PALMER & KERR
[2019] FamCA 689
•25 September 2019
FAMILY COURT OF AUSTRALIA
PALMER & KERR [2019] FamCA 689
FAMILY LAW – CHILDREN – Parental alienation – Change of residence – Where the father seeks sole parental responsibility, a change of residence for the children to live with him and for the mother to have no contact with the children for 18 months – Where the mother seeks sole parental responsibility, for the children to live with her and to have no contact with the father until they express a desire to do so – Where the Independent Children’s Lawyer supports a change of residence – Where the father has not spent any meaningful time with the children since 2013 – Where the mother is not willing to promote a relationship between the children and the father – Where the children have become indoctrinated by their mother – Where the experts predict serious risk of psychological and emotional harm arising from both parties’ proposals – Court finds that the only chance for the children to have a meaningful relationship with both parents will require a change of residence – Orders made for the father to have sole parental responsibility and for the children to live with him – Orders made that the mother have no contact with the children for one month and spend no time with the children for seven months.
FAMILY LAW – FAMILY VIOLENCE – Where the mother makes allegations of abuse against the father – Where no meaningful findings adverse to the father can be made about those allegations – Where the mother concedes that she has prevented the children having contact with the father and remains opposed to contact between the children and the father – Court finds there is a high risk of ongoing harm if the children remain living with their mother.
Family Law Act 1975 (Cth) ss 60CC, 65DAA
Champness & Hanson (2009) FLC 93-407
McCall & Clark (2009) FLC 93-405
APPLICANT: Mr Palmer
RESPONDENT: Ms Kerr
INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW
FILE NUMBER: SYC 677 of 2015
DATE DELIVERED: 25 September 2019
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Loughnan J
HEARING DATE: 15 - 19 July 2019 REPRESENTATION
APPLICANT FATHER: In person
RESPONDENT MOTHER : In person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Blank
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Orders
1.The father shall have sole parental responsibility for the children X born … 2005 and Y born … 2007.
2.The father shall advise the mother in writing of any major long term decisions he makes for the children.
3.The children shall live with the father.
4.For the purpose of implementing these Orders, changeover shall occur at Child Dispute Services at Sydney Registry and with the assistance of a Family Consultant.
5.On the day that judgment is delivered, the Independent Children’s Lawyer shall explain the final orders to the children, prior to the children going to the father’s care, with the assistance of the Family Consultant (if available).
6.The Independent Children’s Lawyer is granted leave to provide to the children’s school a copy of Final Orders and Reasons for Judgment.
7.The father shall ensure that the children continue attending Suburb R High School for the duration of the 2019 school year.
8.In the event that the mother seeks treatment in relation to her mental health, leave is granted for her to provide a copy of Dr B’s report dated 8 November 2018 to her treating practitioner/s.
X & Y’s contact with their mother
9.That for seven months from the date of these Orders the children shall spend no time with the mother.
10.Pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) the mother is hereby restrained for a period of seven months from making contact with the children’s school and thereafter she is at liberty to contact the children’s school for the purpose of obtaining school reports, newsletters and notifications.
11.Pursuant to s 68B of the Act, after the expiration of seven months from the date of these Orders, the mother is hereby restrained from attending the children’s schools except as provided for in Order 23 herein.
12.Pursuant to s 68B of the Act the mother is hereby restrained, for a period of seven months from the date of these Orders, from contacting the children directly or through a third person except as provided for in Order 13 herein and thereafter the children’s contact with the mother shall occur only in accordance with these Orders unless otherwise agreed between the parents in writing.
13.After one month from the date of these Orders, the children shall commence having telephone/facetime contact with the mother each Sunday between 10.00 am and 11.00 am and for the purpose of facilitating this contact, the father shall place a call to the mother’s mobile phone.
14.The mother’s face to face contact with the children pursuant to these Orders is conditional upon her engagement in family therapy and her compliance with recommendations made by the therapist nominated by the Independent Children’s Lawyer.
15.At the expiration of the period specified in Order 9 herein and subject to Order 14, the children shall commence spending supervised time with the mother as follows:
(a)each alternate weekend for two hours at C Contact Centre in Suburb D, at specific times nominated by the Contact Centre;
(b)the mother and father shall meet the costs of supervision equally;
(c)the mother and father shall comply with the rules of the Contact Centre and follow requests made by the Contact Centre.
16.The supervised time at the Contact Centre is to continue for a period of three months unless otherwise agreed between the parties in writing.
17.Leave is granted to the parties to provide a copy of these Orders to the Contact Centre.
18.At the expiration of Order 16 herein, and subject to Order 14, the children shall spend time with the mother as follows, unless otherwise agreed between the parents in writing:
(a)each alternate weekend from 10.00 am until 6.00 pm on Sunday;
(b)changeover is to occur at Suburb E Train Station;
(c)this weekend time is to continue during the Term 1, 2 and 3 school holiday periods.
19.The time in Order 18 herein is suspended during the Term 4 school holiday period during which the children shall spend time with the mother as follows:
(a)from 10.00 am until 6.00 pm on both Saturday and Sunday on the third, fourth and fifth weekend of the school holiday period;
(b)changeover is to occur at Suburb E Train Station.
Special occasions
20.Subject to Order 9 but notwithstanding any other order, the children shall spend time with the parents as follows:
(a)the children shall spend time with the father from 10.00 am until 6.00 pm on Father’s Day;
(b)the children shall spend time with the mother from 10.00 am until 6.00 pm on Mother’s Day;
(c)X shall spend time with the mother on his birthday as follows:
(i)from 4.00 pm until 7.00 pm if his birthday falls on a school day;
(ii)from 10.00 am until 3.00 pm if his birthday falls on a weekend;
(d)Y shall spend time with the mother on her birthday as follows:
(i)From 4.00 pm until 7.00 pm if her birthday falls on a school day;
(ii)From 10.00 am until 3.00 pm if her birthday falls on a weekend;
(e)the children shall spend time with the mother from 10.00 am until 6.00 pm on Christmas Day in even numbered years and from 10.00 am until 6.00 pm on Boxing Day in odd numbered years;
(f)the children shall spend time with the mother from 10.00 am until 2.00 pm on Easter Sunday.
21.In order to facilitate Order 20 herein, changeover shall occur at Suburb E Train Station unless the parents otherwise agree in writing.
22.The mother’s unsupervised contact with the children pursuant to these Orders is conditional upon:
(a)the mother’s regular attendance at supervised contact in accordance with Orders 15 and 16 herein through C Suburb D;
(b)the Contact Centre not suspending the time between the mother and the children.
23.At the commencement of the children’s unsupervised time with the mother, the mother is at liberty to attend the following events at the children’s schools: athletics and swimming carnivals, school concerts, awards nights, presentations and parent information evenings.
Family Therapy and/or parental alienation program nominated by therapist (“therapy”)
24.Pursuant to s 13C(1)(c) of the Act, both parents and the children shall participate in therapy, with such therapist to be nominated by the Independent Children’s Lawyer. For the purposes of this Order:
(a)such therapy shall be reportable;
(b)the purpose of the therapy is to support and assist the children with the transition into the father’s care as well as to assist the children re-establishing contact with their mother;
(c)within seven days of the date of these Orders, the Independent Children’s Lawyer will confirm the name of the therapist;
(d)within seven days thereafter the parties are to contact the therapist nominated by the Independent Children’s Lawyer and schedule appointments for themselves and/or the children;
(e)each parent is to notify the other parent and the Independent Children’s Lawyer by email of the date of any initial appointment made with the therapist, within 48 hours of making the appointment;
(f)each parent is to attend the initial appointment with the therapist, and all subsequent appointments as requested by the therapist, until such time as the therapist recommends that the parent’s and/or children’s attendance upon that service should cease;
(g)each parent is to ensure that the children (or any of them) attend any appointments requested by the therapist;
(h)each parent is to use their best endeavours to ensure that any other person requested by the therapist attends any appointments;
(i)each parent is to comply with all reasonable recommendations made by the therapist, including accepting and complying with any referrals to other services for the parents and/or the children;
(j)the Independent Children’s Lawyer has leave to provide to the therapist a copy of Dr B’s Expert Report dated 8 November 2018, the reports of Ms F dated 6 September 2016 and 26 March 2018, and a sealed copy of these Orders;
(k)the Independent Children’s Lawyer is hereby authorised to have discussions with the therapist from time to time in relation to the parents’ engagement with and compliance with recommendations;
(l)the parents shall each bear the costs associated with their own attendance at therapy and shall share equally any costs associated with the children’s attendance;
(n)the family therapist shall provide a report to the Independent Children’s Lawyer and the parents six months from the date of these Orders addressing the following issues (including but not limited to):
(i)whether the parties have engaged with therapy;
(ii)whether the parties have attended as required;
(iii)how the children are progressing in the father’s care;
(iv)whether there has been progress and development in the children’s relationship with their mother;
(v)whether in the therapist’s opinion, further treatment/therapy would be of assistance;
(vi)any other recommendations of the therapist.
25. Within two years of the date of these Orders the mother shall pay $5,057.50 and the father shall pay $6,872.50 to Legal Aid NSW for the costs of the Independent Children’s Lawyer.
26.Leave is granted to the parties to restore the proceedings to the list within 28 days after the date of these Orders in relation to any agreed changes to the orders or in respect of the machinery provisions of the 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 Palmer & Kerr 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: SYC677 of 2015
Mr Palmer Applicant
And
Ms Kerr Respondent
REASONS FOR JUDGMENT
introduction
1.These are parenting proceedings about the living arrangements for X who, at the time of the hearing, was 13 years of age and Y who was 12 years of age.
Applications
2.The orders sought by the parents have changed over time. At the conclusion of the hearing the following orders were sought.
3.The orders sought by the father as outlined in his trial affidavit were as follows:
a)I, [Mr]. Palmer have sole parental responsibility for the children.
b)The children reside with the father for the foreseeable future.
c)The mother have no contact with the children for a period of 18 Months.
d)After a period of not less than 18 months the children, Ms [Kerr] and Mr [Palmer] attend family counselling, such as the G program offered by H Group.
e)The children be re-introduced to their mother (Ms [Kerr]) at a contact centre.
f)The mother cease all alienation of the children’s father and not reinforce negative ideas of their father to the children.
g)The mother attend counselling to assess, diagnose and treat any mental health conditions identified by a qualified practitioner.
4.The orders sought by the mother were as follows:
1).That the status quo remains, that the Mother has sole responsibility of caring for the children, and in making all short terms and long term decisions, regarding the welfare of the children.
2).That the children live with the Mother.
3).That the children have no contact with the Father, until they express the desire to do so.
5.The Independent Children’s Lawyer (“ICL”) submitted a minute of orders[1] prior to final submissions. The ICL sought the following orders:
[1] Exhibit 13
PENDING FURTHER ORDER IT IS ORDERED THAT:
1.The father shall within 7 days contact and subsequently commence attending upon Ms J or another psychologist as nominated by the ICL.
2.The purpose of the above order is to prepare and assist the father and the children in the event that final orders are made for the children to live with him.
3.The mother shall ensure that the children are brought to Child Dispute Services at the Family Court on the day that judgment is delivered.
4.Within 7 days the mother and father shall do all acts and things necessary to be placed on the waiting list at C Contact Centre in Suburb D.
ON A FINAL BASIS IT IS ORDERED THAT:
1.The father shall have sole parental responsibility for the children X born … 2005, and Y born … 2007 (“the children”).
2.The father shall advise the mother in writing of any major long term decisions he makes for the children.
3.The children shall live with the father.
4.For the purpose of implementing these orders, changeover shall occur at Child Dispute Services with the assistance of a Family Consultant.
5.On the day that judgment is delivered, The ICL shall explain the final orders to the children, prior to the children going to the father’ [sic] care, with the assistance of the Family Consultant (if available)
6.The ICL is granted leave to provide to the children’s school a copy of Final Orders and Reasons for Judgment.
7.The father shall ensure that the children continue attending Suburb R High School for the duration of the 2019 school year.
8.In the event that the mother seeks treatment in relation to her mental health, leave is granted for her to provide a copy of Dr B Report dated 8 November 2018 to her treating practitioner/s.
X & Y’s contact with their mother
9.That for seven months from the date of these orders the children shall spend no time with the mother.
10.Pursuant to Section 68B of the Family Law Act 1975 the mother is hereby restrained, for a period of seven months, from making contact with the children’s school and thereafter:
a.The mother is at liberty to contact the children’s school for the purpose of obtaining school reports, newsletters and notifications.
11.Pursuant to Section 68B of the Family Law Act 1975 the mother is hereby restrained from attending the children’s schools except for as provided for Order 23 herein.
12.Pursuant to Section 68B of the Family Law Act 1975 the mother is hereby restrained, for a period of seven months from the date of these orders, from contacting the children directly or through a third person except as provided for in Order 13 herein and thereafter the children’s contact with the mother shall occur only in accordance with these orders unless otherwise agreed between the parents in writing.
13.After one month from the date of these orders, the children shall commence having telephone/facetime contact with the mother each Sunday between 10am and 11am and for the purpose of facilitating this contact, the father shall place a call to the mother’s mobile phone.
14.The mother’s face to face contact with the children pursuant to these Orders is conditional upon her engagement in Family Therapy and her compliance with recommendations made by the Therapist nominated by the ICL.
15.At the expiration of Order 9 herein, the children shall commence spending supervised time with the mother as follows:
a.Each alternate weekend for two hours at C Contact Centre in Suburb D, at specific times nominated by the Contact Centre.
b.The mother and father shall meet the costs of supervision equally.
c.The mother and father shall comply with the rules of the Contact Centre and follow requests made by the Contact Centre.
16.The supervised time at Suburb D Contact Centre is to continue for a period of three months unless otherwise agreed between the parties in writing.
17.Leave is granted to the parties to provide a copy of these Orders to the Contact Centre.
18.At the expiration of Order 16 herein, the children shall spend time with the mother as follows, unless otherwise agreed between the parents in writing:
a.Each alternate weekend from 10am until 6pm on Sunday;
b.Changeover is to occur at Suburb E Train Station.
c.This weekend time is to continue during the Term 1, 2 and 3 school holiday periods.
19.The time in Order 18 herein is suspended during the Term 4 school holiday period during which the children shall spend time with the mother as follows:
a.From 10am until 6pm on both Saturday and Sunday on the third, fourth and fifth weekend of the school holiday period.
b.Changeover is to occur at Suburb E Train Station.
Special occasions
20.Notwithstanding any other order, the children shall spend time with the parents as follows:
a.The children shall spend time with the father from 10am until 6pm on Father’s Day.
b.The children shall spend time with the mother from 10am until 6pm on Mother’s Day.
c.X shall spend time with the mother on his birthday as follows:
i.From 4pm until 7pm if his birthday falls on a school day;
ii.From 10 am until 3pm if his birthday falls on a weekend
d.Y shall spend time with the mother on her birthday as follows:
i.From 4pm until 7pm if her birthday falls on a school day;
ii.From 10 am until 3pm if her birthday falls on a weekend
e.The children shall spend time with the mother from 10am until 6pm on Christmas Day in even numbered years and from 10am until 6pm on Boxing day in odd numbered years.
f.The children shall spend time with the mother from 10am until 2pm on Easter Sunday.
21.In order to facilitate order 20 herein, changeover shall occur at Suburb E Train Station.
22.The mother’s unsupervised contact with the children pursuant to these Orders is conditional upon:
a.The mother’s regular attendance at supervised contact through C Suburb D;
b.The contact centre not suspending the time between the mother and the children.
23.At the commencement of the children’s unsupervised time with the mother, the mother is at liberty to attend the following events at the children’s schools: athletics and swimming carnivals, school concerts, awards nights, presentations and parent information evenings.
Family Therapy and/or parental alienation program nominated by Therapist (“therapy”)
24.Pursuant to section 13C (1)(c) of the Family Law Act, both parents and the children shall participate in therapy, with such therapist to be nominated by the Independent Children’s Lawyer (noting it will be the same Therapist nominated to prepare and assist the father in the event that final orders are made for the children to live with him). For the purposes of this Order:
a.Such therapy shall be reportable;
b.The purpose of the therapy is to support and assist the children with the transition into the father’s care as well as to assist the children re-establishing contact with their mother;
c.Within 7 days of the date of these Orders, the Independent Children’s Lawyer will confirm the name of the therapist
d.Within 7 days thereafter the parties are to contact the therapist nominated by the Independent Children’s Lawyer and schedule appointments for themselves and/or the children.
e.Each parent is to notify the other parent and the Independent Children’s Lawyer by email of the date of any initial appointment made with the therapist, within 48 hours of making the appointment.
f.Each parent is to attend the initial appointment with the therapist, and all subsequent appointments as requested by the therapist, until such time as the therapist recommends that the parent’s and/or children’s attendance upon that service should cease.
g.Each parent is to ensure that the children (or any of them) attend any appointments requested by the therapist.
h.Each parent is to use their best endeavours to ensure that any other person attends any appointments requested by the therapist.
i.Each parent is to comply with all reasonable recommendations made by the therapist, including accepting and complying with any referrals to other services for the parents and/or the children.
j.The Independent Children’s Lawyer has leave to provide to the therapist a copy of: Dr B Expert Report dated 8 November 2018, the Reports of Ms F dated 6 September 2016 and 26 March 2018, and a sealed copy of these Orders.
k.The Independent Children’s Lawyer is hereby authorised to have discussions with the therapist from time to time in relation to the parents’ engagement with and compliance with recommendations.
l.The parents shall each bear the costs associated with their own attendance at therapy and shall share equally any costs associates with the children’s attendance.
n.The family therapist shall provide a report to the Independent Children’s Lawyer and the parents (6) month from the date of these orders addressing the following issues (including but not limited to):-
(vii)Whether the parties have engaged with therapy;
(viii)Whether the parties have attended as required;
(ix)How the children are progressing in the father’s care;
(x)Whether there has been progress and development in the children’s relationship with their Mother;
(xi)Whether in the therapist opinion, further treatment / therapy would be of assistance;
(xii)Any other recommendations of the therapist.
6.The ICL also sought orders for costs based on a schedule which became exhibit 14. The ICL seeks that the mother pay $5,057.50 being the mother’s one half share of the total costs of $13,745 minus $1,815 being a waiver granted by Legal Aid NSW. The ICL seeks that the father pay $6,872.50. In each case the payment is sought within 12 months.
Written evidence
7.The father relied on:
(a)Initiating Application filed 6 February 2015
(b)the father’s affidavit sworn 4 March 2019
(c)affidavit of Ms K filed 10 August 2015
(d)the father’s Parenting Questionnaire filed 24 May 2017
(e)Notice of Risk filed 6 February 2015
8.The mother relied on:
(a)Response to Initiating Application filed 2 June 2015
(b)the mother’s affidavit filed 20 March 2019
(c)the mother’s Parenting Questionnaire filed 29 May 2017
(d)Notice of Risk filed 2 June 2015
Expert evidence
9.The following expert evidence was relied on:
(a)Family Report prepared by Ms F dated 6 September 2016
(b)Updated Family Report prepared by Ms F dated 26 March 2018
(c)Single Expert Report of Dr B dated 8 November 2018.
The hearing
10.On 15 July 2019 the ICL was represented by counsel but each of the father and the mother appeared without legal representation. As had occurred in April 2019, the hearing proceeded with the mother in a separate room in the Registry, appearing by video link. I gather that those arrangements were made to address concerns raised by the mother.
11.The father and notwithstanding her legal qualification, the mother, had difficulty with the process of cross-examination. For example, during that process, if there was a challenge to a question the cross-examining parent tended to immediately withdraw it.
12.I should record my thanks to learned counsel for the ICL who prepared a trial plan and assisted the parties, including by cross-examining each of the witnesses first. Thanks are also due to the parents and to the father’s partner, Ms K, who cooperated with the trial process and showed great forbearance in what was necessarily a highly stressful trial, conducted without legal representation and after four very difficult and emotionally and financially draining years of litigation.
13.Final submissions were made on 19 July 2019.
14.I canvassed with the parties the interim orders sought by the ICL and for reasons given on 19 July 2019 I made an order of the type contained in paragraph 3 of the proposed orders. The order was:
1.The mother ensure that the children are delivered to the Child Minding Services of Child Dispute Services at this Registry at 10.00 am on the day that the parties are advised judgment is to be delivered.
15.I said that I would not make the other interim orders proposed by the ICL, which would have required:
(a)the father to contact and engage with Ms J or another psychologist as nominated by the ICL, in order to prepare and assist him and later, the children, in the event that final orders were made for the children to live with him; and
(b)the parents to immediately arrange to be on the waiting list for C Contact Centre at Suburb D.
16.As to ordering psychological support for the father, at the conclusion of the trial I did not know what order I would make. The father not having already put in place psychological support to assist him implement the orders he sought, I did not consider it appropriate to order him to do so in advance of delivery of judgment. However, in his final submissions the father said something to the effect that he had plans to make the necessary enquiries in any event. On that basis that order was not made.
17.The orders proposed by the mother did not require a supervised contact centre. The timetables proposed by the father and the ICL would not require a supervised contact centre for at least seven months after the final orders are made. On that basis there was no need for the parents to secure a place on a waiting list.
18.On 19 July 2019 judgment was reserved.
Short history
19.The father was born in 1969. As at the date of the hearing he was 50 years of age. The mother was born in 1972. As at the date of the hearing she was 46 years of age. The parents met in 1991, commenced living together in 1997 and were married in 1997. X was born in 2005 and Y was born in 2007. The parents separated in 2013 and were divorced with effect from late 2014.
Credibility
20.It needs to be acknowledged that the children, the parents and Ms K have been placed in a terrible position for many years. It is likely that the travails of the parents impacted on their presentations as witnesses.
21.Each of the lay witnesses became emotionally upset during their cross-examination. In the mother’s case, at times she also raised her voice, continued to talk when she was asked to stop and was apparently angry.
22.There were problems with the parents’ evidence. The father had difficulty remembering some events and tended to guess at answers rather than conceding that he did not remember.
23.The mother appeared angry at times during her cross-examination and at times she responded with questions of her own or with a speech about her views about a related topic. The mother appeared to have a good recollection of relevant events but her evidence is replete with unqualified opinions about various things. Although she rejects the opinions of several of the professionals with whom she has come into contact, she apparently has no hesitation in offering her own opinions about matters in respect of which she has no relevant qualifications. She steadfastly refused to concede what were unremarkable propositions. It was a struggle before she conceded that the children were not at risk of dying at supervised contact with the father. Ultimately, she rhetorically retreated to - there being a need to acknowledge the fears of the children and her fears on the occasion in question.
24.The mother says that even though she welcomed a mental health assessment, she was reluctant to be assessed by Dr B and opposed his appointment. The mother deposed[2]: “On research of Dr B, I found that he openly believes that children should return to their abusers”. The mother annexed to her affidavit[3] what appears to be a page from an internet search about Dr B. The details of the search enquiry have not been provided.
[2] Paragraph 20 of the mother’s affidavit
[3] Annexure 4
25.The mother referred during her oral evidence to Dr B holding a view about child rapists being trusted with children. That was presumably a reference to an entry cited above. The articles apparently refer to child sex offenders and that is not alleged against the father in respect of X or Y. I should say that Dr B’s role here was to undertake mental health assessments of the parents and not to make recommendations about parenting orders. When pressed about her concerns, the mother’s response was to the effect that she was unhappy with Dr B’s conduct in his interview of her, the errors she perceived in his report and that the references were something that she discovered. The mother had no proper basis to object to the appointment of Dr B. Dr B suffered the fate that has apparently befallen many associated with these proceedings with whom the mother came into contact. He dared to challenge her views.
26.I accept that many, if not most of the problems with the mother’s evidence, may have been matters of judgment rather than credit alone. However, the impact on her evidence is the same. In my view the mother did not always attempt to give reliable evidence. The mother is a person of obvious intelligence and her refusal to accept obvious propositions was distracting.
27.The mother called no evidence from members of her family. She was asked about that and said that she wanted to protect them from the proceedings. That seems odd in that her father attended at Court for each day of the hearing. The background facts suggest that members of the mother’s family would be in a position to corroborate the mother’s evidence on some matters. For example, the notes of the L Hospital from May 2011 include:
…. [the mother] states for the past 20 yrs her husband has, put her down and has not been emotionally available. Over the weekend her husband screamed at their child to the point where the child was extremely frightened [the mother] reports. [The mother]’s family however report that [the father] is caring and supportive. [The father] left his job, she is unemployed and they seem to be struggling financially, renting an expensive property. [The mother] denies being depressed and is not psychotic. She repeatedly states that she is now no longer afraid of her domineering father and wants to leave her husband.…
And
…States that her father was domineering and overly concerned about academic achievement …
And
Now believes that her family want her to seek psychiatric help / counselling so that she can be told not to leave her husband.
And
… [the mother]’s husband currently does all the housework cooking and [the mother] says she has no energy. She puts down this lack of energy to 20 years of emotional abuse by her husband. Her family do not view [the father] in the same light
28.Before me the mother variously said that she did not know what she had said at the hospital because “it was in 2011” and that she did not mention her dad at the hospital but she agreed that she probably made reference to wanting to leave her husband. It is likely that members of the mother’s family could have assisted with the differences between the mother’s recollection and the hospital records.
29.Ms K has never met the children and is not in a position to give evidence about any of the key contentious events or issues. That said, she was not challenged on any significant matter and appeared to be a good witness.
30.Ms F and Dr B are expert witnesses and save for the mother’s unreliable criticisms, their credit was not at issue. Because of a level of exaggeration in the mother’s evidence, where there is a dispute between the mother and one of the experts about things said or done during their interviews with her, I generally prefer the evidence of the expert.
31.Findings about facts disputed by the parents, where possible, need to be made issue by issue.
Background facts
32.The parents commenced their relationship in 1991. They started living together in Victoria in 1996 or 1997 and were married in 1997.
33.X was born in 2005.
34.Y was born in 2007.
35.In 2010 the father was diagnosed with reactive depression, anxiety and stress by his general practitioner and was prescribed medication. He became unable to continue his work and was off work for about 18 months. The parents agreed to both take time out from paid employment and they lived on their capital.
36.The parents separated for about six months in 2011.
37.In February 2011 the mother spent three days in L hospital for a mental health assessment and tests.
38.In 2012 the father returned to work.
39.The parents finally separated on 1 April 2013 when the father moved out of the former matrimonial home and into a unit at Suburb N
40.In 2014 the father re-partnered with Ms K.
41.The parents were divorced with effect from late 2014.
42.The father commenced these proceedings in the Federal Circuit Court in 2015. By his Initiating Application filed 6 February 2015 he sought final orders to the effect that the parents would have equal shared parental responsibility for the children, that the children would live with the mother and spend time with him on alternative weekends and for block time during school holidays.
43.On 4 May 2015 Judge Scarlett appointed an ICL and on 7 May 2015 the parties attended a Child Dispute Conference with a Family Consultant. On 20 August 2015 Ms F, Family Consultant, interviewed the children at a Child Inclusive Conference.
44.On 11 March 2016 the parties attended a hearing before Judge Scarlett and on 31 March 2016 orders were made, including orders to the following effect:
·the children were to attend counselling on a fortnightly basis commencing as soon as possible;
·after six sessions a preliminary report was to be provided to the Court with liberty to the parties to relist the matter on seven days’ notice;
·after attending no fewer than six counselling sessions the children would spend supervised time with the father each alternate Sunday from 1.00 pm to 4.00 pm at a Contact Centre;
·thereafter the children were to spend unsupervised time with the father from 10.00 am to 4.00 pm on alternate Sundays and the father was permitted to communicate with the children by telephone or Skype each Tuesday and Thursday between the hours of 6.00 pm and 8.00 pm;
·the mother was to undertake a Parenting After Separation course as nominated by the ICL.
45.During her cross-examination the mother said that the children attended counselling with H Group for a year or so. However, they never spent any time with the father pursuant to those orders. On the date appointed for the first supervised visit the mother arrived at the O Group centre with the children. Y was crying at the reception desk. It was the mother’s evidence in cross-examination that she said “Y, this is a court order and we need to do it”. The mother was asked if she said something to encourage Y and the mother responded with words to the effect: “She was scared of this man. I wasn’t going to give her a false sense of security”. The mother said that she did not trust the contact centre supervisors as they were all strangers.
46.The records of O Group[4] before the Court note the following. The supervisor said “Let’s see how it goes” and the mother responded in a heightened tone with: “They are going to die”. A centre worker admonished the mother for making that comment in the presence of the children and said “You are frightening them”. X stomped his foot hard on the ground and said to the worker in an aggressive tone: “We don’t want to see him, got that” and he began to cry. At that time everyone appeared to be distressed. The mother said “Don’t tell me we are safe, and that I can’t acknowledge how my children feel, they are not safe”. Ultimately the visit was cancelled.
[4] Exhibit 7 ICL tab 9.4
47.The mother concedes that her comments were made in the presence of the children.
48.There was a later attempt at a supervised visit but it too was unsuccessful.
49.Under the orders of 31 March 2016 the mother was to attend a Parenting After Separation course. She was asked in cross-examination whether she attended a course and she responded with words to the effect, “No, they didn’t nominate anything to me”. That is not strictly true as the correspondence forming part of exhibit 1 reveals. The mother conceded that fact later in her cross-examination. The mother was not willing to return to O Group. There was no requirement in the order that the nominated course have her approval. Compliance with Court orders was and is not a matter for which the ICL has sole responsibility.
50.The father last saw the children in the rooms of Ms F, the single expert Family Consultant, in August 2016. The children were anxious at that event and the interaction between them and the father was not warm or relaxed. The father asked if he could take a photograph but readily respected the wish of the children that he not do so.
51.On 7 September 2016 the report of Ms F was released to the parties.
52.On 29 September 2016 Judge Boyle transferred the proceedings to this Court.
53.On 10 January 2017 the father filed a Contravention application alleging that the mother had contravened the orders made on 31 March 2016. The father discontinued that application on 20 March 2017.
54.On 14 June 2017 the matter came before me for the first day of the Less Adversarial Trial. In parenting cases, that day is usually devoted to ordering any necessary reports from experts and if practicable, to making directions for the filing of written evidence, case outline documents and other trial directions. However, on that date I noted that the family was engaged in the G Program presented by H Group and for that reason, trial directions were not made.
55.On 26 September 2017 in light of allegations of poor mental health made in respect of the parents, it was noted that neither parent could afford to contribute towards the preparation of mental health assessments.
56.On 14 June 2017 the Court requested the ICL to make enquiries of relevant experts as to the cost of mental health assessments of the parents.
57.On 16 January 2018 an order was made for an updated Family Report. It was noted that the father had not spent any meaningful time with the children for five years and issues to be specifically addressed by the report writer were identified. On 30 January 2018 the father filed a Contravention application alleging that the mother contravened the orders of 31 March 2016 in failing to facilitate the father’s time with the children.
58.On 6 April 2018 the updated report of Ms F was released to the parties.
59.On 18 July 2018 I requested that Legal Aid NSW make arrangements for a fresh appointment of an ICL for the children. It was alleged before me that there have been four ICLs in these proceedings. This is very unusual and unfortunate.
60.On 6 September 2018 the parenting proceedings were fixed for hearing over five days commencing on 1 April 2019; the evidence of any lay witnesses (to be contained in one affidavit for each deponent) was to be served by the close of business on 15 February 2019; and an order was made appointing Dr B to undertake a mental health assessment of the parents. Dr B’s appointment was made over the mother’s objections.
61.Dr B interviewed the mother on 18 October 2018 and the father on 19 October 2018.
62.On 9 November 2018 the report of Dr B was released to the parties. On 14 November 2018 Dr B wrote to the ICL advising that the mother had chosen not to complete material he had sent her for the purposes of psychometric testing. Dr B said that he could not therefore provide any further commentary to his report.
63.In 2019 the father left his employment and commenced work for a different organisation.
64.The evidence of the parents was filed late. On 13 March 2019 a Registrar ordered that the mother’s material be filed and served by 22 March 2019. It was noted that in the event that the mother did not file her material, the trial dates may be vacated or the matter may proceed on 1 April 2019 on an undefended basis.
65.On 1 April 2019 the ICL was represented by counsel but the father and mother appeared without legal representation.
66.As a result of arrangements made within the registry, the hearing commenced with the mother in a separate room, appearing by video link. The mother was supported by her father. After the parties were told about the sequence of events for the trial, the mother said that she was ill, that she had undergone a biopsy and sought an adjournment of the hearing for three months. She presented two certificates from a doctor at the R Medical Centre and a copy of a letter said to be from her to her employer. Neither of the medical certificates was adequate. Neither purported to address the mother’s fitness on 1 April 2019 and neither referred to the nature of the medical basis for the mother’s inability to attend. While those issues were being raised with the mother she became unresponsive. Assistance was quickly provided by registry staff and an ambulance called for the mother took her from the registry to hospital.
67.After briefly canvassing the options with the father and learned counsel for the ICL, the following orders were made:
1.The hearing be adjourned to 10.00 am on 2 April 2019.
2.The Court Notes that if there is no appearance by or on behalf of the mother at that time an application may be made that the hearing continue in her absence.
3.Notice be given to the mother of these Orders as soon as practicable by the Independent Children’s Lawyer by text message through SMS, email or such other manner as is available.
68.On 2 April 2019 there was no appearance by or on behalf of the mother. An email was received in the registry and with the permission of the other parties, I read it. In that email the mother indicated that she had been in hospital and would not be attending at Court. She attached a copy of a medical certificate, apparently issued at the hospital, which asserted that she would be unfit from 1 to 8 April 2019 due to reasons including an acute stress reaction. I asked the father and the ICL’s counsel what they proposed and the father sought that the hearing proceed in the mother’s absence. Learned counsel for the ICL submitted that I should invite the Department of Family and Community Services to intervene. After hearing submissions on behalf of the father and the ICL and for reasons given at the time, I made the following orders:
1.An oral application for the hearing to proceed in the absence of the mother is refused.
2.The proceedings are adjourned for mention only to 10.00 am on 6 May 2019.
3.The Court Notes that the subject children live in the sole care of the mother and that by a medical certificate dated 1 April 2019 it is asserted that due a condition including an acute stress reaction the mother is so unwell that she is unable to attend court or to defend parenting proceedings in relation to the children. In those circumstances the Court is concerned for the welfare of those children.
4.The Court Notes that in the event that the mother is indefinitely unfit to prosecute or defend the proceedings she may require a case guardian to be appointed for her (being an adult willing to undertake that role and having no interest adverse to her in the proceedings) and that the substantive proceedings would be stayed until that was done. The Court would nevertheless have jurisdiction to deal with any interim application made in relation to the care of the children filed in the proceedings.
5.Pursuant to s 91B Family Law Act 1975 (Cth) the Court requests that the Secretary of the Department of Family and Community Services intervene in these proceedings.
6.The mother facilitate the attendance of the children on the Independent Children’s Lawyer at times, dates and places requested by the Independent Children’s Lawyer.
7.Leave is granted to the parties or to any person interested in the welfare of the subject children to apply in relation to these proceedings on 48 hours’ notice to the Court and to the other parties. If that leave is exercised for the purpose of seeking substantive orders it is to be exercised by the filing of an Application in a Case and an affidavit in support.
8.The Independent Children’s Lawyer service a copy of these Orders on the mother as soon as practicable.
69.On 6 May 2019 the matter was before me for a case management hearing. The mother and father each appeared by telephone and the ICL appeared in person. The following orders were made:
1.The hearing is fixed for resumption over five days commencing 15 July 2019.
2.Any updating affidavit material by any lay witness, only updating material is to be filed and served not later than close of business on 1 July 2019.
3.The parties’ case outline documents setting out the orders they seek, the list of documents they rely on and a brief summary of their arguments under Part VII of the Family Law Act 1975 (Cth) are to be filed and served not later than the close of business on 5 July 2019.
4.In the event that any party becomes aware of any matter that would prevent the hearing resuming on 15 July; 2019 and continuing to conclusion on 19 July 2019 that party is to forthwith restore the matter to the list by arrangement with the associate to Justice Loughnan on short notice.
The Secretary of the Department of Family and Community Services did not seek to intervene in the proceedings.
The parenting proceedings
The expert evidence
71.The single expert Family Consultant is Ms F. Ms F is a Senior Family Consultant for this Court. She holds a Masters Degree in Social Work. Over 30 years, she has worked in child protection with the NSW Department of Community Services, at S Hospital, since 1992 with this Court and later, also with the Federal Circuit Court.
72.Ms F’s reports are dated 6 September 2016 and 23 March 2018.
73.The single expert Clinical Psychologist is Dr B. His qualifications include a Masters Degree in Clinical Psychology and a PhD. Dr B worked as a child psychologist and then as a Senior Clinical Psychologist within what was then the New South Wales Department of Family Services. Until 2010 he worked as a Family Consultant providing reports pursuant to Regulation 7 for this Court. In recent years Dr B was employed as an academic at a university. Dr B is a member of the Colleges of Forensic and Clinical Psychologists of the Australian Psychological Society and of the Australian and New Zealand Association for Psychiatry, Psychology and the Law.
74.Dr B’s report is dated 8 November 2018.
The legislation
75.The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
76.Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Subsection 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
77.The sequence of decision making for identifying appropriate parenting orders under Part VII of the Act starts with parental responsibility. If an order is made for equal shared parental responsibility, s 65DAA requires that the Court consider making an order for equal time and, if that is not ordered, for the child to have substantial and significant time with each parent. Findings are made by reference to what is in the child’s best interests.
78.For the purposes of the determination of these proceedings, I will adopt the following approach:
(a)set out the current arrangements;
(b)set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
(c)where possible and relevant, consider and make findings about matters set out in s 60CC;
(d)apply s 65DAA if relevant and assess the proposals in light of that provision;
(e)consider and make findings about living arrangements; and
(f)make orders.
The Current Arrangements
79.The children live with the mother and spend no time with the father.
The Parties’ Proposals
80.The detailed proposals are set out earlier in these reasons.
81.The major dispute is whether the children live with the father or the mother and what time, if any, and under what conditions they should spend with the other parent. Each parent seeks that they solely exercise parental responsibility.
Section 60CC Considerations
82.The section contains the following provisions:
Primary considerations:
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents
83.A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[5] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[5]McCall & Clark (2009) FLC 93-405.
84.The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[6]
[6]Champness & Hanson (2009) FLC 93-407.
85.There is no agreed position about this criterion. The effect of the orders sought by each of the parents is that it is unsafe (at least for a substantial period) for either child to spend any time with the other parent.
86.In addition to the importance of the parents of a child remaining in a child’s life as a matter of principle, it is my view that each of these parents has something valuable to offer to X and Y. I am satisfied that each of the parents loves the children. It is an agreed fact that each of the children loves each of the parents.
87.In my view there is benefit to the children in having a relationship with both parents and if it is safe and practicable, any orders should facilitate those relationships, at least in the medium term. The mother is implacably opposed to the children having contact with their father.
(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
88.‘Abuse’ and ‘family violence’ are defined terms.
"abuse" , in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
89.Section 4AB provides:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
90.The experts both predict very serious risks arising from either of the proposals before the Court. For that reason this is a critical criterion in these proceedings.
91.There was and is a very high level of conflict between the parents.
92.There was physical violence between the parents. The parents disagree about some matters but it is an agreed fact that on an occasion before Easter in 2013 the mother struck first in what was a physical fight between the parents. She slapped the father in the face, he hit her back and then she hit him again. It is asserted that the incident did not occur in the presence of either child. That does not mean that the children were not exposed to it.
93.The mother’s trial affidavit does not contain any evidence of past abuse. However, I will refer to the allegations of abuse set out in the Notice of Risk filed by the mother on 2 June 2015:
a)In 2005 the father refused to attend to a crying and distressed baby X. The father remained watching TV and said that the baby was being “an idiot” and a “pilik” [sic].
The father did not concede that he had refused to attend to the baby but said that at times he may have referred to the baby as a pillock but not within the child’s hearing. No finding adverse to the father is available on those facts.
b)In 2008 while attempting to toilet train X, the father barricaded the door of the toilet with his body so that X could not leave. The mother asked the father to let the child go and he refused. The father and X were in the toilet for one and a half hours. Thereafter X was quiet and despondent.
Neither of the parents was asked about this allegation in cross-examination. This alleged incident is said to have occurred three years before the parents’ first separation. There is no evidence about any action being taken by the mother, nor about any ongoing issues for X. No meaningful findings are available based on that evidence.
c)In May 2011 the father came into X’s bedroom, towered over him, right into X’s face, nearly touching X’s nose with his, glared into X’s eyes and bellowed that X would not be able to go to the park.
The father agreed that he may have raised his voice to X but he did not agree with the rest of the allegation.
Dr B was asked about the likely long term effects of the incident on X and said words to the effect:
“Assuming it happened in the way described – zero. It’s not an abusive behaviour, not a form of psychological abuse. It is a reasonable thing for parents to raise their voices. Children survive that quite well. It would be different if the shouting involves demeaning language …”
It would have been difficult for the father not to tower over X at four years of age. Nearly touching noses with him, if done in a threatening way suggests an effort by the father to intimidate a young child. Transactions between parents and young children necessarily involve a substantial power imbalance. However, no relevant findings are available based on that evidence.
d)Between 2010 and 2013 the father yelled harshly at X and stopped X from speaking.
This allegation is vague and is not capable of a meaningful finding.
e)Between July 2012 and 1 April 2013 the father yelled at the children on a regular basis, scaring them. The children had trouble falling asleep at night and the mother held them and rocked them to sleep while singing quietly.
The allegation is vague and there was no meaningful cross-examination about it. No findings are available based on that evidence.
f)In 2013 at dinner times the father sat at one end of the dinner table and the mother and children at the other. The father glared at them with rage and the children did not eat their dinner because they were so scared.
The father did not agree with this allegation. No relevant findings are available.
g)In 2013 the children were scared to sit in the family room and watch TV because the father would occupy the whole sofa and would stare at the children, tapping his fingers slowly on the arm rest.
The father did not agree with this allegation.
h)In 2013 the father became very distressed, was having a violent episode and tried to leave the house. The mother said that she was concerned for the father and tried to stop him leaving. She grabbed his arm and tried to calm him down.
The father agrees with those statements and conceded that the mother was trying to help him.
However, the mother then says that he knocked her down as he tried to leave the home. She says that the children witnessed that and were terrified. The mother says that after the father left the home Y yelled “Lock the door mummy, don’t let him in”. The mother says that when the father did return the children ran to their room and barricaded the door with their toys.
There was no meaningful cross-examination about that part of the allegation. It follows that this must have occurred before final separation at about Easter time in 2013. The allegation relies entirely on the uncorroborated evidence of the mother. The mother is prone to exaggeration.
i)In 2013 the father dropped the children’s favourite bowls in front of them as he was unloading the dishwasher. The mother says that the father chipped crockery from July 2012 to 1 April 2013. The mother says that the father said “It was just an accident”.
There was no cross-examination of either party about those allegations. No meaningful findings are available from those allegations.
j)In 2013 the father dropped the mother’s flower pots in the presence of the children. The pots were heavy and the mother came out of the house to enquire if the father was okay. The mother said that the father had a shocked look on his face and X said to the mother that the father dropped the pots deliberately.
There was no cross-examination of either party about those allegations. No meaningful findings are available from those allegations.
k)As is referred to above [92] - the mother says that in 2013 she woke up one day, feeling very ill. She asked the father to stay at home to attend to the children. The mother asked the father if he had something important on that day and asked him to stay home for just half the day. The father refused. The mother says that she became very upset and then slapped the father in the face. She says that the children were not present when that happened. The mother says that the father raised his arm and hit her on the face with full force. The mother says that she again slapped the father but then realised that “it was getting dangerous” and walked away.
There was no cross-examination of either party about that evidence but it is important as the broad details of the incident are agreed. The evidence of both parties represents an admission against interest. The incident reflects badly on both parents.
l)At Easter 2013 the father stormed out of his bedroom, shoved his face into that of the mother and roared, that he would not attend to a blocked toilet. The mother does not assert that this occurred in the presence or hearing of the children.
The father agrees that on a Sunday being the day of final separation, he and the mother had an argument about a blocked toilet. He says that the toilet was flushing, albeit slowly and he proposed that they wait until the next day and have the managing agent arrange for a plumber to attend. On the father’s version, that would seem to exclude the likelihood that the incident occurred on Easter Sunday because there would presumably be similar problems engaging a plumber on Easter Monday. He says that the mother insisted on calling a plumber that day at considerable cost to the parents. The mother took the children out of the home. The father remained and waited for the plumber. The mother’s brother in law rang the father and suggested that the father stay at his house. The father packed up some clothes and stayed with his brother and sister in law. The father agreed that there was an argument but disputes that he was abusive.
It is not possible to make meaningful findings relevant to the matters at issue, based on that evidence. The mother’s brother in law could have corroborated her evidence but he was not called as a witness.
m)The mother says that from 2013 to 2015 the children continually asked the father to leave them alone but he refused. She says that he forced them to have contact by manipulating them with presents and using the law to have forced contact with them, including counselling sessions. The mother has exaggerated her concerns. The children did not see the father after May 2013, save for an occasion in 2016 for an observation for Ms F’s first report.
The record suggests that the father initially accepted the mother’s assertion that the children were not ready to see him and that he needed to give them more time. That is apparent from the text messages – exhibit 2. It is the mother’s evidence that when she responded in an apparently supportive way to the father’s requests, she had no intention of facilitating time but wanted to fob him off, without making him angry.
Whatever might be said about this, a finding of abuse is not available against the father. The mother’s conduct however falls within the s 4AB definition of family violence – “(i) preventing the family member from making or keeping connections with his or her family” …
94.The agreed incident of physical violence occurred between the mother and the father. The parents will no longer be living together and arrangements can be made to avoid or minimise their need to come together in the future. The allegations made against the father are largely contested and no meaningful findings can be made about them. There is a risk that the children would be exposed to intimidating behaviour by the father but in light of all the evidence, including the opinions of Dr B, the risk is not an unacceptable one. On the other hand the mother concedes that she has acted to prevent the children having contact with the father. There is no doubt that the mother will continue to act in that way in the future. Although in the past the father has not sought to isolate the children from the mother, he now proposes that the children be isolated from the mother for a period by court order.
95.On that basis I am not satisfied that there is an unacceptable risk of future abuse or violence of the type alleged by the mother.
96.It is common ground that the mother has excluded the children from the father, conduct that is included in the definition of family violence. It is not a matter of a risk of that conduct continuing, the mother is steadfast in opposing contact between the children and the father.
97.On any view the mother has been the sole care giver of the children for the last six years. The only potential change is that proposed by the father.
98.However, the experts both predict the risk of psychological and emotional harm to the children in the future. Those risks are predicted whatever final orders are made. The experts each predict long term psychological harm coming to the children if they remain with their mother and have no contact or relationship with their father.
99.Dr B concluded that:
Either the children will have to change residence, which would be difficult particularly in regards to X given his age, or the children will grow up with a false belief about their father and likely experience intense delusional beliefs about the father that could impact them significantly as they develop through their lives.
100.Dr B was concerned about the impact on the children of not having seen their father and having been told that he is a monster. In his oral evidence he said words to the effect:
It will impact their view of how males are and how men behave in relationships.
The children have become so indoctrinated and controlled by their mother that they won’t go through the normal personality transformations that children go through. There are significant risks in terms of their development over time. They will have a limited ability to have their own personalities independent to the mother.
101.As to the lack of a relationship with their father, Dr B said words to the effect:
I think having a relationship with their father is exceptionally important. We know from research, especially for boys, a good relationship with your father is important in avoiding acting out and also depression.
102.Dr B was asked about the progression of adolescent children to autonomy and said:
Children start to work out who they are during adolescence. They are influenced by a lot of things including their parents. They need to have autonomy and feel like they can experiment and explore without being pigeon-holed. Preventing that from occurring by being controlled is a major cause of anxiety and depression in young people.
103.Dr B was informed about the mother’s indication that she would not comply with orders that promoted a relationship between the children and the father and that therefore the applications before the Court are “all or nothing” applications. He was asked about the possibility that the children would be moved to live with the father and when that should occur. Although conceding his limited role in the proceedings, Dr B responded to the effect:
This is one of the very horrible things that sometimes occurs. At paragraph 91 (of the report) I have noted there are costs for the children whether they stay with their mother or change residence. Obviously I’m not in a position where I can say what should happen other than to point out that the costs of them remaining with the mother in the long term are really very high but we don’t know about the short/medium term costs (of changing residence) and they could also be high.
104.Dr B was asked about the risks associated with a change of residence. He said words to the effect:
There is a time frame. You have short, medium and long term. In the short term, a matter of a couple of months, there may be quite severe sadness. These children have been brought up to believe two things; firstly, that their mother is the complete package for them and secondly, they have been brought up to fear their father. Being placed with the father will create in them a sense of fear and sadness and that will create a psychological dilemma for them. That will be hard for the children to manage. The father will need to be a cool, calm and collected kind of character to manage the children’s emotional distress.
In the medium term the children will start to make attempts to contact the mother. That will be difficult if the mother is determined to undermine the father. She might try to contact them through school, friends, mobile phones and social media. That will leave the children continuing to experience a tug of war.
Gradually as their understanding of their father progresses and develops and they come to see that he is not the frightening person he has been painted out to be and through counselling they will come to see him from a different perspective, they will become quite confused. If they do contact their mother they will be unable to resolve the confusion. And it is at that point that they may seek to run away.
In the long term as they settle into routine and into a relationship with their father that becomes trusting, loving, caring and sympathetic, the impacts will reduce but in the first couple of months and until six months to a year, the father will need support and the children will need support.
There are risks – The children could run away or become aggressive. It is likely that their schooling will suffer because they become preoccupied because they are missing their mother.
105.Dr B was asked about what the father should do to assist the children to come into his care and he said words to the effect:
My very strong advice to him would be to engage to a psychologist or social worker who specialises in parental alienation about how to deal with it and also prepare so that if the children do come into his care he has support if the children reject him, which is likely, and to deal with the loss of their attachment to the mother.
106.Ms F said that a change of residence can be a traumatic time for children and that it can sometimes be helpful for a no contact period to allow them to settle in. There would usually be a period of respite, hand in hand with some counselling support, so that the children have an independent avenue of assistance. If the children are to commence at a new school that can also be distressing. As to X and Y, Ms F thought they would be very worried about their mother and wanting to speak to her but she recommended that they should be given the best chance to settle in if a change of residence is ordered. She also said that any person in the father’s position would struggle to deal with the change of residence that he proposes. Ms F thought that support from his partner might help and that he would have to take some time off work to be there for the children if they were moved into his care. Ms F also thought that the father should seek assistance from a professional if he needed it.
107.The experts each predict short term psychological harm coming to the children if they are moved to live with their father and are separated from their mother for a period.
108.Dr B said that he is extremely concerned for the psychological well-being of the children. Those concerns arose from the evaluation of the parents and from Ms F’s reports. He is afraid that the children have developed an irrational and unreasonable fear of the father. He reported:
90.Under these circumstances significant concern has to be held about any possible contact the father could have with his children. In the situation where the mother continues to exert control over and have a dominant presence in the children’s lives no contact is ever going to be likely. If the father is to have any contact with the children it will have to be through an intensive program such as the Alienation Program run by the U Group and contact with Dr T might usefully be made in that regard.
91.If that were not to work or (is) not viewed as viable given the fiscal constraints on the family and following that program a shared care arrangement could not be negotiated it appears to me that the situation for the Court is dire. Either the children have to change residence, which would be difficult particularly regards X given his age, or the children will grow up with a false belief about their father and likely experience intense delusional beliefs about their father that could impact them significantly as they develop through their lives.
Conclusion about the primary considerations
109.Section 60CC (2A) deals with the weight to be given as between the primary considerations:
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
110.The primary considerations favour a change of residence. The only realistic chance for these children to have a meaningful relationship with both parents will require that change of residence. The experts predict significant risks of psychological and emotional harm to the children. There is a high risk of ongoing harm if the children remain with the mother. There are risks associated with changing the residence of the children and they could also be described as high.
111.As was submitted on behalf of the ICL, if the risks associated with the mother’s proposal were of serious physical harm, the Court would not hesitate to change residence. I agree that there is no principled basis for reacting differently when the predicted serious harm is psychological or emotional. Of course, there are countervailing risks to be weighed.
Additional considerations
(3) (a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
112.It is common ground that the children have said that they are strongly opposed to spending time with the father. I accept that they would be equally opposed to being separated from their mother, whether for seven months, 18 months or for any significant time.
113.X and Y are 13 and 12 years of age. Their parents have struggled with the day to day demands of parenting and paid employment for much of the children’s lives and have been in conflict with each other since at least 2011. The parents separated for the last time in early 2013. Each of the parents has suffered with mental health challenges, exacerbated by their conflict and separation.
114.The children have been extremely distressed on occasions since 2011. Since early 2013 the children have lived with the mother and have had virtually no contact or communication with the father. As Dr B reported, given that she was four years of age at separation, it would have been very difficult for Y to retain any independent memory of her father. The concern is that her opinion of her father has been created or at least influenced by the mother.
115.Importantly the children’s views have not been based on any direct exposure to or interaction with the father since 2013 apart from a brief meeting in August 2016. In those circumstances there remains an issue about the maturity and level of understanding of the children and the weight that should be given to their views.
116.The children are nevertheless 13 and 12 years of age, respectively and their views should be accorded real weight.
(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and(ii) other persons (including any grandparent or other relative of the child);
117.In 2015 each of the parents told a family consultant that in principle, the children should spend regular time with both parents. I note however that the mother determined during 2013 that she would no longer promote their relationships with their father.
118.The mother was asked about the children loving the father and said something to the effect of, “Of course they love him, he is their father”. There is no reason to doubt that the children love their mother. I take it that there is no doubt about the mother loving the children. The mother contends that the father’s conduct since separation has been prompted by a desire to abuse the mother rather than because of his love of the children. For my part I have no doubt that the father loves the children. Even a superficial observation of the father would suggest that he is suffering greatly as a result of his separation from the children.
119.Unfortunately, it is also apparent that the children have become estranged from the father. Save for one occasion in the registry in 2016 when observed by Ms F, the children have not seen their father since 2013.
120.The children have never met Ms K. I assume that there are good relationships between the children and their maternal grandparents.
121.The mother’s conduct reveals some problems with her relationship with the children. During the incident at the contact centre, far from seeking to minimise the pressure on the children, the mother exacerbated the stress they were under.
122.The mother invited the children at eight and six years of age to express a view about having professional counselling support. That was bizarre and difficult to understand. In purporting to provide that counselling herself, the mother was irresponsible and manipulative.
(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and(iii) to communicate with the child;
123.The father delayed commencing these proceedings and in doing so he facilitated the estrangement of the children from him. The parties separated at Easter 2013. Later that year the mother proposed, and the father took up, an opportunity for him to spend time with the children at the home of the maternal grandparents. That event was not successful. There was one later occasion when the father did not accept an offer of supervised time. The father conceded that he did not take up the mother’s offer for him to spend time with the children on that occasion. He said that he feared that the mother was insincere in her proposal and had no intention of facilitating that contact. Since that time the mother has prevented there being any time between the children and the father. For his part, since that time the father has tried to take up all of the few opportunities offered to him.
124.In commenting on the father’s delay in commencing proceedings it must be acknowledged that he was presented with a very difficult choice. On one view, he acted with sensitivity by giving the mother space and seeking to reduce any pressure on her and the children. In addition, the mother admits that she fobbed him off in the period after separation, pretending that she was encouraging his relationship with the children and aiming to restore contact while she had no such intention.
125.In the early stages of the separation some presents from the father were provided to the children but the father has generally been told that the children refused to accept his presents. There has been no communication between the father and the children.
126.In my view each of the parents has acted reasonably in taking the opportunities presented to them to participate in decision making, and to spend time and communicate with the children.
(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
127.The mother asserts that the father is regularly in arrears of his child support obligation. In her trial affidavit she reported that the father was nearly $760 in arrears. The father conceded during the trial that he is now about $3,000 in arrears. He attributes that to the Child Support Agency telling him that he was well in advance due to the attachment of a lump sum payable to him by his employer and then the Agency losing his email address. An amount is now deducted from his wages to address the current liability and the arrears. Therefore the father has not been able to provide the assessed child support for the children. Whatever might be said about that, the failure was the failure of the father and not the mother.
128.It is the mother’s contention that she was unable to secure paid employment until she obtained a job in retail sales earlier this year. She says that she gave up that employment because of the pressures of these proceedings. The mother has a qualification as a colour designer but has yet to secure employment in that field. Nevertheless, with the assistance of what child support was paid, the mother has in fact provided for all of the children’s needs. However, I am not satisfied that the demands of the proceedings themselves explains the mother’s inability to secure paid employment for any meaningful period since 2013.
(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
129.The issues relevant to this criterion are discussed under (2)(a) above.
(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
130.The critical issues in these proceedings are not about practical matters or expense.
(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);to provide for the needs of the child, including emotional and intellectual needs;
131.In his 2015 Initiating Application the father sought that the children live with the mother and spend time with him. However, in his trial affidavit the father described the orders he sought in the following terms:
a)I, Mr Palmer have sole parental responsibility for the children.
b)The children reside with the father for the foreseeable future.
c)The mother have no contact with the children for a period of 18 Months.
d)After a period of not less than 18 months the children, Ms Kerr and Mr Palmer attend family counselling, such as the G program offered by H Group.
e)The children be re-introduced to their mother (Ms Kerr) at a contact centre.
f)The mother cease all alienation of the children’s father and not reinforce negative ideas of their father to the children.
g)The mother attend counselling to assess, diagnose and treat any mental health conditions identified by a qualified practitioner.
132.In her Response to Initiating Application filed 2 June 2015 the mother sought sole parental responsibility, that the children live with her and spend no time with the father. However, at paragraph 23 of her trial affidavit the mother said:
I am agreeing to Mr Palmer’s demands to see the children, and I am very concerned for their safety. The children cannot return to a contact centre. Therefore, my parents have agreed to accompany the children during a visit with Mr Palmer, to a busy park located near a police station. We propose it will be at a time during the school holidays, as my children cannot have further disruptions to their schooling, and they will have time to recover from the ordeal.
133.It is not clear who ‘we” is, in the last sentence.
134.When she was cross-examined the mother had changed her mind and had no proposal for the father to spend time with the children. Her ultimate proposal is as set out at the commencement of these Reasons.
135.The mother was asked why she changed her proposals between April and July 2019. She said that she felt pressured into the April proposals and I understood her to say that she never believed that they were appropriate. I also understood her to say that she believed that the father had forfeited his right to time at least in part because of his failure to take action to restore his relationship with the children between Easter and June 2013. It follows that the mother did not consider that the father’s conduct to the time of separation justified the severance of his relationship with the children.
136.The mother was asked about her behaviour at the contact centre when the she said in a heightened tone: “They are going to die”. The mother conceded that her comments were made during a heated moment and were made in the presence of the children. It was put to the mother that her words were a gross exaggeration but she did not agree. She said “I know this is what will happen if he has contact with them”. I understood that at least at one level the mother conceded that the words she used at the centre were exaggerated. That is to say, she conceded that it was not likely that the children would die during the visit or as a result of the visit. However, the mother sought to justify her comments by saying that the fears of the children and her own fears had to be acknowledged. In my view, far from seeking to protect the children from the anxiety they would have felt on that occasion, the mother probably exacerbated their anxiety.
137.It is notable that the mother has been unhappy about and has made formal complaint about many of the individuals involved in these proceedings. The mother was also unhappy with the mental health team and medical staff who saw her at L Hospital. She was unhappy with Y’s teacher and school principal[7]. More directly involved with these proceedings, she has criticised several ICLs, the father’s former lawyers, Legal Aid NSW, Ms F, Dr B, contact centre workers and two judges. I put an observation to that effect to the mother and she rejected my assertion. She told me that she had been pleased with the reaction of Court staff on some recent occasions when they came to her aid and that she had no complaints about me. Despite the mother’s response, there is a sense in her presentation of everyone being out of step but her.
[7] Exhibit 9
138.The mother’s evidence and approach is revealed in the following passage of transcript (commencing at about 10.49 am on 16 July 2019):
His Honour: Yesterday my impression from your evidence was that immediately after separation there was an opportunity for the father to be involved in the family again and because he didn’t take up that opportunity, he should have no more chances to do that. Did I misunderstand what you were saying?
The mother: No, that’s not what I’m saying, no. If you’re talking about the incident where we had the telephone conversation, he was complaining that he couldn’t see the kids so I said “Well, come now” and he said “No” and then I said “Look, come now, I’m offering it to you now” and an arrangement was made then, pretty much straight after the conversation, where he did come over and speak with the children and my parents, and I was in another room.
His Honour: But what you said yesterday… Obviously you were trying to facilitate the father spending time with the children at that stage?
The mother: I think if it went well then I can’t really hold them against her dad…
His Honour: What I’m trying to understand is why after that, you thought he should have no more chances.
The mother: After he spoke to the children I came back into the room and I could see visibly that both the children were really upset. He asked questions like “Don’t you want to have an ice cream with dad” and I think my daughter was sitting next to my mum and she was clinging onto my mother and I’m sorry I can’t remember where my son was but he was really quite angry and he said “No, I don’t want an ice cream” and then [the father] said “Don’t you want to play some Lego with me” and my daughter was crying and my son just said “No” and I said “Look, they’re just really upset right now, how about you leave and you leave them and just see how it goes”. Then he was upset with me so we go [sic] into a circular argument and it’s not resolved and he just gets up and leaves so at this point I just thought “I can’t do this anymore”. I’ve gone through so much with this man and at this point I just thought “No… How many more chances”, you know? At some point you’ve just got to say “No more”. We can’t do this anymore and that’s why I made the decision. I made that decision but my parents weren’t convinced, if I could say. They were really quite concerned about the relationship. They love my children so dearly and even though it was difficult for me at the time, I just let them try and rehabilitate that relationship with [the father]. It was hard for me to watch because I knew that it just wasn’t going to work and the kids were really scared but they tried and as they tried they started to realise “This really isn’t going to work, these kids are so scared of him” and most kids would want to go see their dad, they’d be like “Why can’t we see dad” but my kids weren’t saying that, they were just saying “Please, I don’t want to go, I don’t want to see dad”. So what do I do then? I know in my heart that it’s not a good idea.
His Honour: I suppose an answer to the question “How many more chances?” would be “As many as it took”.
The mother: Yeah but he’s actually hurting them. He’s hurting them! So I’ve got to stop him from hurting them.
His Honour: Ma’am you say that but you put them with him on that day.
The mother: To see what would happen.
His Honour: Oh. Surely not.
The mother: Could I just say this was a gradual process. We didn’t really know who he was at the very start. As time went on and this court process, yes it has been difficult but in a different way it’s actually revealed a lot and we were learning as we were going as to exactly what kind of person (the father) was. And every time, the revelations were shocking. So now I’m thinking my kids knew something that I didn’t know back then. They just knew by intuition, by instinct. Here I am trying to do make sure I’m doing the right thing, I can’t stop him seeing my kids out of the blue, there’s got to be a gradual process, I need to be 1000 per cent plus sure that I’m making the right decision and I’ve gone to great lengths to make sure that I’ve done that because I’m actually stopping them from having a relationship with their father. How on Earth do I do that? I can only do that if I really believe that the benefits of not having contact with him outweigh the benefits – yes, he’s not perfect but there are still benefits in the children having a relationship with him – that those benefits must outweigh. And I in the end just decided no, it is actually better for them to stay away from their dad until they are old enough, this isn’t forever, because once they are adults then it’s really not my decision and I don’t get a say. But I do have to protect my children and I have spoken to professionals about it and I’ve read a lot, I’ve researched a lot. We went through workbooks to heal them. I went through great effort and as time went on I became more and more sure I had actually made the right decision and today I know for sure I did.
His Honour: What if you’re wrong, ma’am?
The mother: Yes, exactly. What if I am wrong? But I know I made the right decision. It would be on me.
His Honour: But that’s no comfort, really. If something happens to you, the children have got one parent and you decided about six months, you say, after separation, that he would have no more chances and over the four or five years since then you’ve stopped a relationship with their father.
The mother: Yes and they have healed from that trauma and they’re doing very well. If I had kept the children in contact with him he would have continued to play with their heart, their mind, totally scramble their brain like he did with me. I was not the person I am today, your Honour, back then. You talk about me staying in bed and I was exhausted. I didn’t know what was going on because he had done that to me. I don’t want that for my children. Your Honour, to be quite frank, if the Court does not believe me then send the children back to him and we’ll see what happens. Because you’re saying what if I’m wrong but what if you’re wrong? Go right ahead. It will hurt me, it will absolutely be the most devastating thing that ever happened to me but I’m in a court fighting for this when I should be out there earning a living and raising my kids. I’ve done the right thing in supporting my children the way I have but you know, I get questioned day in, day out by the Court as to whether I made the right decision, so go right ahead and see what happens to them. Then we’ll know who was right.
His Honour: Well, ma’am, it’s a bit of an exaggeration to say that you’ve been questioned day in, day out over four years.
The mother: Yes it is your Honour and I apologise.
His Honour: The worry I guess I have is that there is a level of exaggeration in the concerns you have. You knew on that day at the supervised contact centre that the children were physically safe. You had absolutely no basis for thinking that the children weren’t physically safe.
The mother: They were very upset.
His Honour: They may have been, ma’am, but they are children.
The mother: And I’m their mother. So I’m just supposed to send the children in, who are absolutely traumatised? We disagree on that point your Honour and if we disagree, we disagree. But I will never do that to my children.
His Honour: No ma’am, because it’s not rational to be exaggerating a physical fear.
The mother: It’s not an exaggeration.
His Honour: No it is, ma’am, because you knew. You invited the father back into your house to spend time with the children six months after separation. You presumably knew that the children would be physically safe on that day. You wouldn’t have done it otherwise. And here was an occasion when there was a group of professional supervisors available and you knew that the children were physically safe on that day. And you haven’t done anything to address exaggerated concerns about them. You knew that if the father raised his voice at the children, the supervisor would have ended the session. You knew that if the father raised his hand to the children, the session would have ended. He would have been carted away. So you haven’t done anything to try and ease the pressure on the children by saying to them “Look, I know you are absolutely physically safe today. You’ve got no reason to be afraid of anything happening because these people are here”. And I don’t really understand why you didn’t do that.
The mother: I stand by what my reaction was on that day. We look back and you tell me what I should have done, what should have happened but it was a heated moment and in a heated moment, as a mother all you want to do is protect your children so if I’ve done something wrong, your Honour, then I’ve done something wrong but on that day, in that moment, I felt I did the right thing.
His Honour: Do you still think you did the right thing?
The mother: Yeah, I know this isn’t the answer you want to hear but if I’m truthful…
His Honour: What could have happened to them, ma’am? Realistically on that day in that supervision session? What could have happened? You tell me.
The mother: I will, thank you, your Honour. Every time they have to see him – and this goes back to the Family Report as well – the children are traumatised for days when they come out. Even though it’s a supervised visit. So if we talk about the Family Report, it was supervised but they were traumatised for days after that. Their behaviour changed instantly. We couldn’t even go to the shop because my daughter kept seeing people that looked like (the father) but it wasn’t (the father).
His Honour: They didn’t even see him on that day. The trauma has come maybe from you rather than him. He did nothing wrong on that day. He didn’t even see them on that day.
The mother: No one is saying he did anything wrong on that day but in the past when they have seen him they have been traumatised after seeing him. I’m trying to protect them because I know what’s going to happen when they see him! I’m sorry but I know this is not the answer you want but in the past, every time they see him they are traumatised afterwards and I can’t watch them suffering like that anymore.
His Honour: They haven’t seen him since they saw him with Ms F years ago.
The mother: It doesn’t matter, your Honour. If you want me to concede on this point then I will but I do what I think is right.
His Honour: I have little doubt that’s true, ma’am.
The mother: They are suffering so much. To watch my children suffer like this – I can’t. I can’t watch them so I’m sorry but as a mother I just did what I thought was right and if I’m wrong, I’m wrong but in my heart I believe it’s the right thing.
139.In that passage, the mother identifies the point at which she decided that there would be no more chances for a relationship between the father and the children.
140.Dr B was instructed to assess the mental states of each of the parents. He interviewed each of the parents for about 90 minutes. He asked the parents to complete self-reports of psychological personality questionnaires but the mother refused to complete the questionnaire “on legal advice”.
141.Dr B said that even without the answered questionnaire, he considered that he was able to make a reasonable observation of the mother. The mother presented at interview with Dr B as a somewhat dramatic person. She spoke firmly, with utter conviction and was keen to make her points. She talked over Dr B at times. Dr B asked her if she felt that he had not given her enough time to respond. Dr B reported that the mother was initially somewhat prickly and controlling in the assessment. He noted that that depiction was similar to the way the mother was described by Ms F in her assessment.
142.Dr B was asked if the mother’s demeanour improved during the session and he said “not really”. He said that people being assessed are usually on guard and he tries to have them warm up by speaking about more general matters but the mother remained quite reserved and guarded throughout the session. Dr B was asked about his observation in the third last line of paragraph 8 to the effect that he thought it was unlikely that the mother had failed to get medical attention when the father punched her in the eye because she was too afraid.
143.Dr B was asked if it was possible that the mother had become more assertive since the time of those events. He conceded that this was possible but said that was not the way he saw it. Dr B was asked about the mother responding to his questions with a question of her own. Dr B said that this could either be evasion or hostility but he thought it was the latter in the mother’s case.
144.Dr B was asked about the last sentence of paragraph 9 in his report: “She does not want to be made to look like she is vindictive and she said it was heartbreaking and difficult for her to leave Mr Palmer”. Dr B agreed that the inference was that it was the mother who initiated the parents’ separation. Dr B said that it was his impression that the mother experienced false claims about her mental health and she had had enough.
145.At paragraph 12 of his report Dr B records that he had asked the mother about her not taking the children to a counsellor. She told him that she asked her general medical practitioner (“GP”) who said they were too young and that she asked the children if they wanted to attend on a counsellor and they said “No”. Dr B was asked whether children at six and eight years of age were too young for counselling and he rejected that proposition. He said that there was a well-trod path for such counselling and many appropriate tools for therapists to use. He was surprised to hear of the reported GP’s advice, saying that many GPs write mental health care plans for children. As to asking the children if they wanted to see a counsellor, Dr B said “That’s just manipulative behaviour. It’s simply not appropriate behaviour.” In regards to the children saying “No” to the mother’s question about whether they wanted to attend counselling, Dr B responded to the effect that obviously a six year old child will answer that question in the way it seems the parent wants. As to the effectiveness of the mother’s counselling Dr B responded to the effect that it would not be effective. He characterised it as “a deliberate attempt to align the children with her” and “highly destructive of the children’s capacity to form an opinion of what was happening”. He said that he thought what the mother did was to completely dominate the children in a psychological way and that it would have been impossible for X to express anything that was contrary to the mother’s view.
146.Dr B was asked about the mother being caring and altruistic and he said that he could think of nothing that supported that view of her. Dr B said that the mother gains her identity from caring for the children but he considers that is for her needs, rather than those of the children.
147.Dr B said during cross-examination that he did not observe the mother to be easy-going.
148.Dr B said that he is concerned that the mother has isolated herself socially, that her world was her children.
149.Dr B confirmed his observations at paragraph 30 of his report that the mother’s description of the attitude of Judge Scarlett and of her interaction with him were at odds with his Honour’s reasons for judgment. When the mother cross-examined Dr B she suggested that he had simply misreported her comments. Dr B disagreed, saying that he recalled asking her about the discrepancy during the interview. It is the mother’s evidence before me that Judge Scarlett “scolded her” and took the father’s side.
150.Dr B said that it was likely that the mother was projecting. He formed the opinion that the mother’s aversion to the father’s presence is not due to any physical threat that he presents to her, but rather that it was part of an exaggerated fear response that she uses to further her claims against him. Based on the mother’s account, Dr B concluded that there is very little reason to believe that there is any genuine basis for the mother’s fear of the father.
151.Dr B was asked about the complaints made by the mother about various people and said that she has a hostile and paranoid demeanour and a passive aggressive manner. He said that to her, people who disagree with her are wrong. She is frustrating to interview as it is hard to get her to respond. As to the mother’s allegations of sexual impropriety against the father, including allegations in respect of a school pupil, Dr B said that he saw no evidence to corroborate those allegations.
152.Ms Kerr told Dr B that she stayed in the relationship with the father for 20 years so that the children could have a father but that it got to a point where “he was quite dangerous”. She said that the father abused her emotionally and mentally. She told Dr B that typically people think of abuse as physical but she said that emotional and mental abuse is just as dangerous. The mother told Dr B that the father did become physical a few months before separation and he slapped her because he was angry. When Dr B noted the allegation that she had slapped the father first, she said that was true but that he was baiting her. She said that she slapped the father because “he wanted me to do it”.
153.The mother claimed that the father slapped her back and punched her in the eye. Dr B noted that there was no medical evidence of any eye injury. The mother said that she did not get medical attention on that occasion because she was too afraid. Dr B opined that that was unlikely as the mother is an assertive and high functioning woman. The mother said “he did not pull any punches”. She said, now she knows “better how to read someone who deliberately makes you angry”. The mother told Dr B that the father was “intimidating the children” when they lived together. Dr B asked her how the father intimidated the children, bearing in mind that Y was four when the initial separation took place and X would have been six. The mother said that the father would stare at them; sometimes he would stare at the TV when it was not on and tap his fingers; and at other times he might sit outside and hit his head with his hands. The mother said that this kind of psychologically abusive behaviour was terrifying for the children and she needed to protect them and get them out of a situation that she said “could have become lethal”. When Dr B asked what she meant by that last comment she said that things can escalate. The mother claimed that the father had made a comment to her father that he now understood why men kill their wives and their children and then themselves. The mother said she understood that to be a veiled threat. The mother said that the father has said to her that he will use the children against her and “crucify her” although Dr B said that appeared to be in reference to discussions they were having about court. Dr B noted that a difficulty with his interview with the mother was that at times he would ask a question and she would respond to the question in a seemingly passive-aggressive form or ask questions in response.
154.Dr B was asked if he thought that the father was capable of managing the transition of the children to his care and he said that he did not know.
155.Dr B was asked about the prospects of the children being resilient enough to thrive if they continued to live in the exclusive care of the mother. He responded to the effect that “anything is possible”. I took it that Dr B was not optimistic about that outcome.
(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
156.No particular cultural or lifestyle traditions were identified for the children by the parents.
157.The mother told Dr B that she did well at high school and that she was awarded a bachelor degree and finally, a Masters degree. She worked in commercial roles since 1993 and stopped in about 2003 to have children. She began studying at that point to be a designer. She also told Dr B that she gave up work in corporate areas in around 2010 and began to study design. That timeline seems inconsistent with the earlier statement. At the time of her interviews with Dr B the mother said that her design work was currently on hold as she was unable to devote time to it because of court. The mother said that she views herself as an artist rather than a businesswoman. During cross-examination the mother said that she had never been engaged to use the qualifications she gained in 2018.
158.The father held a leader position in 2010 when he had a type of breakdown. He returned to work after about 18 months but as at a lower level. He continues in that role.
(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and(ii) the likely impact any proposed parenting order under this Part will have on that right
159.This does not apply.
(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
160.This is addressed under several other criteria.
(3)(j) any family violence involving the child or a member of the child’s family;
161.This is addressed under other criteria.
(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;(v) any other relevant matter;
162.No relevant orders were made.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
163.There is absolutely no doubt that the parents and probably the children need relief from ongoing proceedings.
(3)(m) any other fact or circumstance that the court thinks is relevant.
164.Nothing comes to attention here.
Parental Responsibility
165.I agree with the conclusion implicit in the parents’ proposals that parental responsibility should vest solely in the parent with whom the children will mainly live. Here, the children will primarily live with the father and he will solely exercise parental responsibility.
Living Arrangements
166.As there will not be an order for equal shared parental responsibility, it is not necessary to consider ordering any particular pattern of living arrangement for the children.
167.Although there are risks in any event, the weight of the findings under s 60CC favour a change of residence to the father. On the evidence, the only prospect of the children having a sensible relationship with both parents, something that would be in their best interests, is under the proposals of the father and the ICL. I will follow the format of the orders proposed on behalf of the ICL.
168.A change of residence should be accompanied by a moratorium on the mother’s time with the children. That will give time for the relationship between the father and the children to be restored, away from the influence of the mother.
169.It is important in this regard to remember the limits of Dr B’s role in the proceedings and the fact that he did not interview the children. However, Dr B is qualified to express an opinion about changes of residence in general.
170.Both Dr B and Ms F agreed that such a period should be considered if a change of residence was to occur. Specifically, while Ms F noted that “it would be helpful”, Dr B said that “there would have to be” a quarantine period. When asked about the period of time that such a quarantine would have to take place for Dr B said:
About six months, and that would be depending upon the children’s adjustment so if the children were still poorly adjusted you would extend the quarantine program but you would make it at least six months.
171.When cross-examined about an appropriate time period Ms F stated that “usually there is a period of respite, sometimes a month, sometimes more” but in relation to this specific circumstance she concluded only that “there should be a short period where they are given the best chance to settle in the new arrangement”.
172.The father seeks that the period be 18 months, however, he submitted “This time period is not fixed and I would put significant weight on any expert advice in relation to this timeframe”. These are mature children and they have a developed relationship with their mother but in my view, provided that the mother can seek assistance and comply with the orders made, it would be unnecessary and perhaps harmful to separate them from their mother completely, for such a long period”. The ICL proposes that the period away from the mother be seven months. The ICL submitted that the seven month timeframe was consistent with Dr B’s evidence. I will impose that period. Of course, at some point the parents may agree on a change to the timetable.
173.The injunctions proposed by the ICL will allow effective enforcement of the moratorium period.
174.Although I will make the order for family therapy proposed by the ICL, I accept that the order itself is not capable of effective enforcement. It will, however, as the ICL proposes, be a condition precedent to the resumption of face to face time between the mother and the children and I sincerely hope that the mother will avail herself of the opportunity of that therapy.
Conclusion
175.The parties are at liberty to bring the matter back in respect of any agreed changes to the orders or machinery or practical issues.
176.As to the ICL’s costs, the order sought is that the mother pay $5,057.50 and that the father pay $6,872.50 and that those payments be made within 12 months. Exhibit 14 shows the breakup of the claim. There is no reference to Dr B’s fees in the disbursements. I understand that each of the parents opposes the orders sought. Through the ICL, the parents’ proceedings have been provided with legal assistance which the parents themselves were unable to afford. The parents’ conduct of the proceedings no doubt added to the complexity of the matter. A two year delay in commencing the proceedings entrenched what turned out to be an unsatisfactory arrangement. Largely, if not solely because of the mother, settlement options which allow the timely and appropriate resolution of the overwhelming proportion of parenting proceedings were not taken up for the benefit of X and Y. The father is a professional. I have no other evidence about his financial circumstances. I assume that he lives in rented accommodation. His partner, Ms K, works but there is no evidence about her financial circumstances. Under the orders I propose, subject to acquitting any remaining arrears, the father will be relieved of the obligation to pay child support for the mother. He will however have the obligation to support the children. He will also have any cost associated with professional support for him, Ms K and the children in managing the children’s transition to his care from the mother. At the time of the hearing the mother lived on Centrelink payments and child support. I anticipate that the mother will return to paid employment, whether as an employee or in her own business using her design qualifications. I know nothing else of the mother’s financial circumstances. The ICL’s application is entirely proper and reasonable. That said, the parents have had financial hardships as well as emotional ones over the six years of their separation. I will make the orders sought but will extend the time for payment to two years.
I certify that the preceding one hundred and seventy-six (176) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 25 September 2019.
Associate:
Date: 25 September 2019
Key Legal Topics
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Family Law
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Equity & Trusts
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