Merritt & Bruckner (No 7)
[2024] FedCFamC1F 877
•19 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Merritt & Bruckner (No 7) [2024] FedCFamC1F 877
File number: ADC 1267 of 2016 Judgment of: HARTNETT J Date of judgment: 19 December 2024 Catchwords: FAMILY LAW – PARENTING – Where the final hearing proceeded undefended – Where final orders were made by consent of the father and the Independent Children’s Lawyer – The father to have sole decision making responsibility for long term decision-making – The children live with the father – The children to spend limited supervised time with the mother being four occasions each year – The mother to be restrained and injunctions granted – Each of the mother and the father to pay one half of the costs of the Independent Children’s Lawyer – The father to have liberty to apply on short notice for an urgent recovery order. Legislation: Family Law Act 1975(Cth) Pt VIII, ss 4AB, 60CA, 60CC, 61CA, 61D, 65DAAA, 91B, 102NA
Family Law Amendment Act 2023 (Cth)
Family Law Amendment (Information Sharing) Act 2023 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Amendment (2024 Measures No.1) Rules 2024 (Cth)
Cases cited: Blinko & Blinko [2015] FamCAFC 146
Isles & Nelissen (2022) 65 Fam LR 288
Merritt & Bruckner (No 2) [2023] FedCFamC2F 592
Merritt & Bruckner (No 6) [2024] FedCFamC1F 823
Rice & Asplund (1979) FLC 90-725
R & C [1993] FamCA 62
Division: Division 1 First Instance Number of paragraphs: 109 Date of hearing: 18 November 2024 Place: Heard in Adelaide, delivered in Melbourne Counsel for the Applicant: Ms Hume Solicitor for the Applicant: Family Law Project The Respondent: No appearance Solicitor for the Independent Children's Lawyer: Shorter Legal ORDERS
ADC 1267 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MERRITT
Applicant
AND: MS BRUCKNER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
18 NOVEMBER 2024, AMEMDED 19 NOVEMBER 2024
THE COURT ORDERS, BY CONSENT OF THE FATHER AND THE INDEPENDENT CHILDREN’S LAWYER BUT NOT BY CONSENT OF THE MOTHER, THAT:
1.All previous orders are hereby discharged.
Parental Responsibility
2.The father have sole decision making responsibility for the children X born 2012 and Y born 2014.
Live with Order
3.The children live with the father.
Spend time with Orders
4.The children spend time with the mother as follows:
(a)for four periods each year, supervised at a Children’s Contact Service, for a date for the children’s birthdays, a date in May for Mother’s Day, a date in the Term 3 school holidays and a date in or around Christmas, with the visits to be for no more than two hours per visit at the discretion of the Children’s Contact Service;
(b)via Zoom, each week on Tuesday (or such other day as may be agreed between the parties in writing from time to time) at 7:30pm for up to 30 minutes, with the mother to initiate the Zoom connection, and with liberty for the father or another adult to monitor such calls and terminate same if the mother speaks about adult issues, the Court proceedings, or denigrates the father to the children;
(c)any such further or other times as agreed between the parties in writing.
5.For the purpose of time spent pursuant to Order 4 (a) herein, within fourteen (14) days, the mother and father each enrol into the MM Contact Service.
Injunctions
6.The mother be restrained and an injunction granted restraining her from:
(a)communicating with the children other than as Ordered by the Court or as otherwise agreed in writing with the father;
(b)engaging in conduct that is inappropriate such as holding up signs during the Zoom calls;
(c)attending the children’s school, or allowing any other person to do so on her behalf;
(d)contacting or communicating with any school officer or teacher, or allowing any other person to do so on her behalf;
(e)removing the children from their school, or allowing any other person to do so on her behalf;
(f)being within 500 metres of the children’s residence, school, extra curricular activity or any other known location of the children;
(g)being within 500 metres of the father’s residence, place of employment, or any other known location of the father;
(h)discussing adult issues with, or in the presence of the children;
(i)publishing or disseminating any information pertaining to these proceedings or allowing any third person to do so; and
(j)posting material to social media which may denigrate the father, refer to the proceedings or any party therein, or pertain to any allegations raised during the proceedings, or causing or permitting any third person to do so.
7.Both parents be restrained and an injunction granted restraining each of the mother and father from exposing the children to parental conflict, and/or arguments and/or from discussing the proceedings or parenting arrangements in the presence or hearing of the children SAVE as may be initiated by the children.
Authorities
8.The father is at liberty to serve or provide a copy of the Final Orders to:
(a)the Children’s Contact Service;
(b)the children's schools;
(c)any other person or organisation responsible for the care of the children;
(d)any person the father believes on reasonable grounds may have contravened section 70NAC of the Family Law Act 1975 (Cth) or may be at risk of doing so in the future; and
(e)any other person or organisation whose knowledge of the terms of the orders is reasonably necessary for the purpose of implementation of or compliance with the orders.
Parental Communication
9.The parties shall communicate via AppClose only.
ICL Meeting with Children
10.Within fourteen (14) days from the date of these Orders, the Independent Children’s Lawyer shall meet with the children to explain the Orders to them and thereafter the appointment of the Independent Children’s Lawyer shall be discharged SAVE as to any issue as to costs or any appeal.
AND THE COURT FURTHER ORDERS, NOT BY CONSENT BUT NOT OPPOSED BY THE FATHER AND NOT BY CONSENT OF THE MOTHER, THAT:
Costs
11.Each of the mother and father pay one half of the costs of the Independent Children’s Lawyer, payable to the Legal Services Commission of South Australia in accordance with the Legal Aid Scale NOTING that the parties can make an application for a fee remission to the Legal Services Commission.
AND THE COURT FURTHER ORDERS, BY CONSENT OF THE FATHER AND THE INDEPENDENT CHILDREN’S LAWYER BUT NOT BY CONSENT OF THE MOTHER, THAT:
12.The father have liberty to apply on short notice for an urgent recovery order firstly to the Adelaide Registry and thereafter if necessary to the National Case Management Judge of the Federal Circuit and Family Court of Australia (Division 1).
13.Otherwise all extant applications be dismissed and the matter be removed from the list.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Merritt & Bruckner has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
INTRODUCTION
On 18 November 2024, the Court heard first an Application in a Proceeding filed by the father wherein he sought that the trial, listed to commence that day, proceed on an undefended basis. The father relied upon the mother’s non-compliance with trial directions in her failure to file any affidavit or other material as ordered. In respect of that hearing, the Court read the material relied upon by the father and heard the submissions of each of the mother, father and the Independent Children’s Lawyer (“ICL”), the mother appearing without having earlier sought leave, by telephone, a communication type selected by her. Reasons for judgment were delivered in respect of that Application and those reasons, and Orders made on 18 November 2024, are as set out in Merritt & Bruckner (No 6) [2024] FedCFamC1F 823. That judgment can be read in conjunction with these reasons for judgment in support of the final parenting orders made by the Court on 18 November 2024.
Parenting proceedings between the parties first commenced in the Court in April 2016. Litigation has continued for a large part of the intervening period, and most recently culminated in the trial listed for hearing to commence on 18 November 2024, consequent upon proceedings initiated by the father on 19 October 2022. At that time, the father filed an Initiating Application seeking recovery orders in respect of the parties’ two children, X born 2012, who is currently aged 12 years, and Y who was born 2014 and who is currently aged 10 years.
Whilst the father, by his Initiating Application filed in April 2016, sought to spend time with the children, being overnight time each alternate weekend, and further to be provided with information pertaining to the children’s attendance at kindergarten and upon medical appointments, by 12 February 2018, in those proceedings, the father had filed an Amended Initiating Application seeking that the children live with him and that he have sole parental responsibility for the children. By that time, the children had been withheld from him by the mother on several occasions and contrary to orders of the Court then existing. The mother’s unpredictability and mental state were a significant concern for the father.
The first trial, being in relation to the original Initiating Application of the father of 2016, was listed before Berman J on 17 February 2020 for five days. That listing was provided to the parties by orders made on 5 July 2018. By further orders made 5 December 2019, those earlier trial dates were vacated, and the matter was relisted for trial to March 2020 for a period of five days; then to April 2020; then to May 2020; and finally, to 20 July 2020 when the trial commenced before Berman J, proceeded part-heard and ultimately concluded on 15 October 2020 with judgment reserved. Various interim orders had been made in that period. The mother then failed to facilitate the father spending any time with the children commencing November 2020, resulting in the evidence being reopened on 23 February 2021 following the father filing an Application in a Proceeding on 19 January 2021.
Subsequently, the Court made an order for delivery up of the children into the care of the father, which occurred on 13 April 2021. The Court made orders for the children to live with the father and spend time with the mother as agreed between the parties (there was no agreement) and in default as ordered by the Court. On 14 May 2021, the Court ordered that the children continue to reside with the father and spend time with the mother each alternate week from Friday to Monday. On 9 and 10 June 2021, there were further days of evidence, with the matter then adjourned part-heard to 16 and 17 September 2021, when two further days of evidence were heard by the Court before final submissions on 11 October 2021. Judgment was reserved at that time.
On 9 March 2022, Berman J made final parenting orders. Amongst other orders made, the Court ordered, relevantly that:
·The father have sole parental responsibility for the children.
·The children live with the father.
·The children spend time with the mother in school terms from Fridays to Wednesdays (five nights a fortnight).
·The children spend time with the mother in term school holidays for seven nights, and the summer holidays on a week about basis.
Relevantly, his Honour stated in his reasons for judgment dated 9 March 2022, at [364], the following:
…If the children are returned to the primary care of the mother, I am not confident, on the evidence, that she will be able to promote the children's relationship with the father. …
And at [390] the following:
The parties have limited scope to communicate, and there are significant concerns as to the mother's ability to promote and support the children's education and their appropriate medical and health needs. Those circumstances require a finding that the children's interests would be best served by the father retaining sole parental responsibility.
A description of some of the relevant factual findings in respect of matters which followed the making of the March 2022 final parenting orders appear below.
Otherwise, and in respect of the conduct of this trial, I note it did not proceed without some difficulty. The mother contacted the Registry during the hearing of the father’s Application in a Proceeding and indicated that she had been disconnected from the hearing. That was entirely inaccurate. The mother herself chose to disconnect from the hearing. The mother sought to be further involved and required the Court to connect her to the Microsoft Teams link by dialling in her mobile number, albeit the mother had in her possession the Microsoft Teams link to the hearing.
Following the mother’s reconnection by the Court to the hearing, the Court intended to explain to the mother the process which would follow in an undefended hearing, the matters which she could address and the way she could do so to include any cross-examination, but not of the father. The Court had earlier advised the mother of her position as a litigant in person in the context of there being a s 102NA of the Family Law Act 1975 (Cth) (“the Act”) order. The mother, however, immediately made one irrelevant submission concerning counsel for the father, and then indicated to the Court that counsel for the ICL, Mr NN, had acted for her in 2016, and that she objected to him appearing for the ICL. The mother had not earlier made that complaint when making her submissions in respect of the Application in a Proceeding.
Mr NN was then asked by the Court whether that was indeed the case. Mr NN had no recollection of the matter, which was not surprising given that it became evident that he had so acted for the mother before Cole J upon the making of consent orders on 14 June 2016, some over eight years ago.
The mother shortly thereafter again disconnected from the hearing. The ICL took over the running of the matter from Mr NN thereafter and before the making of the orders as consented to by the father and the ICL later in the day.
RELEVANT FACTUAL MATTERS
The parties commenced their de facto relationship in 2009. That relationship broke down irretrievably in April 2015. At that time, it was the father’s belief that he needed to protect his own mental health and to protect the children from the mother’s abuse and denigration of him in the presence of the children. Accordingly, he determined to leave the relationship.
From April 2015, in the period immediately following separation, the father cared for X from 9.00am to 6.00pm on Sunday or Monday of each week and for Y for a shorter period given his age. By October 2015, the mother had commenced to withhold the children from spending time with the father, a pattern that occurred from time to time and over several years. That pattern was the cause of the father filing his Initiating Application in the first instance in April 2016. The pattern, however, did not cease and often was in defiance of orders made by the Court. The mother had no ability to support the father’s relationship with the children. The mother considered that matters pertaining to the children’s schooling and health were solely her domain. There were no risk factors evident in the father caring for the children. The father was appropriate in his seeking a gradual increase in the children’s time spent with him, and in his initial differentiating between the children given their ages. The risk of emotional harm as caused to the children by the mother became evident. The children’s attendance at school and kindergarten was poor when in the mother’s care. The mother was issued with a 24 hour ban from X’s school because of her intimidating behaviour toward a teacher at the school because of which the mother sought to change the child’s school. The mother was abusive to the father’s partner on occasion. These were just some of the problematic behaviours of the mother at that time.
Between March and April 2022, the final parenting orders as made by Berman J on 9 March 2022 were generally followed by the mother, and the children attended school. In Term 2 of 2022, however, the children’s attendance at school rapidly declined. Following the commencement of Term 2 on 2 May 2022 and for a period of three days in May 2022, the mother kept the children home from school, claiming they were unwell. The mother then also withheld the children from the father for a period in May 2022, and kept them from school attendance and/or had them attended at school late.
Between two dates in mid-2022, the mother kept the children at home such that they did not attend school. Further, the mother failed to facilitate the return of the children to the care of the father in accordance with the existing Court orders.
Throughout mid-2022, the mother frequently kept the children home from school during those periods that they were in her care.
In August 2022, the mother again did not send the children to school, and she again failed to facilitate the return of the children to the care of the father. At handover at the Suburb O Police Station, the mother claimed the child Y was unwell consequent upon the father ensuring the children’s vaccinations were up to date by having the children vaccinated. The mother caused a scene at the police station, telling the children how much she would miss them, as she frequently did at handovers. The mother also berated the father for not responding to a message she had sent him about the children’s ‘book week’ costumes. She had only sent that message about 30 seconds prior to the father arriving at the Suburb O Police Station.
The mother did nothing to encourage the children to go into the father’s care despite the father behaving appropriately in front of the children by removing himself to outside the police station and away from the situation as created by the mother. The mother’s behaviours nevertheless escalated, she refused to leave, and the children became upset, in particular the child X who said that she did not want to go with the father. The father advised the attending police officers that there were final orders in place and that the mother was breaching the orders by not facilitating time. The police declined to intervene. The father asked if he could speak to X without the mother being present, but the police officers were unable to get the mother to leave for that to occur. Rather than cause further trauma to the children, the father indicated to the police officers that he had no other option but to leave without the children. The mother left the police station with the children in her care.
In the weeks that followed, and until late 2022, the mother failed to return the children to regular school attendance and failed to facilitate the return of the children to the care of the father. The children did attend the school on one occasion in August 2022, when Y’s teacher rang the father and asked whether he would like to speak with Y. The teacher remained present during the call and Y told his father that he loved him. The mother had claimed in this period that the children did not want to see their father.
The children attended two out of 35 school days in Term 3, the mother saying they were “unwell”. In September 2022, the principal sent the mother a letter regarding the children’s non-attendance at school.
On 19 October 2022, the father filed an Initiating Application, seeking recovery orders. On 25 October 2022, the father wrote to the mother, pleading for her to hand the children over to him and not subject them to the recovery process with police. The mother failed to respond.
During her overholding of the children, the mother took the children to a new doctor, Dr DD (“Dr DD”), despite the children having a regular doctor whilst in the father’s care and despite the father having in his favour an order for sole parental responsibility. The mother did not consult the father prior to engaging the new doctor, and the doctor recommended that the shared care arrangements did not work. The father was concerned about what the mother said to the doctor for him to form that view. The doctor practised at the same clinic as Dr C (“Dr C”). There was an operative injunction that prevented the mother taking the children to see Dr C.
Dr DD refused to see the father to discuss the health of the children or to discuss why he was providing ongoing medical certificates to support the children's absence from school. On subsequent investigation as to this state of affairs, Dr DD was suspended by the Australian Health Practitioner Regulation Agency (“AHPRA”). In a letter dated mid-2023, sent by AHPRA to the father regarding Dr DD, the following content was included:
(a) The board...formed the reasonable belief under section 178(1)(a) of the National Law that the way the practitioner practises the profession is unsatisfactory...;
(ii) Whilst [Dr DD] has confirmed in detail his rationale for supporting the mother, his reflection on the matter is cursory and unsatisfactory. It is concerning that [Dr DD] is unaware that providing such medical certificates for such a lengthy period of time for the children, and his rationale behind such was inappropriate and misguided;
(iii) We consider that [Dr DD] has overstepped appropriate professional boundaries with his advocacy, however well-intentioned, for the mother and the children. Further, [Dr DD’s] provision of medical certificates for […] months was excessive. Given the concern he had for the children's welfare, [Dr DD] should have engaged specialists for assistance and made appropriate referrals for the children.
During the mother’s overholding of the children, and in fact prior thereto, the mother and father were to facilitate the children’s attendance at extracurricular activities. Y was involved in sport with the school, and trainings occurred on mornings. The mother did not take Y to training. The mother lived close to the school, at an address unknown to the father or the school because the mother had failed in her obligations to inform them.
Orders were made on 27 October 2022, for the mother to deliver up the children to the father by no later than 4.00pm on 28 October 2022, and in default a recovery order would issue, and Order 4(a) of the final orders made in March 2022 providing for the children’s time with the mother would be suspended until further order. The mother was restrained from attending at the children’s school or removing them from the school.
Following the hearing, the father wrote to the mother again, pleading for her to hand the children over to him willingly. The mother did not respond.
The mother did not comply with the recovery order.
The Australian Federal Police (“AFP”) had difficulty contacting the mother and monitoring her residence, given that the mother had provided an incorrect address to the father when she claimed to have moved to EE Street, Suburb FF. The AFP had been monitoring that address and believed that the mother had moved because no one was living there.
On 3 November 2022, the father was served with the mother’s new Notice of Address for Service, which listed a post office box in Suburb LL. Thereafter, the mother briefly engaged a lawyer who acted only until 18 November 2022, when the mother filed a new Notice of Address for Service, acting for herself as a litigant in person again.
The mother, having failed to comply with the orders for the return of the children to the father’s care and having failed to respond to the AFP in their attempts to recover the children, the Court made further orders on 23 November 2022, which provided for the urgent appointment of an ICL; a s 91B of the Act order for the Department for Child Protection to intervene in proceedings; and for there to be a further hearing before Mead J for mention only on 12 December 2022.
On 30 November 2022, the children had still not been returned to the father. Whilst the father wished for the children to be reported as missing, the AFP would not permit him to do so in circumstances where they were known to be with the mother but in an unknown location.
On 19 December 2022, Mead J ordered that the children be made available for delivery up to the father the following day, being 20 December 2022, with the assistance of the AFP. If the mother failed to comply with the order, then further orders provided for a possible warrant to be issued for her arrest. On 20 December 2022, the AFP attended at the mother’s home but were unable to effect recovery of the children.
On 21 December 2022, Mead J ordered that the father attend at the Adelaide Registry, Court Children’s Services, and that the mother attend at the Adelaide Registry, Court Children’s Services, as accompanied by the children. The orders further provided that the father should then leave the registry with the children in his care and the mother was to remain in the Court precincts, with security, until she was told that the children and the father had left the Court and its vicinity.
The mother was also restrained from attending at the children’s school and kindergarten except for the first day back in Term 1 of 2023.
A chambers order was made after the father had collected the children providing for him to facilitate the children speaking with the mother that night on speaker phone for no more than 10 minutes and further providing that if anyone other than the mother attempted to speak with the children the father had permission to hang up.
Following the hearing on 21 December 2022, the father and his partner Ms F, were both subject to verbal abuse outside the courtroom by the mother and her family members. The father attempted to enter the Court’s car park but that was made difficult by the mother’s family harassment which included filming the father and his partner. Court staff considered it too dangerous for the father and his partner to try and leave the Court in his car, which would expose the children to conflict and abuse.
In those circumstances, the father’s partner was escorted to the car while the father and children stayed with social workers. The maternal family harassed the father’s partner as she departed from the carpark and filmed her with their mobile phones. Further harassment occurred outside the building. The father’s partner was advised by court staff to leave the vicinity of the Court and drive to a location nearby and the court workers and a member of Department for Child Protection escorted the children and the father to meet her there safely.
That night the father facilitated the court ordered phone call wherein the mother made inappropriate comments and posed inappropriate questions to the children during the call including asking “how did they get you in the car?” and telling the children, “Do not let anyone touch you. You do not need to listen to anyone.” The father ended the phone call after a few minutes because the child, X, was distressed.
In late 2022, the police arrived at the father’s house for a welfare check. They were investigating allegations of abuse of X. The father’s partner answered the door, as the father was out with X at the doctor, attending to X’s then virus. The police were not waiting to see the father and X upon their return to the home.
Around Christmas 2022, the children had a call with the mother, who interrogated them and said words to the effect “not to accept anything (they) do not want. To speak out and do as (they) please”. X became upset, and the father terminated the call.
On 30 January 2023, the children started school for the new school year. The father took the children to school at 8.30am and walked them into the school. He met both their teachers and looked at their new classrooms. At the end of the day, the father picked them up from an agreed meeting spot in between their two classrooms with no issue.
On 31 January 2023, the father took the children to school, arriving at 8.40am. He walked them into the school again with no concerns. At 12.48pm, the father received a distressed call from the school principal, who said the children had not returned to class after the break. The father called triple 0 emergency at 12.50pm and reported the children as missing. That course was agreed to by the principal. The father, thereafter, messaged the mother, saying the children were missing from school and inquiring with her if they were with her. She did not respond. At 1.48pm, the father rang the Department for Child Protection to keep them informed. Shortly after, the children were confirmed to be at the mother’s house. Police and the Department for Child Protection advised the father of that fact. The mother had attended upon the children’s school and removed them without notice to the school or the father.
On 1 February 2023, the mother did not take the children to school; she continued to withhold them from the father’s care.
On 3 February 2023, the mother delivered the children to school at approximately 10.35am and had taken them straight to their classrooms in breach of Court orders. The father called the Department for Child Protection and arranged to meet them at the school at midday, so it did not interrupt the children’s first classes. When he arrived at the school, he saw X running from the school office. School staff and the Department for Child Protection tried to locate X. It was agreed between them and the father that the father would take Y home, and they would continue to try and find X.
On 4 February 2023, the father received a call from a no caller ID. X was on the phone. She wanted to speak with Y to see if he was okay. X tried to tell her father that he had chased her out of the school. She called the father a liar. The father could hear the mother in the background coaching X on what to say.
X did not return to the father’s care. The mother did not take her to school. The father was required to again file a further Application in a Proceeding, in part seeking recovery orders, namely recovery of the child, X.
In February 2023, Y had his first appointment at PP Psychology. Another appointment was scheduled for a few months thereafter as Y was assessed as not displaying any concerning issues or signs that would warrant more frequent appointments.
On 24 February 2023, orders were made by Brown J, which provided for a further delivery up order, this time in respect of the child, X, and orders that the father have sole parental responsibility; that the children live with him; and that there be no time spent with the mother with personal protection injunctions made to protect X, Y and the father. I observe that the father already had the benefit of final sole parental responsibility and live with orders.
On 2 March 2023, X was returned to the father's care with assistance from the AFP. This was seven days after the recovery order was made by Brown J. X had been away from the father for a month because of the mother’s incessant withholding of her from the father.
X was initially upset, having been returned to the father’s care. The father and X spoke at length during a 45 minute drive home. In that conversation, X referenced being exposed to a lot of the Court process during her time with the mother and asked the father why he had put a restraining order on the mother. The father explained that was something the Court thought appropriate to help her and Y settle, and that it was understandable with change and uncertainty the Court would want any potential conflict to be removed. By the time they arrived home, X was more settled and looking forward to seeing Y.
That night, X asked if Y had been going to school. The father explained that he had not, but that they had planned a visit to a new school, AF School, for the next day, if X would like to come with them for a tour. X agreed to go on the tour.
In March 2023, the father received a call from the old school principal asking if X was in his care as the mother was seen stalking the school grounds. The father confirmed X was with him.
In March 2023, X and Y commenced at AF School.
The following day, the Department for Child Protection sent a letter to the father confirming that following their investigation, relevantly:
(a)“...the department has substantiated ‘child has significant symptoms of emotional distress’ whilst in [Ms Bruckner’s] care. This ground has been met as neither [X] nor [Y] have a diagnosed mental health condition, however, when in [Ms Bruckner’s] care, displayed persistent fear, worry and make threats of suicide. The department has assessed that [Ms Bruckner’s] behaviours, which include manipulation and hostility, has led to the children being isolated from participating in normal opportunities for social interaction (including preventing the children from attending school) and manipulation in relation to alienating the children from [Mr Merritt]”;
(b)“The department has not identified risk of alcohol use within (the father’s) household”; and
(c)“The department does not have current concerns for [X] and [Y’s] safety in [Mr Merritt’s] care”.
A short time later, X had her first appointment at PP Psychology. X was noticeably happier coming out of the session, tidying her room, making her bed of her own volition. The psychologist suggested another appointment in four weeks would benefit X.
On 23 March 2023, orders were made, relevantly that:
·the mother and the father each undergo a psychiatric assessment if directed by the ICL;
·a Specific Issues Report be undertaken;
·the mother to interact with the children on 26 March 2023 at 10.00am and 30 March 2023 at 4.00pm via electronic means for up to 30 minutes on each occasion; and
·that the mother file an Application in a Proceeding as to what time she should spend with the children.
In or around late March 2023, the father had a three-way call with X and Y’s teachers, and both teachers reported that the children had settled in well and were making good progress on learning and development assessments despite being in a new school environment. X had received a leadership role within the first few weeks of starting at AF School. She was the school QQ Language leader, the QQ Language being the language learnt at her school.
The calls between the mother and children on 26 and 30 of March 2023 occurred in accordance with the orders. The father set the phone up in a quiet part of the house and was available in an adjacent room to monitor the call and in case the children needed him. The mother again questioned the children in both conversations, asking about their health, their schooling and said words to the effect that they “didn't need to listen to anyone” and that they were “allowed to tell (her anything)”.
In April 2023, X had another appointment at PP Psychology.
On 11 April 2023, a Specific Issues Report was released. In that report, the Court Child Expert stated, relevantly:
6.…Whilst [the mother] seemed to aim to present a view that a shared care arrangement can occur without significant difficulty in the future, the writer struggled to understand how this will be likely, given the extensive history indicating otherwise in this matter.
9.[The mother] also presented as hopeful of the parties attending mediation in the future to resolve the dispute...When queried as to how realistic mediation may be, given the long-standing nature of litigation dating back to 2016, [the mother] remained hopeful. Once again, the writer struggled to understand how this will occur without difficulty, given the extensive volume of court material in this matter, suggestive of a very poor, or a non-existent, co-parenting relationship.
11.When asked if the lengthy proceedings are likely to have impacted upon the children, [the mother] said it has been noted by the court previously that the children surprisingly appear to have “come off unscathed” by the proceeding. She believed the children have suffered the most since Final Orders were made for them to primarily reside with the father…
13.[The father] presented as genuinely concerned about the potential impact of the proceedings upon the children, while seeking to support them in an appropriate manner.
46.…The writer was led to query the potential negative influence by the mother, consistent with prior information from multiple sources (such as previous Family Assessment Report, DCP information, past Judgments). In addition, concern was raised with regard to the extent in which this may have occurred, given the fixed nature of the children’s responses, when they have had limited contact with their mother recently.
48.During this time, it will be important for [the mother] to demonstrate her commitment to the children’s needs, and to work towards re-establishing time spending, by attending regular one-on-one counselling. Such counselling should be provided by a counsellor with expertise in the area of family conflict and separation, to support [the mother] to increase her understanding of the outcome of the proceedings, including the importance of following court orders, and how to best support the children’s emotional, social and educational needs...
There is no evidence that the mother has taken up any opportunity of counselling as suggested in the Specific Issues Report.
On 19 May 2023, Brown J made further interim orders which included a dismissal of the mother’s oral application that the ICL be dismissed, and otherwise a further restatement of the final orders as to parental responsibility and live with; that the children communicate with the mother by telephone or FaceTime once a week on a date and time to be agreed and in default of an agreement each Sunday at 4.00pm for a period of up to 30 minutes with the father to be at liberty to have the communication on loudspeaker and to supervise the contact; and the mother be at liberty to forward to the children letters and cards and gifts on special occasions such as the children’s birthdays, Christmas, graduation and other occasions.
The mother continued to be restrained from attending at the place of residence or education of either child or at any place at which the children attended extracurricular activities or sport or received medical treatment or psychological treatment or within 500 metres of any such location and the mother was further restrained from attending at the father’s place of residence or place of employment or within 500 metres of any such location.
The Court ordered calls, as provided for above, continued with the husband complying with the orders by which he was bound, but they remained always an issue. The mother’s conduct was unhelpful. She continued to direct the children not to listen to the father. She continued to speak about the Court proceedings to the children. She put up notes on the screen for the children as an attempt by her to circumvent the father’s monitoring of the calls; advised the children that AF School was an awful school and wouldn’t they rather be at B School, a school near her residence, and again told them that they did not need to listen to anyone and that she was continuing to fight for them. These comments continued to be unsettling for the children and involved them in the conflict between their parents as variously described by some experts who saw them.
By this time, and probably well before this time, the description of conflict between their parents was not an accurate one. What the children were exposed to was their mother’s dysfunctional behaviours and probably psychiatric mental health disorders as alluded to by Brown J in his reasons for judgement. Her behaviours included significant attempts to alienate the children from the father.
In his reasons for judgment made 19 May 2023, Brown J said:
186. In my view, the central aspect of this assessment is the fact that DCP regard [the mother’s] conduct, once the children had returned to [B School], to represent a risk to [X’s] and [Y’s] emotional and psychological safety; whilst it did not hold similar concerns for [the father]. Underpinning this concern was the assessment - one shared by [the father] - that [the mother’s] false narrative to the children concerning their father, if the children continued to be exposed to it, would not only harm the children emotionally but pose the potential to fracture their relationship with their father. Centrally, DCP regarded [X’s] complaints to appear to have been scripted. By necessary implication the author being [the mother].
…
206. The only individuals, who support [the mother] are [Dr DD] and, to a certain extent, [Mr GG], whose objectivity, in the case of the former may be open to challenge and whose expertise, in the case of the latter, is clearly lacking. In my view, the evidence to date indicates a singular level of willingness, on [the mother’s] part, to abide by decisions of the court, with which she disagrees, which axiomatically has led to the court being compelled to take more and more extreme action.
…
228. In my view, a consideration for various section 60CC factors in the case favour, on balance, the court making the orders as sought by the father and ICL. In my assessment, there is grave risk that [X] and [Y] will be deprived of the benefits of having a meaningful level of relationship with their father and being exposed to abuse, in the sense of sustaining serious psychological harm, if orders are made as sought by the mother.
…
233. Regrettably, the evidence available to me indicates that it is the mother, rather than the father, who is not able to abide by court orders and, as such, it is her conduct which has led to the ever-widening impasse between the parties, to which the children have been and continue to be exposed. I appreciate that [the mother] disagrees with the orders of the court. However, that does not entitle her to any wholesale disregard of them.
On 6 December 2023, the Family Report of Family Consultant Ms OO (“Ms OO”), was released pursuant to Court orders. Ms OO had chosen not to have the children observed in the mother’s presence.
Ms OO said relevantly in the Family Report, as follows:
108. … despite the context and history of dispute with the mother, it was notable that the father did not focus on denigrating or disparaging the mother during interview. He acknowledges the children love and miss their mother. His suggested proposal during interview supports eventual substantial time spending.
109. On the other hand, the mother demonstrated a poor capacity to integrate new information, or information that challenged her own perspective; this was noted previously (via Court material) and also via her presentation during interview. Significantly, this included her difficulty appreciating the children’s current positive experience of care with the father. She additionally is unable to acknowledge her apparent difficulty in facilitating the children’s handover to the father in the past or issues relating to the children’s past school attendance. The mother remains of the view that the children’s past resistance/refusal to handover to the father is directly and solely related to their experience of care/relationship with the father, despite it being apparent from previous comments of the Court that this is not the case. Whilst issues of resistance/refusal are generally multi-factorial, and the Consultant acknowledged the father’s concession to denigrating the mother in the past, there over time has been suggestions about the children's growing alignment with the mother (as per previous Reports) and not insignificantly, the Court changed primary care from the mother to the father, a decision which was re-confirmed at trial in early 2022, partly due to the Court’s concern about the mother’s capacity to support the children's relationship with the father. The mother is not able to clearly articulate how she will behave differently in future, so as to enable successful handover.
112. The concern remains, therefore, that if direct and unsupervised time spending were to occur in future and the children (as children commonly do) relate minor complains about their other parent, [the mother] will be not appropriately respond to these concerns and again, impasses will emerge with regard to the children’s return to [the father]. There also, given [the mother’s] past behaviour, is the significant risk that the children's schooling will also be disrupted in the event she does not facilitate their return. This, in addition to the lack of concerns about the children's care by the father, also did not prompt the Consultant to support either the children living equally between the parents or the children returning to the mother’s primary care.
114. The Consultant also held concern about the mother’s admitted behaviour during phone calls, via her written recording of these calls. This firstly suggests to the Consultant that the mother is not prioritising the calls as opportunities to meaningfully connect with the children, and rather they are opportunities for her to gather information to further her position in the dispute. This also suggests that the mother appears driven by conflict, and based on her presentation during interview, this does not appear to have abated or indicate the possibility of abating in future. To sum, it is likely the children’s time with the mother will continue to feature the mother's unjustified focus on the father.
118.The Consultant acknowledged the children’s clearly conveyed views about missing their mother and wanting direct time with her. The previous dynamics of alignment and unjustified restrictive gatekeeping, however, cannot be overlooked given they resulted in multiple interruptions to both the children’s schooling and relationship with the father. Further, the Consultant empathised with [Y’s] belief that he is responsible for the parents’ separation and the dispute, and therefore his view that splitting his time equally would resolve the dispute. The children’s wish for equal time is not supported, as noted in the earlier paragraph, given the mother’s unchanged perspective and therefore the high likelihood that such an arrangement will inevitably lead to further impasses in the children’s return to the father as well as interruptions to their schooling and extra-curricular activity. These concerns also tended to contra-indicate the success of unsupervised time spending, either overnight or daytime; again, the mother’s unchanged perspective, unjustified views about the father and past resistant-refusal dynamics posed the substantial risk that the past will repeat itself as noted above.
121. ……. given the hypotheses and discussions above, it was suggested that such direct time be supervised; a Children’s Contact Service is the most appropriate location, as their procedures will support the children’s transition between parents, with it being suggested that the mother be directed to leave the time spending occasion first, with staff then conveying the children back to the father. It is suggested also that this time occur up to four times per year (e.g. the children's birthdays, Mother’s Day, Term 3 holidays and around Christmas). The Consultant suggested this frequency as a balance between honouring the children’s wishes to spend direct time with their mother and wishing to mitigate any emotional impact more frequent exposure to the mother's perspective and potential pressure on the children to reinstate their alignment with her.
Ms OO’s recommendations were (1) for the children to continue to live with the father; (2) for the children to spend four occasions per year of supervised time spent with the mother at a children's contact service; (3) for the then current face time schedule to continue; and (4) for any changes to supervised time, for example becoming unsupervised or as per the children’s wishes, to be determined by assessment of the children's emotional development in their mid-teenage years.
The father did not disagree with the recommendations of the Family Report of Ms OO and nor did the ICL, save the father wanted Zoom to be the preferred platform for video calls to take place.
On 8 December 2023 orders were made confirming the trial before Brown J to commence on 3 June 2024 for five days.
In early 2024, the father and his partner Ms F married. They had been living together since 2018, well before the making of the earlier final parenting orders in March 2022. Ms F works as a health professional for three to four days a week and the father is employed full time Monday to Friday as a hospitality manager. The children have a strong relationship with Ms F and she is a consistent figure in the lives of the children. Ms F has two adult children, and a boy aged 16 years at trial. Those children have a good relationship with the children the subject of this proceeding. The household is a stable one, and one in which the children are settled and thriving. They are supported to attend school and are doing well in that environment. The children have appropriate accommodation and pets to look after. All their needs are met by the father and Ms F. The mother makes payments of child support of $4.65 a week.
On 11 April 2024 the father filed an Application in a Proceeding seeking to invoke s 102NA of the Act order in circumstances where a mandatory provision applied, as personal protection injunctions had been made in the proceedings.
In April 2024, the mother involved the children in adult issues during her call with them, saying words to the effect, “Don’t you want to live with Mummy? That is what you needed to say to the report writer.” When Y replied saying, “I want half with Dad and half with Mum,” the mother went on to say words to the effect, “Why would you want that? Don’t you just want to live with Mummy? It's wrong, they have stolen you away from me.” The father remained concerned about the content of the mother's calls with the children.
On 23 April 2024, Brown J made an order restraining the mother and the father from personally cross-examining each other at trial. The mother did not attend that hearing.
The father filed his trial material in preparation for the June trial. The mother claimed that she had not been served with his trial material. She in fact had been. The mother failed to file any trial material. On 27 May 2024, the father's solicitor followed up with the mother to obtain an understanding of her trial position. She did not respond.
On 28 May 2024, the mother filed an Application in a Proceeding, seeking to vacate the June trial date scheduled to commence on 3 June 2024 to the beginning of October 2024, to enable her to obtain legal representation under the enlivened s 102NA of the Act funding. On that same day, the father’s Outline of Case was filed in readiness for the trial to commence the following week.
On 30 May 2024, the father filed a response to Application in a Proceeding, seeking to dismiss the mother’s application to adjourn the trial in circumstances where the trial directions were given on 8 December 2023 when the mother was self-represented. The s 102NA of the Act order had been made in April 2024, and the mother was regularly using her two email addresses to communicate with the father’s lawyer and the ICL. So, she could not be said to have been unaware of the filing deadlines.
On 3 June 2024, being the first day of the trial, the trial did not proceed. The mother’s Application in a Proceeding was determined, and the trial was vacated to allow her to obtain legal representation.
The mother served two affidavits on the father’s counsel at Court on day one of the trial. One affidavit contained material from a subpoena the mother had filed. There was no order providing for the copying of that material as at that date, and yet the mother had produced copies of the subpoenaed material in her affidavit. The other affidavit related to the mother’s oral application to have the father’s trial counsel restrained from acting for him.
On 4 July 2024, the mother filed an Application in Proceeding formally seeking to restrain the father's trial counsel from acting for him. The father opposed that application.
On 25 July 2024, the ICL wrote to the mother asking her to desist from holding up messages to the children during FaceTime calls and indicated such conduct was “entirely unacceptable”. The ICL also confirmed that Zoom was an appropriate platform for communication to occur.
The mother refused to use the Zoom platform. She continued to make FaceTime calls despite the father’s concerns in continuing calls via that platform because of the mother’s conduct, which was detrimental to the children’s wellbeing. The father resumed accepting the mother’s FaceTime calls.
On 18 September 2024, being a trial management hearing date, I was required to remove the mother from the courtroom by disconnecting her telephone appearance made via a Microsoft Teams link. The mother had been warned that would occur if she continued to disrupt the proceeding. She repeatedly interrupted counsel and I and would not desist from speaking. The mother had been asked to provide an estimate of the days over which the trial would occur. The mother could not provide any response. Her communication was irrelevant, hostile and entirely inappropriate. Usual trial directions were made and were available to the parties.
On 14 October 2024, the father filed and served his trial material in accordance with the Orders made 18 September 2024.
On 22 October 2024, McNab J heard the mother’s Application in a Proceeding to restrain the husband’s counsel from acting for the husband. The mother’s application was dismissed. A further order was made against the mother, namely that she pay the costs as payable to the Legal Services Commission for both the father and the ICL’s costs.
The mother failed to comply with the trial directions for the filing of her material and, indeed, as at the date of trial, had filed no trial affidavit or any other evidence in support of any orders as sought by her, and neither the father nor the ICL knew the case they were meeting. The father sought to proceed undefended. That was not opposed by the ICL. The reasons delivered on 29 November 2024 further elaborate on this matter.
MATERIAL RELIED UPON
The father relied upon:
(1)Further Amended Application for Final Orders filed 14 October 2024; and
(2)his trial affidavit filed 14 October 2024.
The ICL relied upon:
(1)Reasons for judgment of Berman J dated 9 March 2022; and
(2)Reasons for judgment of Brown J dated 19 May 2023.
Both the father and the ICL relied upon the Family Report of Ms OO dated 6 December 2023.
The mother did not file any updated material pursuant to the trial directions, nor did she seek leave to rely upon earlier filed material.
LEGAL PRINCIPLES
The final hearing in this matter commenced after the enactment of the Family Law Amendment Act 2023 (Cth), the Family Law Amendment (Information Sharing) Act 2023 (Cth) and the Federal Circuit and Family Court of Australia (Family Law) Amendment (2024 Measures No.1) Rules 2024 (Cth). These legislative changes therefore apply to this matter.
Parental responsibility is dealt with in Division 2 of Pt VIII of the Act. Relevantly, ss 61CA and 61D of the Act provide as follows:
Consultation between parents on major long-term issues
If it is safe to do so, and subject to any court orders, the parents of a child who is not yet 18 are encouraged:
(a)to consult each other about major long - term issues in relation to the child; and
(b)in doing so, to have regard to the best interests of the child as the paramount consideration.
Parenting orders and parental responsibility
(1)A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2)A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.
(3)A parenting order that deals with the allocation of responsibility for making decisions about major long - term issues in relation to the child (see subsection 64B(3)) may provide for joint or sole decision - making in relation to all or specified major long - term issues.
Pursuant to s 60CA of the Act:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
To determine the best interests of the child, I must have regard to the relevant considerations in the Act as set out in ss 60CC(1), 60CC(2) and 60CC(2A) of the Act. Those sections provide relevantly:
How a court determines what is in a child’s best interests
…
(1)….in determining what is in the child's best interests, the court must:
(a) consider the matters set out in subsection (2);
General considerations
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
Family violence is defined in s 4AB(1) of the Act as:
…violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
When considering the risk of family violence, the following is set out in s 60CG of the Act:
(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
In considering these matters, the Court must give consideration as to whether there is an unacceptable risk of family violence and/or an inability to promote the safety of a child and parent in the making of parenting orders also involving a consideration of unacceptable risk. Upon establishing the existence of an unacceptable risk, the Court must then determine whether that risk “is able to be sufficiently managed or ameliorated”.[1]
[1] Blinko & Blinko [2015] FamCAFC 146 at [83] referring to R & C [1993] FamCA 62.
The Court is required to assess its factual findings on the balance of probabilities, and the impact of those findings upon the assessment of future risk. Accordingly, Isles & Nelissen (2022) 65 Fam LR 288 is applicable. The Court’s determination as to what did or did not happen in the past is determined on the balance of probabilities. However, in hypothesising about future possibilities the Court is required to engage in an assessment of risk as a predictive exercise.[2] That assessment of risk is informed by the factual findings as to the past.
[2] Isles & Nelissen (2022) 65 Fam LR 288 at [50].
I also refer to s 65DAAA of the Act which provides:
(1) If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a) the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b) the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2) For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a) the reasons for the final parenting order and the material on which it was based;
(b) whether there is any material available that was not available to the court that made the final parenting order;
(c) the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d) any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3) Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4) The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
CONSIDERATION
In March 2022, Berman J gave extensive and detailed consideration to the parties’ competing claims in their parenting orders proceeding, and as to what factual findings he should make. His judgment was not challenged on appeal as made by any party to the proceeding.
Given the making of final parenting orders in March 2022, with such orders not discharged until 18 November 2024, and the trial occurring post 6 May 2024, I have considered section 65DAAA of the Act. Many of the earlier orders made in the proceeding were not constrained by this section, but there was operating the rule in Rice & Asplund (1979) FLC 90-725 which did not appear to feature. The proceeding was conducted as a reconsideration of the final orders, with the apparent agreement of all the parties, but in its progression to trial, and at trial, the only evidence before the Court was that directed to a change in the orders relating to the children’s time spent with the mother, and the need for her to be restrained by the making of injunctive orders. There was no argument or case run by the father, the mother (when she participated) or the ICL that there had been no change in circumstances since the March 2022 orders. I am satisfied on the facts of this case and on the evidence in its totality that a finding of a significant change in circumstances from the making of the March 2022 final orders can be made, and further that in all the circumstances it is in the best interests of the children to make the orders made on 18 November 2024 in a reconsideration of the earlier final parenting orders.
The safety of the children and the father are promoted by the orders as sought by the father and the ICL and the evidence disclosed a need to ensure their safety. There is no prospect of any form of joint parental decision-making in respect of long-term decisions necessary to be made for the children’s advancement of their best interests. That task must continue to be undertaken by the father with whom the children shall continue to live. The father is the only parent who can meet all of the needs of the children as set out in s 60CC(2) of the Act. The mother has no capacity nor insight into the advancement of the children’s emotional and psychological needs. Nor their physical or developmental needs.
The mother’s alienation of the father and her continued conduct of withholding the children from the care of the father in the face of orders made by the Court prohibiting her from doing so, and in the face of the attempted execution of recovery orders as made by the Court was immensely harmful to the children’s psychological development. The mother also continued in her communications with the children to engage the children in her attacks upon the father, and to traumatise them by her engagement. The allegations of the father that the mother, by her continued conduct, has acted in a manner which does not prioritise the children’s best interests, are allegations made out on the evidence. It is clear the mother has no insight into her conduct, and that she has psychologically, physically and developmentally harmed the children by her conduct, including actively preventing them from attending school, actively preventing them from spending time and living with their father, and readily asserting non-existent medical issues for the children.
The above matters, and the mother’s disparagement of the father to the children at every opportunity, and her hostility toward him and disregard of him, coupled with her inability to contain herself in any way, mean that the children’s time with the mother must be supervised and very limited until the children develop the capacity to detach from her to some extent which will not occur until they are older. If the time is not so limited, the mother will continue her dysfunctional behaviours and her coaching of the children to express views hostile to the father, as X did. Those views can be given no weight. Y was better able to withstand the mother’s rage, in his maintaining his expressed affection for his father.
The evidence of Ms OO, unchallenged, and her recommendations were of much assistance to the Court. Her recommendations were supported by the other evidence before the Court.
The assessment of risk is a predictive exercise, and as such, it is influenced by factual findings about past events.[3] The Court notes the findings of Berman J in his judgment of 9 March 2022 as to the factual findings about past events prior to that time. The Court also notes the contents and recommendations of the Family Report prepared by Ms OO and her observations as set out in that Report. In Ms OO’s opinion, the mother is unlikely to change. Ms OO opined at paragraphs 111 and 112 of her report the following:
111.In considering parental behaviour when resistant/refusal dynamics are apparent, in the absence of significant parental deficits or family violence on the part of [the father], [the mother’s] behaviour also cannot be categorised as protective gatekeeping. Rather, the past events appear to fit the category of unjustified restrictive gatekeeping, in that [the mother’s] behaviours and comments reflect her view that her parenting relationship is of greater importance than [the father’s], she questions [the father’s] parenting capacity without valid justification, she has difficulty appreciating the positive nature of the children's relationship with their father and perceives that the children's voices/wishes have been unjustifiably disregarded. Further, within this context the Consultant therefore considered the children’s past behaviours as disproportionate to their relationship with the father. In the absence of any psychological difficulties identified in [the mother] (noting the recent psychological evaluation), the Consultant wondered whether the children's presentation served as emotional support or validation of the mother; the Consultant noted [X’s] belief that [Ms F] had “replaced” her mother, with it also being noted in previous phases of proceedings [the mother’s] concerns about [Ms F]. Common to these cases, in the absence of psychiatric/psychological issues, are parent-child dynamics of enmeshment, role reversal (with it being noted the father and [Ms F] spoke of [X’s] parentified presentation) or intrusive parenting. In cases of unjustified restrictive gatekeeping, children can develop highly anxious and elevated responses to the ‘rejected’ parent. Avoidance of that parent brings relief from that anxiety, reinforcing the avoidant stance. [the mother] has in the past and presently supported the children’s elevated and avoidant stance via citing it as reason for not abiding by Orders; this likely communicated to the children that their avoidant stance met her emotional needs. This likely reinforced the children’s responses, rather than [the mother] showing the capacity to assist the children to integrate and problem solve and promote realistic responses to living in 2 houses. The children’s increasingly heightened behaviour likely increased [the mother’s] belief she needed to protect the children, which in tum likely reinforced and escalated the children's behaviour and so on.
112.The concern remains, therefore, that if direct and unsupervised time spending were to occur in future and the children (as children commonly do) relate minor complains about their other parent, [the mother] will be not appropriately respond to these concerns and again, impasses will emerge with regard to the children’s return to [the father]. There also, given [the mother’s] past behaviour, is the significant risk that the children’s schooling will also be disrupted in the event she does not facilitate their return. This, in addition to the lack of concerns about the children’s care by the father, also did not prompt the Consultant to support either the children living equally between the parents or the children returning to the mother’s primary care.
[3] Isles & Nelissen (2022) 65 Fam LR 288 at [50].
For the above reasons, the Court made orders in the terms of those made 18 November 2024.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 19 December 2024
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