PALLAS & PALLAS

[2017] FamCA 867

FAMILY COURT OF AUSTRALIA

PALLAS & PALLAS [2017] FamCA 867

FAMILY LAW – CHILDREN – SPEND TIME WITH – Where the three children live with the mother – Where the father is estranged from the two eldest children and sees the youngest child for a few minutes each fortnight – Where the father seeks to spend more substantial and overnight time with the child – Where neither of the parents’ proposals are appropriate – Orders made for the child to spend time with the father for 30 minutes, to progress next year to one hour, each fortnight – Orders made for the child to have regular telephone communication with the father.

FAMILY LAW – CHILDREN – RELOCATION – Where the mother seeks the opportunity to relocate overseas with the children in 2021 – Where the expert gave evidence that it would be in the best interests of the children for the father to allow them to relocate – Orders made permitting the mother to relocate not prior to January 2021 – Orders made restraining the father from placing the children on the Airport Watch List.

APPLICANT: Ms Pallas

RESPONDENT: Mr Pallas

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER: WOC 856 of 2012

DATE DELIVERED: 2 November 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 17, 18 and 19 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell SC

SOLICITOR FOR THE APPLICANT: Parker Family Law

COUNSEL FOR THE RESPONDENT: Mr Dura

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Cantrall

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Rebecca Bailey & Associates

Orders

IT IS ORDERED

1. That the mother shall keep the father informed in writing via “Our Family Wizard” of any decision she makes in relation to the children which concerns their long term care, welfare and development, the information to be provided at least 21 days prior to such decision being made.

2. That until 1 January 2021 the mother shall not be permitted to relocate with the children outside of Australia without the father’s express written consent.

3. The child, D born … 2008 (“D”), shall spend time and communicate with the father, unless otherwise agreed between the parties in writing, as follows:

   (a)Commencing Friday 10 November 2017 until June 2018, each alternate Friday during school terms, for 30 minutes from the conclusion of school, with the father to collect D from school and return the child to the front gate of the mother’s residence at the conclusion of time, and the mother shall be restrained from being present at the school at changeover;

   (b)From June 2018, the time in Order 3(a) above shall be increased to one hour.

   (c)By telephone from 5.30 pm each Tuesday and Thursday, on the child’s birthday, on Father’s Day and any other time which D expresses a wish to speak to the father, and the mother shall use her best endeavours to facilitate D’s participation in such telephone communication. For the purpose of telephone communication the mother shall ensure that D has a mobile phone with Skype capability which the father can call and that the phone is charged and switched on at 5.00 pm on each Tuesday and Thursday, and any other day that D is to have telephone communication with the father pursuant to this Order, and the mother shall ensure that the father is provided with the number of D’s phone and that D is provided with the number of the father’s phone.

   (d)In the event D wishes to telephone his father at any time, the mother is restrained from interfering with or preventing D from calling and from requiring D to ask for her permission to make the call.

   (e) In substitution of Order 3(c) in the event that the child is travelling overseas, by Skype or telephone at 10.00 am local time each Tuesday and Thursday or any other time which D expresses a wish to speak to the father.

4. In the event that the father is aware that he will not be spending time or communicating with D in accordance with Order 3, he shall inform the mother immediately upon becoming aware.

5. The mother is restrained from being in the vicinity of D’s school during any occasion when D is spending time with the father pursuant to these Orders.

6. That in the event that the mother decides to relocate the children’s residence outside of Australia after 1 January 2021 that she be permitted to do so and in those circumstances, Order 3(a) shall be suspended for the period that the child D lives overseas.

7. The mother is permitted to take the children on overseas holidays during school holiday periods (or during the school term only for school related activities subject to the written approval of the school principal) provided that she shall provide to the father, using Our Family Wizard if possible and otherwise by mailing copies of the documents to him, the following documents and information at least 30 days prior to travelling with the children:

   (a)         Copy of the return airline tickets for each of the children; and

   (b) Details of the planned itinerary including accommodation and telephone contact phone number whilst overseas (if available).

8. That in addition to the above Order the mother is at liberty to travel with the children to Country O in Europe in the event of a family medical emergency including the serious illness or death of a grandparent or close relative and upon the provision by the mother to the father of as much advance notice as is practical together with a letter from the treating Doctor detailing the medical emergency, for a period of up to twenty one (21) days or as otherwise agreed in writing via Our Family Wizard.

9. That the mother is restrained from changing the primary school enrolment of the child, D, from I Town Primary School until he completes Year 6.

10.That until 1 January 2021, the children shall attend NN School and I Town Primary School until such time as D commences secondary school at NN School.

11.That the father is restrained from placing the names of any of the children on the Airport Watch List.

12.That each of the parties shall pay the costs of the Independent Children’s Lawyer in the sum of $7,322.00 each within three (3) months from these Orders.

IT IS ORDERED BY CONSENT:

13.That all previous parenting Orders made in relation to the children, B (born … 2002) (“B”), C (born … 2004) (“C”) and D (born … 2008) (“D”) (together “the children”) be discharged save for Order 6 and Notation A of the Orders made on 14 April 2016.

14.That the Mother have sole parental responsibility for the children subject to the following Orders.

15.That the parties register with Our Family Wizard and use that program for the purpose of recording significant child events and communicating any significant medical and educational issue between them and are restrained from showing the children any communication between the parents unless otherwise agreed in writing. 

16.The children shall live with the Mother.

17.That the children B and C spend time and communicate with the Father at all such times as may be agreed and failing agreement as follows:

(a)At all such times as may be requested by the children with the Mother to facilitate any such requests; and

(b)In writing by posting letters, cards and gifts as the Father may consider appropriate but not more frequently than once per calendar month, by forwarding such items to the Mother’s residential address.

18.To facilitate the above Orders:

(a)The Father is to keep the Mother informed of his current email, skype and telephone details and postal and residential address and any changes within seven (7) days;

(b)The Mother is to keep the Father informed of her current email, skype and telephone details and postal and residential address and any changes within seven (7) days;

(c)The Mother is to keep the children informed of the Father’s email, skype and telephone contact details and postal and residential address;

(d)The Mother is to provide any letters, cards or presents received from the Father to the children and use her best endeavours to ensure that the children read the letters and cards and open any presents.

(e)The Mother is to use her best endeavours to encourage the children to respond to any communication received from the Father and communicate with their Father on special occasions including Father’s Day, the Father’s birthday and Christmas Days.

19.The parties are hereby restrained from:

(a)Home schooling the children;

(b)Discussing these proceedings with or in the presence of the children or from showing to the children any document connected with these proceedings;

(c)Using any of the children to deliver a message to the other parent;

(d)Referring to the other parent or members of their family in a derogatory way in the presence or within the hearing of any of the children.

20.That both parents do all such things as are necessary to ensure that both parents receive from the children’s schools, all reports (including request for education/social progress reports), photographs (at the parents’ costs) and newsletters that are sent in the ordinary course to the parents.

21.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pallas & Pallas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 856 of 2012

Ms Pallas

Applicant

And

Mr Pallas

Respondent

REASONS FOR JUDGMENT

1. Ms Pallas (“the mother”) and Mr Pallas (“the father”) are the parents of three children, B born in 2002 (now aged 15 years), C born in 2004 (now aged 13 years) and D born in 2008 (now aged nine years).

2. The mother is of Country O origin. Her parents and extended family live in Country O. During the marriage, the family spent extended periods of time in Country O and the children are fluent in the language of Country O.

3. The father comes from a Country UU family although he is now estranged from his extended family.

4. The parties separated in 2012 and the litigation between the parents commenced in September 2012. With but a few periods of respite, the litigation has continued ever since.

5. There have been five expert reports completed. Ms U, an educational psychologist, prepared a report in July 2013 after the father raised concerns that the older children were being home schooled and appeared to be failing in their education. As a result of Ms U’s recommendations, B and C were enrolled in mainstream government schools.

6. Dr M, a child and family psychiatrist, prepared a report in July 2013. At that time, the mother wanted to relocate with the children to Country O. Dr M described an anxious attachment between the mother and the children although at that time C and D were spending time with the father. He opined that the contamination of the children’s views of the father was probably unintentional but that the father’s rigidity, inflexibility and lack of empathy had contributed to the relationship breakdown. Dr M recommended a regular and consistent regime of time for C and D with the father. He did not support relocation.

7. Ms U reviewed the children in September 2014. She reported that the enrolment of the girls in mainstream school had been a resounding success.

8. Dr M prepared a further report in November 2014. The mother was still seeking orders to permit relocation to Country O. He recommended that the family engage in therapy and that D have overnight contact with the father, building up, over a period of six to nine months, to alternate weekends and half school holidays with the long Christmas holiday being introduced at the end of 2015.

9. Dr PP, a clinical psychologist, prepared a report in December 2016. Her report will be examined in detail later in these reasons.

10. When the matter came to trial in October 2017, B and C were completely estranged from their father and he sought no orders which would involve him having any contact with them although he sought orders which would affect the decisions their mother might be able to make in relation to their day to day care. D had maintained a tenuous relationship with his father which, by the time the matter came to trial, had been reduced to a brief “meet and greet” each alternate Friday morning and telephone calls.

11. It is instructive to look at the progressive deterioration of the relationship between D and the father, commencing with the making of consent orders on 2 December 2014 which provided for D to spend time with his father on alternate weekends and for holiday periods.

12. After the making of those orders, the family attempted to engage in family therapy with Dr LL but that engagement was terminated after the mother expressed criticism of Dr LL, whom she perceived to be aligned with the father. The father continued to engage with Dr LL as his therapist.

13. The alternate weekend arrangement worked until the Easter holidays in 2015. Each parent has a different version of what happened during those holidays. What was clear from the oral evidence of the mother was that she did not tell D that he was to spend the holiday period of about eight days with his father. She did not tell him that she had agreed to this arrangement and, most importantly, she did nothing at all to prepare D for the holiday, only telling him on the morning that he was to be collected that he was going away with his father for an extended period rather than a weekend.

14. D has not attended weekend contact visits with the father since May 2015.

15. In June 2015, the parents agreed to use QQ Group for supervised changeovers for D. The father was able to persuade D to come with him on one occasion, on D’s birthday in 2015.  On another occasion, or perhaps twice, D agreed to go with him to a nearby park. Overall, QQ Group was not successful in implementing weekend contact. In September 2015, QQ Group wrote to the parents withdrawing their services.

16. In August 2015, the mother wrote to the father asking for his consent to enrol B in the NN School (“NN School”). The father was aware, from his own attendances at B’s school and meetings with staff, that B had raised a number of complaints about the behaviour of teachers and other students towards her. The father did not consent to B being enrolled at NN School.

17. In October 2015, the father, on the advice of Dr LL, commenced an arrangement which the parties refer to as “meet and greet” with D. With the mother’s agreement, the father attended at D’s school, initially in the afternoon, on alternate Fridays to speak to D and tell D that he loves him. The time was changed by agreement to 8.45 am on alternate Fridays. The exchanges last for a few minutes, extending on one occasion to five minutes when D was delivered to school by a person other than the mother.

18. In December 2015, the mother filed an Initiating Application in the Federal Circuit Court seeking orders, inter alia, for B to be enrolled at NN School. She also sought an order that D have supervised time with the father for two hours each fortnight supervised by QQ Group.

19. The father consented to B’s enrolment about a week before the start of the 2016 school year. He did not consent to the order for supervised contact. In cross-examination he was unable to say why he did not agree when, at the time, he was seeing D for a “meet and greet” for only a few minutes each fortnight.

20. On 23 March 2016, the mother filed an Amended Initiating Application seeking orders that B and C spend time with the father in accordance with their wishes, that she have sole parental responsibility for all three children and that she be able to travel with them to Country O in school holidays at Christmas and in June/July. She also sought an order that the father have time with D for two hours each week supervised by QQ Group, an extension of her application filed in December. In cross‑examination, the father said that he could not remember why he did not accept that proposition and avail himself of the supervised time which the mother was offering.

21. On 11 April 2016, the father filed a Response to the mother’s application, seeking, inter alia, orders that C and D live with him and have no contact with the mother and B for three months. 

22. On 14 April 2016, the matter was transferred to the Family Court of Australia and an Independent Children’s Lawyer (“ICL”) was appointed for the children.

23. The mother advised the father that she intended to take the children to Country O for a holiday, leaving on 1 July 2016. The father advised that he did not consent because the children would miss one week of school and he would miss one “meet and greet”.

24. In June 2016, the father attended a play at NN School in which B was performing. He sat in the front row of the auditorium and took photographs. The father asserted that he was told by a teacher that B was told he wanted to attend the performance and that she agreed. How that could have occurred is not known. B had not spent time with the father since 2013 and in 2016 was refusing to see him. She was very upset by his attending her performance. Subsequently, the school principal advised the father that he was not permitted to attend at the school.

25. The father filed an Amended Response on 23 June 2016, causing the children to be placed on the Airport Watch List. Although there was correspondence between the father and the mother’s solicitors after that date about the proposed holiday, the father did not serve the application and did not tell the mother that he had filed it.

26. When the mother and the children attempted to leave for the holiday on 1 July 2016, they were apprehended by the police, detained and forced to abandon the holiday. The holiday would have involved a celebration of the mother’s birthday and a visit with the children’s much loved maternal grandparents. The children were devastated. The effect of this incident on their perception of the father was long reaching.

27. On 27 July 2016, the father consented to an order that restrained him from attending B’s activities. Orders were also made on that day removing the children from the Airport Watch List.

28. On 30 November 2016, the mother wrote to the father advising that B had won a competition to represent Australia and participate in a program at a university in the United States of America (“USA”). The mother sought the father’s agreement to travel with all three children to the USA in June 2017. The father did not respond.

29. The father contacted the school and spoke to the principal about the proposed  trip in December 2016.

30. The issue was raised by Dr PP in her report of December 2016. Dr PP noted the mother’s fear that the father would refuse his consent and veto the travel plans.

31. On 6 February 2017, a further letter was written to the father advising that, because he had not responded to her request, the mother had determined that it was not feasible to take C and D to the USA but again asking for the father’s consent to take B. In reply to that letter, the father stated that he agreed that all three children could go. The mother and B travelled to the USA in June 2017. 

THE COMPETING APPLICATIONS

1. At the commencement of the hearing in October 2017, the position of each of the parents had changed.

2. The mother sought orders that she have sole parental responsibility for all three children; that D spend time with the father in accordance with his wishes; that D have telephone contact with his father each alternate Thursday at 5.30 pm; that D attend NN School; that she and the children be permitted to holiday in Country O in the June/July and Christmas school holidays, or at other times if there was a health emergency with her parents. The mother also sought an order that she be permitted to relocate with the children to Country O after B has finished her International Baccalaureate (“IB”) examinations at the end of 2020 and that the father be restrained from making any application to put the children on the Airport Watch List.

3. The father, at the commencement of the hearing, sought no orders in relation to time with B or C. He agreed that the mother should have sole parental responsibility for all three children. In relation to D, he sought orders for an escalating contact regime, commencing with one hour each week after school and, after three months of incremental increases, alternate weekends and eventually half of all short school holidays and for two weeks in the Christmas school holidays.

4. By the commencement of submissions, and after the cross-examination of Dr PP, the father’s position had changed and he sought to have contact with D after school or from 3.00 pm, once each fortnight for an hour, and also on D’s birthday and Fathers’ Day which was partially in accordance with the proposal put forward by the ICL.

5. The issues for determination were:

   ·Restrictions on the mother’s parental responsibility as proposed by the father and the ICL;

   ·What time should D spend with the father;

   ·Telephone contact;

   ·Restrictions on overseas travel;

   ·Enrolment of D at NN School;

   ·The mother’s right to relocate with the children in 2021 if she wishes to do so;

   ·The father’s application that the mother be restrained from changing the surname of the children;

   ·The mother’s application that the father be restrained from placing the children on the Airport Watch List.

THE EVIDENCE OF DR PP

1. Dr PP interviewed the family in November 2016 and prepared a report dated 5 December 2016.

2. Dr PP had the advantage of reading the reports previously prepared by Dr M and Ms U.

3. At the time Dr PP prepared her report, the father’s application was for an order that D live with him and not see his mother or sisters for three months. The mother’s application was for an order that D spend time with and communicate with the father as might be agreed.

4. Dr PP defined the issues in dispute in the following way:

   ·What are the risks of each parenting proposal for each child and for the long-term future of the child-parent relationships?

   ·What is known about the success rates of therapeutic interventions of the type proposed by the father?

5. In her executive summary, Dr PP made a number of comments which were elaborated upon in her oral evidence. She said “Separating D from his sisters will distress all three siblings greatly, and may impede C in her high school entry year. The father-daughter relationships will likely rupture beyond all hope of future repair if the reunification attempt fails.”

6. Dr PP also said “The children are stressed by the uncertainty and delays caused by the litigation. Shared & equal PR would mean parents continued (sic) to litigate over decisions about the children’s day to day care”.

7. Dr PP said “Since the father caused the children to be stopped at the airport in July 2016, all three children have become very unforgiving. There may have been too many ruptures in the father-child relationships for repair to be a realistic prospect any time soon”.

8. She stated:

   The polarization within the family extends to therapists. Neither parent (and no child) will sincerely adhere to advice from any professional viewed as aligned with the other parent’s agenda. … Research suggests that when a child strongly rejects a parent, in-office therapy has low rates of success, and may make things catastrophically worse - especially at late stages. Any intervention with [less than] 95% proven success rate will be too risky.

9. Dr PP set out the mother’s complaints in relation to the father in the following way:

   [The mother] claimed that she and the children had formally lived in fear of the father’s displeasure and for that reason believed the father could not provide a caring environment for children even for short periods. She claimed that he had certain songs and mantras which the children were supposed to reproduce on cue such as “We love our daddy, he’s the best” or “Money buys choices buys freedom”. She claims that [the father] imposed arbitrary rules on the children, which changed unpredictably. She says she was reluctantly compliant with such rules for fear of opening a conflict which would destroy (sic) marriage. She described in detail an upsetting family row over the children asking for soft drinks outside the limits set by the father (during the last family holiday, in [Asia]). She claimed that when she was financially dependent on the father he was very controlling with money. She opined that when the family was together she had buffered the children from the worst of their father’s ire by pre-empting problems or causing distractions, but after separation the children were overwhelmed by unpleasant aspects of their father’s behaviour which she had previously managed for them, and which they did not have the skills to manage independently.

10. In relation to the issue of B attending NN School, the mother told Dr PP:

    Since the father had advocated the children going to mainstream schooling she did not expect him to resist [B’s] move to a more beneficial educational environment. She considers that he did so only to thwart her and not for any valid reason. He does not pay the school fees. [The mother] described in detail how [the father] (allegedly) thwarts her by refusing to respond in a timely manner to reasonable requests for consent or information. She noted that when [NN School] offered a place to [B] she was asked to accept the offer within two weeks but could not get the father to respond. In the end [NN School] held the place open for eight months.

11. Dr PP reported:

    In discussing some incidents in which her children had suffered due to parental disunity [the mother] seemed to become emotionally flooded, as she drifted off-topic and became less coherent. People become dysfluent talking about topics which trigger attachment-related distress. I guessed she felt guilt, shame and sorrow about being helpless to prevent her children from suffering, and/or rage at the father for the same reason, but did not probe. She soon regained equanimity and coherence.

    [The mother] also alleged the father had over-ridden [B’s] express wish for him not to attend a school play by speaking to different staff members, until he found one who was unaware of the child’s views. She claimed that he sat in the front row and photographed [B] all through the performance – which was very unpleasant for the child. [B’s] distress over the incident was reported to the principal. She referred to [B’s] wonderful achievement in winning the opportunity to represent Australia next year in the [USA]. She expressed fear that if the event fell outside of school holiday time the father would attempt to veto travel plans.

    …

    Overall, [the mother] characterised [the father] as an extremely rigid person who responds with emotional withdrawal and stonewalling when his expectations are not met in close relationships. She claims he has a “Dr Jekyll and Mr Hyde” character, so does not usually show his unpleasant aspects in public. [The mother] sees the father as motivated by a desire to remain in control of his family rather than any sincere concern for the children’s best interests. She has previously made allegations that the father has been over-controlling and has attempted to monitor her movements. She said he is determined to “crush and destroy me” and is remorseless and unethical in pursuing his goals.

12. Dr PP reported “With respect to the current ‘meet and greet’ [the mother] reiterated while it is not ideal it will be sufficient to ‘hold the thread’ until D no longer feels that his father is ‘over powerful’ and so can stand his ground. She asserted that if the court case ended it would ‘calm things down’.”

13. In relation to the father, Dr PP reported:

    [The father] justified his parenting plan in terms of long-term outcomes for [D]. He asserts that [D] is a “damaged little boy who needs help”. He considered that if he became completely estranged from his father [D] would grow up feeling unloved, rejected, unworthy, with low self-esteem and distorted ideas about how to interact with people. He asserted that all three of his children were at risk of developing a distorted view of relationships - believing that if problems arise with other people you just cut them out of your life. He worries that adverse experiences might increase their risk factors for mental health problems, drug and alcohol abuse. He answered fluently but rather formulaically to these questions, suggesting that these are matters that he came well-prepared to discuss.

14. Dr PP reported:

    [The father] explained that he had initially opposed [NN School] enrolment for B because he wanted to ensure continuous enrolment for all children, and the same opportunity for all three. If the [maternal] grandfather’s capacity to fund the children’s private school education ever lapsed, [the father] would be unable to pay [more than] $60,000 p.a. in [NN School] fees. Therefore, he had considered it better for [B] to remain in the public system. This did not strike me as an entirely convincing, child-focused explanation. It did not seem that he had carefully considered what problems [B] was suffering at [RR School] nor what interpretation she was likely to make of his opposition to a change of enrolment if she was being bullied. Predictably, [B] would see her father as a persecutor whether or not the mother denigrated him to the child.

15. In relation to the incident where the mother and the children were apprehended at the airport in July 2016, Dr PP reported:

    [The father] said that he had expected that the mother would change her plans once she knew he objected and that he had been very distressed to hear about the children’s unpleasant experience. He claimed to value the children’s relationship with the maternal grandparents and has conceded that they should have additional weeks in the coming Christmas holiday (sic) compensate for the missed summer holiday. Although [the father] appeared to realise that his children would think “Dad is stopping us from doing things we want to do” he could not vividly describe how he imagined his children felt about being prevented to go on a holiday they were eagerly anticipating. Nor did he acknowledge that he had realised in advance that he would ruin the mother’s big birthday party with her family. He expressed no apprehension that the court might draw negative inferences about a man who either did not know the date of his ex-wife’s birthday or disregarded that fact as an unimportant consideration.

    [The father] framed his dilemma as a choice between “letting [the mother] do as she likes, or being seen as an ogre by the children.” He conjected that might (sic) [B] think “he is doing this to punish Mum” but asserted he was not behaving vengefully towards his ex-wife, and was motivated by only responsibility towards his children. However, he did not convincingly explain why it would have been so catastrophic for the children to have missed four days of school or for [D] to have missed / rescheduled one meet and greet. He said that he did not want the children to believe that school was unimportant and that the mother’s attitude to arranging holidays outside of term breaks set a bad example. He said he had not consulted [Dr LL] about the decision to put the children on the airport watch list.

    [The father] was also asked about the incident when he attended [B’s] play against her will. He claimed that he had believed that he was attending with the child’s knowledge and agreement. He had organised his attendance with a welfare officer called Ms [SS] who had placed him in reserved seating in the front row. He considered that the school principal, Mr [TT], was unsympathetic and unable to see his perspective. In neither of these incidents did [the father] seem to have considered the likely consequences of imposing his will on his children. He was attentive in (sic) interested in the feedback I provided, and seemed stuck by my interpretation that [D] felt emasculated at the airport in July…

16. The father told Dr PP that:

    … [the mother] has deliberately set out to alienate the children. One example he gave was that he used to sing a song to his children about loving his little munchkins and they used to sing back about “we love our Daddy he is the best”, but after separation this ceased - allegedly due to the mother punishing the children for joining in this love duet.

17. In relation to the father’s then position that D should live with him, Dr PP reported:

    [The father] did not identify any anticipated risks for [C] or [B] (such as that the distress of separation from [D] might interfere with their school progress in 2017). [The father] found it very difficult to speculate about outcomes should his plan be tried but not succeed. He did not consider that there was any risk the children would reject him permanently. He noted that he would never give up on them…

    [The father] expresses optimism that all the children will find their way back to him one day.

18. Dr PP reported:

    We discussed the importance of not breaking the thread when the ties that bind have worn as thin as gossamer. He seemed to take the point. However, at the end of our discussion he raised the issue of mitigating the harshness of his exclusion from [NN School] … Understandably [the father] wants a communication channel open whereby he can hear about his children’s progress and send messages that will demonstrate to them (even if only in retrospect) that he never lost interest in them or rejected them, no matter how much they rejected him. However, he may be impatient to resolve things more quickly than is feasible. Such impatience could result in him pushing on fronts where there is currently no hope of advance, and inadvertently, increasing his children’s resentful perception that he intrudes on them against their wishes.

19. In relation to the situation in which this family finds itself, Dr PP stated:

    A debate about the relative contributions of each parent to alienation versus realistic estrangement will only exacerbate the polarization. It is more helpful to view this problem as a family system in runaway, whereby unhealthy (but not necessarily dangerous or toxic) pre-divorce marital and family dynamics have become destructive post-divorce by a deviation amplifying process.

20. Dr PP interviewed all three children.

21. In relation to B she reported:

    [B] complained that she “had no childhood” because she was “always scared” of her father, whom she refers to as [his given name]. She mentioned various incidents (being chased with a stick, having to choose between phoning her mother or having dinner, being locked in her room, when she ran away from her father in December 2012) which have been described at length in other documents in evidence. [B] said she had witnessed her father verbally abusing, pushing and shoving her mother. She claimed that her father used to say that she and her mother were “both worthless and there is no point you being there” and had also berated her for being “uneducated”. Allegedly, he rarely berated [C] until after [B] had topped (sic) attending visits.

    [B] referred to the airport incident in July 2016 as “horrendous” saying that she felt like a criminal being apprehended by police. She said that she was “traumatised” and will always feel nervous whenever she is in an airport. …

    … [B] said the more contact she had with her father the more she felt “loss of hope” so she had “begged Mum” not to make her go. At the time Mum advised her to forgive her father for the past and give him a second chance. [B] said that everything her father had done thereafter made her unwilling to forgive him. She laid special emphasis on being held back at the airport in July 2016, held back from enrolling in [NN School], and her father coming to her play uninvited.

22. B told Dr PP of her distress at missing her grandfather in Country O and finished her interview by saying to Dr PP “Look, he’s not a good Dad. He is trying to destroy my life. Stop pestering us.”

23. C also was tearful when she spoke to Dr PP about missing her grandparents in Country O and spoke also about missing her cousins.

24. Dr PP reported:

    [C] described the incident at the airport saying the family was happy about setting off for an exciting holiday in [Country O] when eight, armed policemen stopped them. [C] said she has asked herself again and again “Why would a father do that to his kids?” Her conclusion is that she cannot understand now because she is a child but she will when she is an adult.

25. Dr PP reported:

    If [C] could tell the Judge one thing she would say “Imagine your family passing on and you were stuck in a time loop. You would ask why is this all directed at me? I never want to see my father again”. I interpreted this comment to encapsulate [C’s] resentment towards her father for blocking her access to beloved grandparents and dragging her through court processes (such as the current evaluation) repeatedly without achieving any resolution. … [C] expressed concern that if [D] had to attend visits with Dad on his own he would be very scared and unhappy. She described how unpleasant she had found her father’s emotional outbursts, describing a time “when we were locked out on the balcony” saying her father first raged then wept about “all his dreams being broken.” She feared that if [D] spent too much time with his father he would also become aggressive, “[D] used to hit and scratch us after visits. He would apologise afterwards.”

26. Dr PP reported:

    It is worth noting that neither [C] nor [B] spoke about outcomes for [D] if a residential change was ordered. If that had been discussed with them I would have expected vehement arguments against the plan for [D’s] sake (especially from [C]) and heated denunciations of the father for malicious intentions (especially from [B]).

27. Dr PP asked D how the “meet and greet” was going. She reported:

    … [D] said that it was better now that it happened in the morning. After‑school had embarrassed him with “all the parents standing around.” Presumably parents linger longer chatting at the school gate in the afternoon. He said his father says the same thing every time which is “I wish you (sic) good day and I love you.” When asked about whether Dad sent birthday and Christmas presents [D] said “I don’t want that bad energy in the house”, which seemed an unusual choice of words for a child.

28. Dr PP reported:

    [D] said he does not want to go and see Dad at his house because “he says mean things” and because “he always lies and tricks us”. The examples [D] gave of “mean things” related mainly to [B]. Examples of “lies” were that “lots of times” his father had promised that he would let [D] call Mum at any time during a visit but then did not let him. He also claimed that his father would not answer his questions, for example when he asked why his father was filming him at handovers.

29. In relation to being stopped at the airport in July 2016, D told Dr PP that “it was alarming to be escorted away by the police ‘like criminals’”. D said that “he felt very bad to see his sisters and mother crying and screaming and being unable to help them”. He told Dr PP that he felt ashamed and humiliated. Dr PP reported “[D] said ‘I like Dad way less because of that.’ He said he would like to tell his father so.” D refused to be interviewed with his father and, when asked what he would tell the Judge, he said “I don’t trust him. You can trust him but not too much, never much (sic), because he’s going to lie”.

1. In relation to the benefits to the children of having a meaningful relationship with both of their parents, Dr PP stated:

   These children, like all others, would benefit from having a relationship with both their parents for identity purposes and in order to maximise their social capital. However, as a rule of thumb the benefit of maintaining a secondary attachment should outweigh the stress of executing the contact arrangements. Under current conditions, the stress to the children of maintaining their attachment to the father in any more than a token way exceeds the benefits they receive.

2. In relation to the need to protect the children from psychological harm, Dr PP stated:

   Each parent contends the other is causing the children psychological harm from which the children should be protected by excluding the other parent, temporarily or permanently. It is my concluded opinion that the problem is mainly an outcome of dysfunctional family dynamics, rather than deliberate maltreatment by either parent … The main risk of psychological harm to the children lies in prolonging this dispute such that it impedes with their developmental progress. Systems abuse is a real risk.

3. In cross-examination, Dr PP said that she considered that the present situation of the family arose from a “dysfunctional dynamic” rather than any “deliberate maltreatment” by either parent, and that any orders which prolonged the litigation would adversely affect the children’s psychological well-being and development.

4. Dr PP stated that, if priority were to be given to ending the litigation, then no orders “of any type” would be made because any order in relation to this family has the potential to lead to a further application or allegation of breach.

5. In relation to D, Dr PP identified his particular vulnerabilities. She said that D is:

   …caught in that harmful dynamic, children feel a pressure to align, because the parents’ views are so polarised.  And if you saw the way I had put the non-mentalising vicious circle at the back, once people are in non‑mentalising vicious circles, it’s very hard to get out of them and they can’t be objective about each other.  And the child will be like someone caught in the crossfire between the trenches in World War I.  You can’t be friends with the Germans and the English; they will pick a trench and hunker down.  And once they’ve done that, they will absorb the views of whatever side they’ve chosen.  And, of course, [D] will choose his main attachment figure; that’s his mother.

6. Dr PP stressed the importance that children form their own, realistic views about their parents rather than simply adopt the view of their primary parent. She said:

   Now, as we grow older, in order to grow up we need to see our parents as they really are and to become discriminating, to realise that no one is an angel or a demon and that we can accept good things about people and work with those, try and avoid the bad things or minimise them or forgive them or in some way make a treaty with reality. One of the things that happens to children is (sic) this sort of situation is that the polarised views of each parent about the other makes it impossible to move safely between them.  So the child has to make a choice.  And then they do have distorted information processing.

7. Dr PP also stressed the importance for children of not avoiding situations they find unpleasant, a situation she called “phobic avoidance”.

8. She said that this was a particular problem for D as a male child. She stated:

   The girls have picked a side and stuck to it.  They are girls; their mother is their role model.  That’s fine.  [D] could be in the dilemma, in terms of his identity, that boys often are in such a situation, that they think, you know, “My dad is a boy.  I’m a boy.  I might be like him.  My mum thinks he’s a jerk.  He has certainly done a lot of things that make me think he’s a jerk.  Oh, no.  Will I be a jerk too?”  And contact, even a small amount of contact that allows reality testing, is helpful for identity formation in such situations.  But children in such situations are often just swept up into one side or the other, and polarised views.  So those anxieties about their own identity can’t be tested through interaction.  Now, it’s okay if, on the basis of evidence, you decide your father is a jerk, you don’t want anything to do with him.  There are many people who decide that about their fathers, leave home and don’t see them again.  But it’s not a good thing if you didn’t do it on the basis of your own judgment, and to do that you need a little bit – at least a little bit of interaction. 

9. Dr PP said that the only way that D could form an independent opinion of his father was to have a relationship with him that was separate from, and removed from, the experience of his mother and his sisters.

10. She said that it was important that D not perceive, by the fact that his father is prevented from spending time with him, that his father has rejected him. She stated:

    And it’s not good to think that you were given up on.  He might think that his mother drove his father away … but he wouldn’t dare to say so because he needs his mother’s love and support.  That sort of thing causes turmoil, because it’s a contradiction beyond the psychological maturity of a child under about 14 to reconcile – under 15, even, to reconcile those sorts of contradictions.  And it would also make him very anxious.  If, at any stage, he believed for any reason that his father could contribute to him in any way and he was not having a relationship with his father because of his mother, he couldn’t be angry with her openly because it’s too anxiety‑producing for children to be angry with their main attachment figures or to believe that those attachment figures mean them harm, or at least they’re not always prioritising their needs. Then it goes underground;  that’s when you get various passive-aggressive sorts of behaviours.  So those are the kinds of things I would be concerned that could – I’m not saying they will;  everyone is different – but that could happen to him and that are a risk.  Also, like everyone else, he needs to learn that in this life, we sometimes have to do things we don’t want to do.  Nobody gets to choose their parents.  There would be plenty of children out there who think, you know, “My mum is a bitch,” or “My dad is a jerk.”  But they – they don’t have the power to dismiss them from their lives.  And they’ve got to work out how to have a relationship with a difficult person in a way that you’re not crushed and you assert your rights.  If you just deal with any discomfort by phobicly avoiding it, you can grow up to be a person who is easily victimised, because phobic avoidance is not the way to deal with difficult relationships.

11. She did not support the mother’s proposed orders or those proposed by the father.

12. In relation to the mother’s proposal, which would leave the responsibility on D to determine whether he wanted to see his father and then to tell his mother (and his sisters) about his wishes, Dr PP said:

    He can’t do that.  That’s – that’s increasing the pressure on him.  He has got to say to his mother – someone he knows has a negative attitude to the father – “I want to go and see him.”  And one of the – one of the things that happens when children have been traumatised by being caught up in situations like this is reality is what the other people say it is. Reality is the look on your mother’s face, not what you might think or feel.  He couldn’t assert himself in that way.  And it’s not that she would be hostile or unhelpful or anything like that;  that’s just asking too much of him.  It’s just putting too much pressure on him for him to say, “Mum, can I go and see Dad?”

13. In relation to the father’s proposal for a graduated regime of time leading to alternate weekends and school holiday periods, Dr PP said:

    Out of the question. It’s not going to happen. That would – as a general rule, contact with the secondary attachment should confer more benefits than stress. If the transition is so stressful that it outweighs the benefits, then you’re just torturing the child by trying to make that happen. And I can’t advocate that.

14. Dr PP said that there are too many chances for failure in the father’s proposal. For example, if the mother does not, or cannot facilitate the time, or if D said he did not want to go, or if the mother is not prepared to force him to go if he shows anxiety or distress.

15. Dr PP did not support a resumption of supervised contact between D and his father. She said:

    Look, how much do you want to flog a dead horse? That has been tried; it didn’t work, and the same thing happens. I think it should be clear to the court from my report that I don’t think blaming explanations are helpful and that I don’t believe that the mother set out maliciously to exclude the father. But this is a dynamic in runaway that has come to this point… At this point, that is likely to be viewed negatively by the mother as – because everyone in that household views [the father] as someone who tries to solve every problem by coercion. That’s likely to be perceived that way. Now, even though I don’t think she would maliciously say or do anything, partly – well, mostly because she doesn’t want to harm her son, she’s going to drive him to that visit tense and radiating, you know, unhappiness about it. She’s not – and children are most vulnerable at transitions, when they get out of the car and walk into their contact centre. Now, if his mother’s voice went with him – “Come on, sweetie. You will be fine,” or “I don’t want to go.” “I know you don’t, but that’s just the way it is.  You’re a big boy. You can do this. Off you go,” – he could make that transition. That’s the bit that I think would never happen, because I don’t think that the mother has any concept of thwarting children or challenging them to tolerate when they’re uncomfortable. She wants to soothe and spare them discomfort. So that’s why I’m not optimistic about it. 

16. She also rejected any proposal for supervised handovers, saying:

    Usually, contact centres see their services as being only offered on a time‑limited basis, not forever; and, secondly, unless it has got some plan to progress to something else, I don’t see it as much benefit to [D], because it’s still saying, “Your relationship with your dad always has to be mediated by someone else forever”, and that’s not what I’m saying would be beneficial. I’m wanting him to have a chance to make up his own mind, at least to some extent, even if it’s only a little bit.

17. Dr PP referred to the currently tenuous relationship between D and his father as a “gossamer thread”. It was her evidence that it was important to preserve and protect that thread.

18. Ultimately, she said, it may be that the best that can be achieved is that D will continue to see his father for very small periods of time. She recommended that the current “meet and greet” be extended, but only to an hour; that it occur in the afternoon with the father collecting D from school, taking him for a treat or a snack then taking him home; and that the mother not be anywhere in the vicinity of the school when the father collects D.

19. She recommended that the time occur in the afternoon, not in the morning.

20. Asked whether such an arrangement would put pressure on D, Dr PP disagreed. She said that the pressure for D would be moving between his two parents.

21. Dr PP said:

    I think it would be better to have a situation where the father collects the child from school and takes him for a milkshake or something and drops him off at the front door, so that the child is never moving between both parents at once.  And at the – at the – unfortunately, to get him to the contact centre, the mother has got to get him into the car and drive him to the contact centre.  You’re still asking her to mediate it.  And I’ve just got a feeling that anything that the mother mediates is vulnerable.

22. Dr PP recommended a regime where the father met D after school each alternate Friday. She said that it was important that the mother stay away from the school during this time. When the father takes D home, he should let D out of the car at the front gate of the mother’s home and wait in the car while the mother lets D into the house.

23. She said that the only way D could have an independent relationship with his father was if the mother was not there and not involved in transporting D to the venue. She said that “handovers in person have to be eliminated.  The mother cannot be there when the child sees the father.”

24. Dr PP said that her worst fear for this family was that inappropriate intervention, either on the part of the father or by the Court, could lead to a situation where all three children “will not speak to him for the rest of his life and they won’t come to his funeral.  That’s what I don’t want”. She said that is a likely trajectory for the girls but that there is hope for D.

25. Asked if she thought that extending the current “meet and greet” would be a step too far, she said that she thought her proposal could be tolerated by D and, more importantly, by the mother.

26. In relation to the message that needs to be given to D, Dr PP said:

    …children often have to learn to just do things they don’t want to do, because they’re not in charge of the universe. It is actually a bad thing to get children to believe that they have the power to control things which they don’t have the power to control. That’s part of phobic avoidance, because it teaches you maladaptive strategies for coping with reality. Sometimes, that’s just the way it is. It won’t kill you. Do it.

27. She said:

    I think anything you do, you have to get him to the point where he can see his relationship with his father is independent of his mother and not mediated by his mother or needed to be performed in any way according to what his misguided views, even, might be of what his mother expects.

28. She did, however, give a stern warning – that if the father “acted in ways that were signal failures in empathy, then there would be repeat litigation whatever you say, and probably the next order would be no contact.”

29. Dr PP conceded there was a risk that her proposal would not succeed but said:

    If some concern is still held about allowing the child to – to maintain that gossamer thread of a link to his father, then I think there is a better way to do it, and the better way to do it is that he goes to the school, he sees his dad;  you could either keep it to the 15 minutes meet and greet or you can say, “Let’s have half an hour, ice cream, and drive home,” but the mother mustn’t be there.  The child cannot have any unconstrained relationship with his father in the presence of his mother.  And – but it may also be that after everything that has happened, nothing will work to repair it.  That is also a possibility.  But that is an empirical question which you can only know by testing it, and the only way you could test it is if he has some time with his father – brief – without his mother present.

30. Dr PP said that, whatever orders the Court makes, it is important that they be explained to D by the ICL.

CONSIDERATION

1. There is no dispute that D would benefit, for the reasons that Dr PP stated, from having a meaningful relationship with his father.

2. The issue to be determined is whether, in the circumstances of this family, any orders which require D to spend time with his father would cause psychological harm to D.

3. Significantly, Dr PP gave evidence that no psychological harm will be caused to D by his being required to spend time with his father as recommended by her and that there may be psychological benefits in his doing so if the arrangement can be maintained. She said:

   I really think if he picked him up from school and took him for a milkshake and dropped him home, [D] could probably cope.  And it’s not so long that his mother would be starting to be worried, “No, is he missing me,” all the anxieties she might have.  Half an hour.  She has been away from (sic) the whole of the school day.  Another half hour and she knows that the father is not dangerous.  And the psychological harm you can do in half an hour is fairly limited but the psychological harm of allowing [D] inadequate information to draw the right sort of conclusion that will help his self-esteem and identity, that’s a greater risk…

4. Dr PP said “We know he can bear 15 minutes. I think he could probably bear half an hour. We don’t know if he can – we don’t know if the mother can bear an hour. But certainly that’s what I – I would be going for as an upper limit.”

5. I accept her evidence.

The children’s views

1. Dr PP reported:

   The children reject their father, with a ferocity in direct proportion to their birth order. [B] seems to have sacked him as her father-figure: she refers to him only as [his given name]. [D] is the most ambivalent. He expresses reluctance for contact, but seems to want to keep the link to his father. Worthy of special note is the recent telephone call which [the father] reported. While the children’s fearful avoidance of their father seems phobic rather than rational, unwise actions on the father’s part have increased their resentment, and strengthened their rationale for rejecting him whereas previously their justifications may have seemed trivial or specious. Due to distorted information processing and cognitive immaturity they are not free to assess their attachment relationships objectively. However, [B] and [C] are old enough to feel sure they do know their own minds, rightly or wrongly, and are thus unlikely to comply with Orders which separate them from their brother or attempt to enforce their contact with their father. [Original emphasis]

2. Dr PP said, in cross-examination, as to D’s views:

   I haven’t heard that he’s a specially gifted child. So I’m thinking he’s a child of average to above average intelligence. He has not yet reached the stage of cognitive development we call formal operations, which would enable him to make the sort of moral judgments about his father that his sister has. Younger children make moral judgments on a different basis, not necessarily according to principles like property rights – people’s right to life is greater than property rights or whatever. So his judgment of his father and the girls is different. He likes him. He didn’t say “I judge him to be coercive” or “I judge him to be someone who disregards the rights of others”. He said, “I like him way less since he did that.” Now, in time, he can make a judgment about his father’s behaviour which is evidence based and principle based. At the moment, he has got evidence but he hasn’t got that formal reasoning. That is still a better basis for him to define his relationship with his father, and on the basis of his experience, not someone else’s attributions about what his experience means.

3. She agreed that there would be tensions but said “You can’t get away from that. You can’t spare that child from suffering.”

4. Dr PP said that D cannot make the decision not to have a relationship with his father at his age.

5. I accept her evidence.

The nature of the relationship of the children with each parent and significant others

1. Dr PP reported “The children are aligned with the mother and reject their father.”

2. In relation to the mother, Dr PP stated:

   She has always been the primary caregiver and is their secure base. They feel safe and comfortable with her. As has been suggested in previous reports, the greater closeness and affinity the children had always felt to their mother meant that as they were increasingly drawn into the parental conflict they aligned more and more strongly with her. (This was especially true for [B] who was presumably triangulated into the marital conflict prior to separation). … Although, objectively, the children may have been safe with their father during visits, they did not always feel comfortable. He was not always able to respond empathetically to their predicament –behaving in ways which showed he was stronger, kinder and wiser than the children, such as by concealing his own sorrow, frustration or ire towards the mother.

   The more the children expressed discomfort the less the mother was willing to force them. The more the father felt his connection to his children slipping from his grasp the more desperately he clung on, using legal means to prevent the mother and children from eluding his influence. The more he used legal means to uphold his paternal authority the more the children perceived him as an enemy, someone who attacked their mother, and impeded them in the pursuit of their goals, and hence the more the more (sic) they wanted to avoid him. The more they avoided contact with their father the more they wanted to avoid him – because if we do not master our fears they master us. Eventually, one by one, they have all developed a stance of phobic avoidance towards their father, combined with resentment and suspicion. I suspect [D] might still harbour secret hopes of reconciling with his father, but [B] and [C] seem very unforgiving.

   The sibling relationships seem close and mutually supportive. When in doubt about the attitude to adopt towards his father, [D] will take his cue from his sisters. The children are very fond of their maternal grandparents, whom they know to be elderly and in poor health. They seem worried about their grandparents dying before they can spend significant time with them again. This inflames their ire against their father, given the airport fiasco in July 2016.

1. The children have a close and loving relationship with their maternal grandparents whom they miss and about whom they are anxious because they have been prevented from visiting them.

2. Dr PP expressed her view that it may be possible to retrieve D’s relationship with his father at least to the extent where D can form his own view of his father and whether he wants to continue a relationship with him.

3. The children have no relationship with any of the paternal extended family.

4. The children are estranged from their paternal cousins, uncles and aunts whose company they formally enjoyed.

The extent to which the father has attempted to participate in the children’s lives

1. The mother is critical of the father’s failure to persevere with his attempts to reach the girls with letters and cards and gifts. She does not, however, suggest that she has given them any encouragement to respond to his overtures.

2. She is also critical of his failure to respond to her in a timely way when she has approached him for his participation, for example in respect of travel to the USA for B or her change of school.

3. Every attempt by the father to participate in the children’s parenting is now seen by both the mother and the children as an unwanted intrusion and there seems, according to Dr PP, to be nothing that can be done to ameliorate their attitudes.

The extent to which the father has fulfilled his obligations to maintain the children

1. The father does not pay child support or make any contribution to the financial costs of the children.

2. He made no contribution to the costs of B’s trip to the USA to participate in the forum.

3. He gave no explanation for his failure to do so.

4. The mother, with the support of her parents, is entirely responsible for the financial support of the children including their private school fees.

The likely effect of changes in the child’s circumstances

1. This issue has been canvassed in the evidence of Dr PP.

2. If no positive steps are taken to ensure that D continues to see his father, then that relationship will be lost to him, at least for the foreseeable future.

3. If D is pushed too hard to spend time with his father that he and the mother cannot tolerate, the relationship, such as it is, will also break down.

4. The task here is to engineer change that is just enough and does not break Dr PP’s “gossamer thread”.

The capacity of each of the parents to provide for the needs of the child

1. Dr PP, in her report, concluded:

   The point of no return may have been passed in July 2016. It may now be impossible to repair the rifts in the father-child relationships and almost certainly will be if, between now and final hearing the father acts in any way which the children could construe as impeding them in pursuit of their legitimate goals, intruding upon them invited, or deliberately undermining/distressing their mother.

2. The mother has failed the girls in a significant way in her earlier experiment in home schooling, which led to their being significantly behind in their education.

3. She has since demonstrated a commitment to their education in mainstream schooling but this occurred only after the father made an application to the Court for orders that home schooling cease.

4. She has been unable or unwilling to foster D’s relationship with his father. Although she said in cross-examination that she had done everything she could to foster that relationship, the reality of her actions is demonstrated by her attitude to D going with his father on an occasion when they were having supervised handovers in 2015. On this occasion, D thought he might like to go out of the contact centre with his father but when he went to ask his mother’s permission, rather than encouraging him to go, she told him that he could go if he wanted or stay if he wanted. He chose to stay.

5. I accept the evidence of Dr PP that the mother has failed to teach the children that, in life, there are things they need to do that they will not like. This is not a sound preparation for adult life. Unpleasant events cannot always be avoided.

6. The father’s actions in stopping the children at the airport in July 2016, in going to B’s school when it should have been obvious to him that she did not want him there, in refusing to agree to B leaving RR School when she was having difficulties and his delayed response to the request for permission for B to participate in the forum in the USA, all demonstrate his inability to make the compromises and negotiate the dilemmas that are inherent in parenting, particularly as children enter their teenage years.

Whether it would be preferable to make any order least likely to lead to further litigation

1. As Dr PP said in cross-examination, the only way to ensure that there is no further litigation is to make no orders.

2. However, I accept her evidence that the preservation of D’s, albeit tenuous, relationship with his father, if successful, has benefits for D which make its pursuit, having regard to all of the competing considerations, necessary.

THE SPECIFIC APPLICATIONS

1. I turn then to consider the issues where the parties cannot agree,  guided by the evidence of Dr PP and my consideration of the best interests of the children and, particularly, of D.

Restrictions on the mother’s parental responsibility proposed by the father and the ICL

1. There is no dispute that the mother will have sole parental responsibility for all three children or that she will be required to communicate to the father the substance of any decision that she makes relevant to the long term care, welfare and development of the children using an agreed internet application (Our Family Wizard).

2. The father and the ICL propose two specific restrictions on the mother’s exercise of parental responsibility.

3. Firstly, they seek to restrain the mother from moving away from the location of the children’s current schools and secondly, they seek to restrain her from removing D from I Town Public School.

4. The mother opposes both restrictions although I do not understand that she intends to move away from the area where the children attend school before B completes her final secondary studies at the end of 2020 or the beginning of 2021.

5. I propose to consider the issue of enrolment of D at NN School separately.

6. In relation to the issue of the children’s place of residence, until B completes secondary schooling the mother does not give evidence of any intention to move away from the area where they currently attend school. It is her case that the children are thriving at NN School and that NN School would be a good school for D. There were consent orders made that provide for D to attend NN School for secondary schooling.

7. In those circumstances, it is appropriate to make an order which requires the children to reside in a place where they can continue to attend NN School or I Town Primary School. That can be achieved by an order that the children continue to attend those schools.

Enrolment of D at NN School

1. D is doing well at I Town Primary School. He has been there for the whole of his schooling. He has friends and is a member of the school community.

2. Dr PP said in cross-examination that there are benefits for D in the consistency of remaining at I Town Primary School.

3. The regime of contact with the father which Dr PP proposed depends on a neutral changeover on alternate Friday afternoons.

4. If changeover occurs at I Town Primary School, the mother will be restrained from attending.

5. If D is at NN School, then his sisters will also be at the school when changeovers are to occur. No order that can be made will prevent D’s sisters from being present at, or intervening in, the changeover. It is likely that, because they are protective of D and because of their entrenched, negative views of their father, they will intervene to protect D and any possibility that the regime can work will be destroyed.

6. For that reason, D should stay at I Town Primary School until he finishes primary school.

What time should D spend with the father

1. I accept the evidence of Dr PP, and the reasons she gave, that the proposals of both the mother and the father are not appropriate.

2. The only alternative is the proposal made by Dr PP for the extended “meet and greet” arrangement allowing the father to collect D from school and take him for a snack before returning him home.

3. I am conscious that Dr PP said in cross-examination that she had no other suggestions and that, if this arrangement breaks down, she has no other solutions. I accept that there is a risk that this arrangement will break down because the mother will not support it but I also accept, firstly, that the consequences for D will be negative if this arrangement is not put in place and, secondly, that he is unlikely to suffer psychological harm if the arrangement is put in place.

4. I propose to make orders in accordance with Dr PP’s recommendation.

5. The father also seeks an order that would provide time to continue during school holidays if D is in Australia, on D’s birthday, and on Father’s Day.

6. Time with D as sought by the father must necessarily involve the participation of the mother in taking D to the venue. I am conscious that Dr PP was adamant that any arrangement which involved the mother in D’s spending time with the father is not beneficial.

7. I do not propose to extend D’s time with the father beyond that recommended by Dr PP. 

Telephone contact

1. D is currently speaking to his father twice each week. The calls are very short, sometime 30 seconds or so, but they are occurring.

2. The ICL proposed that calls should take place on Thursday evening at 5.30 pm, on D’s birthday, the father’s birthday and on Fathers’ Day.

3. The father wants the calls to remain as they are, on Tuesday and Thursday each week.

4. The mother has proposed that she provide D with a mobile phone with Skype capacity so that the father can call D on his own phone and that D can call his father at any time he wishes.

5. The current arrangement has worked for some time. D is accustomed to twice weekly calls. That arrangement should continue but on the basis that the calls are to D’s own phone.

6. D should be free to call his father at any time without having to seek his mother’s permission.

Restrictions on overseas travel

1. Dr PP, in cross-examination, said that, ideally, children should not be taken out of school to travel. Asked to consider a medical emergency arising in relation to the maternal grandparents, she said:

   I can’t entirely suggest a solution to that dilemma.  It’s just that anything that’s very tightly specified like that seems to open the way to further litigation.  And I really think that every time the father litigates the children hate him more.  And I don’t want that to happen.  And they see the stress on their mother.  Whether she complains or not openly about it, they will pick it up. 

2. She also said:

   But what I don’t think would be helpful would be to be perceived as forcing the children to stay here when they didn’t want to, if that relationship with [D] has not progressed between the meet and greet, because there’s not enough good stuff to counteract the effect that “He’s just a jerk stopping us what we’re doing”, if it doesn’t progress beyond that.

3. In relation to the girls’ perceptions of any restrictions on travel, Dr PP said “I think that it will have a paradoxical effect if the father … is seen to be the one who is limiting the girls.  Because he has lost them – he has lost the relationship with them, just don’t make it worse.  Don’t make it for life.”

4. In cross-examination by counsel for the father about restrictions on overseas travel, Dr PP said:

   … a really terrible thing would be if these beloved grandparents, one or both of them, fell ill.  The children went to see them.  They become worse.  They don’t die, but they are on the point of dying.  And then they have to come back.  They have just come back.  There’s a funeral.  They don’t get to the funeral.  How much would that make them hate their father, and would he have the wisdom to say, “Yes,” or would she be able to write to him and say, “Look, this is what’s happening.  Can we just leave it and see?”  Would he have the generosity of spirit – and his behaviour … makes me doubt that severely – to say, “Of course,” you know.  “Take as long as you want.”  That is the sort of thing that is a very big dilemma and I don’t know how you can overcome it in orders, I really don’t, because if it’s unspecified, yes, the mother may do what she likes.  If it is specified and the father wants to bring it all back, it is further litigation and more that the children hate him for thwarting them.  And I don’t – I can’t tell you a resolution to that dilemma.

5. The mother should be free to attend to any emergency arising in relation to her parents in Country O without requiring the father’s consent. The difficult issue is whether she should also be free to take the children out of school and, if so, for what period of time.

6. When the mother travelled with B to the USA in 2017, she was able to arrange a carer for the younger children. No doubt she could do so again, but I note the comments of Dr PP about the effect on the children of their being excluded from their grandparents if the grandparents or either of them is ill.

7. The position of the father and the ICL is that the mother should be permitted to take the children to Country O in an emergency for up to 14 days. The mother’s position is that there should be no time limit.

8. The effect of the mother’s position is that she can relocate the children to Country O indefinitely if she determines that one of her parents needs her care, regardless of any other order in place in relation to the children. 

9. I do not consider that the mother’s right to travel to Country O with the children should be unrestricted but I accept that she should be able to do so if either of her parents is ill without seeking the leave of the Court for a limited period.

10. There is no particular period that is more appropriate than any other and I will arbitrarily fix the period at three weeks.

11. The parties have agreed that the mother can travel with the children to Country O in the June/July and Christmas holidays.

12. No specific reasons were given on behalf of the father for imposing any restrictions on B and C travelling in school holidays, whether for educational or holiday purposes. Provided that the father is advised, I do not consider that the restrictions on travel should apply to them. They are old enough to travel unaccompanied and they are seasoned travellers.

The mother’s right to relocate with the children in 2021 if she wishes to do so

1. Dr PP’s evidence in relation to this issue has partly been canvassed under the heading of the proposed restrictions on travel.

2. Dr PP, in cross-examination, said that, if in 2021, the mother and B wanted to live in Country O because of the available educational opportunities for B:

   … the wisest thing for the father to do would be to let them go and have some holiday arrangements, that he could go once a year for three weeks and see [D] and [D] could come for the whole of the school holidays or whatever, that would be the most satisfactory way of repairing his relationship with the girls because they would – they would stop viewing him has an ogre who always thwarts them because, as far as I can see, that’s how the girls see him.  And, at the time I saw [D], he said to me, “I like him way less since the policeman took us away at the airport.”  That was quite traumatic and upsetting for the children.  So my – my thinking would be that if the father’s relationship with [D] hasn’t improved to the – by 2021 to the point where there’s, you know, overnights and holidays and so on, there is nothing lost, really, by letter (sic) him go.  But there is something lost by being perceived as the one who stood in his way.

3. She said that her concluded view was that it would be preferable to allow the mother to move to Country O in 2021.

4. The mother in cross-examination said that the children have been raised as international children. They have spent long periods of their lives in Country O. The children speak the language of Country O fluently. Their maternal family lives in Country O. B is studying for the International Baccalaureate which she will complete in 2020. After 2020, B might choose to study in Europe although no decision has been made yet.

5. The mother also raised her concerns about her elderly parents. Her father is in ill health. Her only brother, who lived close to their parents, was killed in an accident. She feels that she has a responsibility to care for her parents if they need her help.

6. On behalf of the mother, it was submitted that, if at the end of 2020, she wishes to move to Europe with the children, she will be required to file a further application and conduct a further defended hearing, with a cost in emotion, money, and time because the father, having regard to his past actions, is unlikely to consent.

7. Further litigation, as Dr PP has stated, will only confirm for the girls that their father thwarts their desires and D is likely to adopt their position as well.

8. On behalf of the father, it was submitted that the proposal of the mother did not contain any requirement that she notify the father or provide him with any information about where the children will live, how they will be educated and in what schools or how he can contact them. Those are valid concerns.

9. I accept the evidence of Dr PP that, if the father’s relationship with D has not progressed by the end of 2020 to a relationship where he can comfortably make arrangements with the mother and D for holiday time in Country O and in Australia, and for electronic communication, then nothing is to be gained by requiring D to remain in Australia. Even if their relationship does progress by 2020, it was Dr PP’s evidence that it would be in D’s best interests for the father to support his relocation and to make arrangements to spend time with D during holiday periods.

10. If, on the other hand, the relationship has not been maintained, then there is also nothing to be gained by thwarting the wishes of the mother and the children to live in Country O.

11. In the unusual circumstances of this case, it is appropriate that the mother be permitted to relocate with the minor children to Country O in 2021 if she wishes to do so, provided that the father is given appropriate notice and information.

The father’s application that the mother be restrained from changing the surname of the children

1. There is no evidence that the mother has ever had any intention of changing the children’s names, either by common usage or otherwise.

2. Five years after separation, the children continue to use the surname of their father.

3. In cross-examination, the mother said that she does not intend to change their names although she said they could do so themselves after they reach 18 years of age.

4. I accept that the use of their father’s surname is the only connection that the girls now have to their father and their Country UU heritage and that it remains one of the few connections that D has with his father.

5. However, absent any evidence that the mother has any intention to change the children’s surnames, there is no basis upon which this order can be made.

The mother’s application that the father be restrained from placing the children on the Airport Watch List

1. The father placed the children on the Airport Watch List in July 2016, without informing the mother, with disastrous consequences for his relationship with all three of his children.

2. In cross-examination, asked if he would do so again, the father said he would not. However, he opposed the making of any order restraining him from again doing so.

3. The orders which will be made will permit the children to travel overseas in school holidays and in the event of a health emergency with their maternal grandparents. They need to have confidence that the events of July 2016 will not be repeated when next they travel.

4. It may assist D’s continued relationship with his father if he is confident that there will not be a repetition of the July 2016 incident.

1. It is appropriate that this order be made.

COSTS OF THE ICL

1. The ICL seeks costs in the sum of $7,322.00 from each party.

2. The mother agrees.

3. The father neither consented nor opposed the making of an order and no submissions were made on his behalf.

4. In those circumstances I am not aware of any reason that the ICL should not have her costs paid and accordingly the parties will each pay the amount sought.

I certify that the preceding one hundred and ninety-four (194) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 2 November 2017.

Associate:

Date:  2/11/2017