned them with him – mother seeking residence of two younger children – father seeking orders that time spent with mother be in accordance with the children’s wishes – best interests of the children. |
| Legislation: Family Law Act 1975 (Cth), Part VII |
| Cases cited: Goode & Goode [2006] Fam CA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MR MELLER |
| Respondent: | MS MELLER |
| File Number: | NCC 2505 of 2007 |
| Judgment of: | Judge Coakes |
| Hearing dates: | 18 – 20 September 2012 10 and 11 December 2012 |
| Date of Last Submission: | 19 April 2013 |
| Delivered at: | Newcastle |
| Delivered on: | 6 August 2014 |
REPRESENTATION
| The Applicant: | Appeared for himself |
| Counsel for the Respondent: | Mr M Graham |
| Solicitors for the Respondent: | Flintoff Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms D Burns |
| Solicitors for the Independent Children’s Lawyer: | Sharon Moore Solicitors |
ORDERS
That all previous parenting orders in relation to the children X born (omitted) 1997 (“X”) and Y born (omitted) 1999 (“Y”) and Z born (omitted) 2001 (“Z”) (“the children”) are discharged.
That the father have sole parental responsibility for the children for both the long term and the day to day decisions concerning their care, welfare and development.
That the children live with the father.
That the children or any of them spend time with and communicate with the mother in accordance with their respective wishes.
The father and the mother are to enrol in, attend and complete a course of therapeutic counselling with a clinician experienced in family dynamics and communication nominated or suggested by the Director of Child Dispute Services, Family Court of Australia at Newcastle or her nominee with a view to improving their communication with each other so as to discuss matters concerning the relationship between each of the children and their mother and their father, and the relationship between the parents with a view to a relationship being resumed between each of the children and their mother with each of them to inform the Independent Children’s Lawyer in writing of the name and place at which such therapy is to take place and with each parent to share equally the costs of such therapy.
The father is to ensure all three children continue to see Ms F, Psychologist for so long as she deems it necessary.
That should any of the children express any willingness to engage in different family therapy at any time, with a view to recommencing and/or strengthening a relationship with the mother, the father is to ensure attendance upon such family therapist with each of the parents to share equally any costs of such family therapy.
The Independent Children’s Lawyer is to forward a copy of these reasons for judgment and the Family Report of Mr P of 10 January 2012 to Ms F and the family therapists or counsellor referred to in orders 5 and 7 above.
That the order made 17 February 2012 for the appointment of an Independent Children’s Lawyer for the children is extended for a period of six (6) months until Friday 6 February 2015 and is then discharged.
That each of the parents is restrained from denigrating the other parent in the presence or hearing of any of the children including the making of insulting comments, rude comments, swearing at, shouting at and making obscene comments or making any other comment or behaving in such a way that it is intended that the child would have a poor opinion of the other parent or think ill of the other parent and each parent is further restrained from causing or permitting any other person from engaging in such behaviour in the presence or hearing of any of the children.
That should either of the parents observe any other person denigrating the other parent or any member of the children’s extended families in the hearing or presence of any of the children that parent shall remove the child from that occurrence promptly.
That each of the parents is restrained from discussing the Court proceedings or any aspect of the Court proceedings with the children or any of them and in particular from disclosing or allowing disclosure to the children or any of them of the evidence of the other parent.
That each of the parents is restrained from either showing or allowing the children or any of them to have access to any Court document prepared for or filed in these proceedings including correspondence from Solicitors and any Family Report or any Experts Report or Child Dispute Conference Memorandum obtained or prepared for use in these proceedings.
That no later than Wednesday 3 September 2014 the mother is to prepare with the assistance of her Psychologist a letter of apology to the children to be submitted in the first instance to Ms F, the Psychologist for the children as to its appropriateness for the children and also to the Independent Children’s Lawyer and once approval is given by each to such letter it is to be given by the Independent Children’s Lawyer to the children no later than Friday 12 September 2014 at the same time the orders are explained to them pursuant to Order 15 below and with a copy of such apology also to be conveyed to the father.
That no later than Friday 12 September 2014 the Independent Children’s Lawyer is to explain these orders and the apology to all three children the same day in the presence of the Director of Child Dispute Services at (omitted) on a date to be nominated by the Director after consultation with the Independent Children’s Lawyer and the father is to bring the children to (omitted) for that purpose.
That the father is to provide to each of the children’s counsellors and Psychologist a copy of the mother’s written apology, and if the counsellor deems it appropriate and not contrary to the best interests of the child the father is to request the counsellor to discuss the apology with the child and in the absence of the father.
The father is to inform the Independent Children’s Lawyer and the mother’s Solicitors in writing within 7 days the date upon which and to whom a copy of the apology is given pursuant to Order 16 above.
That in the event that the father proposes to remove the children’s permanent place of residence from the district of (omitted) to a place outside a radius of 100km from the main Post Office in (omitted) he is to give the mother not less than 42 days prior notice in writing to be sent to her at her last known address of such proposal including particulars of the place to which he proposes to move the children and when such proposed move is to take place and the reason for such move.
That in the event of the father not having completed such course, he is to enrol in, attend and complete a Parenting After Separation Course conducted by either Interrelate or Relationships Australia not later than 14 November 2014 and is to supply to the Independent Children’s Lawyer a copy of the certificate of completion of such course.
IT IS NOTED that publication of this judgment under the pseudonym Meller & Meller is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2505 of 2007
| MR MELLER |
Applicant
And
| MS MELLER |
Respondent
REASONS FOR JUDGMENT
Introduction
It is proper that I convey my sincere regret to all three parties for the delay in delivering these reasons for judgment. The responsibility for the delay is mine and mine alone. It results in the amount of work in this Court and other reserved judgments which are delivered as timely as is possible.
These proceedings concern competing applications between the mother and the father for parenting orders in relation to their three children, X born (omitted) 1997 (“X”) who was 15 and a half years when the hearing commenced and Y born (omitted) 1999 (“Y”) who was 13 and a half years at the commencement of the hearing and their younger brother Z born (omitted) 2001 (“Z”) who was 10 years and nine months of age at time the hearing commenced.
It is the father’s case that the children have made their own decisions not to spend any time with or have any relationship with the mother as a consequence of her violence and attitude toward them together with that of her friend, Mr M.
As a consequence of complaints made to Police and interviews of the three children by the Police, the mother was charged with three assaults upon X described as “common assault domestic violence related” between 1 October 2010 and 14 March 2011 and further charged with common assault upon Z between 1/1/2007 and 1/12/2011 and charged with common assault of Y between 1/1/2007 and 1/12/2011 which came first before Wauchope Local Court on 14 June 2012 and was ultimately heard in Port Macquarie Local Court on 18 December 2012[1]. The mother pleaded not guilty to each charge and the charges were dismissed. The completion of these proceedings delayed the final hearing.
[1] See exhibit M1
It is the father’s case that when X decided not to spend any time with her mother as from 14 March 2011 and Z as from 12 October 2011 and Y from 24 October 2011 that this reflected a mature decision on the part of each of them and of which he is supportive. It is the father’s case that he had encouraged the children to spend time with their mother supervised at Interrelate following orders made on 17 February 2012 but with the children refusing to spend any supervised time with their mother on three separate occasions.
It is also the father’s case that the mother assaulted his partner, Ms M in an unprovoked attack for which the mother was subsequently found guilty and placed on a bond but which took place in the presence of the children Y and Z.
It is the father’s case that the children should be enabled to communicate with and spend time with their mother as they decide given their present ages.
It is the mother’s case that the father engaged in chronic domestic violence toward her during the whole of the relationship, not in the sense of physical violence but coercive and controlling family violence involving limitation of use of money, derogatory comments, posturing in a threatening manner, withdrawal of love and affection to secure his own way, denigration of other people and exposure of the children to his coercive and controlling behavioural traits.
It is also the mother’s case that the father exercised excessive physical discipline upon each of the children and in a manner which was entirely inappropriate.
The respective applications at the hearing
The father sought orders in accordance with his amended application filed 1 August 2012 which can be summarised as sole parental responsibility in his favour for all three children, that the children live with him and spend time with the mother when they wish to do so and that the children contact the mother by telephone if they wish to do so and with the father to accommodate the children’s time with the mother and ensure its occurrence when he becomes aware of the wish of the children to do so.
The father sought an injunction against Mr M that he be restrained from permitting or approaching or contacting or remaining in the immediate presence of any of the children and also from being restrained from approaching or attending any school, sporting field, function, place or activity in which the children are enrolled in or attend at any time.
The mother sought orders in accordance with her response filed 15 December 2011 and which she confirmed was still being sought by her at the conclusion of the hearing. The mother’s application can be summarised as equal shared parental responsibility with the father for all three children, that X live with the father and spend time with the mother in accordance with her wishes with the father to encourage and facilitate such time.
As to Z and Y, the mother sought orders that they live with her and spend defined periods of time with the father, in the absence of any agreement, from after school Friday until back to school Monday morning on a fortnightly basis, and for the same period on the Father’s Day weekend and on the father’s birthday ((omitted)) and each of the children’s birthdays for prescribed times depending upon whether it was a school day or not.
The mother sought orders for Z and Y to spend time with her for the Mother’s Day weekend, and some orders in relation to the mother’s birthday ((omitted)) and each of the children’s birthdays.
The mother proposed that Z and Y each spend a period of 14 days with each parent during the Christmas school holidays at the end of each year with such periods alternating between even numbered and odd numbered years. The mother proposed implementation at school or at a McDonald’s Family Restaurant with communication by telephone.
The mother sought a reciprocal restraint in relation to denigration and the use of a Communication Book and with the father to attend a post separation parenting program.
At the commencement of the hearing, the Independent Children’s Lawyer did not have a view preferring to hear the whole of the evidence before suggesting orders. At the conclusion of the hearing the Independent Children’s Lawyer suggested parenting orders and presented a draft minute to that effect[2], and which the father supported without any qualification.
[2] See Exhibit ICL4.
Existing operative parenting orders
Final orders had been made by consent in the Local Court as to parenting matters on 10 August 2007. In summary, those orders provided that the parents have equal shared parental responsibility for the three children and that the children spend time over a fourteen day cycle as to five nights with the father from after school on the Thursday until the following Tuesday at 5.00pm and with the following nine nights with the mother from Tuesday until Thursday at the end of the cycle during school terms and with school holidays to be shared equally at the end of the first, second and third school terms and with Christmas to be spent as to the first two weeks with the father and the third week with the mother and the fourth week with the father and with the remainder of the holiday period with the mother in even numbered years and with the reverse arrangement to apply in odd numbered years. There were a number of other practical parenting orders.
In the meantime, final orders were made by consent as to alteration of property interests in the Family Court of Australia on 26 February 2008.
On 8 April 2011, in this Court, orders were made by consent amending the orders of 10 August 2007 to provide that the 14 day cycle during school terms provide for Y and Z to spend one week with the father from the Wednesday afternoon followed by one week with the mother for the same period and alternating.
The order in relation to X was amended to provide that she spend eleven nights with the father in the fortnightly period followed by three nights with the mother.
The order as to the Christmas holiday period was amended to provide that the children each spent two weeks with the father followed by two weeks with the mother and the remainder to be shared equally between the parents in even numbered years and the reverse arrangement to apply in odd numbered years. There were some minor amendments to the other orders save for the addition of a specific restraint that the children not spend time with Mr M until such time as the children express willingness to both parents to spend time with Mr M and provided both parents agreed.
On 17 February 2012, and following the cessation of any of the children spending time with their mother during 2011, the parents agreed upon further interim orders summarised as equal shared parental responsibility, all three children to live with the father, that the mother spend time with Y and Z at the Children’s Contact Centre in (omitted) once per fortnight for a period of four sessions with the mother then to have unsupervised time with Y and Z from 9.00am until 5.00pm each alternate Saturday. After six such occasions of unsupervised time, the orders provided for Y and Z to spend time with the mother as agreed between the parents but in the absence of agreement from 6.30pm on the Friday until back to school Monday morning on a fortnightly basis and for the second half of each school holiday period. Both parents were required to contact Interrelate to arrange for counselling for Y and Z, and X if she wished and for the mother to be included in such counselling.
There were a number of restraints put into place including not changing school, reciprocal non denigration and physical disciplining of the children. There were a number of other practical parenting orders. It was also noted that the mother did not abandon her application for Y and Z to live with her notwithstanding the interim consent orders.
An order was made for the separate representation of all three children.
On 20 September 2012, and pending the hearing of the proceedings against the mother relating to her alleged assault of the three children an order was made that the father was restrained from questioning any of the three children, X, Y and Z as to their views about the continuance or otherwise of the criminal proceedings against the mother as to assault and whether or not they would like to give evidence against the mother.
Background
The father was 43 years of age at the time of the hearing and was born on (omitted) 1969. He is employed fulltime by (employer omitted) at (omitted) where he works in a (omitted) capacity. The father identified as Aboriginal from 2011.
The mother was 39 years of age at the time of the hearing and was born on (omitted) 1972. She is employed in a part time capacity at a (employer omitted).
The mother has two children by a previous marriage, namely V who was aged 18 years at the time of the hearing and W who was aged 17 years at the time of the hearing and living with their biological father. The evidence does not establish the nature of the mother’s relationship with these children.
The parties commenced their relationship in about (omitted) 1994 and lived together from about that time, were married on (omitted) 1996 and separated on about 17 July 2006. An order for a divorce was made on the wife’s application on 20 May 2008 to become effective in one month.
The three children, X, Y and Z are the only children of the relationship.
The father re-partnered with one Ms M in about (omitted) 2006 and there is one child of that relationship namely A born (omitted) 2011, a half sibling to the subject children and she was one year of age at the time of the hearing.
The mother became friendly with Mr M. The evidence establishes they have spent some time together but at the time of the last day of hearing did not live together.
On 13 March 2011 it is common ground that X left the mother’s home electing to live with the father where she has lived and has spent no time with the mother ever since. At the time of the hearing X was in Year 9 at (omitted) Regional College.
On about 12 October 2011 Z elected to live with his father and has spent no time with his mother since 19 October 2011. At the time of the hearing he was in Year 5 at (omitted) Primary School at (omitted).
On 21 October 2011 Y decided to live with her father and has spent no time with her mother since 24 October 2011. At the time of the hearing Y was in Year 7 at (omitted) Regional College.
Following an incident on 16 November 2011 between the mother and the father’s partner, Ms M, the mother was charged with an assault of Ms M which occurred in the presence of the children Y and Z. The mother pleaded not guilty at the hearing on 13 April 2012 but was found guilty and was placed on a good behaviour bond for a period of six months. An AVO was also made for the protection of Ms M. The mother appealed successfully to the District Court in relation to both the conviction and the AVO.
The evidence
The father relied upon the following affidavits in his case:
a)His affidavit affirmed 9 August 2011 and filed 15 August 2011;
b)His affidavit sworn 26 October and filed 31 October 2011;
c)His affidavit affirmed 8 March and filed 20 March 2012;
d)His affidavit affirmed 18 April and filed 20 April 2012;
e)A Notice of Child Abuse (Form 4) filed 16 August 2012;
f)His affidavit affirmed 7 August and filed 15 August 2012;
g)His affidavit sworn and filed 29 August 2012;
h)His affidavit affirmed and E filed 23 January 2013;
The mother relied upon the following affidavits in her case:
a) Her affidavit affirmed 14 December 2011 and filed 15 December 2011;
b) Her affidavit sworn and E filed 14 September 2012;
c) Her affidavit affirmed and E filed 25 September 2012;
The father’s partner, Ms M had not filed an affidavit and was not required to give evidence by the Independent Children’s Lawyer. I took the view that I would be sympathetic with any such request.
There was also in evidence before me the Family Report by Mr P, a Regulation 7 Family Consultant published on 10 January 2012 following his interviews with the parents, the maternal grandparents, the maternal aunt, the father’s wife and all three children on 22 December 2011.
I also had the benefit of listening to and observing the father and the mother give evidence.
Mr P gave evidence and was cross examined firstly on 20 September, the third day of hearing and again on 10 and 11 December 2012 before the criminal proceedings against the mother in the Local Court and finally on the last day of the hearing, 19 April 2013.
There were the following exhibits:
M1 – list of mother’s objections to affidavit material;
M2 – letter of 25 May 2010 from the father to the mother;
M3– bundle of four unopened envelopes addressed to different children bearing franking marks 8/3/12, 3/4/12, 8/4/12 and a brown envelope not bearing a discernable date;
M4 – statement of Senior Constable M attached to (omitted) Police Station dated 9/8/12 of four pages;
M5 – Challenge of Disciplining Children Course certificate for 7/12 and receipt for the mother’s involvement in Mind Skills 30/08/12;
M6 – medical certificate for the mother for the period 28/8/11 to 4/9/11 with discharge summary from (omitted) Hospital;
M7 – paper entitled Alienation and High Conflict Cases by Cleary J and Ms D, Family Consultant presented at (omitted) Family Law Practitioners Association Conference September 2012;
M8 – letter dated 20/9/12 from Ms K of (omitted) Women and Children’s Refuge in relation to the mother’s attendance at meeting of Domestic Violence Support Group between 27/11/11 and 14/9/11;
M9 – documents produced in response to a subpoena to Ms F – yellow tags marked M1, M2, M5, M10, M14 and M15;
M10 – letter of 4 March 2013 from Harcourt’s as to the mother’s tenancy behaviour;
M11 – photocopy of unwritten note of texts from mother to children since last Court appearance;
M12 – three pages of rental listings underlined by the mother as to three being possible accommodation for her;
M13 – CD transcript of 28/12/12 of criminal proceedings;
M14 – Court attendance notice addressed to mother to attend Wauchope Local Court on Thursday 14 June 2012 with details of charges of common assault;
M15 – copies of seven pages of mother’s handwritten notes to the children.
F1 – copy of letter of 24/10/11 from Flintoff Lawyers to the father;
F2 – email letter of 17/11/12 from the father to Flintoff Lawyers of 3 pages;
F3 – email letter from father to Flintoff Lawyers of 17/11/12 of 4 pages with a tax invoices for football fees;
F4 – bundle of school reports for all three children for 2012 and a bundle of school certificates and a school newsletter.
ICL1 – list of documents for the Family Report writer to view;
ICL2 – bundle of notes from Interrelate produced in response to subpoena relating to the family;
ICL3 – documents produced in response to subpoena to Ms F tagged ICL1, ICL2, ICL3, ICL4 and ICL5;
ICL4 – draft minute of orders proposed by the Independent Children’s Lawyer dated 19/4/13;
ICL5 – letter of 14/2/12 from the Independent Children’s Lawyer to Ms F and her reply of 26/2/13 of three pages;
ICL6 – copy of hand written notes of the mother to Y marked with a green tag.
I also had the benefit of constructive and helpful submissions from the father, Mr Graham on behalf of the mother and Ms Burns on behalf of the Independent Children’s Lawyer.
The issues
The issues involve the careful consideration as to what are the most appropriate parenting arrangements for all three children both in the short and in the long term and against a background of none of the children spending time with the mother since 2011.
It seemed to me the relevant issues were as follows at the commencement of the hearing:
a) The nature of each child’s relationship with each of the parents;
b) The father’s attitude towards the mother and whether he has attempted to either alienate the children from the mother or align the children with him so as to become estranged from their mother;
c) To what extent, if any, did the mother engage in family violence towards the children and any of them and if so, whether it directly involved the children or any one of them and if so, the affect if any, upon those children;
d) To what extent, if any, did the father engage in family violence, and if so, whether it occurred in the presence of or directly involved the children or any of them and if so, the effect, if any, upon the children;
e) If it is established that the mother represents an unacceptable risk to the children or any of them as a consequence of family violence, what are the appropriate parenting orders;
f) What are the appropriate parenting arrangements for all three children in the event that they continue to live with their father and, if it is found appropriate for them to communicate and spend time with their mother whether such time should be supervised or unsupervised;
g) The father’s attitude toward the mother and whether he is able to support and facilitate the relationship for the children with their mother if that is found to be appropriate;
h) Whether the mother is able to support and facilitate a relationship between the children or any of them and the father if the two youngest are living with her primarily;
i) The likely effect of any change for the two younger children, as well as the eldest child if the two younger children are to live primarily with the mother and spend occasional time with the father;
j) If the children are to remain living with the father and not spend time with the mother or not communicate with her whether it is appropriate to consider therapeutic intervention, and if so, the form which it is to take.
The Relevant Law
General principles
I must have regard to Part VII of the Family Law Act, and the significant sections are, and to which I must have regard, section 60CA, which provides:
“In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.”
I must then consider, in determining a child’s best interests, the matters set out in section 60CC, and there are two primary considerations:
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents.
(b) The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
There are a number of additional considerations in section 60CC(3) to which I must have regard insofar as they are relevant. I must also have regard to section 60B, which sets out the objects of Part VII and the principles underlying those objects, and I must have regard to section 61DA, which provides for a presumption of equal shared parental responsibility when a parenting order is made, save that the presumption does not apply when there are reasonable grounds to believe there has been abuse of the child or family violence. The presumption may also be rebutted if there is evidence to satisfy the Court that it would not be in the best interests of the child for the child’s parents to have equally shared parental responsibility for the child.
The relevance of the presumption of equal shared parental responsibility, when it does apply or is found to apply, is that the Court is then obliged to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the best interests of the child or reasonably practicable, the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents. (See subsection 65DAA of the Act).
It seems to me there is a shift toward the Court being required to consider in a much more practical manner how a child’s development can be nurtured and promoted by being exposed to and enjoying in a beneficial sense all the aspects of living with each parent, and it seems to me that this requires, where it is appropriate, an involvement in the whole of the ordinary household routine applicable in each parent’s home and if it is in the child’s best interest. (See the Full Court decision in Goode & Goode).
The Family Report
The Family Report was prepared by Mr P, a Regulation 7 Family Consultant who saw both parents and all three children and extended family members on 22 December 2011. The Family Report was published on 10 January 2012. Mr P did not have the benefit of any subpoenaed material at the time of his interviews.
Mr P noted the father’s advice to him that during 2011 it had been clarified that the father is Aboriginal and that the father had told him that the children are now aware of this heritage[3].
[3] Paragraph 5 of the Family Report.
The father told Mr P that he wanted “the children to be heard” and wanted their living arrangements to reflect what the children wanted. The father told Mr P that he was of the view that all three children required counselling given the history of the family dynamics[4].
[4] Paragraph 8 of the Family Report.
The mother told Mr P that it was a priority that the family, namely the subject children and her needed to be engaged in some familial counselling with the mother telling Mr P that she felt the father would sabotage the week about arrangement and therefore preferred that the children live with her[5].
[5] Paragraph 9 of the Family Report.
The evidence establishes that in about August of 2012 the father arranged for X, Y and Z to commence therapy with Ms F, a Psychologist and which was continuing at the conclusion of the hearing. I will refer to Ms F’s evidence later in these reasons for judgement.
Mr P noted with concern that the mother had not spent any time with the children from earlier in 2011 and that all three children would need to have some renewal in their relationship with their mother but that this appeared unlikely without therapeutic intervention[6].
[6] Paragraph 12 of the Family Report.
When identifying the issues in dispute, Mr P reported that the mother remained firmly of the view that the father had attempted to alienate the children’s relationship with her intending specifically to eventually exclude them from having any relationship with her at all. I concur with Mr P’s view that whilst there may be some validity to the mother’s belief it remained incumbent upon her to reflect on some aspects of her own parenting which clearly had contributed to the situation at that time[7].
[7] Paragraph 13 of the Family Report.
Mr P expressed a view that unless there was therapeutic intervention between the children and the mother, and unless the children immediately commenced spending time with her at a location such as Interrelate then it would seem unlikely that any repair would occur in the children’s relationship with the mother.[8]
[8] Paragraph14 of the Family Report.
Mr P expressed a view that the father must reflect upon his previous denigration of the mother to the children, and at the same time recognise that the best developmental outcome for the children would be achieved only if he remained encouraging of the children’s relationship with their mother and did not sabotage the therapeutic intervention which needed to occur. Mr P expressed a view that it would be essential for the father to participate in some counselling and complete a Parenting after Separation Program[9].
[9] Paragraph 15 of the Family Report.
The evidence establishes that the father took up counselling with a Mr J which was continuing at the conclusion of the hearing.
Mr P expressed a view that it was reasonable to suggest that both parents, at the time of the interviews for the Family Report had contributed to the psychological damage of all three subject children and which both parents needed to note. I concur entirely with the opinion expressed by Mr P in that respect and which was not displaced on any of the evidence before me by the conclusion of the hearing[10].
[10] Paragraph 16 of the Family Report.
It was of considerable concern to me that the father elected to continue with the prosecution by the Police against the mother for assault of the three children and which culminated in a hearing on 18 December 2012 at Port Macquarie Local Court. It is fortuitous that none of the children was required to give evidence in those proceedings.
In his interview with the youngest child, Z, Mr P concluded that Z did not present as a mature child for his age and that it appeared that he had been overtly influenced by things his father had said to him as well as some of his experiences with his mother[11].
[11] Paragraph 61 of the Family Report.
Z had come to the interview with Mr P with notes which he told Mr P were to prompt him of what he wished to tell Mr P. Z told Mr P the notes were his father’s idea[12].
[12] Paragraph 54 of the Family Report.
Whilst referring to his notes he told Mr P his mother “made up a story” about his step mother’s son allegedly touching Z’s “private parts”, and when asked by Mr P how he was aware of such story Z said “Dad said she said it in Court”.[13] This is a reference to W but the issue was not raised at any length during the hearing and it does not become necessary for me to give it any further consideration.
[13] Paragraph 62 of the Family Report.
Z told Mr P that his relationship with his mother went downhill half way through 2011 reporting that his mother would become angry and hold him by the jaw and by the back of the neck when he would get into trouble with her. Z told Mr P that whilst he was aware that his mother had taken such approach to discipline X he had not seen his mother discipline Y in the same fashion but added that he had seen his mother hit Y and X around their body but could not be specific as to when that occurred.[14]
[14] Paragraph 55 of the Family Report.
Z told Mr P that in his view his mother has been sad for a long time since X went to live with the father at the end of 2010 noticing that his mother’s behaviour was then “sometimes mean, sometimes nice”.[15]
[15] Paragraph 56 of the Family Report.
Z told Mr P that he did not like the role of the mother’s partner, Mr M saying “Mr M was acting like a Dad” but added clearly that Mr M had not hurt him. Z told Mr P he was aware Mr M hurt Y with a cigarette lighter adding that he did not like the mother’s environment and her friends but was non-specific.[16]
[16] Paragraph 57 of the Family Report.
Z told Mr P that he had not spent any time with his mother since October 2011 because of his mother’s past treatment of him and his siblings and that this “felt sad and has hurt me”. Z went on to say that his mother used to lie but when asked to provide some examples Z spoke about the incident between Mr M and Y relating to the cigarette lighter. Z was unable to give Mr P any other examples[17].
[17] Paragraph 58 of the Family Report.
When asked about his father, Mr P noted that he spoke about his father in positive terms but read his description of his father and their activities from the prepared notes.
Y told Mr P that she felt the living arrangements which had been in place since before she stopped seeing her mother in October of 2011 were “good for her”[18] and thought that her mother’s behaviour had deteriorated after X left the family home to live with the father.
[18] Paragraph 63 of the Family Report.
Mr P expressed a view that Y seemed to have a range of issues regarding her mother but she emphasised her mother was “nice most of the time”. Y told Mr P that her mother would yell at the children if they did not follow her instructions and that her mother would “grab her by the jaw like Z and be in her face”. Y told Mr P this made her feel scared and she then complied with her mother’s instructions[19].
[19] Paragraph 65 of the Family Report.
Y told Mr P that she was not “angry” with her mother whereas X and Z were angry. Y felt that she and her mother were alike in personality and she was of the view that the mother “loves her and wants to spend time with her.[20]”
[20] Paragraph 67 of the Family Report.
Y told Mr P that she felt uncomfortable when she told her mother of learning of her Aboriginal background and that a friend of her mother’s made a derogatory joke about the children’s Aboriginality about which the mother and her friend laughed. When she told her father about the incident the father encouraged her to spend another weekend or two with her mother to see how she felt but that she then chose of her own accord to stop spending time with her mother[21].
[21] Paragraph 68 of the Family Report.
Y told Mr P of the incident when Mr M “flicked” a lighter near her which had distressed her but the mother treated somewhat as a joke.[22]
[22] Paragraph 69 of the Family Report.
Y told Mr P that her father and mother denigrated each other on a number of occasions and commented “they hate each other” and making it clear that she would like the parental conflict to cease.
Y was able to tell Mr P that it was important for her that she did not want her mother to question her as to why she had left her primary care and did not wish to spend any overnight time with her mother but believed it would occur in the future. She felt that it would be valuable for her to spend time with her mother in a neutral setting before any overnight time[23].
[23] Paragraph 70 of the Family Report.
X told Mr P that historically she believed her father had been more significant in her life than her mother. X told Mr P that sometime following the orders made in 2007 she had wanted to spend more time with her father and in about 2009 had suggested to her mother that a week about arrangement would be appropriate for her. X’s recollection was that her mother implied to her that she did not want that to happen and deferred consideration of X’s request[24].
[24] Paragraphs 71 and 72 of the Family Report.
Whilst X could not identify the origin of her conflict with her mother she recalled that in November of 2010 the relationship deteriorated when her mother “went off” after an incident and her mother slapped her across the face when X broke her picture frame. The conflict with her continued until March 2011 when she decided to live with her father permanently. X told Mr P that leading up to that decision her mother would “mentally bully me, if she didn’t have control she would go insane”. X told Mr P by outlining to him how her mother punched her on the arm on numerous occasions as well as pinning her on the bed and holding her in a tight grip and with such incidents occurring on a repeated basis between November of 2010 and March of 2011.[25]
[25] Paragraph 74 of the Family Report.
X also told Mr P that she was sick of “the parental conflict” and commented further that both parents had denigrated each other to the children. She said her father had encouraged a renewal of her relationship with her mother just prior to the Family Report interviews.
Mr P reported that X was not immediately interested in being engaged in any familial counselling following a negative counselling experience and was categorical that she wanted to continue living with her father and certainly did not want any overnight time with her mother at that time[26].
[26] Paragraph 79 of the Family Report.
In his evaluation[27] Mr P concluded that both parents needed to take joint responsibility for facilitating the psychological damage of the children with the mother having not dealt with some aspects of her parenting responsibilities in a competent and responsible manner with this being a factor in the breakdown of her relationship with the children. Mr P expressed a tentative view that once the mother rejected an equal time arrangement in 2010 there was deterioration in the family dynamics.
[27] Paragraphs 82 to 86 of the Family Report.
Mr P expressed a view that the father undoubtedly maintained the control and the power during the parent’s relationship and there was little doubt he had attempted to maintain the same dynamic with the mother over a period of time by attempting to alienate the children’s relationships with her. Mr P suggested this was confirmed to some extent by the children not having spent any time with their mother for a significant period and which Mr P suggested was not a good outcome for the children in spite of the inadequacies of the mother’s approach to parenting.
Mr P expressed a view of how to repair the children’s relationship with the mother which could occur with the mother to be engaged initially with a counsellor who has experience with families and that Y and Z are engaged in such process. This view was later discounted.
Mr P found it difficult to reach a conclusion as to the extent to which the father had attempted to alienate the children from their mother but commented that it remained incumbent upon him to encourage the children to open the lines of communication and to encourage them to participate in some day time with their mother initially at Interrelate and then at her home. Mr P suggested that if he did not adopt such a pathway it would only reinforce the view that the father had been determined to destroy the children’s relationship with their mother during the preceding 18 months.
In his recommendations[28] Mr P suggested the children live with the father and that the mother initiate some counselling for herself either through Interrelate or with a Psychologist or Social Worker experienced with families and that Y and Z also be engaged with the same counsellor or family therapist and that within two months of the date of the Family Report Y and Z begin spending supervised time with their mother at Interrelate for up to four occasions followed by unsupervised time, initially on a day time basis with their mother but leading to overnight time and then leading to three consecutive overnights with the mother each fortnight and half of each school holiday period.
[28] Paragraphs 87 to 91 of the Family Report.
Mr P thought that given X’s age, and while she could be encouraged to participate in counselling it would not be appropriate to make orders relating to her. Mr P also suggested that the father complete a Parenting after Separation Program within six months.
The evidence establishes that the recommendations made by Mr P as to an initial period of supervised time at Interrelate were put into place in compliance with the Consent Orders of 17 February 2012 but the mother did not spend time with the children. Attempts were made for the children to spend time with their mother on 4 and 18 March and 1 April 2012 when the children were taken to Interrelate but on each occasion the children refused to spend any time with their mother and which led to Interrelate suspending the provision of supervised time consequent upon its failure to occur.
In further compliance with the recommendations and orders, the father arranged for Y and Z to be involved in counselling.
The father also enrolled in a Parenting after Separation Course.
In cross examination by Mr Graham, Counsel for the mother, Mr P confirmed the basis for his recommendations in the Family Report were to provide a foundation for the children to re-establish their relationship with their mother especially Y and Z and agreed that if that did not occur as a consequence of the father not wanting that to occur then it would most likely have some dire consequences for those children whilst estranged from their mother with the likelihood that the children could suffer significant and permanent problems.
Mr P was referred to a paper entitled “Alienation in High Conflict cases” presented by Her Honour Justice Cleary of the Family Court of Australia and Ms D, a Family Consultant attached to the Newcastle Registry of the Family Court of Australia and presented at the (omitted) Family Law Practitioners Association Legal Conference in September 2012[29] and was referred to a passage which read as follows:
“Alienated children usually turn up to an interview with seemingly rehearsed litany of the rejected parents faults and negative characteristics.”
He was asked to comment about the appropriateness of the children having brought notes with them to the interviews for the Family Report. The children’s notes were not in evidence before me and had been thrown away but had been prepared at the father’s suggestion as an aide memoire but not prepared in his presence or dictated by him or assisted by him.
[29] See Exhibit M7.
When asked whether it was appropriate for the children to bring such notes to the interview against a background of the children living with the father and not having spent any time with the mother and a high level of conflict between the parents, Mr P said:
“I can only answer that question by saying that of the 900 Family Reports that I have done for the Family and Federal Magistrates Court, this is the first occasion that I have ever interviewed children that have come prepared with notes to an interview.”
Mr P agreed that it was a cause for alarm that the notes had been brought and agreed with the proposition that it was a likely outcome that the father either directly or indirectly had effectively coached the children to say what he wanted them to say to Mr P.
When asked by me whether he was under the impression that each child gave a rehearsed litany, Mr P said that was certainly the case for Z, not the case for X as she was recounting her own experiences, and was partly applicable for Y.
Mr P was again referred to Exhibit M7 and the commentary on the last page as to what happens if nothing is done in cases where alienation is found to be likely to occur or where it is already occurring and a conclusion expressed that “beliefs about the rejected parent becoming entrenched and relationships end”. Mr P agreed with such conclusion and confirmed that in his view, bearing in mind the time that had now relapsed since the children had last spent time with their mother that it was extremely likely that the beliefs in the children’s mind about their mother were going to become more entrenched and that it was certainly possible that the relationships between the children and their mother will end.
Mr P then described in detail the risks for the children of psychological damage.
As to any intervention therapy, I indicated to Mr P that it seemed to me that it would be destructive to require family therapy, irrespective of the form it took prior to the criminal proceedings listed for 18 December 2012 being determined on the premise that the children were witnesses in the criminal proceedings and there was every possibility they would be required to give evidence against their mother and that if they had entered into a therapeutic relationship prior to the hearing, and if that were to occur, that could bring undone the possible benefit of therapy.
It was explained to Mr P that the father had arranged for the three children to be interviewed by Police and statements were made following their disclosures in the Family Report and its publication and which Mr P found to be of great concern.
When asked why, Mr P said:
“Obviously if we are talking about allegations made by the children in the context of my interviews, and not subsequent to my interviews, the father’s decision to pursue this further in a criminal setting will only further cause distress for the children to have to give evidence against their mother. And whilst I acknowledge that the mother’s physical chastisement of the children was unacceptable, to suggest that the mother is facing, I am assuming, an assault charge will only convince the children that they should have no relationship with their mother.”
Mr P said he supported my suggestion that it would be extremely confusing psychologically for the children for them to be placed in some therapeutic context and return to their father’s home knowing there is a Court hearing within the next three months.
I indicated to Mr P that the history of the matters coming to the notice of the Police was to be viewed against the background of the children’s complaints to their father, namely, that it had always been the father’s case that there was a history of the mother behaving aggressively and in an intimidating manner towards the children and which included allegations by the children that the mother would act out, having fits of rage, throw herself on the floor kicking and screaming in an uncontrollable manner and at other times taking physical hold of their arms, face and throat and attempting to pin them down and gain their action or respect and following which the mother would often leave the children at home alone and go off to her neighbours[30].
[30] Paragraph 58 of the father’s affidavit sworn 26 October and filed 31 October 2011.
It is significant in my view that there is no evidence that the father, prior to the Family Report interviews, took any action to prosecute the mother. It is however clear from his own evidence that he was aware of the matters to which he referred in his affidavit.
In his statement to the Police of 2 February 2012[31] he sets out in detail a conversation he had on Saturday 3 December 2011 with X, Y and Z when driving to (omitted) to see a soccer match. The father included in his Police statement that he had told the children they would be asked by Mr P why none of them would spend time with their mother and then told the children that he knew there was far more behind what had happened at their mother’s house than he was currently aware. He then asked Z as to what his reasons were to which Z responded that his mother used to “bash me all the time” the girls told there father that they knew about this and X said her mother had bashed her several times. Y told the father that she had been grabbed by the face and yelled at and that her mother would just go off and start smacking into her for no reason.
[31] Annexure 7 to the father’s affidavit sworn 7 August and filed 16 August 2012.
The father then describes in his Police statement the specific allegations made by the children about the assaults by the mother on the children.
In his Police statement the father recounts then asking the children why they had not said anything about this in the past with X responding to the effect that she knew her father would try and do something about it and if that Y and Z were still spending time with their mother it would be worse for them as she would take it out on them and that Z told him that he was now telling his father about this because his mother could not do anything to them.
It is significant, in my view that this account in the father’s statement to the Police as to his knowledge of the mother’s behaviour towards the children flies in the face of his affidavit of October 2011 and is totally contradictory. I conclude on the balance of probabilities that the matters to which the father refers in his affidavit could have come only from the children and that he elected not to take the matter any further at that time.
The father deposed in his affidavit sworn and filed 29 August 2012 that he became aware during a conversation with all three children in December 2011 they had been assaulted by their mother on several occasions. The father does not give a date but it is clear this refers to the car journey to (omitted).
In his Police statement, the father says that he took X to (omitted) Police Station on 27 December 2011 where she spoke with Police and which followed X asking her father immediately following the Family Report interviews on 22 December 2011 if she could get something done about what her mother had done to her. Z was subsequently interviewed by Police on 1 May 2012, Y on 2 May 2012 with X previously having made a written statement to Police on 1 February 2012. The father and his partner, Ms M both made statements on 2 February 2012. These statements are annexed to the father’s affidavit filed 16 August 2012 together with transcripts of the interviews of the children with Police.
Mr P was informed that it was the father’s view that it was a criminal act on the part of the mother in assaulting the children and that the appropriate way to deal with that was by reporting her to the Police and for the Police to deal with the matter, not necessarily intending the mother to be convicted of assault but rather that he thought it was the only way that it could be properly dealt with by the authorities, and that justice could be done.
Mr P confirmed his previous opinion that for the children to engage in family therapy at that time and so close to a criminal hearing would be extremely confusing for them.
In cross examination by Ms Burns, Counsel for the Independent Children’s Lawyer it was suggested that it was perhaps not unusual for the children to have made notes prior to the interviews to which Mr P responded that as far as he was aware, he was the first person of a number of people to see the children and that he found it to be extremely unusual behaviour. Mr P did not hesitate in coming to a conclusion that the notes were prepared at the father’s behest. I make the observation that is consistent with the father’s evidence when he conceded he had made such suggestion to the children.
This serves to highlight one of the difficult aspects of the father’s evidence in this case and highlights the necessity of the Court to determine on the whole of the evidence whether the father encouraged the children to make notes to put in the best possible light how the children perceived him and in the worst possible light as to how they perceived their mother. In that sense, I am left with the distinct impression that following the father’s conversations, as referred to in his Police statement, with the children on 3 December 2011 the father wanted the children to explain in specific detail to Mr P the complaints they had about their mother. I find on the balance of probabilities that the children could have been under no illusion following the conversation their father had with them as set out in his Police statement[32]that they had to tell Mr P all they could about their mother’s behaviour towards them.
[32] Paragraphs 60 to 80 inclusive.
I am led to the inevitable conclusion that the father encouraged the children to talk about these matters to Mr P with a view to assisting his case for the children continuing to live with him.
A further difficulty which the Court faces is determining the extent to which the father is supportive of the children having a relationship with their mother and wants that relationship to be resumed. It is the father’s case that he put into place the recommendations made by Mr P which fell at the first hurdle when the children refused to spend time with the mother at Interrelate. It is the father’s evidence that he does not know what else to do to encourage the children to see their mother and does not know how to go about achieving a reintroduction. The evidence also establishes that the father is not opposed to therapeutic intervention.
Ms Burns put to Mr P that the mother had conceded in her evidence that she had acted inappropriately toward the children in relation not only to her physical discipline but other behaviour which the children would see as very uncaring and improper and with no insight demonstrated by the mother at all as to how her behaviour had affected the children until she was obliged to confront the issue in the witness box. When asked to comment Mr P said:
“…it reflects poorly upon her and the level of insight that she has about the damage of the comments and her behaviours with regards to the children. That is something that she seriously needs to reflect on in her own counselling relationships, rather than actually having any focus upon the father’s negative behaviours in what she would perceive as alienating behaviour. So that is the mother’s initial focus in any counselling relationship, that is her responsibility as a parent and what she had failed to do in apologising to the children and, which undoubtedly has been quite an impetus for the children on a level in terms of their resistance, besides any external factors.”
Mr P made it clear that until the mother acknowledged and accepted the responsibility for her own behaviour, which clearly needed to be relayed to the children then there was no possibility of a meaningful relationship between the mother and the children.
The father asked Mr P in cross examination what the likely implications might have been for the children, given the information they had told him in early December 2011 if he had done nothing at all about it and told the children in effect “don’t worry about it we are not going to do anything”. Mr P responded that there were two polarised positions, namely one of doing nothing and one of pursuing the matter with the Police but that there could have been a middle road taken and reinforce to the children that it was unacceptable behaviour on the part of the mother and that he, the father would canvas that with the mother either through a legal process or through direct conversation with her, and that if the mother ever attempts that again, he, the father, would take further action.
Mr P made it very clear to Mr Meller that he thought Police intervention was inappropriate because it placed the children in an unenviable position. Mr P made it clear in his response to the father that whilst he did not condone the mother’s chastising of the children it only disintegrated any possibility of the children having a relationship with the mother.
I sought Mr P’s response to an avenue which it seemed appropriate to consider that if the father and the mother together approach the Police and said neither wished to proceed with the prosecution given there are proceedings in the Federal Circuit Court which would be held up, and if the mother was able to bring herself to apologise to each of the children and there were no criminal proceedings and therapeutic intervention followed whether that would be a better way forward.
Mr P did not hesitate to say that such a pathway was going to be far more constructive for the children in terms of their relationship with each parent but in particular the mother and went on to say:
“I don’t think the father understands the implications to the children being in a criminal matter regarding their mother, and secondly, I don’t think the mother understands the implications for the children in her not having apologised to them to date, and what will be required, in any therapeutic context is the children will need to see the mother and the father having some kind of interaction, that is not denigratory to each other, and for the father encouraging the children to start spending time with their mother.”
Mr P said that would need to be done in the presence of the mother and the children with the therapist to facilitate such exchange a little way down the path.
It was at this point at the hearing on 20 September 2012 that I suggested each of the parties give some thought to the evidence given by Mr P in response to my earlier questions and to the possible cessation of the criminal prosecution.
The matter was adjourned to 4 October 2012 for directions when it was noted that the father had decided to continue with the prosecution by the Police of the mother for alleged criminal offences against the children.
At the resumed hearing on 10 December 2012 Mr P was able to consider reports by Ms F, the children’s Psychologist and concluded, in relation to X, that her answers to various questions in relation to feeling depressed and feeling hopeless and feeling worthless all the time were concerning and consistent with a child of her age and could be contemplating suicidal ideations.
In relation to Y and notes from Ms F there was a suggestion that Y is deferring to X as a support person which Mr P found concerning if Y was using X in a pseudo-parental role. Further notes suggested that Y was sad because she kept that hidden and cried to herself which Mr P found was concerning because it suggested that she did not have an outlet for sadness. Further notes suggested that there may be some underlying issues between Y and her father.
Mr P was taken to notes concerning Z and dreams concerning his mother which Mr P considered could be caused by stress. Mr P confirmed this could potentially have a long term adverse effect on Z’s psychological wellbeing.
Mr P confirmed his earlier view that therapeutic intervention with some priority was necessary to assist at least Z and Y.
In response to further questions from Ms Burns, Counsel for the Independent Children’s Lawyer, Mr P confirmed that the notes from Ms F, particularly in relation to X and the feelings expressed by the children may well result not only from the proceedings in the Family Court but also the pending criminal proceedings.
When asked to consider what bearing that had upon the future appropriate therapy of all three children Mr P said:
“I am firmly of the view that unless the children hear some joint statement from the parents no longer blaming each other for the current situation and that they are accepting responsibility for how the children are currently feeling and experiencing their lives, then there will be no repair. Given that, that should occur in a family therapy context, and I may have alluded to this in my previous cross examination and – but, as a starting point, the parents need to make a joint acknowledgement to the children with a therapist present because otherwise the children will hear different things from each of the parents continually, as they have done in previous years, and to continually repeat different accounts and different versions from each of the parents will only exacerbate the children’s psychological confusion.”
In relation to X, Mr P said that he was not sure that an individual apology would be sufficient for X and said further:
“I think the reality is that the mother/daughter relationship, regardless of the alleged criminal offence is one that was in disrepair. I think the important thing for X is that she does not want to be burdened any further with any ongoing parental conflict.”
Mr P agreed with the proposition that if the children remain seeing Ms F and she was able to undertake family counselling with the two parents then it would be appropriate for her to determine when the children are ready to spend time with their mother.
Mr P confirmed that given the mother’s application for an order for residence of the two younger children that such a course would not be appropriate and that separating the siblings was not an option.
Mr P confirmed to Ms Burns that in relation to the mother, the children’s relationships with her are not able to be restored until there is a full and frank acceptance of responsibility by the mother for her past behaviour.
Mr P also agreed with Ms Burns that in relation to the children’s relationships with their father, such relationships would continue to suffer for so long as the father maintained any form of alienation or negativity toward the mother.
The cross examination of Mr P resumed on the last day of hearing, 19 April 2013 when it was learned that Ms F concluded it would not be appropriate or in the children’s best interests for her to engage the children and the parents in family therapy.
Mr P was told of the outcome of the criminal proceedings in (omitted) on 18 December 2012 and that the charges against the mother were all dismissed following evidence by the father and some cross examination of the mother and with no need for any of the children to give any evidence.
Mr P was told of the mother’s evidence the day before with a concession on her part that she had grabbed the children, taken hold of their chins and forced their faces to her face, that she had slapped X across the face with an open hand and had had yelling fights with X. Mr P was told that the mother also conceded that the difficulties between herself and her children may have been lessened if she had apologised but to date had not done so but had prepared some written notes that she had proposed to give to the children when they were adults.
Mr P was also told that the mother made a reluctant concession in cross examination that her behaviour had in a very small way caused the breakdown of her relationship with the children.
Mr P was acquainted with a letter from Ms F of 26 February 2013[33] which confirmed continuing therapy for all three children with Ms F noting that the children had exhibited improvements in their behavioural, social and emotional wellbeing.
[33] Exhibit ICL5.
Ms F was of the view that at that time the children required stability and consistency in their day to day routines to promote further improvements in their emotional developments which could best be achieved by reducing any stress and uncertainty surrounding their familial situation and allowing the children to focus on their schooling, sports and developing friend networks.
Ms F reported that each child had individually voiced their concern at seeing their natural mother in the near future and would not currently benefit in participating in family therapy. Ms F further reports:
“The children have consistently informed me that they would be able to make contact with their mother at any time, and that while they may do so in the future, this is not something which they currently wish to do. In order to foster the empowerment process and to allow a sense of control in their lives, I would recommend that the wishes of X, Y and Z be respected. ”
Having considered each of those matters Mr P said it was likely to be counterproductive to the children’s current therapy if they were required to attend family therapy against their wishes or were forced to spend time or communicate with their mother against their wishes.
Given the time frame since the Family Report interviews and the children’s experiences since that time and against the background of the current proceedings and the criminal proceedings and the children’s therapy, Mr P said:
“Unfortunately that is the reality for these children and it might be some time before these relationships are restored and I think it would take time and I think it would need to take patience on behalf of the mother. It will be an incremental process that would have to commence with an apology – which I am concerned after 16 months has not occurred, and you will have to start with a plethora of photos over a period of time and it remains unknown when these relationships could be connected.”
Mr P was also of the view that therapeutic measures will need to be in accordance with the children’s wishes rather than a Court or either parent imposing or dictating to the children their relationship with their mother.
Mr P supported a suggestion by the Independent Children’s Lawyer that the orders be explained to the children not by the father but by the Independent Children’s Lawyer and perhaps the Director of Child Dispute Services in (omitted) or an experienced Family Consultant.
Mr P agreed that it would be a positive outcome for the children to see that their parents had engaged in therapeutic counselling together and to be followed by the parents making a joint statement to the children that no matter what differences the parents had in the past their future focus then was on the wellbeing of the children.
Mr P went on the say:
“Those kind of statements made jointly by parents are very powerful for children because most children in separated families want their parents to have some kind of constructive dialogue. They realise that their parents have been separated and may never be best friends but the antipathy that these children have observed in these parents relationship is the critical issue as to the psychological damage of these children. I don’t believe that when I saw the children in December 2011, that the physical abuse of these children by the mother had been so severe that it traumatised the children beyond the repair possible in their relationships with their mother. I am not discounting what has happened to the children in terms of their mother but the father has contributed to the current situation. For the children to have a repaired relationship with the mother, the father must realise that he – the onus is upon him to engage in this therapy initially by himself and then with the mother and then be eventually be able to make this joint presentation. This will be very healing for the children.”
When it was suggested to Mr P that the antipathy between the parents continued and was more than abundantly evident as each party gave their evidence as recently as the previous day Mr P said:
“Well its time that they need to look beyond their own selves.”
When I come to weigh the whole of the evidence of Mr P, I find it attracts considerable weight both as to his assessment of the parents and their perceptions of each other and the failure on the part of both of them together with their inability to recognise the difficulties each of them has caused their children compounded by the failure which I find is to be attributed to each of them to put into place measures to insulate the children from their continuing conflict and the failure to put into place a therapeutic pathway which could have introduced a better understanding between them as to what was required in the children’s best interests.
It remains a considerable concern to the Court that without extensive family therapy the father will remain suspicious as to any attempt made by the mother to improve her relationship with the children and that he will require extensive therapy to be receptive to the benefits to the children of having a relationship with their mother.
The suspicions by the father of this nature and his very clear reluctance to embrace the possibility that the mother has anything constructive to offer the children are illustrated by two specific events. First, he took great umbrage when the mother attempted to give Christmas gifts to the children via the hands of the Prosecutor and a Sheriff’s Officer when the children were in a separate room in the Port Macquarie Local Court on 18 December 2012. The evidence of the father as to this incident is found in his affidavit Efiled on 23 January 2013 when he deposes clearly to the approach being made by the Prosecutor with the request by the mother and her family to give the children Christmas presents and the father saying very clearly that he wanted nothing to do with it. The father was not present when the gifts were transferred to the children but the father deposed to a belief that such action placed the children in a very uncomfortable and unnecessary position and that he felt the actions of the mother and her family were confronting and detrimental to the children’s psychological welfare[34]. The father deposes in detail to the children’s reaction to the gifts and their individual rejection.
[34] Paragraph 19 of the father’s affidavit Efiled 23 January 2013.
During cross examination by Mr Graham as to this incident, the father gave no evidence at all that he attempted to put to the children that there was nothing suspicious about the mother’s gifts or reassure them that their mother loved them. I view that omission on his part as relating to his own needs to vent anger rather than putting the children’s interests first. When asked by Mr Graham what he considered about the appropriateness of the mother bringing presents the father said:
“Because I thought the act and timing was hideous and a disgrace.”
Whilst it is true the mother can be strongly criticised for bringing such gifts and which I find was unnecessary, it is the barely concealed venom of the father’s response which is of concern. Mr P expressed the view that such conduct indicates strong dislike to the father towards the mother.
The second illustration arises from some questions put to the father by Mr Graham in cross examination as to how he felt about the dismissal of the charges against the mother and I should add that Mr Graham acted on behalf of the mother in the criminal proceedings. Mr Graham suggested to the father that he would have felt relieved when the charges had been dismissed to which the father replied “no”. He went on to say that whilst he was not angry he was disappointed and a little frustrated in the way the Police handled the matter which led to the charges being dismissed because of the way the statements and the evidence had been compiled. On being acquainted with this evidence Mr P did not hesitate in concluding that such attitude on the part of the father was not necessarily reflective of a parent wanting to be supportive of the relationship between the children and their mother.
Mr P was asked by Mr Graham whether the father was alienating the children from their mother to which he gave a thoughtful and considered reply as follows:
“I think within the context of what he has attempted to do with these children, in terms of their relationship with their mother, I think it has been clearly evidenced that that has been his goal rather than looking at having a constructive relationship evolve. Despite what may have occurred, I have to say I am an experienced Family Consultant and I see a lot of matters both in the Children’s Court and the Federal Magistrates Court and the Family Court where there have been far more severe abuse cases than this one and on a scale from one to ten this is down the lower end and parents have been able to restore relationships with their children far easier than what has been allowed to occur in this case. If the father had been supportive of the mother/children relationships the likelihood is that the state of repair between all three children and the mother would have been far more advanced than it would have been now.”
When asked to comment upon appropriate therapeutic measures Mr P said:
“The father needs to reflect on his behaviour and need to engage in individual therapy himself. If he wants positive outcomes for his children, throughout their adolescent and in their adult years, he must look at reconciling with himself that he has the opportunity to make that happen for his children, on the basis of encouraging the children to develop a future relationship with their mother. If he does not understand that then the likelihood is that he will not encourage that, for what purpose, I do not know, other than he may have unresolved childhood issues himself which he may need to reflect upon in a therapeutic relationship.”
Mr P was asked to consider the consequence if the father refused to recognise or reflect upon his behaviour constructively and said:
“It would be nice to think that the children could easily go back and live with their mother at this point in time. However, that is not a reality. The reality is that there is a certain amount of psychological damage that these children have suffered. Each of the parents has to take responsibility for this. The only possibility as I alluded to the Independent Children’s Lawyer is that they continually need to be engaged in the counselling relationship and that that purpose, will hopefully bring the children and mother together, as well as getting the father to recognise the importance of that. This is not about the father or the mother, it is about the future wellbeing of the children and this is what both parents need to recognise and take on board as part of their parental responsibility.”
As to the form of an appropriate apology from the mother to the children, Mr P was acquainted with the draft notes the mother had made as to a form of an apology[35] but concluded that the mother would need some assistance from a family therapist in formulating an appropriate letter of apology to the children and perhaps Ms F as the children’s Psychologist could be an appropriate person to do that on the premise that she would know where the children were individually as to their progress and would know the kind of letter that may be significant for the children.
[35] See Exhibit ICL6.
I do not propose to adopt this suggestion and do not consider that Ms F would be an appropriate author. It seems to me that for the letter of apology to be sincere and constructive it must come from the mother once she has spoken to her Psychologist and that perhaps she assist the mother in drafting such letter. I have no confidence that the mother can write such letter herself and whilst that is no criticism of her as to her writing skills, her evidence very clearly suggests that she would not be able to draft an unqualified letter of apology which in my view is essential as one of the first steps in the children perceiving their mother in a different light.
Given that I propose to make an order that a copy of the Family Report of Mr P and a copy of these reasons for judgment be made available to the therapist who subsequently engages with the mother and the father, I would like to think that such documents would provide such foundation for the mother to be assisted with the drafting of such apology. In particular, I find for the apology to be constructive, it must be unconditional and be unequivocal in the sense of the mother acknowledging her fault and accepting that she was responsible and not attempt at all to attribute any responsibility to the father.
During cross examination of Mr P by the father, Mr P was acquainted with the fact that both the father and his partner had consulted with Mr J, a Psychologist from early 2012 with the father explaining to Mr P that such therapy had been undertaken with the expressed intention of best supporting the development and the moving forward of the children. Mr P agreed that was a good thing to do.
Mr P was then acquainted with a report of Mr J of 27 August 2012[36] with the father then asking Mr P whether his ongoing therapy is a clear demonstration that well before the last day of hearing, 19 April 2013 the father had taken meaningful and proper steps to address the things that were raised in the family report. Mr P said in response:
“From what His Honour read out to me, it seems that the emphasis of what has occurred in your ten sessions to date have been more about you coping with the children’s distress and experiences with their mother rather than, and I am not saying that wasn’t necessary for you, but the next step is one of recognising the importance for the children of having a constructive relationship with their mother and how you go about supporting that. That, obviously has not occurred or it was not identified in the report that was read to me”.
[36] Annexure 4 to the father’s affidavit sworn and filed on 29 August 2012.
Mr P went on to say:
“You have been engaged in some counselling for yourself as an individual and possibly for your relationship with your wife in coping with these pressures and having the children come back into your care but it is not about the issue that I spoke about with Mr Graham”.
The father put to Mr P that the questions which Mr Graham had put to him about alienation and children not achieving or having social difficulties would perhaps be reflected in their school reports which had been sent to Mr P and indicated their social progress and their achievements and development were outstanding and therefore could not support any proposition of alienation by the father.
X had told Mr P[47] that her relationship with the maternal grandfather had deteriorated in about April of 2011 when she received a text from him suggesting that she was distancing herself from the family and suggesting she was responsible for the familial separation. The actual content of the text message is not in evidence before me.
[47] Paragraph 77 of the Family Report.
It seems that X blamed herself to some degree and felt that her grandfather was blaming her for the present rift in the family. The mother acknowledged being aware of the text message sent by her father shortly after it was sent.
The mother was asked whether she had ever thought to ask her father to either telephone X or send a message to her apologising and withdrawing his criticism of her as it had appeared in the text message. The mother said that she had not thought to do that. Ultimately, the mother conceded that she could not bring herself to request her father to fix the problem by perhaps suggesting that he had done the wrong thing or that it would be a good idea if he fixed it.
The occasion of the Family Report interviews on 22 December 2011 was the first occasion upon which the mother had seen any of the children since the respective dates upon which they had gone to live with their father. Mr P records that when the mother entered the observation room it was only Y who responded positively to her with Z and X ignoring her.[48]
[48] Paragraph 80 of the Family Report.
The mother acknowledged in cross examination that the first question which the mother asked the children was why they had not been spending time with her which, on reflection, she agreed had not been the best approach.
In her evidence on 19 September the mother sought and I granted a certificate under Section 128 of the Evidence Act in relation to questions involving the alleged assault of the children by the mother given that those proceedings were then current.
The mother was unable to give any satisfactory answer to Ms Burns as to why she had never apologised to Y for denigrating her about her Aboriginality but accepted that all the children are Aboriginal.
The mother gave a detailed description of the incident involving Mr M flicking a lighter switch and Y being exposed to the flame of the lighter near her arm which Y found extremely upsetting and criticised Mr M for doing so. Specifically, the mother was asked why she had not done anything to prevent the incident. When asked why she had not apologised to Y, I was left with the impression that the mother did not perceive the flicking of the lighter by Mr M as a serious event. The mother acknowledged however that Y had been significantly distressed by the incident.
As to her relationship with Mr M, the mother said that it is now a casual relationship and they see each other occasionally with some intimacy. The mother said that she would like the relationship to continue and that he had been very supportive of her. She said that if the two younger children were to live with her then her relationship with Mr M would come to an end. Whilst that would sadden her, the children came first.
The evidence establishes that the mother does not have appropriate accommodation if the two younger children were to live with her. At the time of the hearing she was sharing accommodation with a friend having been obliged to leave her three bedroomed rented home which she could no longer afford when the children had gone to their father’s to live on a permanent basis. The mother thought that she would be able to rent a holiday unit in (omitted) temporarily pending the securing of more appropriate accommodation.
At the time of the hearing in September the mother was working five days a week Monday to Friday, between 3.00pm and 6.00pm as an (occupation omitted) at (employer omitted) and similarly at the end of the hearing.
The mother acknowledged that it would be necessary for Z to change schools if he were living with her in (omitted) where ultimately she hoped to obtain permanent accommodation. The mother’s income derived from her work was about $290.00 per week supplemented by $108.00 per week Newstart Benefit. The mother thought that she would have to pay about $260.00 per week to rent a home in (omitted).
On any interpretation, it would appear that the mother’s ability to financially support herself and the children and accommodate them would be difficult at the very least if not impossible unless she were to receive some Child Support. There was no evidence of Child Support for which she may be eligible if the two youngest children lived with her and X remained with the father.
The mother gave evidence that she was prepared to enter into counselling with the father to improve their relationship with a view to improving their parenting. When asked why such counselling had not occurred already given the recommendations made by Mr P the mother said words to the effect that she did not think the father would be able to participate in any successful counselling between the two of them.
The father was able to cross examine the mother at some length and suggested at one point that she had a high degree of resentment toward him to which she responded:
“I have no feeling towards you.”
At the resumed hearing on 18 April 2013 the father confirmed that his occupation with the (employer omitted) remained as a (occupation omitted) that he worked in (omitted) travelling to and fro from (omitted) with considerable flexibility as to his actual working hours between Monday and Friday and with no weekend or Public Holiday work. He said that he had sought a new position as (position omitted) in (omitted) which also came under the umbrella of the (employer omitted) and would involve (duties omitted). The father said that he had accepted the offer to take up the position but it had not been confirmed. The working hours would be very similar.
The father was asked some further questions in cross examination consequent upon his affidavit filed on 23 January 2013. The father gave evidence that X then had some casual employment at (employer omitted) in (omitted) about which he had no intention of telling the mother, that Y was playing soccer about which he had no intention of telling the mother and Z had been selected for the (omitted) Soccer Tryouts at (omitted) about which he had no intention of telling the mother.
The father agreed it was important for the mother to be aware of what the children were up to and said that he had sent information to the mother via her Solicitors in the form of emails and each of which requested some money as a contribution towards his costs of supporting the children. The father confirms that he receives Child Support of $31.26 a month from the mother in accordance with a Child Support Assessment.
The mother gave further evidence which was essentially the continuation of her evidence prior to the adjournment of the criminal proceedings.
The mother said that she had sent text messages to each of the children, to Z on his birthday on (omitted) 2012, to all three children on Christmas Day 2012 and to all three children on 3 February 2013, and to Y on her birthday on (omitted) 2013 and to X on her birthday on (omitted) 2013 but received no reply to any of those texts. The messages are found in hand written form in the mother’s notes and which were exhibited.[49]
[49] See Exhibit M11.
The mother gave evidence in chief that she had sent such texts from her mobile phone and I accept her evidence in that respect.
The mother also adduced a copy of some rental listings for property in (omitted) through a Real Estate Agent with some indication of rental values in the (omitted) District ranging from $150.00 to $365.00 per week[50].
[50] See Exhibit M12.
The mother was cross examined at length by Ms Burns as to the various incidents of family violence that the children said had occurred between them and the mother.
The mother conceded that she had been involved in yelling or screaming matches with X at times. The mother conceded that in discussions with the children she would take hold of them by the chin if they refused to look at her when she was talking to them, and she illustrated how she place four fingers on the right hand side of the cheek with the thumb on the left hand side of the cheek and moved the child’s face through about 45 to 60 degrees to a forward position.
The mother denied Y’s assertion that she would accidentally spit at Y when this occurred and did not concede that it had occurred and thought Y lied about that issue to make her father happy.
The mother had some difficulty considering the question put to her that each of the children objected vigorously to being held by the chin by their mother but conceded ultimately that X objected vigorously to being manhandled in that fashion. The mother admitted to smacking X in the face during 2011 when she was some 13 or 14 years of age and prior to her deciding to leave the mother’s home permanently.
The mother denied kicking X and agreed that she did not like being confronted by the mother.
The mother denied grabbing X by the neck or the back or the head and said that all three children had lied in relation to such assertion.
The mother conceded by entering a plea of not guilty to the charges against her then the children would be required to give evidence.
It would seem however that the learned State Magistrate was concerned as to the weight to be given to the children’s evidence given the circumstances under which the disclosures were made by each of them together to their father in the motor car. It appears to be common ground that it was this which led the learned State Magistrate to conclude no prima facie case could be established which in turn led to the charges being dismissed.
The mother agreed that X appeared to be very angry with her for not admitting to having hurt her but did not agree that if she had apologised to her and the two youngest children her relationship with the children could well be very different.
The mother agreed and accepted it was appropriate for her to apologise to the children and especially X and with a written apology prepared with the assistance of a counsellor or a Psychologist. The mother also agreed with each proposition put to her by Ms Burns it would need to be an unqualified total apology not blaming any other person but herself.
The mother became distressed at this point and continued to say that she had thought about writing an apology every day during the preceding two years but felt rejected by the continual negative response from the children not wishing to see her or have any contact with her.
The mother conceded it would have been horrible for the children to attend Port Macquarie Local Court on 18 December waiting to be called to give evidence against her.
The mother also agreed that it was possible the children could have perceived the giving of gifts through the Police Prosecutor at the Court could have been seen by them as an attempt to bribe them but denied that was the intent. It is clear from the mother’s evidence that she did not think about the possible adverse effect of giving the children gifts at the Court until after the event.
The mother said that she had now completed a Parenting after Separation Course which she found to be of assistance particularly in relation to how to talk to the children in an open manner rather than being confrontational as she had been at the time of the observation session of the Family Report interviews.
The response by the mother to the propositions put by Ms Burns are to be seen in the context of the mother, it seemed to me, readily agreeing to what she perceived to be any pathway that would enable her to spend time with her children. It was disappointing then when the mother said she was entitled to see the children and that if that she was paying Child Support then she should be able to see the children.
When questioned as to the amount of Child Support she paid and whether she should make a further voluntary contribution towards their support even if she were not seeing the children, the mother said:
“I don’t know how to answer that.”
After a further emotional upset and a short adjournment the mother said that it was her belief that because she was not seeing the children she should not have to pay anything more than the current Child Support which amounted to $1 per day support.
The mother displayed some insight when, having said that the father had taken the children that she and the father were to blame for what had occurred.
The mother gave some evidence which I found to be glib that she would not criticise the father if the children were spending time with her but could not say anything positive about their time with their father except that they had a baby sister, A and some extended family and that their father took them to sport and their school reports were OK.
The mother confirmed that it remained her application for Y and Z to live with her and when asked how she would manage the children if they were immediately put into her care she said:
“We would do the psychologist and have techniques of – they will give us techniques won’t they, that is what we would be asking for.”
The mother also confirmed that she was not then involved in a relationship. There is no evidence before me that the mother remains friendly with Mr M as she had said in evidence prior to the adjournment over the Christmas period.
During the course of further cross examination of the mother by the applicant father I was left with the impression that the mother would be prepared to engage in a therapeutic intervention involving the father and mother together with a view to improving their communication to talk about the children.
It was of considerable concern that the father had said earlier on the sixth day of hearing in response to a question from Mr Graham and a further question by me that he was not prepared to consult with a family therapist against a background of such therapist being available with whom the father and the mother could consult together in the first instance.
Application of Section 60CC and the Legal Principles
As to Section 60CC I make the following findings:
(2) The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
I find on the whole of the evidence that there is a very significant benefit to all three children in continuing to having a meaningful relationship with their father.
Currently, I find on the whole of the evidence before me that there is little or no possibility of a meaningful relationship existing at the present. Indeed, there has been no meaningful relationship between the children and their mother since each child moved to live with the father permanently during 2011 and has spent no time or communicated with the mother in any constructive was since.
However, I do not find on the whole of the evidence before me that there is no possibility of a meaningful relationship being created in the future. In this context, I find that until 2010 the children enjoyed a meaningful relationship with their mother and lived primarily with her. It is significant in my view that, as the children’s Psychologist reports in February 2013[51] that the children consistently informed her that they would be able to make contact with their mother at any time, and that while they may do this in the future that is not something which they currently wish to do at this time. Put simply, the children do not rule out the possibility of renewing the relationship with their mother. I find therefore every opportunity is to be put into place to enable a meaningful relationship to be re-established.
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
[51] See Exhibit ICL5 .
There is clearly a need to protect all three children from a risk of being exposed to psychological harm as well as physical harm.
It seems to me, and I find on the evidence that there is no risk of physical harm to any of the children in the father’s home. I make the same finding in relation to the mother, and whilst the father has a contrary view in relation to X and X, I have no hesitation in concluding on the whole of the evidence that no such risk exists if the children were to spend any time with their mother.
The very clear risk in this case arises from psychological harm and that relates to the father’s attitude to the mother which remains as hostile as ever and is one of chronic toxicity.
It is essential in my view that the children continue to see Ms F until such time as she perceives it is no longer necessary and I will make an order accordingly. To the father’s credit, he took on board and accepted many of the recommendations made by Mr P in the Family Report and arranged for the children to see Ms F. The children are very aware of the father’s dislike of the mother. It is to be hoped that he has been able to contain himself since the conclusion of the hearing as to any adverse comment he could otherwise make about the mother.
I find on the evidence that the failure by the mother to apologise to the children also amounts to psychological harm. That harm was compounded by the failure on the part of the mother, until the very last stages of the hearing to acknowledge that she had assaulted X by slapping her. Whilst there were submissions made by Counsel for the mother and the Independent Children’s Lawyer as to whether this amounted to inappropriate parental discipline or an assault, that seems to me to be academic and serves no useful purpose. If there is any prospect of the relationship between the mother and the children being repaired it is essential that the mother acknowledge and accept responsibility for her failings and communicate an appropriate unqualified apology to the children. If the mother is able to do this, it would be a very significant step forward in reducing the risk of continuing psychological harm to the children on her part.
The further risk of psychological harm lies in all three children continuing to be aware of the dysfunctional relationship between their parents and which continues to exist. As Mr P said succinctly during cross examination and as referred to in detail in these reasons for judgment, it would be one of the most positive things for the children to see that their parents have engaged in counselling together and then eventually to make a joint statement to their children that no matter what differences they have had in the past their focus is now on the wellbeing of their children.
It seems to me that is the only real avenue by which further psychological harm can be avoided.
(3)Additional considerations are:
a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
There is ample evidence before me, for the reasons referred to earlier that none of the children has any wish to spend time with or communicate with their mother at the present.
I find those wishes attract considerable weight, especially given the evidence of Ms F and her recommendation that those wishes be respected.
b)the nature of the relationship of the child with:
(i)each of the child's parents; and
I am satisfied that each of the children have a close and loving relationship with their father and which is reciprocal.
The evidence establishes that all three children currently have no relationship with their mother but that is not to say that there is no possibility of the relationship being resumed and I rely again upon the report of Ms F
(ii)other persons (including any grandparent or other relative of the child);
There is little evidence about the nature of each child’s relationship with other members of the respective extended families save that there is currently none with the maternal grandparents.
c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii)to communicate with the child;
The evidence establishes that the father has made the long term decisions concerning the children’s education against some opposition from the mother particularly as to Z. This, coupled with the children having lived with the father since 2011 and their dysfunctional relationship has resulted in the father not consulting with the mother at all. Consequently, it is not a case of the mother failing to participate in making decisions but being effectively excluded.
Similarly, the mother has not spent time with the children, not due to a failure on her part or a refusal on her part to do so but as a consequence of the children’s wishes and the father’s inability to encourage the children successfully. Similarly, there has been no communication.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
I am satisfied on the evidence that the father has fulfilled his obligations to maintain and provide appropriately for all three children with the assistance of minimal Child Support from the mother.
The mother pays Child Support in accordance with the current assessment and has declined to provide any further financial assistance for the children as requested from time to time[52] but the evidence does not enable me to make a finding that the mother had the capacity to provide any additional financial assistance.
[52] See Exhibit F2
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
If I were to accede to the mother’s application that Y and Z to live with her it seems to me, and I find on the whole of the evidence that there would be a very considerable adverse effect upon both children. I have no hesitation in concluding on the whole of the evidence before me that there is no merit in either child living with their mother. In fact, it would be contrary to their best interests and would be more likely to put at risk any prospect of those children redeveloping an appropriate relationship with their mother.
Further, it would result in those children being separated from their older sister who is now a little more than 17 years of age and their very young half sibling A who is almost three years of age.
If all three children remain living with their father there will be no change to their present circumstances.
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
If I were to accede to the mother’s application Y and Z would be separated from their step mother, Ms M with whom, on the whole of the evidence before me, I am satisfied they have a fond and loving relationship.
e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
On the whole of the evidence before me, it is unlikely there would be any practical difficulty or expense. The father lives in (omitted) and the mother lives in (omitted), near (omitted) and the distance between the two districts of residence is about 30 kilometres at the most.
f) the capacity of:
(i) each of the child's parents;
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
I am satisfied on the whole of the evidence before me that the father has the capacity to provide for the children’s day to day physical needs and, in all likelihood, their intellectual needs as to their education, promotion of sport and cultural activities, developing interests outside the school curriculum and fostering and encouraging friendships with their peer groups.
I find on the whole of the evidence that the father has been unable to provide for the children’s emotional needs so far as concerns their relationship with their mother. Whilst the father recognises and acknowledges that a relationship with their mother is essential for balance has he put it, the father has failed to ensure such relationship has resumed. The reason for that in the father’s own words during his submissions is that the mother has set about a path of destruction which the father perceives as unabated.
During the course of submissions I suggested to all parties that the most likely finding that I would make was to be able to put into place the recommendation made by Mr P that both the mother and the father enrol in, attend and complete a course of therapeutic counselling with a therapist experienced in family dynamics and communication with a view to improving their communication with each other so as to discuss matters concerning their relationship with each of them and the children and the children’s relationship with each parent with a view to a relationship being resumed between them and the mother.
The mother indicated she found such proposal acceptable and the father said he accepted such proposal in principle and would comply with such order if it was made but said he found it very difficult to see himself in the immediate or near future engaging with the mother in such context.
I propose to make such order for the reason that I find it is the only pathway which can be followed to bring about the possibility of the children resuming a relationship with their mother which I find, in all the circumstances, is in their best interests.
As to the mother’s capacity to meet the children’s needs, I find on the balance of probabilities that the mother currently has no capacity to provide for the financial needs of Y and Z if they were to live with her but for reasons given earlier I propose to refuse the mother’s application in that respect.
I find the mother is unable to meet the current emotional needs of any of the children for the reason that each is estranged from her and that there is no prospect of the relationship being resumed until the mother is able to give an unqualified acknowledgment and apology under circumstances to which I have referred in detail earlier in these reasons.
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
I am satisfied on the whole of the evidence before me that the children are mature as to their character and development, are well settled at school, enjoy extra-curricular activities and that there is no evidence before me of any concern as to their health and have benefited from the assistance Ms F has been able to give them as referred to in her report of 26 February 2013 to the Independent Children’s Lawyer.[53]
[53] ICL 5.
No further comment is necessary in relation to the parents save that the father has engaged with Mr J, a Psychologist and the mother has obtained similar assistance.
h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
I have referred earlier to the father’s discovery of his aboriginal heritage with both parents acknowledging the children are aboriginal.
I am satisfied that the father will foster and encourage the children’s right to enjoy their aboriginal culture.
None of the orders I propose to make will have any adverse impact on such right.
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
There is no useful purpose in my summarising the findings I have made in relation to each parent earlier in these reasons as to their attitude and responsibilities and failures as parents to meet the needs of their children.
I find that both parents are responsible for the current estrangement of the children from their mother.
j)any family violence involving the child or a member of the child's family;
I have referred extensively to the evidence concerning family violence and no further observation is necessary.
k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
There is none on the evidence before me.
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
I will do the best I can to avoid this possibility.
m)any other fact or circumstance that the court thinks is relevant.
During the course of submissions, Mr Graham raised the issue of the possibility of the father being able to move the children well outside the (omitted) district if he had sole parental responsibility and chose to do so.
It seems to me appropriate, and indeed the father consented to an obligation being placed upon him to give the mother prior notice if he proposed to move away.
Given the nature of the mother’s current relationship with Mr M, I find it unnecessary to continue any restraint against him so far as concerns the children.
Section 61DA
Section 61DA provides as follows:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
I am satisfied on the whole of the evidence before me that the presumption is rebutted as a consequence of the dysfunctional relationship between the parents and there currently being no prospect, in my view, and I so find on the evidence of the parents being able to have any constructive discussion as to any matter concerning parental responsibility and decisions concerning the children.
That is not to say that I have any concern that the father will not act in the best interests of the children as to major decisions. I am satisfied he will for the reason that he has the best interests of the children as to day to day and long term practical matters foremost in his mind.
Consequently, it is unnecessary for me to consider the maters referred to in section 65DAA.
Conclusion
I am of the view that it is necessary to retain the appointment of the Independent Children’s Lawyer for a period of six months to ensure compliance by the parents with the orders I propose to make.
I find also it is necessary for the orders to be explained to the children, preferably by the Director of Child Dispute Services or her nominee in (omitted) and in the presence of the Independent Children’s Lawyer who is known to all three children. This can take place as soon as the appropriate arrangements can be made and will necessitate the father bringing the children to (omitted) for that purpose.
As a consequence of both parents having lost sight completely of their children’s best interests compounded by the conscience acts of the father flowing from his inability to support any form of relationship for the children with their mother leading to their present estrangement from her, that there is no course other than for the children to live with their father. That remains in the best interests of the children.
I find the conduct on the part of the father following each child electing to live with him during 2011 initially was one of alignment but ultimately became one of alienation of the children from their mother.
The failure by the mother until the eleventh hour at the hearing to acknowledge her poor behaviour and violence toward the children renders her equally responsible for the present state of affairs. In her own way, the mother has alienated the children from her.
Both parents have failed to understand the consequences of their actions and both have displayed considerable lack of insight in finding a remedy. There is also the attendant risk the children may blame their father if they perceive he denied them a relationship with their mother which could lead to them rejecting him.
True it is the father adopted what he perceived to be the recommendations made by Mr P but this has not resulted in the re-establishment of any relationship for the children with their mother and which has not occurred for the reasons given by Mr P whose evidence I accept.
I find the mother disciplined the children excessively and forcefully and most likely as described by the children and some of which amounted to assaults upon them. The children certainly perceived some of the acts as assaults and those memories have remained with them.
Whilst the degree of family violence by the mother toward the children is at the lower end of the scale of physical family violence it is the father’s response which attracts equal criticism. The decision on his part to adopt a pathway of prosecution was short sighted and destructive. Whilst he claims he acted on X’s wishes, that was a mistake on his part and the role he should have played was one of the responsible parent not acceding to the child’s wishes carte blanche but looking at the larger picture of what a prosecution would mean and the possibility of the children being required to give evidence which led to the destruction of any possibility of an earlier re-establishment of the children’s relationship with the mother. It did not assist when the mother chose to arrange for Christmas gifts to be given to the children at the Court and that demonstrates a complete lack of insight on her part on the effect upon the children.
On the face of it, each of these parents has something to offer their children. It is trite to observe they are the only parents these children will have. For that reason alone both parents owe their children the right to benefit from both being appropriate and effective parents to them. Further one of the objects in section 60B(1) is to ensure that the best interests of children are met by ensuring they receive adequate and proper parenting to help them achieve their full potential and in section 60B(2) one of the principles is that children have the right to know and be cared for by both their parents.
Consequently, I find on the whole of the evidence that it is incumbent upon the Court to consider the most appropriate pathway for the poisonous relationship between the parents to be brought to an end with a view to the children then re-establishing their relationship with their mother.
To that extent, I accept very largely the orders proposed by the Independent Children’s Lawyer and which the father also supports.
I am left with the distinct impression and find on the evidence that the father would prefer that the children have a relationship with their mother. Whilst he had little complimentary to say about her, the tenor of his evidence was such that he could perhaps perceive some benefit if she showed contrition.
I find that it is a facet of the father’s character and nature that he has been rigid in his approach to dealing with the mother’s failings and that his restricted vision as to what is in the children’s best interests has restricted his capacity to give the children any form of permission or approval to having a relationship with their mother.
I find on the whole of the evidence that the only possible path likely to have some success is for both parents to engage in therapy or counselling to enable their communication about their children to be re-established and lead to the children feeling comfortable in resuming a relationship with their mother when each is ready to do so.
This can be achieved only if the parents during such therapy and with the help of the therapist make the joint statement to the children referred to by Mr P in paragraph 132 above. I require each parent now to read again that paragraph and paragraph 149 of these reasons.
I have no hesitation in concluding on the whole of the evidence that the children have not rejected their mother completely.
The other significant step necessary to bring about a reconciliation for the children is for the mother to apologise. It seems to me this can best be done by the mother immediately preparing an appropriate letter with the assistance of her psychologist acquainted with the facts of the case and my reasons for judgment and to be approved by Ms F, the children’s psychologist and the Independent Children’s Lawyer before being given to the children when these orders are explained to them by the Director of Child Dispute Services and the Independent Children’s Lawyer in (omitted) and which is to occur no later than Friday 12 September 2014.
The pathway I am proposing will require a very significant shift in thinking for both the father and the mother as to their attitude towards each other for the sake of salvaging the children’s relationship with their mother. If each parent enters into the therapeutic relationship with an open mind there is every possibility it will be successful.
If the parents value their children’s well-being and wish to avoid further turmoil for their children and the risks which became clear during the course of the hearing as to adverse behavioural consequences for alienated children then each will embrace the pathway but ultimately the responsibility for its success is theirs’ and theirs’ alone.
It is to be hoped the parents will embrace this reasoning. Failure to do so by each of them will result inevitably in very significant emotional difficulties for each of their children as they grow and in turn perhaps become parents themselves one day.
I certify that the preceding three hundred and thirty (330) paragraphs are a true copy of the reasons for judgment of Judge Coakes
Associate:
Date: 6 August 2014
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Natural Justice
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Procedural Fairness
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Remedies
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Injunction
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