MINCHIN & MCDONALD - [2011] FMCAfam 681

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MINCHIN & MCDONALD

[2011] FMCAfam 681

FAMILY LAW – Children – parenting orders – best interests of the children – parental responsibility – parental alienation – separation of siblings.

FAMILY LAW – Property – application for property settlement.

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA, 75, 79

Pierce & Pierce [2010] FMCAfam 1137
Calvert & Calvert [2008] FMCAfam 101
In the Marriage of Hickey [2003] FamCA 395; (2003) 30 Fam LR 355

Applicant:

MS MINCHIN

Respondent:

MR MCDONALD

File Number:

WOC 675 of 2009

Judgment of:

Scarlett FM

Hearing dates:

17, 18 June, 19-22 October, 3 November, 14, 16 December 2010, 17 February 2011

Date of Last Submission:

17 February 2011

Delivered at:

Sydney

Delivered on:

29 June 2011

REPRESENTATION

Counsel for the Applicant:

Ms Hausman

Solicitors for the Applicant:

Maguire & McInerney

Counsel for the Respondent:

Mr Alexander

Solicitors for the Respondent:

Verekers Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Maurice

Solicitors for the Independent Children’s Lawyer

Williamson Isabella

ORDERS

All earlier parenting Orders are discharged.
The child of the marriage [X] born [in] 1998 is to live with the Respondent Husband.
The children of the marriage [Y] born [in] 2000 and [Z] born [in] 2003 are to live with the Applicant Wife.
The Respondent is to have sole parental responsibility for the child [X].
The Applicant is to have sole parental responsibility for the children [Y] and [Z].
The Applicant is to have parental responsibility for all day to day issues relating to [X] whenever [X] is spending time with the Applicant as provided by these orders including making arrangements for any necessary medical treatment.
The Respondent is to have parental responsibility for all day to day issues relating to [Y] and [Z] whenever [Y] and [Z] or either of them is spending time with the Respondent as provided by these orders including making arrangements for any necessary medical treatment.
The Applicant is to authorise any school attended by the children [Y] and [Z] to provide to the Respondent at his expense copies of all school reports, newsletters, advice of school photographs and other documents normally provided to parents of children attending that school.
The Respondent is to authorise any school attended by the child [X] to provide to the Applicant at her expense copies of all school reports, newsletters, advice of school photographs and other documents normally provided to parents of children attending that school.
The Applicant is at liberty to make any necessary arrangements with the school attended by [X] in order that she may attend a parent-teacher interview about the child’s progress at school PROVIDED THAT such interview is held separately from any such interview attended by the Respondent.
The Respondent is at liberty to make any necessary arrangements with the schools attended by [Y] and [Z] in order that he may attend parent-teacher interviews about the children’s progress at school PROVIDED THAT such interviews are held separately from any such interviews attended by the Applicant.
The Applicant must inform the Respondent of any changes to the school or schools attended by [Y] and [Z].
The Respondent must inform the Applicant of any change to the school attended by [X].
The Applicant must inform the Respondent of any illness or injury sustained by [Y] or [Z] requiring hospitalisation or treatment by a medical specialist as soon as is reasonably practicable and in any event within four (4) hours.
The Respondent must inform the Applicant of any illness or injury sustained by [X] requiring hospitalisation or treatment by a medical specialist as soon as is reasonably practicable and in any event within four (4) hours.
The Applicant must inform the Respondent as soon as is reasonably practicable and in any event within four (4) hours of any illness or injury sustained by [X] at any time when she is spending time with the Applicant as provided by these Orders and any medication or treatment prescribed for her.
The Respondent must inform the Applicant as soon as is reasonably practicable and in any event within four (4) hours of any illness or injury sustained by either [Y] or [Z] at any time when they are spending time with him as provided by these Orders and any medication or treatment prescribed for them or either of them.
For a period of six (6) weeks from the date of these Orders the Applicant is restrained by injunction from permitting the children [Y] and [Z] or either of them to spend time with or communicate with any of the following:
(a)the Respondent;
(b)the children’s sister [X]; or
(c)Ms L.
For a period of six (6) weeks from the date of these Orders the Respondent is restrained by injunction from spending time or communicating with either of the children [Y] and [Z] or from attempting to communicate or spend time with the children or either of them.
For a period of six (6) weeks from the date of these Orders the Respondent is restrained by injunction from permitting the child [X] or Ms L from spending time or communicating with either of the children [Y] and [Z] or attempting to communicate or spend time with either of them.
Immediately after the expiry of the period of six (6) weeks from the date of these orders referred to above the Applicant and the Respondent are to make arrangements for the children [Y] and [Z] to attend therapeutic counselling sessions with MS M, psychologist in company with the Respondent and the child [X] or either of them for six (6) weekly sessions with the aim of reintroducing the Respondent and [X] to [Y] and [Z] in such a way as not to undermine the relationship between the Applicant and [Y] and [Z] and the Independent Children’s Lawyer is granted leave to provide a copy of the Single Expert Report prepared by Associate Professor Q to Ms M.
After the completion of the six weekly sessions with Ms M prescribed in Order (21) above the children [Y] and [Z] are to spend time with the Respondent as follows:
(a)For one (1) afternoon each week, to continue for four (4) weeks, from after school until 7:00pm on an afternoon to be agreed between the parties and, in lieu of agreement, each Wednesday afternoon, with the Respondent to collect the children from their school or schools at the commencement of the time and to return the children to the home of the Applicant at the conclusion of that time;
(b)Thereafter, from 9:00am until 5:00pm each Saturday for a period of four (4) weeks;
(c)Thereafter, each alternate weekend from 9:00am on Saturday until 5:00pm on Sunday for six (6) occasions;
(d)Thereafter:
(i)each alternate weekend during the school term from immediately after school on Friday until the commencement of school on the following Monday morning PROVIDED THAT if the Monday immediately following the weekend is a public holiday then until the commencement of school on the Tuesday morning;
(ii)during the week immediately after the weekend during the school term when the children [Y] and [Z] spend time with the Respondent as provided by (i) above from immediately after school on the Wednesday of that week until the commencement of school the following morning;
(iii)from 10:00am on Christmas Eve until 10:00am on Christmas Day in 2011 and each odd numbered year thereafter;
(iv)from 10:00am on Christmas Day until 10:00am on Boxing Day in 2012 and each even numbered year thereafter;
(v)from 9:00am on 5 January until 5:00pm on Australia Day in each year; and
(vi)for the second half of each of the school holidays during the year in 2012 and each even numbered year thereafter commencing at 9:00am on the middle Saturday and concluding at 5:00pm on the final Friday of each school holiday period;
(vii)for the first half of each of the school holidays during the year in 2013 and each odd numbered year thereafter commencing immediately after school on the last day of the school term and concluding at 5:00pm of the middle Saturday of each school holiday period.
In addition to the times prescribed by Order (22) above the children [Y] and [Z] are to spend time with the Respondent:
(a)from 9:00am to 5:00pm on Father’s Day in each year if that day should fall on a day when the children would not otherwise be spending time with the Respondent as provided by these Orders;
(b)from 9:00am to 5:00pm on the Respondent’s birthday if that day should fall on a weekend and from immediately after school until 7:00pm if that day should fall on a weekday and if that day should fall on a day when the children would not otherwise be spending time with the Respondent as provided by these Orders; and
(c)from 11:00am to 3:00pm on each of the birthdays of the children [X], [Y] and [Z] if those days should fall on a weekend and from immediately after school until 7:00pm if the particular birthday should fall on a weekday and if any of those days should fall on a day when the children would not otherwise be spending time with the Respondent as provided by these Orders.
Notwithstanding the provisions of Order (22) above the Respondent’s time with the children [Y] and [Z] will be suspended:
(a)On the weekend that includes Mother’s Day in each year; and
(b)On the Applicant’s birthday if that day should fall on a day when the Children [Y] and [Z] would otherwise be spending time with the Respondent as provided by these orders.
In the event that the Respondent’s time with the children [Y] and [Z] is suspended because it would fall on the weekend that includes Mother’s Day in a particular year then the children will spend time with the Respondent on the weekend immediately following.
The child [X] is to spend time with the Applicant on such days and at such times as the child expressly wishes and in this regard the Respondent is restrained from discouraging the child from spending time with the Applicant.
The Applicant must do all things necessary to engage [Y] and [Z] in therapeutic counselling to assist them to:
(a)re-engage with the Applicant;
(b)adjust to the changes in their living arrangements; and
(c)deal with other issues that may arise in the children’s lives.
The Respondent is to do all things necessary to facilitate the child [X] attending upon Ms M to assist her to:
(a)understand the benefit of having a positive relationship with her mother;
(b)understand the right of [Y] and [Z] to have a positive relationship with their mother;
(c)refrain from undermining the relationship [Y] and [Z] have with their mother; and
(d)adjust to the changes in her living arrangements.
The Applicant and the Respondent are to make all necessary arrangements for the children to attend therapeutic counselling sessions with Ms M as provided by Order (21) above.
The Applicant and the Respondent are to contribute equally to the cost of the children’s attendance on Ms M for the purposes of Order (21).
The Applicant is restrained by injunction from bringing the children [X], [Y] and [Z] or any of them into contact with Mr H.
The Applicant is restrained by injunction from leaving the children or any of them in the care of her brother Mr N.
The Applicant is restrained by injunction from leaving any of the children unsupervised by a responsible adult is known to them.
Neither party is to use any physical discipline on any of the children.
Neither party is to discuss these proceedings with any of the children.
The parties must inform each other of any change to their residential address, mobile telephone number or landline number within forty-eight (48) hours of such change occurring.
Within seven (7) days of these Orders:
(a)the Respondent is to make a joint appointment with the Independent Children’s Lawyer and Ms M for the purpose of explaining these Orders to [X]; and
(b)the Applicant is to make a joint appointment with the Independent Children’s Lawyer and Ms M for the purpose of explaining these Orders to [Y] and [Z].
The appointment of the Independent Children’s Lawyer is extended until 31 December 2011.
The Independent Children’s Lawyer is granted liberty apply on seven (7) days notice in the event of any failure of either party to comply with any of these parenting Orders.
Each party is to pay to the Independent Children’s Lawyer the sum of $1,738.00 being one half of the outstanding fees owing to Associate Professor Q the Single Expert or such part thereof as remains unpaid within seven (7) days.
The Applicant and the Respondent are each to pay one half of the costs of the Independent Children’s Lawyer in these proceedings as assessed or agreed.

Property Orders

The Applicant and the Respondent must do all such things and execute all deeds, documents and instruments necessary to sell the whole of the parties’ right, title and interest in the real estate situate at and known as Property K in the State of New South Wales by private treaty at a price agreed between the parties or failing such agreement at a price equivalent to the mean of two valuations by registered valuers being members of the Australian Institute of Valuers one obtained by and at the expense of the Applicant and one obtained by and at the expense of the Respondent, such valuations to be made not more than two (2) weeks apart from each other and give such instructions to a solicitor for the preparation of an appropriate contract for sale and such other documents as are necessary for the sale of the said real property at Property K by private treaty.
In the event that the said real property at Property K is not sold by private treaty within three (3) months from the date of these Orders then the parties must within a further period of one (1) month do all acts and things and execute all deeds, documents and instruments necessary to procure the sale of the said real property by public auction at a reserve price recommended by the auctioneers.
For the purposes of Orders (42) and (43) above the parties are to agree upon a solicitor to act on the sale of the said real property within fourteen (14) days and in default of agreement the President of the Law Society of New South Wales is to nominate a solicitor to act upon the sale.
For the purposes of Order (42) the parties are to agree upon a real estate agent within fourteen (14) days and in default of agreement the President of the Real Estate Institute is to nominate a real estate agent to act upon the sale.
Upon the sale of the real property at Property K the proceeds of sale are to be paid in the following manner and priority:
(a)in payment of the amount secured by any mortgage encumbering the said real property;
(b)in payment of any local government rates, water rates and other outgoings on the said real property;
(c)in payment of all real estate agents’ or auctioneers’ commission and auction and advertising expenses in connection with the sale of the said real property;
(d)in payment of all solicitors’ costs of acting on the sale;
(e)as to one half of the balance to the Applicant after deduction of the following:
(i)the amount of $1,738.00 to the Independent Children’s Lawyer for payment out to Associate Professor Q being one half of the fees owing to Associate Professor Q by the Applicant as provided by Order (40) above or such part that remains outstanding at the date of settlement; and
(ii)a sum equivalent to one half of the costs of the Independent Children’s Lawyer as assessed or agreed pursuant to Order (41) or such part as remains outstanding at the date of settlement;
(f)as to the other half of the balance to the Respondent after deduction of the following:
(i)the amount of $1,738.00 to the Independent Children’s Lawyer for payment out to Associate Professor Q being one half of the fees owing to Associate Professor Q by the Respondent as provided by Order (40) above or such part that remains outstanding at the date of settlement; and
(ii)a sum equivalent to one half of the costs of the Independent Children’s Lawyer as assessed or agreed pursuant to Order (41) or such part as remains outstanding at the date of settlement.
The parties are otherwise solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession of each party as at the date of these Orders and for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.
In the event that either party refuses or neglects to execute any necessary document or instrument to give effect to any of these Orders within seven (7) days of being called upon to do so then a Registrar of the Court is appointed under the provisions of section 106A of the Family Law Act 1975 to execute all such necessary documents or instruments in the name of the party who refuses or neglects to do so.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

WOC 675 of 2009

MS MINCHIN

Applicant

And

MR MCDONALD

Respondent

REASONS FOR JUDGMENT

Application

This is an application for parenting orders and property orders by the Wife, who is the Mother of three children, two girls and a boy. She commenced proceedings by filing an application on 3^rd August 2009 seeking orders that the children should all live with her and spend time with the Husband. She also sought orders that the Respondent Husband transfer the former matrimonial home at Property K to her, that the parties repay a loan of $47,000.00 from her parents, and that she pay the Husband a sum equivalent to 30% of the value of the former matrimonial home.
The Husband opposes these orders. In his response, filed on 19^th August 2009, he sought orders that:
a)the children should all live with him and spend time with the Wife; and
b)the parties should sell the former matrimonial home and divide the net proceeds as to 60% to the Husband and 40% to the Wife.

Background

The Wife was born [in] 1966.
The Husband was born [in] 1965.
The parties commenced to live together in June 1990 and were married [in] 1994 at Wollongong. They separated in May 2007 and have lived separately and apart since then.
There are three children of the marriage, two girls and a boy.
The oldest child, [X], was born [in] 1998. She is currently living with the Husband and his partner.
[Y] was born [in] 2000. She is also living with the Husband and his partner.
The youngest child is [Z], who was born [in] 2003.
The Wife deposed that after the parties were married the Husband worked as a [omitted] and she [occupation omitted]. The parties purchased their first house at Property O early in 1998. The Wife states that her parents provided “significant financial assistance” to the parties when they purchased the house and when their daughter [X] was born later that year.[1]
[1] Affidavit of Ms Minchin sworn 31.7.2009 at paragraph [12]
The parties sold the house in Property O and purchased a house at Property K, on 9^th July 2002.
The Husband commenced work as a [omitted] in June 2000 and in 2005 bought into a [business omitted]. The Wife deposes that the Husband learned in 2006 that he was not going to be paid about $100,000.00 in commission and, as a result, suffered “a nervous breakdown”.[2] He did not work for a number of months and made a number of extravagant purchases. The Wife also states that the Husband became verbally abusive and violent towards her.[3]
[2] Affidavit of Ms Minchin 31.7.2009 at [22]
[3] Ibid at [28]-[30]

The Wife deposed that she spoke to the Husband on Mother’s Day 2007 about separating. She states that he said to her that if she left with the children he would shoot her in the head. The Wife went to the police station later that day to make a complaint. The police removed the Husband from the house and obtained an Interim Apprehended Violence Order against the Husband. The Husband left the house and went to stay with his parents in Queensland.[4]
[4] Ibid at [42]-[44]
The Wife later asked the police not to proceed with the Apprehended Violence Order.
The Husband returned to the Wollongong area later in 2007. He commenced a new relationship with a woman named Ms L, who has children from an earlier relationship. He commenced living with her in September 2009.
The parties commenced a shared care arrangement with the children on a week-about, which the Wife deposed was not successful.
The Wife deposed that she was paying the mortgage on the former matrimonial home by means of a direct debit arrangement. The Husband redrew the sum of $25,000.00 on or about 16^th June 2009 and, shortly afterwards, withdrew an amount of $120,000.00 from the parties’ mortgage.[5]
[5] Ibid at [99]-[110]
The parties attended Court on 19^th August 2009. Altobelli FM ordered that they should attend a Child Dispute Conference, which they did on 1^st October 2009. No significant agreement was reached.
On 19^th August 2009 the parties entered into interim consent orders, which provided that:
a)the Husband was to pay the sum of $70,000.00 back into the home loan account;
b)the parties were restrained from drawing, withdrawing or redrawing any money from the home loan account without the consent of the other; and
c)the Wife was to make payments of $300.00 per week into the mortgage account.
The parties were ordered to attend a conciliation conference to deal with the property issues.
The conciliation conference was held on 25^th September 2009 but no resolution was reached. The Registrar directed that the parties should attend a further conciliation conference on 6^th November 2009.
On the evening of the 25^th September 2009 the wife read the diary of her daughter [X] and formed the view that the Husband had been speaking to the child about the proceedings between them and the events that had led to those proceedings.
Two days later the Mother found the child’s mobile telephone and read a text message that the Husband had sent to the child about a holiday that the Mother had taken earlier that month. The Mother had gone away with a man that she had been seeing, named [Mr H], but she had not told the children about that fact.
On 5^th October 2009 the children had been staying with their father and were due to return to their mother, however, [X] refused to go. The Husband returned the younger two children to the Wife. The Wife later went to the home where the Father lived with Ms L to collect [X], but she refused to go with her.
The following day the Husband arranged for [X] to see a psychologist, Ms M.
[X] remained living with her father.
The Mother sought interim orders that the children should live with her and spend time with the Father for two hours each Saturday. This application came before the Court on 29^th October 2009, where Lindsay FM made orders by consent that:
a)The parties were restrained from
i)denigrating each other;
ii)physically chastising the children;
iii)discussing the proceedings with the children;
iv)swearing at the children;
v)leaving the children unsupervised by an appropriate adult;
vi)communicating with the children whilst in the care of the other parent; or
vii)attending each other’s residence without a written invitation.
b)The Mother was restrained from brining the children into contact with Mr H.
c)The parties were to ensure that neither was subject to denigration in the presence of the children and the proceedings were not be discussed in the presence of the children except with professional persons required to do so;
d)The children were to live with the Mother from after school on each alternate Monday until before school the following Monday, and otherwise with their father; and
e)An Independent Children’s Lawyer should be appointed.
The second conciliation conference took place on 6^th November 2009, but the parties did not resolve the property issues between them.
The Wife filed a contravention application on 14^th December 2009, claiming that the Husband had contravened the consent orders by:
a)Not returning [Y] to her on 18^th November; and
b)Not returning [X] to her on 4^th December.
The application came before the Court on 21^st December 2009. The Independent Children’s Lawyer, Ms Volk, appeared. An order was made by consent that Dr Q, a child and family psychiatrist, be appointed as a Single Expert Witness and prepare a report about the children.
The Husband’s solicitor raised the issue on that day that the Wife had retained the child [Z] and had not returned him to the Husband since 14^th December. The Wife’s then solicitor, Ms Kovacevic, told the Court that the child would be returned that afternoon.
When the matter came back to Court on 29^th January 2010, [Z] was still with the Wife. I ordered that the Wife was to return [Z] to the care of the Husband by 31^st January.
The Wife’s then solicitor filed a Notice of Ceasing to Act on

10^th February 2010.
The application was back before the Court on 11^th February 2010. The Wife appeared on her own behalf. I ordered that the Wife was to return the child [Z] to the care of the Husband by 15^th February and a recovery order would issue if the Wife failed to do so.
The application was listed for final hearing for two days, from 17^th to 18^th June 2010. This turned out to be a significant under-estimate of time, as the hearing continued over nine days in 2010 and 2011.
On 26^th March 2010 the Wife’s new solicitors, Maguire & McInerney, filed a Notice of Address for Service.
On 8^th April 2010 the Wife filed an Application in a Case, seeking an order that the Husband deliver the child [Z] to her and, in the event that he failed to do so, a Recovery Order should issue.
In her affidavit in support of the Application, sworn on 7^th April 2010, the Wife deposed that the Husband had not returned [Z] to her on Monday 5^th April as required by the orders of 29^th October 2009. She deposed that the Husband had claimed in a text message that the week about arrangement only applied during the school term. The Wife later went to the Husband’s house and sought to see the child but the Husband told her that the child did not wish to see her.[6]
[6] Affidavit of Ms Minchin sworn 7.4.2010 at paragraph s [4]-[11]
The child was subsequently returned to the Wife.
The final hearing commenced on 17^th June 2010.
Apart from her own evidence, the Wife relied on evidence from her father, Mr M, whose evidence was taken out of turn.
The application was listed to continue the following day, but, due to circumstances beyond the parties’ control, the application had to be adjourned for further hearing on 19^th October 2010. The parties entered into Interim Consent orders, providing that:
a)The children should attend on Ms M, clinical psychologist, for therapeutic counselling on a weekly basis;
b)That [Z] should continue to live on a week about basis with each parent, including during the school holidays;
c)That the Wife attend therapeutic counselling assisting her with understanding the impact on the children when an attachment relationship has broken down and learning parenting techniques which might assist her;
d)That the Husband attend therapeutic counselling aimed at assisting him to understand the impact on the children when the attachment relationship with their mother has broken down;
e)That the parents attend on the Family Relationship Centre in Wollongong for counselling aimed at assisting their communication and co-parenting skills; and
f)That the parties facilitate the children’s attendance on the Independent Children’s Lawyer for the purpose of explaining the orders.
The hearing proceeded on 20^th October 2010. The Wife gave oral evidence and was cross-examined at some length. She conceded that she had commenced a relationship with Mr H in April 2008 and would see him when the children were with their father. The children did not meet him until February or March 2009. They had agreed to stop seeing each other following the consent parenting orders made in October that year but they resumed their relationship in January 2010. She had gone on a short holiday to Bali with him in December 2008 and had gone to Thailand with him in September 2009.
The Wife accepted that the two girls had become alienated from her and accepted some responsibility for that state of affairs. However, she said that the children could not see that the Husband had “evil intentions”. She accused him of undermining her relationship with the girls. She conceded that some of the breakdown of the relationship with her daughters arose in part from her own behaviour. In particular, the Wife accepted that both of her daughters felt that her relationship with Mr H was an issue and said that they had agreed to end their relationship once she got her girls back.
The Wife admitted that she had read [X]’s diary, saying that “privacy did not exist” in her family, “maybe it’s a cultural thing”. She said that she did not think it was inappropriate for a parent to look in the diary of a 10, 11 or 12 year old child.
The Wife said that she now wanted sole parental responsibility for the children, because over the previous twelve months the Husband had demonstrated a desire for her not to have a relationship with her children. She said it was necessary for them to spend a period of time away from the negative influence of their father.
In cross-examination by Mr Maurice, counsel for the Independent Children’s lawyer, the Wife said that the younger girl, [Y] “adored” [X]. She said accepted that the girls may have had problems with Mr H but said that if [X] changed her attitude, then [Y] would follow. If the children were to live with their father then she would not see them.
The girls had started referring to her as “[nickname omitted]”.
The Wife conceded that the former matrimonial home may have to be sold. If that were the case, she planned to live with her parents.
The Wife also relied on the evidence of a friend named Ms K. Ms K said that she had babysat the children on a few occasions at the Wife’s request. She said that the Wife had told her that there had been other occasions when she had left the children by themselves. Ms K noticed a change in [X]’s behaviour in relation to Mr H. She was not interacting with him the way she used to.
The Wife called evidence from Mr H. In cross-examination, he denied that he had told the Husband’s partner, Ms L, that he treated [Z] like a son or that [Z] referred to him as “Dad”. He described the husband as “a compulsive liar”.
Mr H conceded that he had some criminal history. He had agreed that he had accompanied the wife on a holiday to Bali and to Thailand.
He said that [X] had become “standoffish” in relation to him after a while and did not acknowledge him.
Mr H, when asked about his future relationship with the Wife, said that he wanted to give her the opportunity to be with her children. He would be “off the scene”. The relationship would end “as soon as she gets her kids back”.
The Husband was extensively cross-examined. He said that the two girls were “excelling in everything” at school but he had not informed the Mother of the children’s achievements because he does not communicate with her. Despite this, he said that it was imperative that the children should have a relationship with their mother. He would like them to see their mother on a frequent basis, starting with alternate weekends. He did not want [Z] to have separate parenting from his sisters.
The Husband said that he was concerned about the children’s safety and did not want them to be in contact with Mr H.
He also said that the girls did not want to have any contact with their mother but he had told them that they would have to. He thought that not having contact with their mother is disastrous for them and he feared for their emotional and psychological welfare if they did not have a reconciliation with her.
The Husband was critical of the Wife’s lifestyle, saying that she had put her relationship ahead of her children. He at first denied then conceded that he had called the Wife a “slut” and later conceded that he had called her a “bitch”.
The Husband stated that he had commenced a relationship with Ms L in 2008 and they had commenced cohabitation in September 2009.
The Husband gave evidence that the Wife is referred to as “[nickname omitted]” by his daughters.
In cross-examination by counsel for the Independent Children’s Lawyer, the Husband reiterated that the level of communication between him and the children’s mother was “nil” and said that he was avoiding communicating because every time he tried to communicate he had received an aggressive and abusive response.
The application was adjourned to 3^rd November 2010, but no evidence could be taken because the Husband was still in Queensland, where he was involved as a witness in other proceedings. The application was adjourned to 14^th December and costs were reserved.
The psychologist Ms M gave evidence by telephone. She had seen each of the children in the past. She reported that [Z] had drawn pictures of himself and his father with penises. In another picture, all the males had penises. The Mother had told her that on one occasion the child had soiled himself and placed his finger up his anus. She was questioning the child’s level of stress and whether there had been sexual abuse.
Ms M specifically denied that she had said to the Father words to the effect of “I believe there is a case of sexual abuse happening”. She denied that she had ever said that [Z] had been sexually abused.
In her further evidence the following day, Ms M said in cross-examination that it was unusual for children to draw any form of genitalia. She had said to each parent that [Z] was exhibiting increasing levels of anxiety and that might be indicative of abuse.
The Father’s partner, Ms L, gave evidence. She said that she was intimidated and frightened at court by members of the Wife’s family.
Her evidence was that the girls refer to their mother as “[nickname omitted]”. They have called her “Mum” on three or four occasions but she believed that more than likely it was a slip up. She did not refer to the children’s mother as “your mother” when speaking to the girls.
She has two children of her own, one of whom is an adult living in Queensland and the other, aged 16, lives with her. She has her sister’s three children, aged from 9 through to 17, living with her. They do not see their mother at all, as she is a heroin addict.
As to [X], Ms L said that she had stated that she did not like Mr H, whom she described as “really mean”, and she was sick of going to babysitters all the time. She gave evidence that she had said to the girls that they should have a relationship with their mother but they have said “No”.
The Wife was recalled to give evidence in February. She said that [Z] had not spent time with his sisters at Christmas because he would not go to his father’s residence. He was hitting his head and she interpreted his behaviour as a reaction against his father.

The Single Expert Report

Associate Professor Q prepared a report for the purpose of these proceedings. For the purpose of the report, Professor Q read the orders and affidavits dating from August 2009 to June 2010. She interviewed the parents and the children, including the children of or in the care of Ms L, and Ms L herself.
The children’s maternal grandmother attended the interviews. The girls responded politely to her but were “cool” and “distant” towards her.
When Professor Q interviewed the two girls together in the absence of their mother, they voiced hostility towards her, describing her as a “witch”, “mean” and “evil”.[7] They referred particularly to having been left alone by their mother, and referred to her as “[nickname omitted]”. They also expressed dislike and resentment about Mr H.
[7] Single Expert Report page 24
Both girls spoke about their concern for [Z] and their belief that he should be living with them. They spoke highly of their father’s partner, Ms L.
Professor Q interviewed [Z]. He said he felt sad that his parents were no longer together. He said that [X] and [Y] did not want to live with their mother because of her relationship with Mr H.
Professor Q conducted telephone interviews with the Husband’s sister, [first name omitted], and his mother. The Husband’s sister referred to a massive change by the Wife and the children were no longer her priority. The Husband’s mother did not have much specific information but was concerned about the children and said that her son had always been very involved with them.
The children’s maternal grandfather, Mr M, was also interviewed, with the assistance of his son, [Mr N], because the grandfather did not speak English well. He was shocked by the break up of his daughter’s marriage and very distressed at not seeing the children.
The Wife’s brother also expressed hurt because the Husband, with whom he had been “very good mates”, had “wiped” him and “turned on” him. He was critical of the Husband for becoming violent towards his sister.
Professor Q also spoke to Ms M[8] on the telephone. Ms M told Professor Q that the girls had complained about their mother leaving them alone when she went to work early in the morning. The Mother, when interviewed, had been primarily focused on the children but the Father had often focused on giving negative information about the children’s mother.
[8] Ms M is mistakenly referred to as ‘Ms M”.
The girls had expressed fears about [Z], particularly that their mother might take him out of the country and they would never see him again.
Ms M had said that:
The girls see their father as the only safe parent and so unless he plays a role in reconciliation they are not likely to want to see their mother again. Without his cooperation they would not see themselves as having a safe parent and that would be very difficult for them.[9]
[9] Single Expert Report page 55
Ms M had also told Professor Q that she had been working with [X] on issues involving anger and had made some excellent progress. However, the Husband had later told her that the girls did not wish to see her again. She regretted this decision, because she thought that they were making progress.
Professor Q expressed these views:
i)The girls had been subjected to a process of alienation from their mother which was psychologically damaging to them.
ii)[Z] is at risk of becoming depressed.
iii)[Y] and [X] are expressing a wish to cease all contact with their mother and the extended maternal family. “It is not clear that they have reached this decision freely; the impression is that they have been considerably influenced in this by their father”.[10]
[10] Ibid page 57
iv)“[Z] is younger and under a lot of pressure but it is apparent that he wants to maintain his connection with both parents and he also wants to have a continuous relationship with his sisters. He is in an impossible situation and this is taking a toll on him.”[11]
[11] Ibid
v)
The three children have strong bonds of attachment with each other. The girls are maintaining an attachment to their father and fiercely rejecting their mother and the maternal family. They have a warm and friendly relationship with

Ms L.
vi)There is no goodwill between the parents and a limited willingness to facilitate contact with the other parent.
vii)If the girls do not have an opportunity to interact with their mother free of influence there is a risk that their bonds with her will deteriorate further. [Z] is likely to suffer psychological distress if forced to make a break from one or either parent or to maintain a separation from his sisters. It is important the three children live together.
viii)The Mother had been the primary carer of the children prior to separation and had provided well for them. “She has some limitation in terms of empathic attunement and thus has not handled well the crisis in her relationship with the girls.”[12]
ix)Currently the Father is strongly invested in the children and in creating a blended family with Ms L. They have a good capacity to meet the children’s physical and intellectual needs but there may be a question about whether they are meeting the children’s emotional needs.
x)The Mother has been strongly committed to the children throughout their lives but the Father suggests that since separation she has been less than committed. The Father, previously primarily work focused, has become strongly invested in the children to the extent of seeking to become their primary carer.
xi)It would be difficult to implement an arrangement whereby the girls have some contact with their mother since they are strongly resistant; [Z] is able to spend equal time with each parent.
xii)The parents have very little capacity to communicate with each other.
xiii)At assessment the Husband did not present with any indications of depression but Professor Q’s impression was in keeping with prominent narcissistic feature and her opinion was of a “kind of Cluster B Personality Disorder that is associated with a vulnerability to transient dissociative or even psychotic episodes…”[13]
xiv)The Wife was described by Professor Q as “clearly depressed and distressed”. Further, “She has problems with empathy and has not always handled the situation with her children well but she has no other features of personality disturbance”.[14]
xv)The children are in a difficult position psychologically.
[12] Ibid at 59
[13] Single Expert Report at 61
[14] Ibid

Professor Q recommended that if the Court were to determine that the Husband had sought to alienate the children from their mother and to break the natural bond of attachment that would be a most destructive course and would show reckless disregard for the psychological wellbeing of the children. In that case, there may even be a need for the extreme intervention of removal of the children from their father with no contact whatsoever for a period of time.
If, on the other hand, the Mother’s view of the matter could not be relied on, but had been reached as a result of profound emotional distress, then the children should remain primarily with their father and spend alternate weekends with their mother.
Professor Q concluded her report by saying:
I am not suggesting that this situation is a case of Parental Alienation Syndrome but that what has occurred may represent attempts by one parent deliberately to undermine the attachment between the children and the other parent – thereby alienating them from that parent.[15]
[15] Ibid at 62
Associate Professor Q gave oral evidence on 16^th December 2010. Her prognosis was gloomy. She said that all of the possible outcomes presented problems for the children. She found the girls to be alienated from their mother.
[Z] was depressed. He is very vulnerable because he is quite depressed. She said that he was in a more difficult situation because he was not alienated and was therefore “in the middle of a war zone”.
Disturbingly, Professor Q said that she thought the Father had encouraged this process of alienation. [Z] was being subjected to a process of trying to draw him into the Father’s camp. It was very typical of cases of alienation that allegations of sexual abuse were made.
Dealing with [X], if she were the only one to be considered then she would just stay where she is.
With [Y], if she were the only one to consider, then there could be intervention. She is not as far along the track of alienation as her sister. She is likely to be psychologically troubled during her adolescence.
Professor Q felt that [Z] would derive benefit from being located with one of his siblings, such as [Y].
The only way that either of the girls could re-establish their relationship with their mother is to live with her for a while. However, if an order were made for [X] to see her mother, she would not comply. If she were ordered to live with her mother, she would run away. If [Y] were to live with her mother, [X] would try to recruit her back.
The girls’ relationship with their mother deteriorated when the Father started living with Ms L. Professor Q said it was psychologically damaging for children to live in a house where the Mother was described as “bad”.

Orders Sought

The Wife originally sought parenting orders that:
a)she should have the sole parental responsibility for all three children;
b)the children should live with her;
c)the children should spend time or communicate with their father subject to the evidence of the Court Expert;
d)she should keep the Father informed of:
i)any medical problems or illnesses affecting the children;
ii)any medications prescribed for them;
iii)any specialist medical appointments for the children;
iv)any significant social, school or religious functions which the children are to attend;
v)details of any school attended by the children;
vi)details of any sporting bodies in which the children are involved;
vii)the children’s residential address; and
viii)any other important matter relevant to the welfare of the children.
e)She should provide any authorities necessary so that the Husband can obtain necessary health and medical information about the children;
f)She should provide any authorities necessary to the Principal of the children’s schools so that the Husband may obtain copies of school reports and other relevant documents; and
g)The Husband is to refrain from any critical or derogatory remarks about the Wife or members of the Wife’s family in the presence or hearing of the children.
The Husband seeks orders that all of the children should live with him.
The Independent Children’s Lawyer seeks orders that:
a)[X] should live with her father.
b)[Y] and [Z] should live with their mother.
c)The Wife should have sole parental responsibility for [Y] and [Z].
d)The Husband should have sole parental responsibility for [X], subject to certain arrangements set out.
e)The Wife should:
i)provide the Husband with copies of all school reports relating to [Y] and [Z];
ii)provide to the Husband copies of notices regarding significant school events;
iii)advise the Husband of any significant issue requiring either [Y] or [Z] to attend a specialist or be hospitalised;
iv)consult the Husband in relation to any proposed changes in the children’s schools;
v)consult the Husband as to any other significant matter relating to [Y] and [Z]’s long term care, welfare and development and make a genuine effort to reach agreement; and
vi)where consultation has not resulted in agreement, the Wife is authorised to make final decisions.
f)In the event that, whilst with their father, [Y] or [Z] require emergency medical treatment and their mother cannot be contacted, then the Husband shall be authorised to make all necessary decisions regarding treatment.
g)The Husband should:
i)provide to the Wife copies of all school reports relating to [X];
ii)provide to the Wife copies of notices regarding significant school events;
iii)advise the Wife of any significant issue requiring [X] to attend a specialist or be hospitalised;
iv)consult the Wife in relation to any proposed changes in [X]’s school;
v)consult the Wife as to any other significant matter relating to [X]’s long term care, welfare and development and make a genuine effort to reach agreement; and
vi)where consultation has not resulted in agreement, the Husband is authorised to make final decisions.
h)In the event that, whilst with her mother, [X] requires emergency medical treatment and her father cannot be contacted, then the Wife is authorised to make all necessary decisions regarding treatment.
i)[Y] and [Z] will not spend time with or communicate with their father or [X] or Ms L for a period of six weeks.
j)After that time, [Y] and [Z] should commence spending time with their father and/or with [X] in therapeutic counselling sessions with Ms M at such times and for such duration as recommended by Ms M.
k)Thereafter, [Y] and [Z] should spend time with their father as recommended by Ms M over a graduated period of time.
l)[X] should spend time with her mother in accordance with her express wishes and the husband is to encourage [X] to spend time with the Wife.
m)The Wife is to do all things necessary to engage [Y] and [Z] in therapeutic counselling.
n)The Husband is to do all things necessary to facilitate [X] attending on Ms M to receive therapeutic counselling.
o)Both parents are to contribute equally to the cost of the children attending counselling with Ms M.
p)Both parents are restrained from taking the children to any other counsellor, psychiatrist or psychologist without the written consent of the other parent or court order.
q)The Husband attend therapeutic counselling to understand the importance of the children having a positive relationship with their mother.
r)The Wife is to continue to engage in therapeutic counselling to assist her with developing child centred strategies.
s)The Independent Children’s Lawyer is to be at liberty to provide a copy of the report of Dr Q to Ms M.
t)The Husband is to do all things necessary to promote and support the children having a positive relationship with their mother.
u)Until [Y] and [Z] commence spending time with their father then the Wife is at liberty to monitor and regulate [Y] and [Z]’s communications.
v)The parties are restrained from denigrating the other or the other’s family in the presence or hearing of [Y] and [Z].
w)The Wife is restrained from causing or permitting the children from coming into contact with Mr H for a period of 6 weeks, or being left in Mr H’s sole care, or being in the sole care of her brother Mr N, or leaving the children unsupervised.
The Independent Children’s Lawyer sought other ancillary orders, including extending her appointment for a further 6 months, giving her liberty to relist the matter on 7 days notice, requiring each party to pay half of the Independent Children’s Lawyer’s fees and requiring each party to pay the sum of $1,738.00, being their half share of the outstanding fees of Associate Professor Q.

Submissions

Counsel for the Independent Children’s Lawyer submitted that the draft list of issues tendered to the Court on 17^th June 2010 reflected what the Independent Children’s Lawyer saw as the issues in the case concerning the children. Those issues are:
a)The attitude of the parties towards each other, as parents and generally.
b)The views of the children and the reasons for those views.
c)The weight to be given to the children’s views.
d)Whether either or both of the parents have involved the children in the proceedings and/or tried to influence their views.
e)Whether either or both of the parents have denigrated the other parent in the presence or hearing of the children.
f)Allegations by the Father that the Mother is emotionally abusing the children.
g)Whether the maternal uncle Mr N poses any threat to the children.
h)Whether Mr H poses any threat to the children.
i)The Father’s concerns about the maternal grandparents.
j)The Mother’s concerns about the Father’s partner Ms L.
k)Allegations by the Father that the mother leaves or has left the children unsupervised on a number of occasions.
l)Whether separation of the siblings is in their best interests.
m)The compliance or lack of compliance by the parties or either of them with Court Orders.
n)Any other issues raised by Professor Q.
o)The overall parental capacity of each party having regard to the issues, including those outlined above.
Gloomily, Mr Maurice submitted that the Court, in considering the children’s best interests, must look for “the least worst alternative”. He told the Court that Professor Q believed that the list of issues tendered broadly reflected the issues as she saw them. The orders proposed by the Independent Children’s Lawyer had been shown both to

Professor Q and to Ms M.
Broadly, the Independent Children’s Lawyer submitted that it would be in the best interests of the younger child, [Y], to live with her mother and brother. Whilst there may be difficulties in implementation of that order, it was an experiment worth undertaking.
The child [Z] was in an impossible situation. As Professor Q opined, he would be likely to suffer from depression from being in the middle of the conflict between his parents.
It was submitted that there was little hope of persuading [X] to live or spend time with her mother and not a lot more can be done in that regard. However, [Y] still had some residual attachment towards her mother.
Professor Q suggested a period when the younger children did not see their father.
Neither parent, he submitted, could claim any credit for their commitment to the children seeing the other parent.
The submission by the Independent Children’s Lawyer was that [X] should live with her father. The two younger children should live with their mother and there should be a six week period for re-establishing the children’s relationship with their mother (and with each other).
Clearly, Mr Maurice submitted, equal time between the parents or substantial and significant time with the Father could not be justified.
Mr Maurice submitted that Ms M was an impressive witness. Her evidence says a lot for her professionalism and her commitment.
However, it was submitted that Mr H did not present as a particularly good role model for the children. The Wife’s relationship with him was a shortcoming on her behalf which the Husband exploited. The Husband had undermined the children’s relationship with their mother. He exploited the Wife’s shortcomings, including leaving the children unsupervised. He has taken no proactive action in supporting the children’s relationship with their mother.
In the case of [X], the stage has been reached where forcing her to live with her mother would be counterproductive, as Professor Q stated in her report. Professor Q took the view that the younger girl, [Y], was torn between her parents.
The Independent Children’s Lawyer referred the Court to the decisions of Pierce &Pierce[16] at [232]-[234], and Calvert & Calvert[17], both of which dealt with the concept of parental alienation.
[16] [2010] FMCAfam 1137
[17] [2008] FMCAfam 101
Counsel for the Wife, Ms Hausman, submitted that her client supported the Independent Children’s Lawyer’s Minutes of Proposed Orders except for the proposed Order 15(d), which concerned the children [Y] and [Z] spending alternate weekends with their father after a period of time. Her view was that the children should return to her home on Sunday evenings rather than going directly to school on Monday mornings because of difficulties about such things as the children’s school uniforms.
Ms Hausman told the Court that her client felt that she must apply for [X] to live with her because if she did not the child would be led to believe by her father that she had abandoned her claim for the child to live with her, even though it may be “a forlorn hope”.
It was submitted on behalf of the Wife that the evidence of Professor Q would be of significant assistance to the Court in deciding the living arrangements for the three children. Counsel for the Wife conceded that it appeared clear on the evidence that there was little point in making an order that [X] should live with her mother. [X] is seen to be at the extreme end of the scale of being alienated from her mother.
It was further submitted that the long term consequences of [X] remaining to live with her father and having no relationship with her mother may not necessarily have any drastic effect on the child. Professor Q expressed the view that if [X] were to maintain her present psychological set she may progress in life in a reasonably comfortable position. Any order providing for the child to live with her mother would be futile, as she would most probably run away, as she has in the past.
Ms Hausman submitted that [Y] was in a different situation. When she was counselled by Ms M, Ms M formed the view that the chills showed some ambivalence about her mother. Ms M felt that she had made some good ground with [Y] and recommended against discontinuing the therapy, but the Father did so.
Professor Q stated that if [Y] were to end up with no relationship at all with her mother she would be very conflicted and, as she grew older, may well have psychological problems. Professor Q agreed to the suggestion from counsel for the Independent Children’s Lawyer that [Y] wanted to be free to love her mother but felt that she was unable to do so, because of the pressure which she was under.
It was submitted that Professor Q had expressed very real concerns for [Z]. He was depressed and becoming more so. He was struggling with divided loyalties. He was not anywhere near being alienated from his mother and so was intensely conflicted. As Professor Q said, he was “in the middle of a war zone”. Professor Q believed that the Husband had encouraged the process of alienation in relation to [Z] and had capitalised on the Wife’s poor handling of certain situations. There are seven people in the Husband’s household all trying to “recruit” [Z] to their side.
Ms Hausman submitted on behalf of the Wife that there would be benefits for [Z] if he and [Y] were to live with their mother, because he is presently very much alone. This would be a drastic change in the arrangements for [Y], but that should be contrasted with the present arrangement, where [Y] lives with her sister and does not see her mother at all.
On the other hand, if [Y] and [Z] lived with their father, the potential long term effects would be of concern.
It was submitted on behalf of the Mother that, as Professor Q suggests, there should be a “block out” period from their father and from [X] to enable [Z] and [Y] to adjust to the changed arrangement. Contact should then begin with a family therapist to facilitate the reintroduction; otherwise the children’s father would immediately resume the process of recruitment.
Ms M was seen as an appropriate person to conduct the family therapy, as Professor Q took the view that her psychological understanding of the children’s position was quite competent and she had worked effectively with them.
It was further submitted that joint parental responsibility would not work in the context of that situation.
Counsel for the Wife submitted that there were issues in respect of the Husband’s credit and that he had not appeared frank or credible in giving his evidence. For example, she submitted that:
a)The Husband was evasive in his answers to cross examination;
b)His evidence on a number of occasions went to Mr H head as being a regular member of the Wife’s household, an allegation he was unable to corroborate;
c)Whilst he claimed to have been told by more than one person that they had seen Mr H coming to his home and picking up [Z], which the Wife denied, he did not produce affidavit evidence from those people;
d)
The Husband raised the issue of sexual abuse of [Z] very late in the case, saying that Ms M had told him categorically that she believed there was a case of sexual abuse happening with [Z],

Ms M specifically denied the statements attributed to her by the Husband;
e)Professor Q gave evidence that the raising of sexual assault allegations is typical in cases of severe alienation;
f)
Ms M gave evidence that the Husband became angry and raised his voice at her when she refused to interview [Z] on

10^th December 2010, which supports the Wife’s contention that the Husband flew into a temper during the relationship;
g)The Husband did not attend Court on 3^rd November 2010, claiming to have been required to give evidence in a criminal trial in Queensland, which was contradicted by the prosecutor involved, who stated that the Husband’s evidence was completed in time for him to return to Sydney for the further hearing of this matter;
h)The Husband breached Court orders made on 19^th August 2009 when he withdrew the sum of $65,000.00 from the parties’ joint account; and
i)The Husband delayed complying with orders made on 18^th June 2010 requiring him to take the girls to see Ms M, saying that he had not received a “proper explanation” of the Orders.
Mr Alexander of counsel, who appeared for the Husband, conceded in submissions that there had been unsatisfactory behaviour by both the Husband and the Wife as well as some unsatisfactory evidence.
He referred to the fact that the Wife had read her daughter [X]’s diary and looked at text messages on her daughter’s mobile telephone. He submitted that there were multiple examples of her undermining the children’s trust in her.
It was further submitted that the Court could not come to the conclusion that the Wife was child-focused; rather, she is self-absorbed and sees the world through a prism that is critical of her Husband. The Wife will seek to take advantage of any circumstance to alienate [Z] from his father.

The Court should have regard to the conduct of the Wife over the previous weeks and conclude that the Court could not have confidence that the experiment of placing [Y] and [Z] together with their mother would not alienate them from their father.
Mr Alexander drew a comparison between the new partners that each of the parties had made. On the one hand, there was a commonsense aspect about Ms L’s evidence. On the other, the Wife had said that she had ceased her relationship with Mr H head but she had resumed that relationship.
Further, whilst the Wife has said that she had had nothing bad to say to the children about their father, she had frequently said to the children words to the effect of “I know your father has been telling you bad stuff about me”. This, Mr Alexander submitted, not only showed that she lacked insight but goes to the fact that she is quite self-absorbed.
Mr Alexander frankly conceded that the parents were “as bad as each other”. Against this, the influence of Ms L was positive. Her parenting of her sister’s children was beyond reproach.
The Husband’s proposal is that all three children should live with him. This is in contrast to the proposal espoused by the Independent Children’s Lawyer and, largely, by the Wife, that the siblings would be separated. In support of this proposition, the views of the two older children are significant. There are multiple reasons for their disenchantment with their mother. It was not an option, on the evidence before the Court, to place [X] back with her mother.
In reply, Ms Hausman submitted that her client opposed an order that she should pay half the costs of the Independent Children’s Lawyer.
Ms Hausman conceded that, on the Independent Children’s Lawyer’s proposal, the siblings would be split, but there was no suggestion that they would not be together on weekends and during school holidays once those orders came into force.

The Relevant Law in Relation to Parenting Matters

Section 60CA of the Family Law Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. The Court determines what is in children’s best interests by considering the matters set out in subsections (2) and (3) of Section 60CC of the Act.
The Court must also consider the extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent (see subsection 60CC(4)). Where the parents have separated, as they have in this case, the Court, in applying subsection (4), is required by subsection (4A) to have regard to events that have happened and circumstances that have existed since the separation occurred.
I have considered all of those matters.
On the question of parental responsibility, the Court is required by subsection 61DA(1) of the Act when making a parenting order, to apply a presumption that it is children’s best interests for their parents to have equal shared parental responsibility for them.
This presumption does not apply in cases of abuse or family violence (s.61DA(3)), and it may be rebutted by evidence that satisfies the Court that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them (see s.61DA(4)).
Where a Court makes a parenting order providing that a child’s parents are to have equal shared parental responsibility, s.65DAA(1) requires the Court to consider the reasonable practicability of the child spending equal time with each parent and whether it would be in the child’s best interests to do so.
Where the Court does not make an order for the child to spend equal time with each parent, the Court is required by s.65DAA(2) to consider the reasonable practicability of the child spending substantial and significant time with each parent and whether it would be in the child’s best interests to do so.
“Substantial and significant time” is defined by s.65DAA(3) and “reasonable practicality” is defined by s.65DAA(5) of the Act.
I have considered all of those matters, also.

Property Proceedings

There are property proceedings between the parties, also, but they have been largely overshadowed by the immensity of the parenting matters between them. There is a relatively modest asset pool consisting largely of the former matrimonial home, encumbered by a mortgage, some motor vehicles and a modest superannuation entitlement of each party.
The preferred approach to be taken by a court to determine matters involving alteration of the interests of property under s.79 of the Family Law Act has been authoritatively set out by the Full Court of the Family Court in the decision of In the Marriage of Hickey:[18]
·    First, the Court makes findings as to the identity and values of the parties’ property, liabilities and financial resources at the date of the hearing;
·     Second, parties’ contributions are identified and assessed within the meani8ng of ss.79(4)(a), (b) and (c) and entitlements are expressed as a percentage of the net value of the parties’ property;
·    Third, other factors as listed in ss.79(4)(d), (e) [which refers to the matters in s.75(2) so far as they are relevant], (f) and (g) are assessed and any adjustment is made to the contribution based entitlements of the parties: and
·    Fourth, the Court should consider the effects of the findings and determination and resolve what order is just and equitable in all the circumstances of the case.[19]
[18] [2003] FamCA 395; (2003) 30 Fam LR 355
[19] Per Nicholson CJ, Ellis and O’Ryan JJ at [39]
The Schedule of Assets filed in Court on 17th February 2011 shows an asset pool amounting to $268,147.23, made up as follows:
Former matrimonial home                E$380,000.00
Less: NAB mortgage 1   ($116,961.52)
Less: NAB mortgage 2   ($159,968.52)
Less:     Real Estate commission 2.7%    ($10,260.00)
Less:     Legal fees   ($1,200.00)
Estimated proceeds of sale  $91,610.01
Household furnishings
(a)     Husband  $750.00
(b)     Wife  $2,275.00
Motor Vehicles
(a)Husband
(i)     1998 Mitsubishi  $1,400.00
(ii)    Nissan Navara  $800.00
(b)Wife
(i)     2009 Kia Rio  $9,800.00
(ii)    Ford Festiva  $1,200.00
Shares
(a)     Husband – IAG  $2,297.75
(b)     Wife – proceeds of sale of Wesfarmers                 $2,980.00
- Ansell   $28,942.00
- IAG  4,308.00
“Add Backs”
Husband – Withdrawal from mortgage 15.4.2010                $65,000.00
-      Superannuation withdrawals  $15,481.00

Total

$229,168.76

Less Liabilities
Wife – Personal loan from father for vehicle     $10,000.00
Nett (non superannuation) Assets   $219,168.76
Superannuation
Wife – [F]          $11,603.51
- [H]              $ 2,540.32

Husband – [P] $34,834.64
Total Superannuation $ 48,978.47

Total Assets $268,147.23

The Wife submits that the financial contributions that she made directly or indirectly (s.79(4)(a) arise from her employment during the marriage as a [occupations omitted].
There have been gifts from her parents of sums of money or in kind. The Wife deposed that her parents gave to the parties a sum of $17,500.00 which was used as a deposit on the purchase of the parties’ first home at Property O.
The Wife’s parents also purchased for the couple an electric stove at a cost of $1,000.00 and a new refrigerator at a cost of $1,000.00. The Wife also deposed that her parents later purchased other items for the parties’ home, including a new toilet and hand basin, a new bath, and a shower screen. Before the parties’ first child [X] was born, the Wife’s parents purchased a number of nursery items, including a cot, a changing table, an infant car capsule, bedding, a tallboy, a pram and a stroller.
The Wife also deposed that during the marriage her parents regularly provided financial support for the parties by way of cash, food and clothing, which she estimates as being to the value of about $150.00 per week.
The Wife’s parents also lent money to the parties from time to time, which the Wife estimated as amounting to about $50,000.00.
The Wife claims that she made contributions other than financial contributions directly and indirectly (s.79(4)(b).
These contributions came from the Wife’s side of the family, who provided significant amounts of labour enabling the parties to undertake significant renovations to the home at Property O. Again, after the children were born, the Wife’s mother looked after the children when they were little, so that the Wife was able to return to work [omitted].
The Wife also claims contributions to the welfare of the family including contributions in the capacity of homemaker and parent (subsection 79(4)(c)). The Husband worked as a [omitted] which meant that he was often required to work on weekends, often leaving home at 7:30am in the morning and not returning until 10:00pm at night. During this time the Wife had the sole care of the children.
Later, from 19^th May 1997 until March 2008 the Wife had the sole responsibility for the care of the children. From then on, the children lived with their parents on a week-about basis.
The Husband’s counsel submitted that a small adjustment on contributions should be made in his favour, but only to the extent of about 3%. He was in employment for most, but not all, of the marriage.
I am not satisfied that the evidence shows that an adjustment should be made in favour of the Husband on contributions. I consider that the contributions should be assessed equally.
The Court must consider the factors as listed in subsections 79(4)(d), (e) and (f). This includes a consideration of the factors under subsection 75(2) so far as they are relevant.
The Husband and Wife are both aged 45 years. They are both in good health.
The Wife works as [occupations omitted]. The Husband is a qualified [omitted]. He has also worked as a [omitted] and has recently commenced work again in that field.
The parties each have a responsibility to support the three children of the marriage.
The Wife receives a parenting allowance of $246.00 for [Z]. The Husband receives an allowance of $411.00 for the two girls.
The Wife is not entitled to receive any superannuation benefit. The Husband has drawn upon superannuation benefits of $18,481.70.
The child [Z] has been living with the Wife and the two girls [X] and [Y] and [X] have been living with the Husband. Neither party has a duty to maintain another person.
The Wife states that her standard of living has deteriorated. The Husband’s standard of living does not appear to have deteriorated. He is living with Ms L, who gives her occupation as a [omitted].
The parties have a mortgage liability in respect of the former matrimonial home, which will have to be sold. They have both incurred substantial legal expenses.
Both parties have an earning capacity. They have [omitted] qualifications. The earning capacity of the wife is affected by her need to make child-care arrangements.
Each party proposes that the children should live with them.
The Wife is not cohabiting with any other person. The Husband is living with Ms L.
Neither party pays child support but both support the child or children living with them.
The Husband has withdrawn money from the parties’ mortgage, some of which he used to repay a loan to the Wife’s parents. He withdrew an amount of $65,000.00 on 15^th April 2010, which has been added back into the asset pool.
There are no binding financial agreements.
In my view, the s.75(2) factors do not lead to an adjustment either way.
Bearing in mind the relatively modest asset pool and the effect of the parenting orders that I propose to make, I am satisfied that the most just and equitable order to be made is to order a sale of the former matrimonial home. The parties should retain the assets they currently hold.
The proceeds of sale of the former matrimonial home should be used to pay out the parties’ liabilities. I propose to order that the costs of the Independent Children’s Lawyer and the fees owing to Professor Q, the single expert, should be paid out of the parties’ shares of the proceeds of sale.

Parenting Orders

The best interests of the children are the paramount consideration. All three of the children have suffered as a result of their parents’ acrimonious break-up and there is no easy answer to the question of “What is in the best interests of the children?”
The evidence of Professor Q has been very useful and her expertise is unchallenged, in my view. I also found Ms M, the psychologist, to be a credible witness. Where her evidence differed from that of the husband, I preferred that of Ms M, who appeared to be an independent professional concerned only with providing psychological assistance to the children. Like Professor Q, Ms M was independent and not aligned with either the husband or the wife.
The Wife’s involvement with Mr H appears to have been a questionable decision. It appears that her relationship with him was a significant factor in the estrangement of the girls [X] and [Y] from her. Mr H was not an impressive witness. He said in his evidence that once the Wife “got her kids back” then the relationship between him and her would finish. I am very doubtful of that statement.
The Husband’s new partner, Ms L, appeared to be a stable person who deserves credit for taking on the care of her sister’s three children. Obviously, she is aligned with the Husband, but she appears to have positive qualities and the Court can have confidence that the children would be well looked after whilst the children are staying in the house with her and their father.
Whilst some criticism can be made of the parenting styles of both parents, I am satisfied that it is to the benefit of all three children to have a meaningful relationship with each of their parents.
It is clear, however, that the older of the two girls, [X], strongly rejects the notion that there is any benefit to be had from spending any time with her mother, let alone living with her. The evidence of Professor Q supports the view that [X] is alienated from her mother and is likely to remain so. She even rejects the idea of referring to her mother by that description, calling her “[nickname omitted]”. [Y], the younger girl, has followed suit.[20] The Husband’s evidence did not give the Court any confidence that he was encouraging the children to desist from this practice and call her “Mum” or “Mother”.
[20] Single Expert Report page 24
I have read the decisions of Altobelli FM in Calvert & Calvert[21] and Coker FM in Pierce & Pierce[22], which have been brought to my attention by counsel for the Independent Children’s Lawyer. Both decisions deal with the question of alienation of children from a parent.
[21] [2008] FMCAfam 101
[22] [2010] FMCAfam 1137
In Calvert & Calvert, Altobelli FM gave a scholarly and most useful review of the concept of the alienated child, stating at [24] that:
…the dilemma posed by a child’s strident rejection of one parent, generally accompanied by strong resistance or refusal to visit or have anything to do with that parent after separation, was first recognised by Wallerstein and Kelly in 1980. They described it as an “unholy alliance” between a narcissistically enraged parent and vulnerable older child or adolescent who together waged battle in efforts to hurt and punish the other parent.[23]
[23] [2008] FMCA 101 at [24]
This description appears to apply strongly to [X] and, to a lesser extent, [Y], from the Single Expert’s Report and Professor Q’s evidence. Professor Q described the three children, [Z], [Y] and [X] as being on a continuum, with [X] at the far end.
As Altobelli FM put it at [27]:
At the far end of the continuum are children who have extreme alignments with one parent after separation and divorce and who express their rejection of the other parent stridently, without apparent ambivalence or guilt. They strongly resist or completely refuse contact with a parent who is undeserving of rejection.[24]
[24] [2008] FMCAfam 101 at [27]
[X] and [Y] referred to their mother as “evil” and a “witch” when speaking to Professor Q. Professor Q gained the impression that the girls’ expressed wish to cease all contact with their mother and with their extended maternal family may not have been reached freely, but may have been “considerably influenced in this by their father.”[25]
[25] Single Expert Report page 57
It is clear, though, that [X], at least, will not respond positively to any order requiring her to live with her mother or prescribing a regime for her to spend time with her. Professor Q expressed a view that [X] would be likely to run away, as she did before.
[Y], however, may not be quite in the same position, according to Professor Q. [Z] certainly has a bond with his mother but also wishes to spend time with his father.
Whilst there would be a benefit to all three children in having a meaningful relationship with their mother, it is clear that [X] does not wish to avail herself of it.
There is a benefit to the children in having a meaningful relationship with their father, but that should not be at the expense of their relationship with their mother.
There is a need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence. The Wife has alleged that the husband was, at times, violent in the past. There is no evidence of violence by either parent now.
The Husband alleges that [Z] may have been the subject of sexual abuse. The evidence is not strong enough to support that view, although the report of the child drawing male figures with penises is unusual.
The Husband has a dim view of Mr H and does not believe that he should be in contact with the children. There does not appear to be anything to be gained by the children coming into contact with him, and if the Mother wishes to persist with this relationship she should do so in the absence of the children.
The wishes of the children are available from the Single Expert Report. The views of [Y] and [X] are very negative, but it is possible that [Y] may respond if placed with her mother and quarantined from the effects of being in her father’s household, as suggested by the Independent Children’s Lawyer. [X] is likely to remain obdurate in her rejection of her mother.
[Z] has made it clear that he wants to maintain his connection with both parents and wants to have a continuous relationship with his sisters.[26]
[26] Single Expert Report 57
All three children have a strong relationship with their father. [X] is alienated from her mother. [Y] appears to be alienated but may be reconciled with her. [Z] wants a relationship with both parents.
The Husband said in evidence that at the time the two girls did not want to have any time with their mother but he had told them that they would have to. He said that he thought that their not having any contact with their mother was “disastrous” and he feared for their emotional and psychological welfare if they did not have reconciliation with her. He conceded that she loved both of the girls.
Nevertheless, I am not satisfied that the Husband is taking any active steps to promote the girls’ relationship with their mother, and I am more inclined to agree with the Wife’s view that the Husband has been undermining her relationship with them. If all three children live with their father, there is, in my view, little likelihood that they will maintain a relationship with their mother.
Accepting that [X] will not live or spend time with her mother at this time, if [Y] and [Z] were to live with her, there is some chance that she will take steps to facilitate their relationship with their father, but only to the extent required by any Court Order. The likelihood of any proactive step by the wife to facilitate the children’s relationship with their father is low.
There will be no order to change [X]’s circumstances from those that presently apply. If an Order is made that [Y] and [Z] live with their mother, the effect on [Y] will be significant at first, as she will be separated from her sister. However, if the proposal of the Independent Children’s Lawyer is followed, along the lines suggested by

Professor Q, there is a chance that [Y] will regain her relationship with her mother, which will be to her benefit.

[Z] will be living with one of his sisters, which will be of benefit to him.
There is no practical difficulty or expense involved in the children spending time with one or other of their parents, as they all live in the Wollongong area. The difficulty arises from the lack of communication between the parents.
The parents have the ability to provide for the children’s physical and educational needs. The Wife has at times failed to consider the children’s emotional needs, by doing such things as engaging in the relationship with Mr H, whom the girls, at least clearly do not like. The Wife has gone away on two holidays with Mr H, to Thailand and to Bali, without telling the girls. This appears to have been most unwise, as the girls found out and their trust in their mother suffered considerably. The girls have complained about being left alone by their mother, which they have clearly resented.
The Wife’s failure to respect the children’s privacy, by reading [X]’s diary and reading the text messages on her telephone, has not assisted the relationship. She said in her evidence that she was reconsidering her parenting style, but it may be too late for her relationship with [X].
The Husband was described by Professor Q as “narcissistic” and he appears to have actively undermined his daughters’ relationship with their mother. This does not sit well with his expressed fears for their emotional and psychological state and strongly suggests that he will put his own emotional needs before theirs.
The children are two girls aged twelve years ([X], who was born [in] 1998), and just on eleven years ([Y], who was born [in] 2000), and a boy aged eight years ([Z], who was born [in] 2003). They have a Serbian background on their mother’s side.
The attitudes to the responsibilities of parenthood demonstrated by each of the parents has been severely criticised during the litigation between them. The Mother has been criticised for not being child-focused and the Father has appeared to put his need to be seen as always being right before the children’s needs to have a positive relationship with their mother.
There have been allegations of violence by the Husband towards the Wife. There are no current apprehended violence orders in force between them.
It would be preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the children. However, the parties have been enmeshed in litigation, at great expense to themselves, and it is hard to have confidence that there will be no further proceedings between them in the future.
The proposal by the Independent Children’s Lawyer that the two younger children live with their mother and spend time with their father after a “block-out” period seems to offer the best chance of a solution that is in the children’s best interests. [X] will remain living with her father. The involvement of Ms M, who was an impressive witness, will be of benefit.
Whilst this will lead to a separation between the siblings, that will be together during school holidays and on alternate weekends. This should lead to a situation where the younger two children will be able to have a meaningful relationship with both of their parents.
If [X] chooses not to have a relationship with her mother, she cannot be forced to, but she may see that [Y] gains from having a relationship with both parents. If she takes the step to have some contact with her mother, that contact will need to be handled with sensitivity and maturity.

I certify that the preceding two hundred and twelve (212) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date: 13 July 2011