Melsbach and Josephs
[2019] FCCA 2871
•15 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MELSBACH & JOSEPHS | [2019] FCCA 2871 |
| Catchwords: FAMILY LAW – Parenting – children aged 16, 14, 12 and 7 – where the father has spent no time with the children for 22 months – where the children are each adamant that they do not want to spend time with the father – where the father alleges parental alienation and seeks a change of residence and a moratorium on the children spending time with their mother – where the mother alleges realistic estrangement and seeks an order that the children spend time with the father in accordance with their wishes – where the expert who prepared a report in 2018 opined that the children had their own views for their own reasons and were not channelling the views of the mother – where the expert felt that the conduct of both parents had contributed to the current situation – where the expert said that if a change of residence was not successful it could result in highly traumatised children – where the expert’s opinions are soundly based – where a change of residence would in any event be unlikely to stick in relation to the three older children – whether an order should be made for the youngest child to spend time with the father – where the father did not seek this and where there would be a risk of it perpetuating stress on a family which has been in the court system for nearly three years – order for the children to live with the mother and spend time with the father in accordance with their wishes – mother to have sole parental responsibility subject to some conditions. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA |
| Cases cited: Becket & Peel [2010] FMCAfam 1424 |
| Applicant: | MR MELSBACH |
| Respondent: | MS JOSEPHS |
| File Number: | NCC 741 of 2017 |
| Judgment of: | Judge Terry |
| Hearing dates: | 8, 9 and 10 October 2019 |
| Date of Last Submission: | 10 October 2019 |
| Delivered at: | Newcastle |
| Delivered on: | 15 November 2019 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondent: | YJP Legal |
| Counsel for the Respondent: | Mr Davies |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW Town A |
| Counsel for the Independent Children’s Lawyer: | Mr Boyd |
ORDERS
All previous Orders concerning the children [W] born … 2003, [X] born … 2005, [Y] born … 2007 and [Z] born … 2012 (“the children”) are discharged.
The mother shall have sole parental responsibility for the children subject to Orders 3, 4 and 5.
In the event that a decision made in the exercise of the mother’s sole parental responsibility relates to a change in the children’s school enrolment or relocation from Town I the mother will provide the father with at least 21 days’ notice prior to any change occurring.
The mother is to advise the father of any decision that she has made in the exercise of her sole parental responsibility.
The mother is restrained from using or attempting to use any surname other than the surname ‘Melsbach’ in respect of the children, either formally or informally for any purpose whatsoever.
The children shall spend time with the father in accordance with their wishes.
The father shall be permitted to attend all events involving the children that allow for parental attendance if he is invited to attend by the mother in writing including:
(a)Sporting fixtures;
(b)Extra-curricular activities that allow for parental attendance;
(c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews and social functions.
The father is restrained from approaching the children or coming within 100 metres of their home, school/s or any medical practice attended by the children without the prior written consent of the mother.
The father shall have no communication with the children except as provided below:
(a)The mother is to advise the children that if they wish to communicate with their father they are able to do so at any reasonable time and if the children initiate any such communication with the father, then the father is at liberty to respond to that communication.
(b)The mother shall use her best endeavours to encourage the children to communicate with the father by telephone or email on the following occasions of special significance:
(i)The father’s birthday;
(ii)Father’s Day;
(iii)Christmas Day;
(iv)Easter Sunday; and
(v)Each of the children’s birthdays.
(c)The father is permitted to forward to the children cards and gifts/parcels for special occasions such as birthdays, Christmas and Easter and the mother is to hand to the children any such cards and/or gifts/parcels addressed to the children from the father.
The mother is to ensure that the father’s current mobile telephone number and email address are displayed on the front of their refrigerator in their home.
The mother is to forward to the father any gifts, cards or artwork made or bought by the children for the father.
Parental communication shall be by way of email only unless in the event of emergency or unless otherwise agreed in writing between the parents.
The mother is to inform the father in writing as soon as practicable of any specialist medical appointments with any psychologist, psychiatrist, counsellor, specialist, therapist or other medical or health practitioner in relation to the children.
The mother shall do all necessary things to authorise and direct any psychologist, psychiatrist, counsellor, specialist, therapist or other medical or health practitioner who has consulted with the children to provide the father any and all information (including the children’s present condition and prognosis) in relation to the children and in the absence of such authority, these Orders are sufficient authority for the psychologist, psychiatrist, counsellor, specialist, therapist or other medical or health practitioner to provide any and all information in relation to the children of the father.
The mother shall do acts and things necessary to ensure that the father is provided with a copy of any reports by any such psychologist, psychiatrist, counsellor, specialist, therapist or other medical or health practitioner.
In the event of the children being hospitalised or receiving urgent medical attention the mother shall notify the father as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
Within 14 days of the date of these Orders and within 14 days of the child’s subsequent enrolment at any school, the mother shall do all acts and things necessary and give all irrevocable authorities necessary to ensure that whichever school the children may attend, that school can forward directly to the father copies of all the children’s school reports and merit cards, school photograph order forms and any written material pertaining to the children’s academic and extra-curricular activities.
Each parent shall advise the other parent and keep the other parent advised of their current residential address, email address and contact telephone numbers (including both landline and mobile phone number if applicable) and will advise the other parent of any changes to these details within 48 hours of any such change occurring.
Pursuant to Section 68B of the Family Law Act 1975 the father is restrained and an injunction is granted restraining him from removing the children from any school, day care centre, and extracurricular activity or from the care of any person in whose care the mother has placed the children.
Neither party shall denigrate (e.g. criticise or speak badly about) the other parent or members of their family in the presence or within hearing of the children and shall ensure that no third party denigrates (e.g. criticises or speaks badly about) the other parent or members of their family in the presence or hearing of the children.
No party shall show or discuss any document related to these proceedings with the children, nor allow any third party to show or discuss any document related to these proceedings with the children.
The mother shall bring the children to the Town A Office of Legal Aid NSW to meet with the Independent Children’s Lawyer at time mutually convenient time to her and the Independent Children’s Lawyer and not later than 14 days after being notified of the making of these Orders for the purpose of explaining these Orders to the children.
The Independent Children’s Lawyer’s application for costs is dismissed.
All outstanding applications are otherwise dismissed.
THE COURT NOTES THAT:
(A)The father has advised the court that he loves the children and would welcome any communication or contact with them.
IT IS NOTED that publication of this judgment under the pseudonym Melsbach & Josephs is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 741 of 2017
| MR MELSBACH |
Applicant
And
| MS JOSEPHS |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern [W], 16, [X], 14, [Y], 12 and [Z], 7.
The children live with their mother and have done since the parties ceased living under one roof in June 2016. They have spent no time with their father since an incident between him and the children on 6 January 2018. They are adamant that they do not wish to spend time with him in the future although the wishes of the youngest may be malleable.
The father said that the children were expressing this view because they had been alienated or aligned by the mother. He sought a change of residence and a cessation for the children’s time with the mother for at least three months.
The father said that unless this draconian step was taken the children will never have a relationship with him. He said that he would arrange for himself and the children to enrol in a course called “Family Bridges: A Workshop for Troubled and Alienated Parent-Child Relationships” to assist in restoring the children’s relationship with him. He said that after three months the children’s contact with the mother should resume with the resumption, timing and nature of that contact based on the co-operation of the children and the mother with the program and with assistance and input from an after-care professional.[1]
[1] This term is not defined in the father’s orders.
The mother denied that she had alienated or aligned the children. She said that she had encouraged the children to spend time with the father but he had been insensitive to their needs which caused their relationship with him to break down only a few months after separation.
She consented to orders in September 2017 for the children to resume spending time with the father after there had been no time for nearly a year because she wanted the children to have a relationship with him and she consented to an increase in that time in November 2017 but after an incident on 6 January 2018 which involved the father manhandling [W] the children had refused to spend any further time with him or speak to him on the phone and she was not prepared to force them to do so against their will.
The mother proposed that the children live with her and at the commencement of the hearing was seeking an order that the children spend no time with and have no communication with the father. In the witness box she said that she made this proposal because she was at a loss about what else to do. In closing submissions the mother’s counsel said that the mother agreed with the proposal by the Independent Children’s Lawyer that the children spend time with the father in accordance with their wishes.
Not unsurprisingly each parent sought an order for sole parental responsibility.
At the end of the hearing the Independent Children’s Lawyer tendered a minute of order proposing that the children live with the mother and spend time with the father in accordance with their wishes. Counsel for the Independent Children’s Lawyer said that weight should be placed on the opinion of the single expert Dr B that the children were realistically estranged from the father and that if orders were made as he proposed and the change of residence did not work it would be likely to result in highly traumatised children.
The Independent Children’s Lawyer supported the mother having sole parental responsibility for the children with some conditions.
At the commencement of the hearing the mother was seeking an order that the children’s surnames be changed from Melsbach to Josephs on the basis that the children would prefer it. In the witness box she said that this was not a big issue for her and in closing submissions her counsel said that she was not pursuing that order.
The evidence
The father relied on his affidavits filed on 15 February 2019 and 20 September 2019 and the affidavits of his partner Ms C filed on 15 February 2019, his partner’s sister Ms D filed on 2 April 2019 and his friend Ms E[W] filed on 15 February 2019.
The father sought to tender some literature about parental alienation. The other parties objected and I did not permit the father to tender it. He did not suggest that the authors of the literature would be made available for cross-examination and I did not consider that untested evidence about the general concept of parental alienation would assist me.
Because the father was self-represented I record here that in his case outline document he referred me to two reported decisions. One was Ralton & Ralton[2] an FCCA decision in which the judge made an order that the children live with the father and spend no time with the mother for a period, the same outcome the father wanted. The other was Theophane & Hunt[3] a first instance Family Court decision in which the father was prohibited from spending time with children inter alia because of concerns about his functioning.
[2] Ralton & Ralton [2016] FCCA 1832
[3] Theophane & Hunt [2014] FamCA 1038
Both decisions turn on their own facts and do not assist me.
The mother relied on her affidavit filed on 21 February 2019 and the affidavit of her sister Ms F filed on 21 February 2019.
Two reports were prepared in the matter, a family report prepared by Ms G, a Regulation 7 family consultant, which was released to the parties on 16 September 2017 (“the family report”) and a Chapter 15 Expert’s Report prepared by Dr H, a clinical psychologist which was released to the parties on 12 August 2018 (“the expert report”).
All of these witnesses were cross-examined.
A document prepared by the Independent Children’s Lawyer containing information about the children’s views as at 19 August 2019 was tendered by consent.[4]
[4] Exhibit C
The evidence of Ms D and Ms E[W] does not assist me.
Ms D is the sister of the father’s partner and is a health professional in Town I where the mother and children live and where the father has previously lived.
She commented positively about the father in her affidavit and unfavourably about [W]’s behaviour on Christmas Day 2017 when the Melsbach children attended a family event with the father and members of the [Ms C] family.
Her evidence about an argument between the father and [W] over whether the children could take home the presents they had received makes clear that she saw things only from the father’s perspective and not [W]’s. She was also critical of the fact that [W], [X] and [Y] did not want to take part in a group photo she organised and had obviously never asked herself whether they should have been forced to do so if they objected.
Ms D took it upon herself on 13 March 2018 to write a lengthy letter School J where the youngest two children attend complaining about the mother and her sisters Ms F and Ms K and informing the school that she, her sister and the father had been researching and seeking professional advice about Parental Alienation Syndrome [PAS].
She said among other things:
…I feel if the school is aware that PAS [Parental Alienation Syndrome] is occurring, there might be a chance you could provide more directed emotional support to the children and both parents.[5]
[5] Ms D’s affidavit page 10
She complained about the fact that she was refused membership of a community gym on 25 February 2019 and was asked to consider joining another gym without reflecting on whether her behaviour in seeking to join the gym (noting that [W] enjoys going to the gym) might be damaging to the father’s case rather than helpful.
She relayed some second hand gossip about an interaction between the mother’s sister Ms F and her friend Ms L on which I can place no weight.
Ms D may mean well but her partisan evidence is of no assistance to me.
Ms E[W] is a friend of the father’s. She lives in Town I and she met the mother and father in February 2015 and she visited their home in happier times. She said that the father had done some gardening for her and had babysat her young daughter and that she trusted him implicitly with her child.
I accept that Ms [W] finds the father a friendly, responsible, respectable person which in many aspects of his life he no doubt is but her evidence does not assist me to resolve the dispute about parenting arrangements for the Melsbach children
Ms F was a partisan witness for the mother. It was necessary that she give evidence so that her behaviour could be challenged by the father if he wished, it being his case that the mother’s family was complicit in his relationship with the children being undermined but her affidavit contained a good deal of unhelpful evidence which was based on second hand hearsay or was largely irrelevant.
Background
The father is 39 and the mother 38. They commenced a relationship in 2001 and married in March 2004. They have four children: [W] born on … 2003, [X] born on … 2005, [Y] ([Y]) born on … 2007 and [Z] born on … 2012.
After initially living in Sydney the parties lived in Town M, Town I, Town N and Town O before returning to Town I in late 2014.
The children were home-schooled after they reached school age save for [W] briefly attending pre-school. Both parents claimed that they were involved in teaching the children.
There was a dispute about their roles in caring for the children and about the father’s financial provision for the family during relationship. The father detailed at considerable length the jobs he held over the years and maintained that he was a hands on father who at times was primarily responsible for the household as well as being the financial provider. The mother said that the father was not a good provider and was not much involved in the care of the children.
There is a risk that both parties are seeing things through the prism of their current feelings about each other and are providing inaccurate evidence because they are determined to emphasise their own contribution and downplay that of the other party and I cannot make findings about these historic matters.
The father has an interest in sports and in May 2015 he set up a not-for-profit organisation in Town I called P organisation and Activities which paid him a small wage. He met Ms C in February 2016 when she began bringing her children to activities at the Town I Youth Club where he was delivering classes.
The date of the parties’ final separation was a matter of hot dispute during the hearing.
There was no dispute that they lived on the same property until 21 June 2016 but the father said that they had separated in January 2015 at which time he commenced living in the granny flat (or back shed) on the property.
He alleged that after the separation in January 2015 the mother went onto on line dating sites and by implication knew as well as him that the parties were separated under one roof from that point.
He said that in November 2015 another family member needed the shed so he moved into a spare room in the house but moved back into the shed in April 2016 when this family member moved out. He said that in May 2016 he began to look for a separate house but shortly afterwards he and the mother had a discussion and agreed that it was fine for him to continue living in the shed.
He said that he left the property on 21 June 2016 because the mother “kicked him out” after he spent the night with Ms C and by implication it was his case that her extreme reaction to him forming a new relationship was impossible to understand.
The mother denied going on any dating sites and said that in her eyes the marriage was intact until the father commenced a relationship with Ms C on 21 June 2016.
I am satisfied that it came as a shock to the mother when the father commenced a relationship with Ms C and that she certainly did not consider that the parties were separated prior to 21 June 2016. That is very clear from the emails the mother sent to Ms C on 22 June 2016 and from subsequent Facebook posts which are attached to Ms C’s affidavit.[6] Ms C seems to have failed to notice the pain shining through these emails and posts; she clearly attached them to her affidavit in an endeavour to paint the mother in a bad light.
[6] Ms C’s affidavit paragraph 9, 13 and 15 and Annexures A, B, C & D
That does not mean that in the father’s mind the relationship was not over much earlier. Perhaps the father did not convey his state of mind adequately to the mother; perhaps she ignored obvious signs. However it is also possible that by the father’s behaviour sent mixed messages. In his 15 February 2019 affidavit he went to considerable lengths to emphasise that he and the mother were separated long before he commenced a relationship with Ms C but he was also at pains to emphasise his involvement with the family prior to this and said as follows:
Whilst I was at the family home Ms Josephs would often sleep in past 1000h and I would bring her tea when she woke up. As [Z] was still napping in the afternoon Ms Josephs would often nap with her. As such I was very involved with the children and consider myself to be the primary carer of the children for this period. Organisation of the children, dinner and the house and activities would generally be done with me.[7]
[7] Father’s affidavit page 16 Roman Numeral xxx
The date of separation remains a bone of contention to this day; the parties’ polarised views about it were on display during a telephone conversation between them which the father recorded on 7 August 2018[8] and it was the subject of cross-examination at trial.
[8] Father’s affidavit filed 20 September 2019 page 39
I cannot make a finding when the parties’ relationship as husband and wife ended. However a good deal of the evidence in the case was about what happened after 21 June 2016 and it would be cumbersome to have to keep repeating throughout the judgment “following the parties ceasing to live on the same property.” I intend from this point on to refer to 21 June 2016 as the date of separation which in one sense it was.
The father was content for the children to continue to live with the mother after separation. He did want to spend time with them but for the remainder of 2016 he spent some time in Town I and a considerable time in Country Q with Ms C who took her children there to live in or about early August 2016 so that they could attend an international school.
The children initially spent time with the father by going to Q Centre where he worked for periods of up to three hours. That did not always go well. Ms C’s affidavit creates the impression that it did not go well because Ms C also attended the centre on occasions. The mother said that the children were miserable during these visits because of the father’s treatment of them.
In due course the mother suggested to the father that rather than seeing the children at Q Centre he spend time with them in the former matrimonial home with her absenting herself for a few hours. He agreed to this and a number of these visits happened. The father said that the mother did not always absent herself and made a nuisance of herself by hanging around. The mother said that she was called home early on occasions because the visits were not going well. I cannot make a finding about where the truth lies about this.
In summary some time occurred between the father and the children after separation save for when he was in Country Q between 7 and 14 August and 31 August and 16 September but in October 2016 the mother informed the father that the children had each said to her that they did not want to spend any further time with him and she ceased facilitating time.
The father did not immediately do anything about this; he was in Country Q for all but two weeks of the period between 24 October 2016 and 20 December 2016. However at some point following this he sought legal advice and on 19 March 2017 filed an application seeking an order for week about shared care.
The mother filed a response, on 3 May 2017 an Independent Children’s Lawyer was appointed for the children and on 19 June 2017 a family report was ordered.
The family report writer saw the family on 2 August 2017. [W] was then 14, [X] 12 and [Y] 9. They had not spent time with the father for about nine months. They were individually interviewed and each said that they did not wish to spend time with the father and did not want to see him on the day of the interviews. [Z], 5, did not express a view about spending time with the father but the consultant did not press the issue of [Z] spending time with her father for an observation session.
The family report writer noted that the children were all being home schooled and that save for [W] going to pre-school briefly none of them had ever attended school. She expressed the view that they were being educationally neglected and were socially isolated and recommended that they attend the local public school or local Catholic School.
The family report writer also expressed the view that the mother was angry with the father because of his new relationship and had behaved in ways which were less than ideal and had encouraged the children to have a poor view of the father and that the children were aligning with the maternal family. She also expressed considerable concern about the mother’s mental health.
She noted however that the father was not proposing that the children live with him, only that they spend time with him and her recommendation was that the children live with the mother and spend time with the father if they wished to do so.
In September 2016 following the release of the report orders were made by consent for the children to resume spending time with the father and in November 2017 further orders were made which increased that time. However after an incident between the father and the children on 6 January 2018 which I will describe in detail later on the mother informed the father that the children refused to spend any further time with him and that she would not be making them available.
When the matter next returned to court the father pressed the court to order the preparation of a report by a named expert whom he said specialised in parental alienation. There was no consent to this but there was consent to a Chapter 15 Experts Report being prepared and Dr H, a clinical psychologist, was engaged to prepare it.
Dr B interviewed the family on 3 July 2018. All of the children stated that they did not want to see the father and they all declined to be observed with him.
The father’s position by this time was that the children should live with him and that there should be a moratorium on them spending time with the mother while they settled in. He proposed that he and the children engage in a program called ‘Family Bridges’ designed to assist children to reconnect with a parent whom they have rejected.
Dr Bs’ opinion was that the family situation was complex and that both parents had contributed to the situation of the children refusing to spend time with the father. She discussed options and the ramifications for the children of those options. Her recommendation was that the children live with the mother, that the parents share parental responsibility and that the court determine whether or not any of the children have court ordered time with the father.
The matter was subsequently listed for trial.
The parties circumstances
The mother and children continue to live in Town I. The mother has not re-partnered.
In late 2017 orders were made for the mother to enrol the children in mainstream schools and at the start of the 2018 school year [W] and [X] commenced attending Town I High School and [Y] and [Z] commenced attending School J.
The family report writer suggested that the children were being educationally neglected as a result of being home schooled but their 2019 school reports show a good level of academic achievement which cannot have sprung out of nowhere. [X] is the least enthusiastic about attending school but they all attend dutifully and have had few absences and [W] commented to the report writer in 2018 that it had been surprisingly easy to make friends. [X] and [Y] can be somewhat socially reserved but neither of the schools have noted any issues of concern about the children.
Whatever might have been the case in the past the children all seem to have adequate socialisation. [W] goes to the gym and sports with his cousin [R] and has a girlfriend. [X] and [Y] also go to gym and do sports with [Y] being the least enthusiastic about it. [Z] rattled of a list of friends she had at school when interviewed by Dr B.
About twelve months ago the mother’s Ms F, Ms F’s husband Mr F and Ms F’s children [R], 15, [S], 13 and [T], 10 commenced residing with the mother. Ms F has owned businesses in Town I for about four years and the mother works in the business part time.
The mother is close to Ms F and also to her sister [U]. During the parties relationship the mother and father shared a home with the mother’s sisters from time to time. The father implied in his affidavit that there was something unhealthy about the mother living with Ms F and Mr F and used the word “co-dependent” but there is nothing in the evidence to suggest that this arrangement is of concern in terms of the children receiving healthy parenting.
The father lives in Country P with Ms C and her children who are about 8 and 6. Ms C’s plan for her children to attend school in Country Q did not work out and sometime in 2017 she moved to Country P with her children and enrolled them in school there. She said during cross-examination that she wanted her children to have an international education and planned to stay in Country P indefinitely.
The father is doing some sports instruction in Country P but there is nothing to suggest that this is earning him much income.
Ms C is of independent means and she is supporting the father. In addition to the trips to Country Q she and the father and her children have had trips to Country Q, Country R, Europe and the United States. She was not required to answer questions about her finances but she owns two houses in Town I, one of which is leased out and one of which she uses when in Town I.
The expert report created the impression that the father had a home of his own in Town I but that is not the case. The homes the father stays in when he is in Town I are owned by Ms C.
Ms C’s sister Ms D lives in Town I with her partner Mr D who acted as the father’s McKenzie friend during the hearing.
The father has spent little time in Australia this year but he said that if the court made an order for the children to live with him he would establish a home in Australia. However it was obvious from his answers in cross-examination that he had not though about this to any degree. When pressed he said he might live in the Canberra region where his parents live.
This seemed to fly in the face of the statement in his affidavit that if the family engaged in the Family Bridges program this might allow transitioning to shared-care arrangements in a relatively short period of time.[9] That could only happen if the father was living in close proximity to the mother.
[9] Father’s affidavit page 32 paragraph 8
The father said that the Family Bridges program cost $30,000.00 and that Ms C was willing to meet that cost. When asked in cross-examination what would happen to his relationship with Ms C if he obtained the orders he wanted and remained in Australia he said that they would continue their relationship via distance.
The father was asked about his finances if he returned to Australia and he said that he could walk back into a job at Q Centre in Town I. It does not seem to be high paying, from memory he said that he earned $350.00 per fortnight from this employment and he also said that it might be possible to live in one of the houses owned by Ms C but a more troubling matter is that it is difficult to see how a change of residence would stick if the father lived in Town I. It would be impossible to stop the children running back to the mother.
The children’s best interests
Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and s. 60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine their best interests.
The primary considerations in s. 60CC(2) are the benefit to the children of having a meaningful relationship with each of their parents and the need to protect the children from physical or psychological harm from being exposed to or subjected to abuse, neglect or family violence.
S. 60CC (3) contains the additional considerations which are numerous.
In some cases, and this is one, it is preferable to start by making findings about the additional considerations because they inform discussion about the primary considerations and the first of the additional considerations is any views expressed by the children and any factors (such as the children’s maturity and level of understanding) that the court thinks are relevant to the weight it should give to those views.
The mother said that in October 2016 each of the children began saying that they did not want to spend time with the father. She said as follows:
[Y] first expressed to me that he did not want to spend time with Mr Melsbach. He told me that he never wanted to see Mr Melsbach at all. The next to decide on this was [W]. Then [X] and [Z] each decided they were unhappy with the visits and all of them pleaded with me not to have to visit Mr Melsbach again without me being there to help them.[10]
[10] Mother’s affidavit paragraph 45
I accept the mother’s evidence that this occurred. Whether she should have allowed the children to “decide” is another matter but based on what the children said the mother stopped facilitating time, the father started proceedings and a family report was ordered.
[W] told the family report writer in August 2017 that he did not want to see his father. She said as follows:
[W] declined to see his father and stated ‘absolutely not. He makes fun of me and my mother and nearly strangled [Y] when he got up one night to have a glass of water.’[11]
[11] Family report paragraph 64
The family report writer said as follows about [X]’s views:
When asked if he want to see his father he said ‘no because he is a jerk and considers that he is the best father. He won’t let us play video games, he would not let us role play – he hurts us he really hurts us.’[12]
[12] Family Report paragraph 65
The family report writer said as follows about [Y]’s views:
When asked about his father [Y] stated that ‘he did not like him because he is not nice to me and we have not seen him for about three months. [Y] stated that his father had hurt him when he lived with us’ – he stated that his father had picked him up and ‘hurt me a lot.’ He could not describe any other incident when his father had hurt him. He said his mother does not hurt him but does not want him to see his father. [Y] acknowledged that they had talked about his father at home.[13]
[13] Family Report paragraph 71
The family report writer said as follows about [Z]’s views:
[Z] said she could not see her father because she had been told ‘he was an idiot and never lets me wear what I want to wear’. She said that her Dad had never hurt her but no longer lives with the family.’
The father admitted in cross-examination that he had stopped the children role playing and did not like them sitting on the play-station when he visited but [W] admitted that he had not seen the father hurt [Y] and had only heard about it and the father denied ever hurting the children. The family report writer expressed concerned that both [W] and [X] were justifying their positions by relying on negative things about their father which they had not actually seen and that all of the children had been exposed to adult discussion about the issues in the case.
It is understandable why the family report writer did not consider anything the children said a sufficient reason for them not to be seeing the father.
The family report writer was strongly of the view that the children were being influenced by the mother to reject the father and used the words “alienation” and “alignment” in her report. However she also recognised that the situation was complex and said as follows:
The literature suggests that when a child rejects spending time with a parent one intervention may be reinstating the child’s time with the parent. This may be possible if the matter is alignment. However this can be difficult if the issue is enmeshment, estrangement or alienation. To resolve this it can require positive emotional and behavioural responses on the part of both parents, extended family and new partners which in this matter is unlikely.[14]
[14] Paragraph 87 of the Family Report.
Her recommendation was that the children spend time with the father in accordance with their wishes.
Notwithstanding that recommendation following the release of the family report and after discussion in court, orders were made in September 2017 for the children to spend defined time with the father and in November 2017 there was an agreement to an increase in time.
For a little over three months’ time occurred as ordered.
On occasions, for example in a telephone conversation with the mother which he recorded, the father has claimed that everything went smoothly prior to the critical event on 6 January 2018 and that the children were happy but it is apparent from his 15 February 2019 affidavit and from the affidavit of Ms C and her sister Ms D that there were some problems during this period particularly with [W].
The father, Ms C and Ms D did not like his attitude and felt that he was at risk of damaging property and there was an unfortunate occasion where [W] found some papers in a grate at the home the father was sharing with Ms C which contained pages of criticism of the mother.
At Christmas 2017 the children attend a party at which Ms C and her children were present. At the end of the night the father insisted that the children thank Ms C and say goodbye to her. [W] said that he did not want to. The father said that he had to do so or he would not take any of the children home and eventually [W] gave in so that the other children could all go home.
Ms D also insisted on organising a group photo of all family members on both sides and [W], [Y] and [X] were most resistant to being in the photo.
The father did not directly address the issue of forcing [W] to say goodbye to Ms C in his trial affidavit although there is no doubt on the totality of the evidence that it occurred. He said that [W] displayed destructive and anti-social behaviour at the party and encouraged the other children to do the same. He also said that when “we” were organising the group photo all of the Melsbach children stated that they were Josephs not Melsbach’s and didn’t want to be in the photo.
Somewhere around this time, and I cannot remember whether it was the father, Ms C or her sister who had this conversation with [W], he was challenged about not welcoming Ms C into the family as the father’s new partner and he said that he needed time to adjust to it and he would have felt the same if the mother had re-partnered.
It is apparent from the father’s evidence although it is not directly referred to that on 5 January 2018 [W] scratched the father’s car with a stick while the children were spending time with him. The father said from the bar table that it was not a major scratch and could have been buffed out but he was most unhappy about it.
The children’s visit with the father on 6 January 2018 ended in a debacle.
The father said that on the day in question he took the children to his house to wait for a while before he took them to the movies. He said that [W] refused to get out of the car and he was not willing to allow him to remain in it as [W] had damaged his car the previous day. He said that he picked up [W]’s feet and gave them a playful tug and then he hopped in the car beside him and slid across the seat pushing [W] to the edge of the seat. He said that he lifted [W]’s legs out of the car and helped him stand up so that he would not hurt himself if he let himself fall to the ground. He said that this resulted in [W] taking off his shoe and striking the father across the chest.
The father said that after this [W] and [Y] remained outside separate from [X] and [Z] who had gone into the house at the father’s request and that they obtained tools and implements and threatened the father. He said that Ms C came by to pick up some shoes and [Y] held a pair of pliers up at her. He said that [W] was staring intently at him.
The father continued with his plan to go to the movies and got [X] and [Z] into the car. He said that [W] and [Y] refused to get in and attempted to take steel poles into the house. He said that [Y] threw his away when the father told them not to do this but he had to go in and remove the one [W] had taken into the house.
Eventually all the children got in the car and while driving the father called the mother on the phone to update her about their plans. He said that [Y] called out that he had hurt [W] and the mother became hysterical and demanded that he bring the children home.
The mother said that the father told her that there had been an incident but he was still going to take the children to the movies. She said that she could hear [Y] screaming in the background “Dad’s hurting [W], Dad hurt [W].” She could then hear [X] screaming and crying “We want to come home” and [Z] crying “Mummy, Mummy, Mummy, Mummy.” She suggested to the father that he bring the children home. He refused to do so. The mother kept calling him back and threatened to call the police if he did not bring the children home.
The father said that [W] then picked up a brick which he had brought into the car and threatened to smash the window unless he pulled over. The father pulled over and after he did so [W] undid [Z]’s seatbelt and walked off with her. He said that [W] was saying that he would not get in the car and would wait for the police and the other children were crying hysterically.
The father eventually again got the children into the car and took them back to the mother’s home.
The mother subsequently ceased complying with the orders for the children to spend time with the father.
The father continued to attempt to see and speak to the children but they refused to see or speak to him and the mother would not force them to do so.
On 12 January 2018 for example the father rang the mother. He recorded the conversation despite the mother making it clear to him that he did not have her permission to do so and he transcribed it for the trial and it included the following:
Mr Melsbach: 02:56 But no, if you could ask the kids if they’d like to say hello. I’m pretty sure [Z] would like to say hello. She was-
Ms Josephs:03:00 I- The children don’t want to speak to you. [W] did you want to speak to Mr Melsbach?
[W]:03:04 No.
Mr Melsbach: 03:04 Uh, I’m Dad, Ms Josephs if you could, if you could please-
Ms Josephs:03:07 Can you go check with, can you go check with the other ones? Well just in case you didn’t know which Mr Melsbach I was talking about, your father, Mr Melsbach.
[W]:03:13 Yeah, no.
Ms Josephs:03:13 All right can you [inaudible 00:03:15] for me please, sweetie?
Mr Melsbach: 03:14 How are you [W]?
[W]:03:18 Would you Sir [X] like to speak with Father? No? [Y]?
[Y]:03:18 Never in a million years.
Ms F:03:27 [Z], do you want to speak to Mr Melsbach?
[W]:03:27 No.
Ms Josephs:03:29 None of them do including [Z].[15]
[15] Transcript – Recording 12 January 2018 – Page 46 of the father’s affidavit.
On … 2018 he went to the mother’s home and left a cake and card for [X]’s birthday. [X] did not come out. On 7 March 2018 he and Ms C attended a Parents and Friends breakfast at School J. He saw [Y] and [Z] in passing briefly. [Y] did not respond to his greeting although [Z] did. On 13 March 2018 he went to a Sports Day at the town oval. [Y] was there with his class and looked away and ignored the father on two different occasions when he said hello.
On 1 April 2018 the father took Easter gifts to the house. He asked to see the children but the mother and her sister would not agree saying that the children did not want to see him.
On …2018 the father took a birthday card and presents to the house for [Z]. The mother would not allow him to see [Z]. The next day the father went to the house and rummaged through the mother’s bin, which he said was on the verge awaiting collection and the mother said was in her yard and discovered the cake and other items in the bin and took photos of them.
On … 2018 the father went to the house for [W]’s birthday. The mother and her sister did not allow him to see [W] saying that [W] did not want to see him. The father left a cake and presents.
The father said that in June 2018 the Principal of School J told him that they felt that it was in the children’s best interest that he not be at the school when the children were there and that the school was not an appropriate place for him to be attempting to repair his relationship with the children. The father asked for this to be put into writing and said that until he received it he felt that he had the same rights as any other parent to attend the school. He said the school did not put it in writing but there is a letter from the school to this effect floating around.
On 27 June 2018 the father attended Town I High School and assisted a teacher to deliver a robotics and technology class. He said that he saw [X], [W] and [R] in the quadrangle as he was leaving. He said hello and [X] picked up his bag and walked off. The father spoke briefly to [W].
On 3 July 2018 the family attended interviews with Dr B. She spoke to each of the children and they were each adamant that they did not want to spend time with him and would not be observed with him.
In regard to [Z] she said as follows:
[Z] indicated her understanding of the purpose of the family assessment and stated that she was there to talk about her father and she noted that she didn’t want to see him. When the Family Consultant queried [Z]’s reasons for this, [Z] stated that her father is mean to her brothers and that it is too upsetting for her and her family.[16]
[16] Expert Report paragraph 112
Dr B nevertheless said later in her report that she felt that [Z] could be successfully encouraged to spend time with her father. She said as follows:
It appeared to the Family Consultant that [Z]’s view on the father was influenced more by the views and experiences of her siblings and the distress she has observed in them, rather than her own negative experiences with the father.[17]
[17] Expert Report paragraph 115
In regard to [W] she said as follows:
He stated that he feels much better since he is no longer required to spend time with his father. He stated that his father is mean, “he’s the kind of parent that requires children to do exactly as he says”. [W] stated that the father often says to him, “you have to visit me because I am the reason you exist”. He stated that he would love to have a relationship with his father, however it is too hard, that his father is too controlling, “you can’t have your own view, if you say no to something there’s a ten-minute rant, later he leaves you alone”. [W] further stated that when they were all living together “he was fighting all the time with all of us”.
Dr B noted that [W] described a number of occasions when the father behaved in a highly controlling and inflexible manner. He also described the occasion on 6 January 2018 when the father used his body weight to push [W] out of the car. He said that he hurt his foot and the father didn’t care and opined that the father didn’t like him. Dr B went on to say:
In a distressed state and teary eyed, [W] then told the Family Consultant that he said to his father, “I refuse to go, you can’t treat me like that and expect me to go to your home”.[18]
[18] Expert report paragraph 123
Dr B ended by saying:
[W] stated that he has one message for the Judge, “I don’t want to see him, the way he treats me makes me feel terrible. Why should I have to go to make him feel better, I don’t think I should have to go at my own expense”. [19]
[19] Expert report paragraph 127
In respect of [Y] she reported as follows:
[Y] stated that he doesn’t want to have to go to the father’s home, he stated “he’s mean, and he has a super bad temper”. Regarding the incident in the car with [W], he stated that it was very distressing. He was upset, “my father hurt my brother, he always yells at us when we don’t do what he asks”.
[Y] was asked what he would like the Judge to know and he stated “that none of us want to see him”. [20]
[20] Experts report paragraphs 132 and 133
Dr B said as follows about her interview with [X]:
[X] reported that his dad is mean to him. He noted that his father has hurt him, that he hits him and pushes him. When [X] was encouraged to provide details and context to these statements he was unable to describe any events other than the recent incident with [W].
[X] reported that the father was yelling at [W] and when [X] went to see what was happening the father punched [X] with his fist. [X] then demonstrated for the family consultant a side punch to his stomach saying, “I fell into the door”. It is noted that this was the first indication that the father had punched anyone and it was not reported by any of the other children including [W]. The Family Consultant is unsure if this incident occurred in the way that [X] expressed or if [X] is expressing the event with some exaggeration. It is clear that the incident was distressing for [X] and that the father was physical with [W]; in that he pushed him out of the car. [X] then stated that the father really hurt [W] when he pulled him out of the car, [X] noted “it was bad”. [X] stated that the father does not care if he hurts them.
[X] stated that his father has sometimes visited the children’s school and he noted that he does not like this. [X] stated “I don’t want him to come to my school. I worry that he will show up again”.
[X] also stated that he would not spend any time with the father; referring indirectly to the observations. He stated that if he is forced to be in the same room as the father he will run away.
Dr B expressed the view that the father’s behaviour in frequently and unexpectedly attempting to contact the children at school, sporting events and their home was reinforcing the children’s opposition to spending time with him rather than aiding the situation by demonstrating to the children his desire to spend time.
The report was released on 20 August 2018 but the father did not stop this behaviour. On … 2018 he went to Ms F’ shop to drop off a cake and presents for [Y]’s birthday. On 5 October 2018 he dropped off to her [W]’s remote control car which he had asked the father to fix. He noted that Ms F was stand-offish and would not talk to him which is hardly surprising as she was aware by then that he was recording conversations.
At Christmas 2018 the father visited the house to see the children and say Merry Christmas and give them their presents. The mother asked him not to just keep dropping around without notice.
On 8 January 2019 he called around to the house to drop off presents for the children from his parents after calling the mother the night before to tell her that he intended to do so.
The children’s views have not changed since the interviews in 2018. The Independent Children’s Lawyer met with each of the children on 19 August 2019. He informed the court that the children all said that they did not want to see the father. [Y] said that he would speak to the father on the phone if he had to but he did not want to.[21]
[21] Exhibit E
Dr B interviewed the mother and father as well as interviewing the children and she also read the 2017 family report. Her opinion was that the views expressed to her by the children were their own and arose from their own experiences of the father post-separation. She said as follows:
While the children may be influenced by the views of their parents, a far stronger theme for them is their own experiences with the father which have not gone well at times. It is further noted that the children including [Z], are highly influenced by each other’s opinions and are impacted by exposure to sibling distress and this is independent of any adult influence.
…………………..
While the children are likely influenced by inappropriate exposure to the parents’ views, they are also old enough to form their own assessment and assert their own will. Their defiance and oppositional behaviours appear to be a result of this which in turn have then been difficult for both parents to adequately manage. This dynamic was demonstrated by [W]’s refusal to get of the father’s car and the father’s poor management of this, further influenced by the mother’s demonstrated distress when the father contacted her. It is also exampled by the children’s refusal to accept the father’s birthday cake and the mother responding to this by throwing it in the bin and is further demonstrated by the children’s opposition to the father’s new partner and the father’s insistence to involve her in the children’s lives regardless; for example, having her accompany the father to various school activities.
The above opinion is soundly based on the evidence available to Dr B and no evidence emerged at the hearing which undermined it.
The views of the children no matter how independently held do not of course determine the matter but the views of the boys, particularly those of [W] and [X] who are in their mid-teens but even those of [Y] who is now 12 must be given considerable weight because they are capable of physically refusing to remain in a place where they do not want to be and the incident on 6 January 2018 where [W] and [Y] picked up weapons highlights the risk of harm which could arise if these children are forced to live with or even spend time with the father against their will.
The situation with [Z] is more complex. There is some possibility that she might willingly spend time with the father if an order was made but whether it is desirable to do this (noting that the father did not specifically seek it) is something I will have to return to after making further findings.
I must consider the nature of the children’s relationship with each of their parents and any other person including a grandparent of the children.
The children have no relationship with the father at present.
There was a dispute about the nature of their relationship with him prior to separation or perhaps better put the nature of the boys’ relationship with him prior to separation.
The father said that it was close and that he was always a very involved father and was sometimes the children’s primary carer. The mother said that it was not close and that the father often clashed with the boys.
The father prepared a book of photographs for the trial showing him with the children in a variety of circumstances prior to separation. This does not assist me however to resolve the question of the nature of his relationship with them prior to separation.
The boys complained to the family report writer about the father’s treatment of them prior to separation. She was inclined to dismiss their complaints as influenced by the mother but some of the father’s post separation behaviour suggests a lack of respect for the boys and difficulty parenting them.
In her affidavit the mother said that he belittled the children when they visited him at Q Centre immediately after separation and called [Y] a “needy bossy cunt” and said to [W] “What the fuck has your mother done to you? You’re ruined”.
The father admitted during cross-examination that he said those words about [W]. He said it was a minor comment which he made to himself and which [W] overheard and he said that he apologised to [W] and said that it wasn’t his Mum’s fault and that he was a bit stressed but these kind of comments can cause lasting damage. I am satisfied on the balance of probabilities given the father’s admission that he also said the words to [Y].
The mother said that the visits with the children at the home also had their issues and that [Y] ran away on one occasion. The father admitted that [Y] left after an argument over a milkshake and that there was an occasion which ended in tears.
I cannot conclude from the fact that these issues occurred that the father’s relationship with boys was troubled prior to separation. I agree with the opinion of Dr B that neither party behaved in a child focussed way after separation; this could have caused problems between the father and the boys which did not exist before and the parents’ evidence about historic matters is not necessarily reliable and could well be clouded by their current feelings about each other.
There is no doubt however that the father’s relationship with the boys deteriorated after separation and in particular after visits began pursuant to court orders made in September 2017. During telephone conversations with the mother which he recorded and transcribed the father claimed that all of the children had a good time with him after the consent orders were made in September 2017 but the affidavits of Ms C and Ms D suggests that there were problems with [W] and [Y]’s behaviour during the visits and since 6 January 2018 he has no relationship with them at all.
The father laid all blame for this at the feet of the mother and the fact that the mother did not handle the separation well undoubtedly had an impact on the children’s attitude to the father. However the experts’ opinion was that part of the problem was that the commencement of the father’s new relationship was too soon for the children, especially [W] and that his numerous overseas trips during the second half of 2016 destabilised the children[22] have merit.
[22] Expert report paragraph 75
There also seems little doubt that things could have gone differently between the father and [W] in 2017 if the father had behaved differently and made different choices. During a discussion with the expert about [W]’s relationship with the father the mother insightfully said as follows:
The mother noted that there is nothing wrong with [W] other than he is experiencing significant difficulty managing the current family conflict. She stated that he does not know how to handle his emotions when he is with the father and the father’s behaviour inflames the situation instead of helping [W] cope with it.[23]
[23] Expert report paragraph 74
There is ample evidence to support that opinion, and not just the evidence about the way the father handled the situation on 6 January 2018. In a number of places in his affidavit the father commented adversely on [W]’s behaviour during visits. The solution which he and the Cs’ adopted to deal with [W]’s unhappiness on Christmas Day 2017 was to follow him around and watch him to make sure he did not damage property and for Ms D to tell [W] that he should treat his father better and that “Karma is a bitch.” He was later forced to take part in a group photo and say goodbye to Ms C although he did not wish to.
The father refuses to reflect on the contribution he has made to the situation or to reflect on how he could have handled things differently. In conversation with the expert he said that he could not think of any way in which he could have handled the situation with [W] on 6 January 2018 differently and when asked about it during the trial said:
I suppose I could have just let him damage the car.
[Z] was 4 when the parties separated and the evidence suggests that the father’s relationship with her both before and after separation was different to his relationship with the boys. Ms C was not challenged about her evidence that she saw the father about town with [Z] on some occasions prior to separation but never saw him with the boys or about her evidence that [Z] visited her house with the father on occasions during 2016 and interacted well with her children [CC] and [DD].
Dr B noted that [Z] seemed to be going along with her brothers in saying that she did not wish to see the father.
The children have no relationship with Ms C at present and did not develop even an embryonic one prior to time ceasing in January 2018. Ms C said and I accept that [Z] was not phased about having contact with her during 2016-2017 although at times she tended to follow her brothers lead. However she described the boys as hostile to her or reluctant to spend time with her. She said that [X] and [Y] seemed to relax over time while [W] remained oppositional but [Y] waved pliers at her when she briefly visited the home where the father was living on the day of the January 2018 incident.
The mother has always been the children’s primary carer and I say that because she did not work outside the home during the relationship whereas the father did and they remained with her during a separation which occurred in about 2010 and also after the final separation. They have a warm and loving relationship with her; and this was not disputed by the father.
The children also have a good relationship with their maternal aunt Ms F and her children and it was not suggested that there were any difficulties in their relationship with Mr F.
During the report interviews and at trial the father raised the issue of the exclusion of the paternal family from the children’s lives. He complained that the children were being prevented from spending time with his brother Mr EE and with the paternal grandparents.
The father’s brother was previous married to Ms F and he is the father of [R], [S] and [T]. He does not live in Town I but he does see his children reasonably regularly and as a result the children in the current proceedings see a little of him.
The father complained that Ms F placed unreasonable restrictions on Mr EE spending time with his children and that the mother and Ms F dictated to Mr EE that he had to limit his interaction with the father and Ms C if he wanted to see his children but the father did not call his brother as a witness. There was no independent evidence to suggest that Mr EE had a problem with the arrangements in place for him to see his children or felt aggrieved about not being able to see the children in this case.
There was also a dispute which I cannot resolve about whether the father had always had a good relationship with his parents and about the extent to which they had spent time with the children prior to separation.
The mother does not have a relationship with the paternal grandparents and I accept that if the children spend no time with the father in the future they are unlikely to spend time with the paternal grandparents but I am unable to make a finding about the extent to which this will be a change or a loss for the children.
I must consider the extent to which each parent has fulfilled, or failed to fulfil, the parents’ obligations to support maintain the children.
During cross-examination the father said that he was currently paying child support of $35.00 per month. He emphasised that the had also paid $7,500.00 for [W]’s braces but in terms of the children’s day to day needs they are almost entirely supported by their mother.
This case does not turn on child support however. There was no suggestion that the mother was preventing the children spending time with the father because she was upset about not receiving child support or that the father wanted residence of the children for reasons connected with child support.
I must consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in the relation to the children, to spend time with the children and to communicate with the children.
As previously indicated I cannot make a finding about exactly what happened prior to separation.
The father has made an effort to spend time with the children, communicate with them and be involved in decision making for them since separation. His absences overseas did not arise out of lack of interest in his children.
I must consider the likely effect of any change in the children’s circumstances including the likely effect of their separation from either of their parents or any other child or person including any grandparent or other relative of the children with whom he or she has been living.
This is the central issue in this case.
The father asked the court to make an order that the children immediately start living with him and cease having any contact with the mother. He proposed enrolling them in the Family Bridges program to aid their transition to his care.
The father said that the benefit to the children of making that change was that it would enable them to have a relationship with both parents and not just with one.
There are a number of problems with the father’s proposal.
First, [W] is 16 and has a girlfriend. He is due to commence Year 11 next year. The father appeared to concede during the trial that removing [W] from his current situation was not viable but during final submissions he said that he still sought the orders in his amended initiating application which would involve a change of residence for all four children.
Second, the father had no fixed plan for where he would live. He is currently living in Country P. The only home he has to go to in Australia is a property in Town I owned by Ms C. A change of residence would not last five minutes if the father tried to live in Town I with the children. [X] and [Y] would not remain with him and it would be easy for them to decamp to the mother’s.
The father said that he would look at living in the Canberra region but he has no income and no capital unless some is provided by Ms C. He had no proposal about where the children would go to school. His plans were inchoate and the last thing the children need if there is a change of residence is uncertainty about where they will live and go to school and the possibility of changes in their living arrangements while the father adjusts to living in Australia without Ms C,
Third, the father pinned his hopes on the family becoming engaged with the Family Bridges program. He said that Ms C would provide the $30,000.00 needed for this but he had no definite information about when they would be able to commence the program or where the initial one week of intensive therapy would take place.
The father provided a lengthy document containing information about the program but no empirical evidence about the likelihood of it successfully turning around the children’s attitude to him and the family may not even be accepted into the program. Information about the program attached to the father’s affidavit included the following:
Each family accepted into Family Bridges is admitted after a review of the individual comprehensive family assessment (child custody evaluation) or single expert assessment. The Family Bridges workshop is suitable only for children whose response to the rejected parent is not a proportional reaction to that parent’s behaviour and personality, and for rejected parents who are capable of managing the responsibilities and caring for and supervising the children.
If the single expert assessment prepared in July 2018 was provided to the program the family would not meet this criteria.
During cross-examination the father said that he proposed that the children live with him regardless of whether the family were accepted into the Family Bridges program. He said that if they were not accepted he would engage a psychologist to help the children adjust to a change of residence. He provided no basis for the court to find that this would be an effective or sufficient intervention which would cause the children to accept their enforced change of residence.
Dr B opinion about the impact of the father’s proposal on the children was as follows:
The impact on the children of being removed from the mother’s care and placed in the care of the father will likely be significant emotional and psychological upheaval. The children have clearly expressed their view and they have demonstrated the behaviours they will engage in if they are forced to have time with the father. It is likely that these views and oppositional behaviours will only be exacerbated if they are removed from the mother’s care and placed with the father. The children currently perceive the mother and their home with her as protective, secure, loving and predictable. They feel safe with her and emotionally supported. In contrast they feel emotionally and psychologically unsafe with the father. Removing them from the mother’s care and placing them with the father is going to be extremely difficult and traumatic for the children. [24]
[24] Expert report paragraph 161
She ended by saying that if the change of residence did not work the result would be highly traumatised children.
The father does not accept those opinions. He is confident that the change will have the desired effect of turning his relationship with the children around and said during cross-examination that there would be short term difficulties only for the children.
Children can sometimes successfully weather a change of residence which is imposed on them against their will. I had such a case many years ago but it was a case in which there were serious issues with the mother’s parenting capacity and with the mother exposing the children to violent criminal partners. The father was a caring empathic individual and a report prepared after the change was made revealed that the children had adjusted well to it notwithstanding that prior to the change they had not seen the father for some time and were expressing strong opposition to even spending time with him.[25]
[25] Becket & Peel [2010] FMCAfam 1424, Becket & Peel [2012] FMCAfam 280
The facts in this case are very different. The children have a strong relationship with their mother and she is doing a very good job parenting them. I also have concerns about the father’s parenting capacity and capacity for empathy which I will discuss shortly.
I place considerable weight on Dr B’s opinion about the likely impact on the children of making the orders proposed by the father.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
This case does not turn on practical difficulty and expense.
I must consider the capacity of each parent to provide for the needs of the children including her intellectual and emotional needs.
The mother is providing well for the children’s day to day needs.
The family report writer was critical of the fact that the children were not attending school but following the release of the report the mother enrolled them in school and they have been attending regularly for almost two years. [W] and [Y] enjoy school and socialisation. [X] is less enthusiastic and finds it harder to make friends but he has never demonstrated school refusal. [Z] was also somewhat less than keen about her school experience when speaking to Dr B but rattled of a list of her friends she had at school.
The children are all doing well academically which suggests that they were receiving adequate tuition from the mother or the mother and the father as the case may be prior to and directly after separation.
The father gave evidence in his affidavit about the mother having some unusual beliefs involving reliance on a channelled divinity who gave advice. He did not explain in his affidavit what impact he considered this had on the mother’s parenting capacity.
However he did raise a concern about her being anxious which he asserted had an impact on her parenting capacity and ability to facilitate a relationship between him and the children and this issue was taken very seriously by the family report writer.
The family report writer said that the mother presented to her as overly anxious and that her thought patterns seemed somewhat disordered. Later in her report she described the mother as an anxious communicator who was focussed on the children staying in a protected environment. She said that it was possible that the mother had long term mental health issues which had never been adequately managed and made observations about the effects on children of living with a parent with a mental illness. She recommended that the mother obtain assistance with her mental health.
The father raised his concerns about mother’s mental health with Dr B who said this:
The father reported concerns regarding the mother’s mental health. He related this primarily to issues centred on anxiety and accompanying symptoms of avoidance and the impact this has on the mother’s parenting capacity.[26]
[26] Expert Report paragraph 40
Dr B found the mother a different person to the family report writer. She said as follows:
It is noted that the mother’s presentation during this family assessment was in contrast to the presentation that was reported in the previous family report. She was calm and articulate, spoke candidly and she willingly reflected on the impact of her own behaviours. She also indicated insight into some of the internal conflict she experiences with regards to facilitating the children’s relationship with the father. [27]
[27] Expert Report paragraph 67
The mother told Dr B that she found the family report writer’s opinion about her personality and possible mental health issues very confronting and did not accept them. However to her enormous credit she had reflected on the issues raised. Dr B said as follows:
Regardless of her view, she wanted to ensure that she was not disregarding any of the factors that may have been impacting on her negatively and so she decided to make some changes. As a result, she identified some social fears and faced them; by participating in more social events, prioritising friendships and she joined a gym. She also commenced driving lessons and had all her dental work done. She enrolled the children in school as recommended and ensured that they had a range of activities to participate in. She noted that she was able to make these adjustments fairly easily and she stated that the family are thriving as a result. She noted that she is grateful for some of the recommendations and they have enhanced her and the children’s lives. [28]
[28] Expert report paragraph 78
The mother was not challenged at trial about the veracity of this account.
Dr B did not consider that the mother had mental health issues which were impacting on her parenting capacity. She said this:
Noting that the mother has clearly experienced periods of anxiety in the past, she did not present to the family assessment in the same way as she has been described in the previous assessment or with any other behaviours that indicated potential concern regarding her mental state. She was clear and concise in her narrative, remained child focused and flexible in her thinking, demonstrated insight and a willingness for self-reflection and described significant behavioural adjustments to promote the best interests of the children. Further, it is noted that there is no subpoenaed evidence available that indicates the mother has a history of other mental health issues. [29]
[29] Expert report paragraph 166
There is no independent evidence which raises a concern that the mother has mental health issues which are impacting on her capacity to parent the children. They are not missing school or failing to form or maintain friendships because of anxiety or avoidance on the mother’s part. Nothing about the mother’s presentation at trial raised a concern. I place weight on Dr B’s evidence and cannot be satisfied that the mother has mental health issues which impact on her parenting capacity or her capacity to foster a relationship between the children and the father.
That is not to say that the mother has not done things since separation which have been counterproductive to the children forming a bond with the father. Soon after separation the father told her that the children should be in foster care rather than with the mother. The mother promptly and loudly told the children that their father wanted to put them in foster care. It is also open to question whether the mother should have so readily stopped time in October 2016 just because the children asked her to do so and whether she was in part meeting her own needs rather than theirs in doing so.
The mother admitted in cross-examination that she should not have said anything to the children about foster care and that there were other occasions when she has said things which had very likely caused them to consider the father in a poor light. However on the issue of whether she should have so readily acted on the children’s wishes she explained to Dr B with real thoughtfulness the dilemma she faced. Dr B said as follows:
The mother was asked to report on the allegations that she is purposefully alienating the children and in particular the issue relating to the children’s birthday cake being thrown in the bin. The mother responded to this candidly by saying it is a very difficult situation to manage. She stated that she does not speak poorly about the father in front of the children nor does she purposefully undermine their relationship with him. However, she also stated that she does not disagree with the children’s concerns either as she also does not approve of the way the father treats the children. She noted that the father treats the children poorly, he is sometimes unkind and always impatient. He is too forceful in his demands for a relationship and does not allow the children the time they need to adjust and develop the skills necessary to manage the situation. The mother stated that she finds it very difficult to manage the children’s trauma in relation to that. She noted that it is a fine balance between ensuring that the children’s concerns and defiance is not inappropriately reinforced, while also ensuring that their thoughts and feelings are adequately heard and the children feel supported. She stated that there are times when she manages this balance well and other times when she does not.
The mother noted that she understands this is not what people want to hear from her. When referring to “people” she indicated the father and the judicial system. The mother state that she understands that people are looking for a more black and white answer. She stated that if she was able to say that she supports the father unconditionally, no matter what occurs, and regardless of the children’s feelings, people would be more approving. However, she noted that it is not this easy and stated that it is a constant balancing act and is very difficult. Particularly when she simply wants to reduce their stress yet forcing them to have time with the father increases it. [30]
[30] Expert report paragraphs 93 and 94
The father has no convictions, does not use drugs or abuse alcohol and has no mental health issues. The witnesses he called in his case described him as kind, caring and helpful and I accept that this has been their experience of him.
In theory the father should have the capacity to provide for the children’s day to day needs in the future in terms of housing, feeding and clothing them but his failure to provide concrete information about his plans for them to live with him causes me concern. He did not seem to have thought beyond getting the children into his possession and into the Family Bridges program.
He had not turned his mind to the impact on the children of being uprooted from Town I and being required to change schools. Until it was raised with him during the trial he did not turn his mind to whether it was practical to order that a 16 year old, and the child he had had the most problems with since separation, be forcibly removed from his mother and Town I and placed with him. He belatedly conceded that the court was not likely to make an order that [W] change residence.
The father was highly critical of the mother for the mistakes she made post-separation but he made mistakes as well. He was careless in the way he spoke, examples being the foster care comment and the comment about [W] which he muttered at Q Centre. Absenting himself from Town I for lengthy periods so that he could spend time with his new partner in Country Q created a fertile field for a view by the children to flourish that the father was not really interested in them.
The father did not handle the matter of introducing his children to his new partner well. The mother’s distress at the separation was abundantly clear both to the father and his partner but the father insisted from the start that the children meet, spend time with and be polite to his partner.
This worked all right with [Z] who was 4 but [W] was 13, [X] 11 and [Y] 9 when the parties separated. The father did not suggest that they were aware that he and the mother had been separated for eighteen months and they could hardly have been expected to realise it when he continued to live in the home or on the property and eat meals with the family and interact with the children. They witnessed the mother’s distress at the events of June 2016 and the father did not show emotional intelligence in forcing issues such as them spending time with his new partner, being polite to her and taking part in group photos involving the two families in the face of their reluctance.
The father’s lack of insight into the inappropriateness of his behaviour on 6 January 2018 is apparent in a telephone conversation with the mother which he recorded on 12 August 2018. It included the following:
Ms Josephs:01:08 Lawyer says they don’t even have to come to the door. The children don’t want to come. It’s not my responsibility any longer [crosstalk 00:01:13]
Mr Melsbach: 01:13 Well you’re in contravention of court orders, Ms Josephs, because the-
Ms Josephs:01:15 We’ll sort that out in court, Mr Melsbach. You can’t keep the kids the way you’re treating them [crosstalk 00:01:18]
Mr Melsbach: 01:19 What? With love and kindness, and help them calm down?
Ms Josephs:01:24 If that’s what you think love and kindness is, then that’s not okay. Okay? We’re not on the same page though, on the treatment of the children? And-
Mr Melsbach: 01:27 Yeah, I treated them really, really well, with love and kindness.[31]
[31] Transcript – Recording 12 January 2018 – Page 40 of the father’s affidavit.
The father did not treat [W] with love, kindness or forbearance on 6 January 2018 and when this was raised him with him at trial he could think of no other way he could have handled the situation than to leave [W] in the hot car and grin and bear it while [W] damaged his car.
The orders the father sought in his Amended Initiating Application filed on 15 February 2019 also suggest a considerable lack of insight into the children’s needs and a lack of consideration for their feelings.
He proposed that the mother be ordered to deliver the children to his residence on a date and time advised by him within 48 hours of the orders being made and that she be restrained from informing them of the orders. He proposed that she be required to deliver their belongings to a third party at his residence or some other specified place within 10 days at her expense.
He proposed that the mother, any siblings not participating in the Family Bridges program, nominated relatives, friends and associates of the mother and any other nominated person whose influence was likely to interfere with the children’s progress in effectively repairing their relationship with the father have no contact with the children by any means for not less than 90 days after completion of the Family Bridges program and that if there was any breach of this order (by any of them) that the 90 day period restart and that this happen every time there was a breach.
He proposed that police and/or other enforcement agencies be ordered by the court to enforce the terms of the orders and lend all necessary assistance to allow the father to maintain sole parental responsibility and care of the children.
The children are not criminals. They have done nothing wrong. To first trick and then cage them would be inhumane. It defies belief that the father would think that this would endear the children to him. If this is the price the children have to pay to have a relationship with the father it is too high.
I do not of course have to make orders in exactly those terms but the fact that the father sought them gives rise to considerable concern about his capacity to provide for the children’s emotional needs.
I noted early that children can sometimes adjust to a change of residence even one made against their will. That is only likely to happen though if the parent they are going to live with has empathy for them and treats them with forbearance.
The family report writer expressed the view that the father was empathic and child focussed.[32] I do not share that view based on the evidence available to me and I have considerable concern about whether the father is well-placed to help distressed children adjust to a change of residence.
[32] Family report paragraph 80
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the
[W] is 16 and [X] 14. They are teenagers and teenagers like to have some autonomy and some right to control their own world. They are old enough to physically take action if something happens which they don’t want
[Y] is 12 but he picked up and was wielding variously a stick, a steel pole and a pair of pliers during the incident on 6 January 2018. He too might be too big and oppositional for the father to control if there was an enforced change of residence.
I have considerable concern that these boys are big enough and old enough to physically resist attempts by the father to make them live with him.
I must have regard to any family violence involving the children or a member of the children’s family.
The father alleged that on several occasions the mother was violent to him. He alleged that she attempted to push him down the stairs when he challenged her about her channelling activities, threatened to stab him with a pair of scissors if he didn’t do what she wanted and leant across the children and grabbed him by the throat in a choking manner when he drove to Location FF to check up on [Y] shortly after separation.
He also alleged that after separation she burned or threatened to burn his clothes and trashed his room.
The mother alleged that it was the father was violent on the first occasion and that he grabbed her by the neck and she thought that he was going to push her down the stairs and then pushed her towards the bed. She denied threatening him with scissors or grabbing him by the throat.
The issue of whether the mother burned or threatened to burn the father’s clothes or trashed his room was not properly addressed during the hearing and I cannot make findings about those allegations.
The parties exchanged their views about the “pushing down the stairs” incident during a telephone conversation in 2018[33] and I cannot be satisfied that either version of events is reliable and not coloured by hindsight marred by bitterness.
[33] Transcript of telephone conversation 7 August 2018 page 38 of the father’s affidavit filed on 20 September 2019
The father alleged that the mother was controlling during the relationship and aided and abetted by Ms F restricted opportunities for the children to have contact with the paternal family. He said that since separation he had been able to reconnect with his family. He alleged that the mother and Ms F had also severed the relationship between the children and his brother Mr EE. There is insufficient evidence for me to find that these allegations are true or that if it has any element of truth that it was behaviour which constituted family violence.
I cannot be satisfied that any of the violence allegations are made out on the balance of probabilities and even if I could be, neither party argued that findings about family violence were determinative of the orders I should make about the children.
One of the examples given in s. 4AB (2) of the Family Law Act of behaviour which may constitute family violence is:
(i)preventing the family member from making or keeping connections with his or her family, friends or culture.
Based on this the father submitted that the mother had committed family violence by refusing him time with the children.
I do not accept that submission
Leaving aside the issue of whether the problem in this case is as simple as the mother refusing to allow the father to spend time with the children, if this was correct then a victim of severe physical violence who refused to allow the perpetrator to spend time with children after separation due to safety concerns would be deemed to have committed an act of family violence.
That cannot have been the intention of the legislature and in any event for reasons given earlier I place weight on Dr B opinion that the problem in this case is not simply the refusal or failure the mother to permit the children to spend time with the father but the impact on the children of a complex set of family circumstances post-separation.
I must consider the attitude to the children and the responsibilities of parenthood demonstrated by each of their parents.
This does not assist me as a separate consideration.
I must consider 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 children.
The parties have been litigating about parenting arrangements for the children for nearly three years and it is certainly preferable that the court makes orders which are least likely to lead to further proceedings,
Those orders are the orders proposed by the Independent Children’s Lawyer and supported by the mother. If orders are made as sought by the father there is a very high risk that the matter could return to court. The children may not settle in the father’s care. If they ran away the father might not re-litigate the matter (although of course I cannot be certain of that) but if the children simply expressed unhappiness or the mother felt that they were being unreasonably refused the right to see her she might bring further proceedings.
I must consider any other fact or circumstance which the court thinks is relevant.
It has done nothing for the relationship between the parties that the father made a decision in December 2016 to record all his conversations with the mother. He said that he told her in December 2016 that he intended to do that. He also said that on 23 March 2017 he told the mother that he would be recording communications and that her talking to him was implied consent.
I do not accept that the mother ever consented to every conversation she had with the father being recorded. In the telephone conversation on 12 January 2018 she repeatedly complained about him recording the conversations and told him it is illegal.
The father continued to record conversations notwithstanding the mother’s clear opposition to it and he is still doing it. He attached to his 20 September 2019 affidavit transcripts of calls on 26 May and 23 August 2019. The August 2019 conversation lasts for 10 minutes and 47 seconds. At the five minute mark the mother seeks to end the conversation. The father will not let her and the conversation goes on for another 5 minutes. This is bullying behaviour and it is relevant to the issue of the order that should be made about parental responsibility.
The father shows some emotional blindness. He repeatedly referred to the mother “kicking him out of the house” after he commenced a relationship with Ms C. He implied that this behaviour was irrational given that he and the mother had separated eighteen months earlier. He does not seem to have ever reflected on the betrayal and hurt the mother may have felt if he was on his own evidence “actively involved with the everyday lives of the children and the running of the household” until June 2016 when his relationship with Ms C commenced.[34]
[34] Father’s affidavit paragraph 30 page 41
This emotional blindness and the father’s inability or refusal to accept that there may be more to the matter than just the mother’s behaviour means that it is very difficult for me to be satisfied that he would be able to properly manage the children’s distress if a change of residence was ordered.
I must now return to the primary considerations which are the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm being exposed to or subjected to abuse, neglect or family violence.
I am going to deal with these in reverse order because the issue of whether the father can have a meaningful relationship with his children is the central issue in this case.
I cannot be satisfied that the mother has perpetrated family violence as defined in s. 4AB of the Family Law Act. I also cannot be satisfied that the mother has abused [Y] as the father alleged. [Y] made no such complaint to either report writer and the children were observed to have a warm and close relationship with the mother at both report interviews.
The children are at no risk of abuse, neglect or family violence in the mother’s care.
[W], [X] and [Y] could be at risk of abuse if they were made to spend time with their father against their wishes. On 6 January 2018 the father used physical means to impose his will on [W]. Actions such as this can easily get out of hand if a child fights back and [Y] and [W] armed themselves with weapons on that day.
There was evidence about the father making unpleasant comments to and criticisms about [W] and [Y] on occasions and this could happen if the father became frustrated or upset with them in the future. However this could not easily be called psychological abuse and I do not consider that any of the children would be at risk of abuse neglect or family violence if they were willingly spending time with the father.
The first primary consideration is the benefit to the children of having a meaningful relationship with both of their parents and there can be no doubt that the children would benefit from having a meaningful relationship with the father as well as the mother.
It was the father’s case that this could be achieved by an enforced change of residence. From his perspective this is a single issue case: the children are not spending time with him because the mother had succeeded in preventing it and only a change of residence will enable them to have a relationship with him.
He alleged that after separation she destroyed many of his personal possessions, burnt or threatened to burn his clothes, removed all photos of him from the house, told him he had a new family and should focus on his new children, came to Q Centre and yelled at Ms C and called Ms C derogatory names in front of the children.
He alleged that this behaviour continued over time and that she threw the cake and card he brought round for [Z] into the bin, called him Mr Melsbach instead of Dad when speaking to the children and gave him the finger when she drove past him which was copied by [W].
He complained that she did not included his details on the enrolment forms when she enrolled the children in school and must have been complicit in [Y] being called [Y] Josephs in a school newsletter (although he failed to mention that [Z] was referred to [Z] Melsbach in the same newsletter).
He relied on the recorded telephone conversations as evidence that as late as August 2019 the mother was not encouraging the children to speak to him on the phone.
He also asked the court to place weight on the opinions expressed by the family report writer that the mother’s behaviours could be described as alienation and that the children were aligning with the maternal family.
However in my view weight needs to be placed on the opinion of Dr B rather than the opinion of the family report writer which (meaning no disrespect to her) was not as fully developed or explained.
Dr B saw the family at a later point after more post separation events had occurred and at a point where the mother presented very differently to the anxious mother who presented to be interviewed by the family report writer. Dr B’ opinion about the mother’s mental health and about other issues in the case also align with the evidence available to me at trial.
Dr B considered at length the father’s case that there had been parental alienation and she said as follows:
Parental alienation is a controversial term that generally refers to a situation where one parent has done everything appropriate to maintain relationships with children who have responded in a way that is out of proportion to the situation and is an unjustified response to their actual experiences with the parent.
She said that in her view however the children’s resistance to spending time with the father was the result of a highly complex family dynamic that was influenced by more than the mother’s behaviour and was not necessarily most accurately captured by the explanation of alienation.
She considered that it was highly likely that immediately after separation the mother prioritised her own emotional needs over the needs of the children by inappropriately exposing them to her distress which influenced the children’s views about the father. However she also noted that the father introduced a new relationship very early in the post-separation period and made numerous trips out of the country to establish and maintain this relationship at a time when the children were feeling vulnerable and uncertain about their own future with him. She said that they required a consistent and predictable time arrangement post separation that indicated to them that they were being prioritised over any potential new relationship and this did not occur.
She noted that the boys provided detailed and unique descriptions of their perceived negative experiences with the father which in her view were clearly their own interpretation of events and not misappropriated reflections of adult conflict. She referred to the incident where [W] was forced to acknowledge the father’s partner on Christmas Eve 2017 and went on to say:
The older children are of an age where it is not uncommon for children to form highly inflexible and judgemental opinions about situations and while these may not be reasonable or accurate, they may still be their own. While the children are likely influenced by inappropriate exposure to the parents’ views, they are also old enough to form their own assessment and assert their own will. Their defiance and oppositional behaviours appear to be a result of this which in turn have then been difficult for both parents to adequately manage. This dynamic was demonstrated by [W]’s refusal to get of the father’s car and the father’s poor management of this, further influenced by the mother’s demonstrated distress when the father contacted her. It is also exampled by the children’s refusal to accept the father’s birthday cake and the mother responding to this by throwing it in the bin and is further demonstrated by the children’s opposition to the father’s new partner and the father’s insistence to involve her in the children’s lives regardless; for example, having her accompany the father to various school activities.
Further reinforcing the children’s opposition to time with the father is the father’s behaviours since the children’s time with him has formally ceased. The children have repeatedly indicated that they do not want time with the father and the most recent Orders reflect this. However, despite this the father has frequently and unexpectedly attempted to contact them; at the children’s home, their school, and sporting events. It is clear from an adults’ perspective that the father is trying very hard to maintain a connection with the children. However, from a child’s perspective this could be an anxiety provoking and confusing experience due to the unpredictable nature of it. Children need consistency and predictability and unexpected visits from the father that are then handled poorly by the mother, would create uncertainty and instability as the children cannot predict the outcome of these interactions. For example, the children may be questioning whether or not there will be conflict, how the children are expected to respond, will they be in trouble if they demonstrate opposition, will they be forced to engage against their will, and whether or not they will be embarrassed in front of their friends. The uncertainty of these unplanned visits has likely further influenced the children’s desire to disconnect entirely from having time with the father.
Further noted is the father’s lack of insight into the children’s needs for protection from constant exposure to the family conflict. This is demonstrated by the father’s continued attempts to seek the children out while they are at school. In the emails between himself and school staff, the father appears understandably eager to maintain some connection with the children and is hopeful that the school may facilitate this. The school has repeatedly indicated that the school environment is not the time or place to manage family conflict however the father does not appear to understand or accept this. It is understandable that the father considers every possibility to maintain time with the children however his attempts appear too forceful and while they are a result of his own emotional distress at being separated from the children, his behaviours are not demonstrating insight into the children’s needs at these times. [35]
[35] Expert Report paragraphs 154-156
I have quoted this passage at length because I could not say it better by summarising it.
The above passage deserves considerable weight because it recognises that the mother’s behaviour post separation was not ideal but also recognises that the situation post-separation was not a black and white one where all the problems were due to the mother blanket refusing to permit time to occur or relentlessly behaving badly.
It is clear from the evidence that there were fluctuations in the mother’s attitude post-separation to the father spending time with the children. Ms C attached an email dated 25 July 2016 to her affidavit which read as follows:
Hey guys
I know it seems like I’ll never clear off, but don’t worry I will soon, anyway to get to the point I have spoken with the kids and we have agreed that if your willing we could trial visits at the house that way the kids have all their stuff and if [Y] wants to storm off he can go to his room and it doesn’t prevent access to the others.
The boys feel the most comfortable here and you can take them out if you need.
Even at work at the table doing school work if that’s what you want![36]
[36] Annexure “F” (page 19) of Ms C’s affidavit filed on 15 February 2019.
This time was trialled but it was not continuous because the father was absent from Australia and from 7 August to 14 August 2016 and 31 August 2016 to 16 September 2016 and in October 2016 time broke down.
On 27 September 2017 following the release of the family report a further attempt was made to organise time and there were some enjoyable activities but time was marred by such things as [W] accidently finding the papers critical of the mother in the father’s house, the children resenting being pressured about a photo at Christmas 2017 and the disastrous incident on 6 January 2018 which was not the mother’s fault.[37]
[37] Father’s affidavit page 26 Roman numeral xv
There is strong evidential underpinning for Dr B’ opinion and she went on to say that an intervention which oversimplified the family dynamic and attempted to address only one element of the problem would likely be unsuccessful and result in more trauma for everyone involved.
Dr B expressed the view that the loss of their relationship with their father was an extremely unfortunate outcome for the children given that it appeared to be primarily the result of a poorly managed parental separation and some mutual limitations in managing defiant child behaviour. She said that the best long term outcome for the children would be to live with the mother and spend substantial and significant time with the father but the difficulties with that were the children’s opposition, the parents’ limited capacity to achieve this without assistance and the limited availability of services which could address this. She said that:
While the father’s suggestion of the Crossing Bridges program[38] has the potential to assist the family re-establish their relationships it is likely to cause the children significant trauma and it is suggested that a gentler approach would be more effective. It is suggested that a more appropriate intervention would be to access a service that would be willing to engage the parents in individual counselling; aimed at developing the parent’s individual parenting skills, and co-parenting capacity, in addition to working collaboratively to develop and facilitate a plan to repair the children’s relationship with the father.
Individual counselling for the mother would ideally address the mother’s fears and anxieties regarding the impact of the father’s behaviour on the children, as well as providing psychoeducation regarding the impact on children of impaired parental relationships. Ideally counselling would also assist the mother develop her ability to encourage the children’s relationship with the father despite her own emotions and assist her develop strategies to more effectively manage the children’s oppositional behaviours. It would also assist the mother to develop her alibility to negotiate situations involving the father and his partner and help her further the children’s ability to manage this.
Individual counselling for the father would ideally assist the father develop some insight into his contribution to the current problem and the impact his early behaviours had on the children and the mother’s parenting capacity. Goals for therapy would also focus on the father developing some understanding of the children’s current developmental needs in context of the family conflict; including their need for empathy and patience as they manage the conflicting emotions they are experiencing. Helping the father develop his parenting capacity when faced with the children’s opposition would be useful.
Ideally, the parents’ therapists could work towards some collaboration between the parents’ to devise a plan for the children to commence time with the father which could gradually increase as a function of the plans success. Whether the children will benefit from some individual counselling will depend on their willingness to engage in this. [39]
[38] Dr B mistakenly called the Family Bridges program the Crossing Bridges program
[39] Expert report paragraphs 176-179
Dr B felt that it was unclear given the lack of availability of such services and the unknown of whether the parents would be willing to apply themselves to obtain a mutual outcome whether this was a feasible or realistic option.
It was her opinion that if the parties could not access assistance to alter the family dynamic it was unlikely that ordering time between the boys and the father would result in success. She ruminated on whether an order should be made for [Z] alone to spend time with the father and felt that this might be successful if the mother enthusiastically encouraged it and protected [Z] from negative input from her siblings and the father ensured the experiences were positive for [Z]. She also said that it might potentially encourage the older children to reach out to the father in the future.
However her recommendation was that the court determine whether or not any or all of the children have ordered time with the father.
Conclusion
There were many points after separation when this matter might have taken a different turn if the parents had acted differently.
A different mother might not have reacted with the same hurt and distress as this mother to the separation in June 2016 or might have been better able to shield the children from her distress. A different father might have been more circumspect in introducing the children to his new partner given the mother’s level of distress about the separation.
A different mother might not have given the children a choice about whether they spent time with their father. A different father might not have pestered the mother relentlessly by telephone about spending time with and speaking to the children and recorded every call even when she told him that she strongly objected to this and that what he was doing was illegal.[40]
[40] Recording of conversation on father’s affidavit filed on 20 September 2019 page
A different father would not have asserted dominance over [W] on 6 January 2018 by physically pushing him out of the car. A different mother might not have become hysterical and threatened to call the police when the children rushed to tell her about the incident.
I could go on and on but I am not dealing with a different mother and a different father. I am dealing with this mother and this father and these children and the events which have occurred since separation.
As a result of the way this mother and this father have handled the situation the children have not spent any time with the father for twenty two months. The boys have been adamant when speaking to two different report writers that they do not want to spend time with him have refused to speak to him on the telephone and have avoided him when he has bumped into them at school.
I cannot solve the problem of the boys spending time with the father simply by now making orders for this to occur. They are 16, 14 and 12. They would not do so willingly and the mother would not force them to spend time with the father if they expressed opposition to it.
[Z] might enjoy herself if an opportunity was created for her to spend time with the father and might not object to going if the mother told her she had to but she has a strong bond with her brothers and it is by no means guaranteed that she would willingly attend if an order was made for just her to spend time with the father. If she did attend and enjoy herself she might suffer psychological distress trying to process enjoying her time with her father and the strongly negative views the boys hold of him.
The father recognised that an order for the children to spend time with him was not going to solve the problem and the solution he proposed for resurrecting his relationship with the children was the extreme one of changing their residence and barring them from spending time with their mother until a therapist decided that the mother could be trusted to spend time with them without undermining their relationship with him
There are enormous practical problems with this. The father is living in Country P with Ms C. Her children attend school there and she does not intend to live in Australia in the foreseeable future. The father did not suggest relocating the children to Country P and his plans for living with them in Australia were inchoate. He was not able to specify exactly where he would live, where they would go to school or how he would support them.
It is unclear how having the children live with him would work for the father if it meant separation from Ms C and there is a very high risk that it would not work for the children.
[W] and [Y] acted out in Town I in early 2018 while spending time with the father. [W] physically resisted exiting a motor vehicle. [Y] brandished pliers at Ms C. The father accused both boys of taking steel poles into his house and accused [W] of deliberately damaging his car the previous day.
The father has not thought about how he might deal differently with another incident such as the one on 6 January 2018. When he was challenged in court about his choices on that day he ended by saying:
Fine, next time I’ll just let him [[W]] damage my car.
The father said that the game-changer would be him and the children attending the Family Bridges program for which Ms C would pay but it is by no means clear from the literature he provided that the family would be accepted into the program. Dr B report does not support the father’s case theory that the problem in this matter is parental alienation and a report confirming this is specified as a necessary precursor for enrolment.
There was also no empirical evidence about the success of the program.
The mother is doing a good job parenting the children on a day to day basis. The father gave extensive evidence about her practice of “channelling” a spirit guide and ruminated about whether she and her sister Ms F were co-dependent but provided no evidence that these things were impacting on her care of the children and there is no evidence that she has any debilitating mental health issues. The children are attending school and are doing well socially and academically although there are variations between them. Nobody is expressing the slightest concern about their day to day care.
To change their residence when the father does not accept responsibility for his role in how things have reached the point they have, when the boys are highly likely to act out, when the father lacks empathy, when there is no reason to suppose that the father is any better equipped now than he was almost two years ago to handle defiant teenage behaviour and when there is doubt about whether the Family Bridges program would accept the family and no evidence about the efficacy of the program would be to create enormous disruption and trauma for the children with no guarantee that it would alter one iota their attitude to their father and a high risk that it would not and that they would be traumatised by the enforced separation from their mother, home, school and friends.
In the last three years the children have endured a parental separation, stop start arrangements for them to spend time with the father, two interviews with report writers and the uncertainty of unresolved family law proceedings. I would not be prepared to subject them to enormous upheaval and change their residence unless there were compelling safety reasons requiring it or a powerful indication that it would be likely to work and result in them having a good relationship with both of their parents.
Neither of those factors exist and I am not prepared to make the orders sought by the father.
Dr B ruminated on the possibility of ordering that [Z] alone spend time with the father but while it could work it could also place her under great psychological stress as she goes, the canary in the cage, to see if she can survive spending time with the father with the hope that if she does the boys might follow her into the mine. I would not be prepared to do that to her especially when the father did not seek such an order.
Parental Responsibility
I finally need to consider the issue of parental responsibility.
Pursuant to s.61DA of the Family Law Act 1975 I am required to apply a presumption that it is in the children’s best interests that the parents have equal shared parental responsibility for them absent a finding that one of the parents has engaged in abuse of the children or family violence.
The presumption applies and Dr B felt that it was important that the parents share parental responsibility. She felt that it would ensure that the father kept abreast of issues relating to the children and that it might keep the lines of communication open in the hope that the older children would seek the father out in the future.
The mother sought an order for sole parental responsibility and the Independent Children’s Lawyer supported that outcome subject to a restraint on the mother changing the children’s surname, an order that she give the father 21 days’ notice if she intended to change the children’s schools or relocate from Town I and an order that she notify him of any decision made in the exercise of her parental responsibility.
The orders proposed by the Independent Children’s Lawyer addressed the concern about the father being kept abreast of what was happening in the children’s lives by allowing him to obtain information about them from their schools and treating health professionals and in my view an order that the mother have sole parental responsibility with those restrictions is an appropriate outcome.
An order for equal shared parental responsibility is simply impractical if the father is not to be spending time with the children. He will not have knowledge of them to enable him to make a good decision and the children may resent his involvement in decision making about them which will not improve their relationship with him.
There is insufficient likelihood of the children’s attitude to the father changing in the future for me to make this order in the hope that when a decision is required the father’s relationship with the children will have changed.
I am also concerned about communication. The father’s telephone conversations with the mother, which he and not the mother was at pains to put before the court, reveal bullying behaviour; a refusal to stop recording and a refusal to take no for an answer and end the conversation. In light of that I would not be prepared to make an order which required the mother to communicate with him and attempt to reach agreement about major long term matters concerning the children.
The Orders
The Independent Children’s Lawyer prepared a comprehensive set of orders which provided for the children to live with the mother and spend time with the father in accordance with their wishes and addressed relevant ancillary matters and I intend to make these orders.
I note here that although it is appropriate to make an order that the father can receive information from the school it is also appropriate to make the order proposed by the Independent Children’s Lawyer about the father being restrained from attending at school or extra-curricular events or at the mother’s home without the mother’s consent in writing.
The father continued to randomly attend these places even after Dr B pointed out how counterproductive it was, and his behaviour resulted in one of other of the boys refusing to attend some events for fear that the father might show up. The children should not be placed under this pressure and I therefore intend to make that proposed order.
During final submissions the father asked that in the event that the court did not make the orders he sought he be permitted to provide a letter to each of the children to be delivered to them by the Independent Children’s Lawyer. He said that he would be content for the Independent children’s Lawyer to read the letters and satisfy himself that the content was suitable.
I am not prepared to make that order. There is a considerable risk that the children would find these letters burdensome. In due course the children may choose to contact the father themselves and until then he will have to be content with making his love for an interest in them known by sending them cards and gifts as permitted by the orders.
I certify that the preceding three hundred and six (306) paragraphs are a true copy of the reasons for judgment of Judge Terry
Associate:
Date: 15 November 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Natural Justice
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Procedural Fairness
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Remedies
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Standing
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