Pierce and Pierce - [2010] FMCAfam 1137

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PIERCE & PIERCE

[2010] FMCAfam 1137

FAMILY LAW – Parenting – parental alienation – consideration of social science research – findings as to whether alienation has occurred – consideration of whether intentional or unintentional acts to alienate – consideration of expert reports – commentary as to appropriate methodology – consideration of orders to be made in light of differing degrees of alignment of children to mother and father – orders for different arrangements in relation to time to be spent by father with each of three children – orders for significant therapeutic intervention.

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 60CC(2), (3), (4), 61B, 61C(2), 61D(1) and (2), 61DA (1) – (4), 65DAA, 65DAC, 65DAE

Calvert & Calvert [2008] FMCAfam 101
Lansa & Clovelly [2010] FAMCA of 80
U v U (2002) 211 CLR 238
AMS v AIF (1999) 199 CLR 160
Chappell and Chappell (2008) FLC 93-382

Kelly, JB. And Johnston, JR. (2001). ‘The Alienated Child: A Reformulation of Parental Alienation Syndrome’ Family Court Review, 38, pp 240-246.
Lee, SM. And Olesen, NW. (2001). ‘Assessing for Alienation in Child Custody and Access Evaluations’ Family Court Review, 39(3), pp282-298.
Johnston, JR. (2003). ‘Parental Alignments and Rejection : An Empirical Study of Alienation in Children of Divorce’, Journal of the American Academy of Psychiatry and the Law, 31(2), pp 158-170.
Wallerstein, JS. And Kelly JB. (1980). Surviving the Breakup: How Children and Parents Cope With Divorce, New York, Basic Books.
Gardner, R (1987). ‘Parental Alienation Syndrome and the Differentiation between Fabricated and Genuine Child Sex Abuse Allegations’, Creative Therapeutics, Cresskill.

Applicant:

MR PIERCE

Respondent:

MS PIERCE

File Number:

CSC 140 of 2008

Judgment of:

Coker FM

Hearing dates:

7-9 December 2009, 2-5 March 2010 and 9 April 2010

Date of Last Submission:

9 April 2010

Delivered at:

Townsville

Delivered on:

14 October 2010

REPRESENTATION

Counsel for the Applicant:

Mr McPherson

Solicitors for the Applicant:

Macdonnells Law

Counsel for the Respondent:

Mrs Pack SC

Solicitors for the Respondent:

Williams Graham & Carman

Counsel for Independent Children’s Lawyer:

Mr Jacobs

Solicitor for the Independent Children’s Lawyer:

Legal Aid Queensland

ORDERS

That the children, [X] born [in] 1998, [Y] born [in] 2000 and [Z] born [in] 2003, live with the Mother.
That the Mother have sole parental responsibility in relation to decisions for the long-term care, welfare and development of the children, subject to the communication and notification of such decisions to the Father, including but not limited to:
(a)a child’s education (both current and future);
(b)child’s religion and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the other parent.
That notwithstanding the provisions of order 2 herein:
(a)The Mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her.
(b)The Father shall be responsible for the daily care and welfare of the children when they are spending time with him.
That there be no orders with regard to the Father spending time with the children, [X] and [Y], until such time as the children are

re-introduced to the Father with the assistance of he children’s counsellor in accordance with Order 11.
That the Father spend time and communicate with the child, [Z], at all times as may be agreed between the parents but failing agreement as follows:
(a)Each alternate weekend on Saturday and Sunday from 9.00am to 6.00pm with such time to continue during the Queensland gazetted school holiday periods;
(b)On Father’s Day from 9.00am to 6.00pm provided the child is in the Mother’s care on Mother’s Day from 9.00am to 6.00pm;
(c)Communicate by telephone with the child, [Z], on each Tuesday and alternate Saturday, with the Father to initiate the call to the child at 7.00pm.
That the Father to ensure the child, [Z], attends extra-curricular activities she may be involved in from time to time should any activity fall on a day when she is in his care.
That the Father have the opportunity to speak by telephone or in person with all three children on special occasions including but not limited to Christmas Day in each year, on each of the children’s birthdays, the Father’s birthday and on Father’s Day, such arrangements to be agreed between the parents but failing agreement, the Mother to initiate a telephone call at 8.00am to the Father for the children to communicate with their Father on that day.
That the Father be at liberty to send letters, cards and gifts to the children and the Mother to ensure that all such cards and gifts are delivered to the children.
That the children have liberty to speak with the Father at all reasonable times at times when the children express a wish to do so.

CHILDREN’S COUNSELLING

That the Mother and Father ensure all three children continue to attend counselling and therapy with Ms S, Psychologist of [omitted], Cairns.
That in accordance with Order 10 above, the parents to ensure:
(a)The children attend all appointments at the times, dates and places nominated by Ms S, Psychologist.
(b)That [X] and [Y] are re-introduced to their Father as soon as possible with the Mother to be present on at least the first occasion and on further occasions as considered appropriate by the counsellor.
(c)That both parents participate in counselling sessions with the children as considered appropriate and at the discretion of the children’s counsellor, Ms S.
That the reasonable remuneration and expenses of Ms S, Psychologist be paid equally by the parents.

PARENT’S COUNSELLING

That within 14 days of the date of these orders each parent is to separately attend upon a counsellor/therapist for the purpose of assisting them to understand and accept these orders and to assist them in conveying their acceptance and support of the orders and the parenting arrangements to the children.
That the Father do all things and sign all documents to engage with a counsellor/therapist for personal individual counselling and therapy to help him develop child centred parenting strategies about dealing with the behaviours of his children. At an appropriate time and at the discretion of the counsellor seek joint counselling with the Mother to help both parents develop a cooperative parenting relationship.
That the Mother continue to engage with a counsellor/therapist for personal individual counselling and therapy to assist her in acceptance and support of the orders and the parenting arrangements to the children. At an appropriate time and at the counsellor’s discretion seek joint counselling with the Father to help both parents develop a cooperative parenting relationship.

SPECIFIC ISSUES

That neither parent is to take the children to any other psychiatrist, psychologist, social worker, counsellor or therapist without the prior written consent of the other parent or court order.
That each parent is to keep the other informed of a current contact address and telephone number including mobile telephone numbers and will inform the other parent in writing within 48 hours of such change.
That neither parent shall physically discipline the children or allow any other person to do so whilst the children are in their care.
That neither parent will criticise, denigrate, demean or ridicule each other, either of the children or any member of the person’s family or household in the presence of the children or allow any other person to do so.
That the parents will not discuss with, or in the presence of, the children any matter which is the subject of, or relates to, the family law proceedings herein, whether past, present or in the future.
That this order operates as an authority of the Mother and Father to any professional care provider of the children, all schools, doctors, hospitals and all medical practitioners and health care professionals to release information to the Mother and Father concerning the children and discuss the children’s progress and be provided with all written information, progress reports, photographs, newsletters, at the requesting party’s expense.

EXPLANATION OF THESE ORDERS TO CHILDREN

That within 7 days of the date of these orders the Mother will bring the children to an appointment on a date and time to be arranged with the Family Consultant Ms E and with the Independent Children’s Lawyer for the purpose of having these Orders explained to the children.
That leave be granted to the Independent Children’s Lawyer pursuant to section 121(9) of the Family Law Act 1975 that a copy of the Family Report of Ms P dated 17 December 2008 and the Family Reports of

Ms E dated 26 November 2009, 7 December 2009 and 6 April 2010 be released to Ms S, Psychologist, to assist her in understanding the family background and to assist in ongoing counselling/therapy of the children towards re-introduction of the children, [X] and [Y], with their Father.
That the Independent Children’s Lawyer be discharged on a date at

4 months from the date of these orders or on a date earlier upon receiving written confirmation from the children’s counsellor, Ms S, that the children, [X] and [Y], have been re-introduced to their Father and have commenced spending time with and communicate with the Father together with their sibling, [Z].
That in the event the Father is re-introduced to the children and the three children are spending time with the Father at the same time as set out in order 5 above, the parents shall attend mediation with a family dispute resolution practitioner at the Family Relationship Centre or similar agency to assist them to reach agreement for an ongoing parenting arrangement for all three children to spend time with and communicate with both parents.
That unless agreed in writing by all parties that appropriate arrangements have been made to further the opportunities for time to be spent by all children with the Father, then that the matter be adjourned for a further mention before me on 14 February 2011 at 9.30am, with leave for all parties and their legal representatives to attend by telephone on that day.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT TOWNSVILLE

CSC 140 of 2008

MR PIERCE

Applicant

And

MS PIERCE

Respondent

REASONS FOR JUDGMENT

These proceedings relate to orders sought with respect to the parenting of three young children. Those children are [X], born [in] 1998; [Y], born [in] 2000; and [Z], born [in] 2003. They are the children of

Mr Pierce, whom I shall refer to as the father, and Ms Pierce, whom I shall refer to as the mother. The proceedings have been on foot for more than two and a half years, the initial application filed by the father on 29 February 2008.
That application sought orders in quite simple terms in relation to arrangements with regard to the parenting of the children. They could best be described as orders with regard to the parents having equal shared parental responsibility and that there should be equal shared parenting time spent with both the mother and the father. Specific arrangements were also proposed by the father in relation to issues with regard to special days, such as Mother’s Day, Father’s Day, birthdays and the like, but generally, the orders were of a non‑controversial nature.
The mother filed a response in relation to that application on 28 March 2008: in other words, a matter of only some four weeks or so later. In that response, the orders that were sought were again very much of a non‑confrontational or controversial nature and in fact, were, to a large extent, repetitive of the proposals put forward by the father. The mother agreed that there should be equal shared parental responsibility in relation to the long‑term decisions to be made with regard to the care of the children, and she also proposed that there should be orders with regard to special days and arrangements in relation to school holidays being shared on an equal basis. In the response of 28 March 2008, the mother asked that she be, quote:
Excused from particularising the orders setting out the times the children shall spend living with each parent during the school week until the parents have participated in a second family dispute resolution counselling session as contemplated by the mother’s application for interim orders herein.
It is clear that whilst there may not have been agreement specifically with regard to equal time as proposed by the father, it was certainly envisaged by the mother that there would be arrangements with regard to, if not equal time, then substantial and significant time being spent by the children with each of their parents. Unfortunately, in the two and a half years that have ensued from the filing of the original application instituting proceedings in relation to parenting, the circumstances with regards to the parents, their relationship with each other and unfortunately, the father’s relationship with the children has declined to the extent that, in more recent times, there are proposals, at least from the mother, for there to be sole parental responsibility vesting in her, and that there only be very limited opportunities for the father to have a relationship with the youngest of the three children, [Z].
The mother does not preclude, it would seem, arrangements in relation to the father having a proper and meaningful relationship with the children [X] and [Y], but it is certainly the case that, at the time of trial, the two older children were very limited in any interaction that they had with the father and, tragically, the situation with [Y] had declined to the stage where there was not even communication by any means between father and daughter. The circumstances with [X] was also rather serious, but there did appear to be at least what might be called some, “light at the end of the tunnel”.
It was a most difficult hearing. It was also a most difficult course that was followed in relation to these proceedings. In fact, there were, over the period leading up to the hearing of the matter, which commenced in December 2009, a number of orders, all made by consent, in relation to arrangements with regard to the parenting of the children.
Those orders provided, in some respects, for limitations with regard to the time to be spent by the father with the children, but there were always acknowledgements of equal parental responsibility in relation to decisions and at least some provisions for the father to spend time with the children. As I say, the tragedy in relation to this matter is that with the passing of time, the proposals put certainly by the mother have changed radically, to the extent that her final proposals in relation to the matter bear little or no resemblance to what was contained within the original response, filed in March 2008.
The father’s position in relation to the matter at hearing was detailed in his outline provided at the commencement of the hearing and the position remained generally unchanged. It could be summarised as:
(1) Equal parental responsibility with regard to decisions to be made in relation to the children.
(2)That the children live with the father and spend five days per fortnight with the mother, though the father acknowledged that that may be overstepping the mark, and that there might be appropriate arrangements to be put in place with regard to equal time or even more significant time spent with the mother.
(3)Additionally, the father proposed that there should be orders in relation to one‑half of the school holidays being spent with each parent and that special days continue to be recognised.
As I say, there was little change in those positions taken in respect of the matter, but the mother’s position changed radically. The final amended response in relation to this matter was filed by the mother on 27 November 2009. The orders that she sought in relation to arrangements with regard to the parenting of the children were detailed in that final amended response, plus a notation in relation to recognising that at the current time, the children, [X] and [Y], were refusing to spend time with the father. The orders were in these terms:
1.The Mother is to have sole parental responsibility for the children of the marriage namely [X] born [in] 1998, [Y] born [in] 2000 and [Z] born [in] 2003 (“the children”).
2.The children are to live with the Mother.
3.The Father is to spend time with the children as follows:
(a)   During school terms – from the conclusion of school each Wednesday until the commencement of school on Thursday and on each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday.
(b)   During school holidays – for one half of each school holiday period, with the Mother to have the children for the first half of the holidays in odd numbered years and the Father to have the children for the first half in even numbered years.
4.Unless the children are otherwise in the Mother’s care pursuant to these Orders, at the following the times the children are to spend time with the Mother:
(a)   On Mother’s Day from 9.00am to 6.00pm;
(b)   On each child’s birthday;
(i)If on a school day, from the conclusion of school on the day prior to the birthday until the commencement of school the following day in odd numbered years and from the conclusion of school on the birthday until the commencement of school the following day in even numbered years; and
(ii) If on a weekend or holiday, from 3.00pm on the day prior to the birthday until 10.00am the following day in odd numbered years and from 3.00pm on the birthday until 10.00am the following day in even numbered years.
(c) On the Mother’s Birthday;
(i)if on a school day from after school until 8.00pm; and
(ii) if on a weekend or holiday from 9.00am to 6.00pm.
(d)   From 12.00pm Christmas Eve until 11.00am Christmas Day in each year.
(e)   At all other times as may be agreed.
5.Unless the children are otherwise in the Father’s care pursuant to these Orders, at the following times, the children are to spend time with the Father;
(a)   On Father’s Day form 9.00am to 6.00pm;
(b)   On each child’s birthday;
(i)If on a school day, from the conclusion of school on the day prior to the birthday until the commencement of school the following day in even numbered years and from the conclusion of school on the birthday until the commencement of school the following day in odd numbered years.
(ii) If on a weekend or holiday, from 3.00pm on the day prior to the birthday until 10.00am the following day in even numbered years and from 3.00pm on the birthday until 10.00am the following day in odd numbered years.
(c)   On the Father’s Birthday;
(i)if on a school day from after school until 8.00pm;
(ii) if on a weekend or holiday from 9.00am to 8.00pm.
(d) Each Easter weekend from 9.00am Friday until 8.00pm Sunday;
(e)   At all other times as may be agreed.
6.That neither party is to enrol the children in any extracurricular activity which encroaches on the other party’s time with the children pursuant to these Orders save with the prior written consent of the other party.
7.That both parents are restrained from denigrating the other parent in the presence of the children or allowing the children to be present while another person or persons denigrates the other parent.
8.That the Father pay the costs of and incidental to this Application.
9.The children continue to attend counselling on a fortnightly basis with Ms S at the joint expense of the parties to continue until such time as determined by Ms S.
10.That the parties shall immediately facilitate their attendance at the Family Relationship Centre to participate in the Parenting Orders Programme together.
11.That the Father shall immediately facilitate attendance upon a private counsellor at least once every fortnight for counselling to address abusive behaviour issues and to assist him in relation to providing for the children’s emotional and psychological needs.
12.The Father must be of good behaviour towards the Mother, the children and Mr C and must not commit domestic violence.
13.The Father is prohibited from;
* going to,
* going to within 20 meters of
* entering or
* remaining in
premises where
* any named person in this order resides or works including;
([address omitted].
(b) [address omitted]..
(c) [address omitted].
Except for purposes of having contact with a child or children as set out in a written agreement between the parties or as is permitted by an order made under the Family Law Act.
14.    The Father is prohibited from
*   approaching to within 20 meters of the Mother or Mr C when the Mother or Mr C are at any place.
Except for the purpose of having contact with a child or children as set out in a written agreement between the parties or as is permitted by an order made under the Family Law Act.
15.That the Mother shall encourage the children to spend time with the Father and shall support the Father in re-building his relationship with the children.
Notation
It is noted that at this time [X] and [Y] are refusing to spend any time with the Father and their relationship with the Father needs to be re-established prior to them spending day time with the Father and to then progress to overnight time in accordance with the wishes of the children.

It is noteworthy, however, that the orders specifically provided that, although the mother was to have sole parental responsibility and that the children were to live with the mother, the orders were to provide for the father to spend time with the children during school terms from the conclusion of school each Wednesday until the commencement of school on Thursday, and on each alternate weekend, from the conclusion of school on Friday until the commencement of school on Monday. There was, therefore, in place a proposal for the father still to have five nights out of each 14 with the children. It appears that that would be, as best it could be assessed, a reflection of what the mother anticipated might have been the case back in March 2008.
The orders also, it was noted, provided for one‑half of each of the school holiday periods being spent with the father, and then went on to detail special days, as well as further specific arrangements in relation to extracurricular activities and arrangements in relation to further counselling for the children.
As I say, the notation reflected the fact that in November 2009, just prior to the hearing of this matter, it was the case that the children, [X] and [Y], were not spending time with the father and that there was a recognition, the mother said, of the need to re-establish the relationship between the father and those two older children, prior to there being progress towards overnight time in accordance with the orders. It was also proposed however that it should be in accordance with the wishes of the children.
I note that particular aspect of the matter because it was also the case that a period of some six weeks or so before the final amended application was filed in relation to this matter, the mother filed a notice of child abuse or family violence. In that notice filed on 14 October 2009, the mother made reference to there being verbal denigration and yelling by the father directed toward [X] and [Y], that there was physical exchanges, including what were described as slaps to the back of the head of [X] and [Y], punches to the arm and dragging of the child [Y] by the father, and the hitting of [X] and [Y] with a belt or wooden spoon.
There was also alleged to be emotional abuse of the children, including a refusal, it was alleged by the father, to let [Y] have clean sheets after soiling the bed as a result of bedwetting, and also the father forcing the child [X] to sleep outside as punishment and humiliation or humiliating actions or words by the father in relation to the child in the presence of other adults.
I make reference specifically to those aspects of the matter because it is noteworthy, that whilst the mother details what she says are those issues of abuse or family violence, six weeks after the filing of that notice, it was still her proposal that there was to be a further relationship recognised between the children, and subject hopefully to the re-establishment of the relationship between the father and the children, a significant relationship and significant amount of time developed between the father and all three of the children.
The mother's final proposals in relation to this matter, however, were detailed at the finalisation of the hearing in April 2010. The orders that were then proposed by the mother still reflected sole parental responsibility for the children [X], [Y] and [Z], and that the children lived with the mother but that otherwise, that the children were to be in the mother's care except in relation to the child [Z]. In relation to [Z], there were proposals for very limited time to be spent with the father. Order 4 of the proposed orders put forward by the mother were in these terms:
4.Unless [Z] is otherwise in the Father’s care pursuant to these orders, [Z] is to spend time with the Father:
(a)On Fathers Day from 9.00am to 6.00pm.
(b)On her birthday:
(i)If on a school day, from the conclusion of school on the day prior to the birthday until 8.00pm in even numbered years and from the conclusion of school on the birthday until 8.00pm in odd numbered years.
(ii)If on a weekend or holiday, from 3.00pm on the day prior to the birthday until 8.00pm in even numbered years and from 3.00pm on the birthday until 3.00pm in odd numbered years.
(c)On the Father’s birthday:
(i)If on a school day from after school until 8.00pm.
(ii)If on a weekend or holiday from 9.00am to 8.00pm.
(d)Each Easter weekend from 9.00am Friday until 8.00pm Sunday.
(e)At all other times as may be agreed.
It can be seen that the only proposals were for a few days guaranteed each year.
The mother's proposal in the final submissions was for the father to have time with the child [Z] on Father's Day and on her birthday, as well as on the father's birthday. There was also to be the opportunity for the father to spend three days and two nights with [Z] at Easter, and otherwise there were only times as may be agreed between the parties.
The tragedy, of course, in relation to this matter, is that there are still orders in place with regard to [Z] spending time with her father. Whilst there are difficulties, it is clear that the child enjoys that time with the father, and that the opportunity should continue to be had. Otherwise, the orders proposed by the mother were very limiting, though it was noted that there were to be further opportunities for time to be spent during school terms, though it was to be subject to variation pursuant to any recommendation by the family consultant called upon in relation to this matter, Ms E.
There was no overnight time, but there was the provision for time each Saturday and Sunday in week 1 from 9am to 6pm, and in week 2, Wednesday and Thursday from after school until 8pm. In school holidays, there were still provisions for time to be spent on that rotating two week basis, but there was no provision at present for any overnight time.
The mother's position in relation to this matter therefore provided very limited opportunities in relation to the father's time with the children.
It should also be noted that there was a most experienced independent children's lawyer involved in relation to these proceedings, and following the conclusion of evidence taken in relation to the matter, detailed orders were proposed by the independent children's lawyer covering almost all possible avenues of determination in relation to the matter. Those orders are in these terms:
1.The children, [X] born [in] 1998, [Y] born [in] 2000 and [Z] born [in] 2003, live with the mother.
2.That the mother have sole parental responsibility in relation to decisions for the long-term care, welfare and development of the children, subject to the communication and notification of such decisions to the father, including but not limited to:
(a)a child’s education (both current and future);
(b)child’s religion and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the other parent.
3.Notwithstanding the provisions of order 2 herein:
(a)The mother be responsible for the daily care, welfare and development of the children when they are living with or spending time with her.
(b)The father be responsible for the daily care and welfare of the children when they are spending time with him.
4.That there be no orders with regard to the father spending time with the children, [X] and [Y], until such time as the children are re-introduced to the Father with the assistance of he children’s counsellor in accordance with Order 11.
5.The father spend time and communicate with the child, [Z], at all times as may be agreed between the parents but failing agreement as follows:
(a)Each weekend on Saturday and Sunday from 9.00am to 6.00pm with such time to continue during the Queensland gazetted school holiday periods;
(b)On Father’s Day from 9.00am to 6.00pm provided the child is in the Mother’s care on Mother’s Day from 9.00am to 6.00pm;
(c)Communicate by telephone with the child, [Z], on each Tuesday and Saturday, with the father to initiate the call to the child at ? pm.
6.The father to ensure the child, [Z], attends extra-curricular activities she may be involved in from time to time should any activity fall on a day when she is in his care.
7.The father have the opportunity to speak by telephone or in person with all three children on special occasions including but not limited to Christmas Day in each year, on each of the children’s birthdays, the father’s birthday and on Father’s Day, such arrangements to be agreed between the parents but failing agreement, the mother to initiate a telephone call at [time] to the father for the children to communicate with their father on that day.
8.The father be at liberty to send letters, cards and gifts to the children and the Mother to ensure that all such cards and gifts are delivered to the children.
9.That the children have liberty to speak with the father at all reasonable times at times when the children express a wish to do so.
Children’s Counselling:
10.That the mother and father ensure all three children continue to attend counselling and therapy with Ms S, Psychologist of [omitted], Cairns.
11.In accordance with Order 10 above, the parents to ensure:
(a)The children attend all appointments at the times, dates and places nominated by Ms S, Psychologist.
(b)That [X] and [Y] are re-introduced to their father as soon as possible with the Mother to be present on at least the first occasion and on further occasions as considered appropriate by the counsellor.
(c)That both parents participate in counselling sessions with the children as considered appropriate and at the discretion of the children’s counsellor, Ms S.
12.That the reasonable remuneration and expenses of Ms S, Psychologist be paid equally by the parents.
Parent’s Counselling:
13.Within 14 days of the date of these orders each parent is to separately attend upon a counsellor/therapist for the purpose of assisting them to understand and accept these orders and to assist them in conveying their acceptance and support of the orders and the parenting arrangements to the children.
14.The father do all things and sign all documents to engage with a counsellor/therapist for personal individual counselling and therapy to help him develop child centred parenting strategies about dealing with the behaviours of his children. At an appropriate time and at the discretion of the counsellor seek joint counselling with the Mother to help both parents develop a cooperative parenting relationship.
15.The mother to continue to engage with a counsellor/therapist for personal individual counselling and therapy to assist her in acceptance and support of the orders and the parenting arrangements to the children. At an appropriate time and at the counsellor’s discretion seek joint counselling with the father to help both parents develop a cooperative parenting relationship.
Specific Issues
16.Neither parent is to take the children to any other psychiatrist, psychologist, social worker, counsellor or therapist without the prior written consent of the other parent or court order.
17.Each parent is to keep the other informed of a current contact address and telephone number including mobile telephone numbers and will inform the other parent in writing within 48 hours of such change.
18.That neither parent shall physically discipline the children or allow any other person to do so whilst the children are in their care.
19.Neither parent will criticise, denigrate, demean or ridicule each other, either of the children or any member of the person’s family or household in the presence of the children or allow any other person to do so.
20.That the parents will not discuss with, or in the presence of, the children any matter which is the subject of, or relates to, the family law proceedings herein, whether past, present or in the future.
21.This order operates as an authority of the mother and father to any professional care provider of the children, all schools, doctors, hospitals and all medical practitioners and health care professionals to release information to the Mother and Father concerning the children and discuss the children’s progress and be provided with all written information, progress reports, photographs, newsletters, at the requesting party’s expense.
ICL & explanation of these Orders to children:
22.Within 7 days of the date of these orders the mother will bring the children to an appointment on a date and time to be arranged with the Family Consultant Ms E and with the Independent Children’s Lawyer for the purpose of having these Orders explained to the children.
23.Leave be granted to the Independent Children’s Lawyer pursuant to section 121(9) of the Family Law Act 1975 that a copy of the Family Report of Ms P dated 17.12.2008 and the Family Reports of Ms E dated 26.11.2009, 7.12.2009 and 6.4.2010 be released to
Ms S, Psychologist, to assist her in understanding the family background and to assist in ongoing counselling/therapy of the children towards re-introduction of the children, [X] and [Y], with their Father.
24.That the Independent Children’s Lawyer be discharged on a date at 4 months from the date of these orders or on a date earlier upon receiving written confirmation from the children’s counsellor, Ms S, that the children, [X] and [Y], have been re-introduced to their Father and have commenced spending time with and communicate with the Father together with their sibling, [Z].
25.That in the event the Father is re-introduced to the children and the three children are spending time with the Father at the same time as set out in order 5 above, the parents shall attend mediation with a family dispute resolution practitioner at the Family Relationship Centre or similar agency to assist them to reach agreement for an ongoing parenting arrangement for all three children to spend time with and communicate with both parents.
I felt it necessary in this matter to detail at length the historical background in relation to this matter. The fact is that there has been a continuing deterioration in relation to the arrangements with regard to parenting and the involvement of each parent in the children's lives. It is unnecessary, really, to make comment in relation to the decline in the relationship between the parents, because that is obvious, and there is very little that appears to be agreed between the parents in relation to issues with regard to parenting.
In a nutshell, the mother is of the view that the father's relationship with the children has deteriorated as a direct result of the father's failure to in any way properly appreciate the needs of these children, particularly with regard to their relationship with him and to make any changes to foster and develop the relationship with him. The mother's position further is to say that whilst she has attempted to facilitate that relationship and has taken steps with regard to counselling, mediation and otherwise, that the father has refused or in fact been directly obstructive to any further fostering or development of the relationship, such that the situation that now exists is a direct reflection of the actions of the father.
The father's position in relation to the matter is, as he described it to Ms E in one of her reports, a situation of the mother "brainwashing" the children. In other words, the father says that this is clearly a case of the mother's antagonism towards him being reflected in her actions and words toward the children, such that they are specifically being alienated as a result of her determination to preclude or affect any real relationship with him.
The father called a considerable number of witnesses in support of his position in relation to this matter, not so much with regard to the issue of whether the mother had alienated the children from the father, though perhaps to some extent that could be interpreted or inferred from some of the comments made by the various witnesses in both their affidavit evidence and when before the court under cross-examination. However, the evidence of those persons was much more directed towards their observations of the relationship that the children had with the father, and of the very positive nature of that relationship.
Additionally, at least some witnesses were also able to comment about specific instances of exchange between the mother and the father, and of course, the nature of those exchanges. I intend to address the evidence of those witnesses in relation to these reasons before turning to the expert evidence that was called, and there was a considerable amount of evidence taken from both teachers and social scientists and then to turn to the evidence of the parties themselves.
On behalf of the father, evidence was taken from Ms V. Ms V is a [occupation omitted]. She swore an affidavit in support of the situation from the father's perspective on 9 November 2009. In that, she spoke at some length about her knowledge of the father and the mother and of the close relationship that had developed, initially between the children and then which developed between the adults. In particular, it was noted by Ms V that she, initially when the children formed a relationship, had most contact with the mother and it was mostly at preschool or over time, at play dates.
It was noteworthy that Ms V spoke of what she said were difficulties that were communicated to her by the mother, in relation to parenting of the children and she spoke about some of the conversations that they had had. Ms V was generally not challenged in relation to those particular aspects of the matter.
It was also clear that Ms V was of the opinion, she says from her observations, that the mother did not participate in many of the family activities that occurred outside the school environment and that, whilst there were friendship groups that were formed, and from them weekend family events that were organised, it was generally the case that only the father and the children participated in those activities.

Ms V was challenged in relation to the accuracy of those recollections, certainly at the times that the parents were still living together, but she remained adamant that those recollections were generally of a definite nature and were unswayed by challenges, in relation to the accuracy of those recollections.
Ms V also spoke of the quick deterioration that apparently developed, following separation between the mother and the father, of any relationship that she might have had with the mother. In paragraph 9 of her affidavit she refers to an incident at the beginning of the school year following separation when she spoke to the mother, and was noted an unresponsive nature with the mother. She says that she was advised the next day that the mother had asked the father to pass on to her, that the “rent-a-crowd friends” should not talk to her. It was clear that there was a situation that, unfortunately, very quickly developed involving family friends, of either being for one side or against one side and that neutrality was unable to be acknowledged.
Ms V also spoke at length in her affidavit about what was referred to in much of the evidence, as the incident that occurred on 7 May 2009. On that day, she says, the father and the children had joined her family for dinner. It was clear that the occasion, at least from the perspective of Ms V, was a pleasant one and that it had concluded with the father and the children leaving their residence at about 7.30pm. Shortly thereafter, however, she says that the father had called and requested an opportunity to return to their home and it was, from her observation, a situation where the father was shaken and disturbed.

She says that the father recounted to her an exchange between himself and the mother, and the children and the mother, and that the mother was abusive, loud and aggressive. It was also clear that there was some exchange between the mother and Ms V because that was acknowledged in the mother’s material, though a very different position was taken in relation to what she perceived to be the nature of the exchange.
Ms V indicated that, at least from her impression, the mother was loud, aggressive, calling out, and it would appear that there was also a suggestion that she was in some respects under the influence of alcohol or other drugs. The police were called, Ms V indicated, and it was then that the mother subsequently left the residence. The incident, from the description of Ms V, was a most unfortunate and unpleasant one. Ms V was challenged at length by counsel for the mother about that particular instance and what might or might not have been the subject of the exchange between the mother and her and what she also observed, for example, in any conversation that was exchanged between the mother and her husband, Mr V.
It is clear that Ms V has a very different view in relation to this matter but certainly was very positive and was unchallenged in relation to the father’s protective behaviours towards the children, they, it being suggested, being quite upset as a result of the situation, and that it was the mother who was aggressive in relation to this matter.
I must say that I thought Ms V was an impressive witness. Generally I thought that her evidence was given in an even-handed and honest manner and I am very much of the view that her recollections and reflections on the evening of 7 May 2009 are a far more accurate reflection of the unfortunate circumstances that occurred on that particular day.
It was also the case that Mr V was called in relation to this matter.

Mr V had sworn an affidavit in which he generally adopted the evidence of his wife in relation to this matter. However, when a challenge was taken in respect of the form of that adoption, a fresh affidavit, albeit one that was in exactly the same terms as his wife’s but with some amendment, alteration and deletion, was then filed. Again Mr V, as best he could, detailed the observations made with regard to the relationship between the father and the children and also the circumstances of the incident which occurred on 7 May 2009. Mr V was asked particularly about that occasion and confirmed that the father had told him when he returned to the home after he’d left following dinner, that he had come back because “the kids didn’t want to go into the house with the mother there and that the children were shaken.”
He was adamant that there was a most unfortunate exchange that had occurred apparently between the father, the mother and the children and that, as a result of that, all were quite distressed. Mr V spoke of the children expressing a wish to stay at the home and, whilst he did not specifically indicate that he knew why that might be, it appeared clear that he was providing what support he could in relation to the distress that they were apparently suffering as a result of the dispute between the mother and the father.
Again, I was generally impressed with Mr V. I thought his evidence also had been given in a forthright and honest manner and he did not seek to “gild the lily” in that regard. For example he did not simply suggest that the father was in every respect a perfect parent, but rather acknowledged that the father had experienced frustration and despair at the breakdown of the relationship and that he sought from Mr V and was provided with assistance in relation to disciplinary issues and ensuring that his relationship with the children was fostered and developed.
It was clear also that his evidence in relation to many of the allegations such as violence and calling the child [X], “[omitted],” was an honest recollection by him. He was asked whether he had heard the term, “[omitted],” or had heard derogatory terms of a similar nature used by the father or others towards the child or in the presence of the child, [X]. He indicated in every respect that he had not heard such statements made but was not so blinded by his support of the father that he could not acknowledge that there were occasions where the exchanges between father and children may not have been perfect. He indicated for example that whilst he could not recall a specific instance, he did recall the father being sarcastic in some of the exchanges that he had with the children, and noted that whilst the children may have been a little taken aback at sarcastic retorts by the father, they just generally got on with what they were doing and as he put it, they didn’t seem upset.
He also acknowledged that the children had cried on occasions when they had been with the father in the presence of others, but he indicated that they were more normal childhood reactions to children not getting their own way, and that on occasions he had seen the father disciplining the children, including a smack on their backside.
I must say that I thought that Mr V’s evidence in relation to this matter was quite accurate and appropriate and that it was clear that, again, his evidence in relation to the demeanour of the father, as opposed to the demeanour of the mother on 7 May 2009 was an accurate reflection of what had occurred on that occasion.
Also called on behalf of the father was Ms J. Ms J is a [occupation omitted]. She also spoke of her initial meetings with the Pierce family and noted, that in the first instance it was a relationship that developed between the mothers at a mother’s group before the families became close, though she did note that she had known Mr Pierce briefly when the children were much younger. She noted that the father now lived across from the back of her house and that she was able, as a result of proximity, to hear the children of the mother and father, as well as other neighbourhood children and her children playing together, laughing and she said, crying as well.
She said that in more recent times, certainly in the last 12 months, so it would seem during the bulk of 2009, that her family had become closer to the father and that there had been occasions where there was time spent together as friends and neighbours, and also occasions where the father would drop by with the children, when they were on bike rides around the neighbourhood or other activities of a family nature. It was clear that Ms J was of the view that the father had a very positive relationship with the children and that he was in every respect able to meet the needs of the children. She says in paragraph 17 of her affidavit:
As a father and a friend, Mr Pierce has my respect and support – in spades.
Ms J was challenged in relation to some of those observations and was also asked whether there were similar observations that she would make in relation to the mother. For example, where it was noted that the father was a loving, caring and doting parent she was asked whether the mother was also a loving, caring and doting parent. She acknowledged that she was and when asked whether she was an excellent mother from Ms J’s observations she said that she was. She also acknowledged that there were occasions prior to separation where the mother was seen with the children and their interaction was appropriate.
Ms J said that was the case and it appeared that that was generally accepted as an accurate reflection of the relationship that the children had with both parents. What is noteworthy however is that Ms J was not challenged in any way in respect of her observations in more recent times, and certainly post separation, of the father’s relationship with the children and of the very positive nature of that relationship.
Ms J was also questioned by the independent children’s lawyer about her having heard happy exchanges between the father and the children, and therefore whether she had also had the opportunity, because of the close geographic proximity of the residences, to hear unhappy exchanges. She quite properly acknowledged that she had and that they reflected incidents of the children not behaving or the children not getting their own way. She was adamant however, and again was unchallenged, as to whether she had heard derogatory statements made by the father toward to the children or had seen the father smack the children or at least discipline them in an inappropriate physical way and she clearly indicated that had not been the case. I was assisted and impressed by the evidence of Ms J in relation to this matter.
Ms C, a [occupation omitted] was also called in relation to this matter. She indicated that she had been Mr Pierce’s [occupation omitted] for a period of about two years, from shortly after separation between the mother and the father. Her observations related to what she had seen of exchanges between the father and each of the children and of the issues with regard to discipline or interaction between the father and the children. She noted at paragraph 6 of her affidavit that:
The children have always seemed happy with Mr Pierce, laughing, playing with him and running around.
Ms C was challenged in relation to her observations in relation to this matter and in particular what she observed during some of the occasions when the children were with the father and the mother would call. She indicated in her affidavit that she had been there on occasion when the mother would ring on the telephone and that she noted that on perhaps four for five occasions, when she had been present. She said that on each occasion, after telephone discussions with the mother, at least as observed by her, the children were upset and she described them as, “unsettled and crying.” She was asked in cross-examination whether all of the children had spoken to the mother on these occasions and she quite properly said that she was unable to be specific but thought that if all three children were present, then all three children spoke with their mother. She also acknowledged that whilst she observed the children being upset, she did not know what had been said or exchanged between the mother and the children.
Ms C’s evidence was generally uncontroversial, and I was assisted by her evidence, particularly arising from cross‑examination by the independent children’s lawyer. She was asked, for example, whether she had heard the father say to the children that they were “a halfwit”, “a smart arse” or other derogatory terms. She was asked whether she had seen the father smack the children or whether she had seen the children, at any stage, crying when they were with the father.
In relation to both derogatory comments and physical disciplining, she indicated that she had not seen such actions occurring. But she also said that she had seen the children cry but noted that more often than not, that was as a result of interactions between the children, and was, as she described it, “normal sibling behaviour”, rather than as a result of the father’s actions. She did indicate further that there had been one occasion in the times that she had been there where she had heard the father raise his voice to the children, but that had been following a request by him for them to perform a particular task and that they had not done it.
It was clear that Ms C had been present, though not all the time, certainly for a significant period of time since separation, and that her observations of the father’s relationship with the children was most positive in every respect.
Ms K, a [occupation omitted], was called in relation to this matter. Her affidavit of 9 November 2009 is again similar to those of the other support witnesses in that that she speaks positively of the observations that have been made by her of the father’s interaction with the children and in particular she speaks about her involvement through family camping trips with the father and the children. She noted in paragraph 6 of her affidavit that the father has, since separation, gone on about six or seven camping trips with the [K] family, and the children, [X], [Y] and [Z] had also gone on these trips, except for the most recent which was in October 2009, when only the child [Z] had accompanied the father.
Ms K spoke of the families and in particular the Pierce children, along with their father, having a “great time” and the children enjoying themselves, playing, swimming, walking and sitting around the campfire. She spoke of positive interactions between the father and the children in these activities and noted that there were many occasions where the father was closely involved in all of the activities of the children, be they swimming, rock-climbing, bush-walking, cycling, canoeing or the like.
Ms K also spoke of the father’s obvious recognition of the importance of healthy and appropriate meals, and of the fact that on these weekends, the father had, as she put it, always provided an abundance of healthy food, including fresh fruit and veggies and meat, and ensuring that the children had adequate clothing, footwear, sun protection and the like.
Ms K was cross-examined in relation to these particular statements by her but, more particularly, was cross-examined by counsel for the mother about the deterioration in the relationship between Ms K and Ms Pierce. She was asked, first and foremost, by counsel for the mother whether she “used to be” one of the mother’s best friends. She responded that they used to be close but that post-separation, that had not been the case.
Ms K acknowledged when asked why that was, and in particular whether it was as a result of her telling the mother that she, Ms K, did not “approve of how separation occurred”, Ms K was quite frank. She said that she didn’t approve of the way the marriage ended and that she did not “approve” of an affair before marriage.
She was challenged about that and whether it was a condition on her relationship with any person and she was again frank. She may not have been the most tolerant of souls, but she was certainly honest when she said that she guessed that that was a condition of a relationship with her. When asked whether she had therefore sided with the father, she said, “We give our full support to the father”. She indicated, however, that she had not been asked by the father for the support, but that rather it had been offered as friends providing support to another friend in need.
She said that, as far as she was concerned, the father was a wonderful role model and that his relationship with the children, up until recent times when [X] and [Y] had ceased to spend time with him, had been one of a very positive nature. She was asked whether she had seen the affidavits filed in relation to the matter, in other words, whether she was more closely enmeshed in the litigation than simply as a witness providing supporting material in relation to the father. She indicated that she had not and I accept that that was the case.
I must say that I was most impressed with Ms K. She was unswayed in the evidence that she gave in relation to this matter and when challenged as to the reasons for that evidence, was not belligerent or defensive but I thought honest and frank in relation to such evidence.
Similarly, when cross‑examined by counsel for the independent children’s lawyer, she was frank about what she had seen in exchanges between the father and the children and noted that there had been occasions when the father had raised his voice and that there had also been occasions, at least one, where she had seen the father smack the child [X] on his bottom, that she could recall. She said that that was in April 2009 and that it was an appropriate application of discipline and, as she put it, [X] had responded properly to that discipline.
She was asked whether she had heard the term, “[omitted]” used by the father toward the child or in the presence of the child or by others toward the child, and indicated that she had not. Ms K was also asked about some of the correspondence that was relied upon in relation to this matter, including particularly letters, apparently under the hand, of each of the children. She said, having read the letters, that she was adamant that she had never heard the derogatory, sarcastic or denigrating comments that particularly [X] made reference to in his notes, and whilst she may have heard the term “stupid” being used, it was used, not as directed to the child, but rather as directed towards behaviours by any of the children within the camp, for example, that “the activity was a stupid or dangerous thing”. I accept that evidence and I must say that I was impressed by what I thought was Ms K’s appropriate approach in relation to this difficult situation involving the children.
Whilst Ms K obviously no longer had a relationship with the mother, she acknowledged that the mother had, whilst they had been friends, had what she considered to be a good and positive relationship with the children and when it was put to her that there was some suggestion that the mother was brainwashing the children, she discounted that and said that she does not believe that there would have been brainwashing but there may have been, knowingly or unknowingly, influence brought to bear upon the children and that that would have been influence of a negative nature by the mother toward the father and children’s relationship.
As I say, I was impressed by Ms K and the honest and frank nature of the evidence that she gave in relation to this matter.
Ms B also was called to give evidence in relation to the matter, and again, it was clear that Ms B was very positive in the support that she provided for the father and in the positive observations that she said that she had made of the father’s interaction with the children. In particular, Ms B was asked about there being any relationship between the child, [X], and her son, [J]. She noted that her son [J] knew [X] and she was then asked whether her son [J] may have known that the trial involving Mr and Ms Pierce was being conducted.
She indicated that her son would have known that, and that she had told him, because she might be in court and would therefore not be at home at the time that the child returned home. She was asked why she had talked to [J] about the trial, previously having acknowledged that she had told [J] about separation and custody. She said that she had not specifically discussed the trial or issues with him, and if the child, [J], had made some comment to [X], it may have been because one or other of the Pierce children had brought it up in discussions with him.
I must say that that seems as likely a possibility as any that might arise in relation to communication by the mother, Ms B, or by Ms B to her son, [J], about issues involving the Pierce family and the court proceedings. It may be that there had been things overheard by many of the children of this neighbourhood, but I am not at all satisfied that there has been the collusion that would appear, at least, to be suggested as going on in relation to this matter.
Ms B was also asked about the issue of whether she had heard the term “[omitted],” and she was adamant that she had never heard the term, nor had heard the father ever use the term.
She was able to recall many of the camping trips that had occurred, and the involvement of the Pierce family and various other families in the neighbourhood. She also spoke positively about the father’s relationship with the children, and said that she had spoken to the father about the fact that [X], in more recent times, was not spending time with him, and the father’s explanation of that was that the child did not want to come but that the father did not know why.
I was impressed with Ms B’s evidence in relation to this matter. I thought, again, that her evidence was frank and that it was an honest reflection of her observations in relation to the father’s relationship and interaction with the children.

Mr G was called also in relation to this matter. Mr G is an [occupation omitted], and is married to a previous witness referred to, Ms J. Mr G, in his affidavit, spoke of his observations of the father and of the children, and he noted that his children know the Pierce family, as being inclusive of the father and the children, [X], [Y], and [Z], exclusive of the mother. It was noteworthy that Mr G’s observations of time spent with the children was far more often a situation of the father interacting and spending time with the children than the mother being involved with the children. Mr G spoke in paragraph 7 of specific comments in relation to the father. He said:
…I can say that he has an overwhelming personal commitment to his children. I have had many conversations with him and socialised with him, and mentored him about his business and his relationship with his children. He always tells me how important his children are to him and how much he loves them.
He goes on to note that, from his observations, the father is a good parent and that he is empathetic to his children and to other children.
Mr G, I thought, was a most impressive witness. He was clearly extremely intelligent and, in many respects, perhaps from some perspectives, overanalysed the questions that were directed toward him. For example, and in particular, I note that in cross-examination by counsel for the Independent Children’s Lawyer, he was asked a very open-ended question about whether he had seen the father “embarrass the children in front of other adults.” It is an imprecise question, and Mr G very properly, I thought, asked what was meant by that. When he was told that the inquiry was whether the father had put the child or children to shame or that he had been mean, selfish, bullying, or in any other respect acted inappropriately, particularly toward the child [X], he was adamant that he had not seen that and that he would have noted it if it had occurred.
He was asked, no doubt because of his academic background, to look at some of the correspondence that was referred to in these proceedings, including the letters said to have been written by the children. He read the letters and was then asked, for example, whether he had seen the child, [Y], “sad at her father’s residence”. He said that he had not, and that, from his observations at least, each of the children appeared to be a happy child, both in their interaction with their father and in their relationships with each other. He then went on, however, to make, I thought, a most appropriate comment. He said that he was:
Astounded at the quality of the sentence structure, grammar, and other issues in relation to the note proposed to have been prepared by [Y].
He was asked whether he accepted that it was a genuine letter, and again I thought his response was considered and extremely accurate. He said that he would be very proud of the English used, if it was used by one of his children. I noted, however, that he seemed to generally doubt the genuineness of the sentiments expressed and certainly the genuineness of any suggestion that the note was one prepared by [Y], without some form of adult input. I shall obviously comment upon that particular aspect of the matter later in these reasons.
As I say, I was most impressed by Mr G and his evidence in relation to this matter, and insofar as it relates to the observations by him of the relationship between the father and the children, I accept it as an accurate reflection of his observations.
Finally called on behalf of the father and required for cross-examination was Ms H. Ms H is a [occupation omitted] though now retired and again, spoke in her brief affidavit of 9 November 2009 of her observations of the father’s time spent with the children and of the activities that she had seen them involved in. She spoke of having seen the father frequently taking the children for exercise, whether walking with the child in a backpack, on a bicycle with the child in a child seat or leading a child on a bike. She said in the more recent years all three children had their own bikes and she would see Mr Pierce accompanying them.
She noted in paragraph 5:
At no time did I see [Ms Pierce] participate in this form of exercise.
She went on to say that it was clear, she thought, that the children all loved being with their father on these occasions if the sound of their laughter and obvious enjoyment is anything to go by. She said that she had babysat the children on two occasions since separation, once in January 2008 and again in July of 2009. Those periods were some 18 months apart but she noted that she did not find any of the children to be unhappy or wanting to leave their father on those occasions when she was assisting in the care of the children.
Ms H was asked about her relationship with the mother and she acknowledged that she and the mother had always been friendly to each other and that she and the mother had, on occasions, shared a beer whilst the children were in the pool. She acknowledged that she had, perhaps, seen the mother on occasion taking the children or one of the children out in a pram but when asked whether she had seen the mother with the children in a backpack or whether she had seen the mother riding bicycles with the children, she was adamant that she had never seen that occur.
When challenged as to the veracity of her answers, Ms H perhaps understandably became somewhat agitated. She reiterated that she had not seen these particular activities occurring involving the mother and the children and was definite that she had given her answers.
Ms H impressed me as a very forthright woman who did not perhaps suffer fools gladly. I do not, of course, suggest that the parties to these proceedings or the legal representatives are fools but rather wish to emphasise that Ms H impressed me, perhaps in a manner similar to that of Mr G, as being a most precise and accurate witness and a person who was very firm in their beliefs and very firm in what their observations might or might not have been. I thought that her evidence was given in an accurate and appropriate manner and that it reflected exactly what she had seen or not seen occurring, in relation to this family.
One further witness was called on behalf of the father, that being Mr S. Mr S, however, was not subsequently required by either the mother or the Independent Children’s Lawyer for cross-examination. His evidence was of a somewhat uncontroversial nature. He again was very positive in relation to his observations of the father and noted that his family had lived directly across the road from the Pierce’s residence for a period of about 14 years. He noted that over those years he had regularly seen the father riding bikes with his children, walking with them, playing boats in the rain-filled gutter, cycling to the newsagent, building a pond, building an aviary and generally involving himself in activities with the children. He said that he had never noticed the mother leaving in the car for camping trips which he had seen the children and the father do.
He also noted that his observations were to the effect that the children were always happy, laughing, playing and seeming to have a good time and it was clear that the relationship was of a positive nature. His unchallenged evidence is of course accepted by me in relation to this matter.
Specifically because it is very much a reflection of what many of the other witnesses in their entirety have said, I note, however, his comment in paragraph 7 of his affidavit and in my assessment it is a very appropriate comment in relation to parenting and fathering in particular. It is in these terms:
If you really want to gauge a father’s connectivity with his children, then all you have to do is listen to Mr Pierce and his three children, [X], [Y] and [Z], with their dog, on their way to the shops. You don’t stop smiling until they disappear as a family around the corner.
I accept Mr S’s evidence in relation to this matter.
The mother did not have as many witnesses supporting her in relation to this matter. There was, however, evidence taken from her partner, Mr C. Mr C’s affidavit was filed on 27 November 2009 and details the development of their relationship and in particular, his observations of the mother’s relationship with the children and his relationship with the children. He says, in particular, at paragraph 23 the following:
During times I have spent with [Ms Pierce] and the children, she has never spoken badly of [Mr Pierce]. Ms Pierce] has always spoken of [Mr Pierce] in a positive light. There are photos of

[Mr Pierce] in [Ms Pierce’s] house, including on the fridge, pinboards in the kid’s rooms, a wedding photo in the lounge room. [Ms Pierce] from what I’ve seen takes a lot of pride in her parenting of the children, the children come first for [Ms Pierce].
Mr C was required for cross-examination, not only in respect of that affidavit sworn by him but he was also asked about what appears to have been an exchange that occurred in the precincts of the court on 2 March 2010. Mr C gave evidence that on that day he was in the precincts of the court and a man had stormed out of the court, red-faced and angry and had yelled at him, “This is fucking bullshit.” He was asked about that and indicated that he knew the face of the man but did not know the name of the man. Subsequently, it would appear that it became obvious that the gentleman who had apparently become agitated and left the court was Mr B, the husband of one of the witnesses called on behalf of the father.
I was troubled by this particular aspect of the evidence. Quite clearly some of the evidence that was taken in relation to this matter was distressing, not only of course for the parents involved in these proceedings but for others who were present when there were references made to their children or to what was alleged by one parent or the other might have been occurring.
What was interesting, however, is that the mother seemed to suggest that she had been intimidated by Mr B and, at least in some respects, sought to rely upon what had occurred outside the precincts of the court, though she was not present at the time, and had, to a significant degree I thought, exaggerated what Mr C finally acknowledged was the limit of the exchange between them.
It was clear that the mother had suggested that those behaviours were intimidating behaviours and matters that were to be added on top of what she suggested had been occurring in court. However, when questioned more precisely in relation to what had occurred, Mr C acknowledged, firstly, that the statement about what was going on in court being “fucking bullshit,” was not directed particularly at him but it was more specifically, apparently, directed toward the door of the court.
It was clear that Mr B and Mr C were not in close proximity to each other. It was clear that there was no, as it was put to Mr C, “physical gesticulation” and the best that Mr C could make of the position in relation to the matter was to say that he was “concerned that Mr B was talking about my partner.”
In the end, I thought that what might have occurred outside the court, and, of course, it is hard to make an accurate assessment of the nature of that, was not more serious than is, unfortunately, a regular occurrence when people become distressed in circumstances as traumatic as court proceedings and it was clear that there was a significant degree of exaggeration arising, in relation to the matter.
Mr C was then questioned particularly about his reaction to an incident that occurred in 2008, as well as other incidents which apparently related to exchanges between him and the father or the children and the father which had been observed by him. Mr C might to some extent find himself as the “meat in the sandwich”, but I must say that I was not overly assisted by his evidence in relation to this matter. I thought, unfortunately, that he was somewhat pedantic when it suited him to do so, suggesting, for example, that the father had come to the house and had acted in an intimidating manner, but when more thoroughly questioned in relation to the matter, had indicated that the father had remained in his car and had not come to the door at least on one of the occasions that was the subject of criticism.
He was asked whether the father had made a threat and, when pushed, acknowledged that there had been nothing directly said to him of a threatening nature but that an indication was given of what the father might do to him, through the children. He was asked whether he acknowledged that in fact, he did not know the father had said that and that may be why the children may have said that. He simply indicated that he could not imagine that there would be any other explanation of why the children would have told him of some perceived threat from the father to him. It was clear that Mr C was supportive of the mother and of her position in relation to this matter.
That support, however, generally led to a defensive position being taken by Mr C in relation to much of what had occurred and, in particular, exchanges between he and the father. It was clear that there was hostility there, and perhaps it was understandable, but there had never been a physical exchange and where words had passed between them, there had been criticisms by each. In particular, the father had called Mr C a “loser” and had accused him of being a person involved in failed marriages, which was acknowledged by Mr C, but it was also properly acknowledged by Mr C that he had called the father a “pig of a man” and that he apologised for that.
I must say that I thought Mr C’s evidence was honestly given in relation to this matter but was, as I have indicated, in many instances the subject of exaggeration when it came to criticisms of the father and of the father’s interaction with him, with the mother and with the children, and, unfortunately, in respect of the mother, was the subject of minimisation, at least insofar as any criticisms might be made with regard to the mother. In particular, he was supportive of the mother’s fostering of the relationship between the children and the father, at least as he saw it, but when challenged more specifically as to what positive things might be said by the mother to the children, he was at a loss to assist specifically in relation to such statements.
He said that he had heard the mother say, for example, that the father loved the children, that the children have lovely trips with the father and that they did nice things together, but when asked whether he had ever heard the mother tell the children that she and the father had agreed that they should spend time with him, he acknowledged that he had not, and when asked whether, in fact, it was a situation of the children being given a choice, he acknowledged that that was probably what occurred and that the mother gave the children an option as to whether they went or did not spend time with the father. I acknowledge that Mr C no doubt has a good relationship with the children and a very supportive and positive relationship with the mother. Unfortunately, I also gain the distinct impression that he, like so many witnesses for all sides in relation to disputed matters, takes on the perspective of one party or the other.
In this matter, I gained the distinct impression that the indications that had been given to him about the father, the father’s behaviour and in particular the father’s relationship with the children had been coloured by the mother’s views in relation to this matter, and that from that perspective what Mr C noted in relation to exchanges between the father and the children or between the father and the mother were seen through eyes that had already been directed toward a certain perception in relation to the relationship between the father and the children.
I turn now to the evidence of those whom I might call the experts in relation to these proceedings. They include the social workers who have prepared reports and psychologist, Ms S, as well as the evidence of the child, [Y]’s teacher, Ms D. In passing, reference will, of course, also be made to the brief evidence provided by affidavit of Ms L, the principal of the [omitted] State School.
Ms L filed an affidavit on 3 December 2009. That affidavit simply had annexed to it a report in relation to the Pierce family. This report arose as a result of a request received from the Independent Children’s Lawyer, Ms Falcomer, with regard to the provision of information regarding the children. Annexed to her affidavit was a copy of the letter received from the Independent Children’s Lawyer and additionally, annexed thereto was a copy of the report that was detailed. I should note that the report in relation to each of the children was of a very succinct and precise nature and, in fact, was prepared on the basis of specific answers to the specific questions directed to Ms L by the Independent Children’s Lawyer.
It would appear that there was little of direct assistance in relation to the matter, though it should be noted, for example, that in relation to the child, [Z], it was noted that the mother had met with the guidance officer and Ms L:
…to express concerns re the children and Dad.
Similarly, it was noted that those concerns were expressed in relation to the child, [Y], as well as in relation to [X] and one can only assume, though it does not appear to be specifically indicated, that such notifications were given at one and the same time. Other than that, as I say, the questions answered in relation to this matter relating to each of the children would appear to be of a non‑contentious nature.
Also called in relation to this matter was Ms D, the teacher for the child, [Y], in the year 2009. The need for Ms D’s attendance, at least from the perspective of the Independent Children’s Lawyer, arose from the fact that the mother sought to rely specifically upon the letter that had been written by [Y] and which came into the mother’s possession and was subsequently provided to the Court.
Ms D was asked a series of questions in relation to [Y]’s abilities. In exhibit 12 to these proceedings, Ms D’s response to the queries was given. In particular, it should be noted that under heading 3, “Is The Letter Consistent With [Y]’s Ability”, Ms D noted the following:
During 2009, I observed that [Y] did
-   Write in paragraphs
- Use correct spelling (usually)
-   Punctuate her work
- Use correct sentence structure
-   Use a variety of vocabulary.
It then goes on:
During 2009, I observed that [Y] did not
-   Put her signatures at the bottom of her writing. (I wouldn’t expect her to do this unless asked to. Students were always asked to print their names on their pieces of work).
-   Use words such as sarcastic, threatened, weekendly and sign.
-   Use a high level sequence structure without teacher modelling.
The note that was relied upon in relation to this matter from [Y] was obviously a notation of a very specific nature. It was a structured notation and Ms D was the subject of significant examination in relation to the matters contained within the notation. Counsel for the mother, in fact, was at pains to stress that [Y] was what might be referred to as a capable student and that if she was displaying certain characteristics in 2009, that it may have certainly been the case that by the end of the year, she would be in a position to structure her own communication in an appropriate way.
However, it was clear that Ms D was not, in her professional opinion, and she does have expertise in relation to teaching children, able to say that the high level sequence and sentence structure that was used was something that the child was capable of.
It was put to Ms D on behalf of the mother, therefore, that there were only two scenarios that could be considered in relation to this matter, either that the note was written without assistance or it was written with assistance. Ms D accepted that that was the case and went on to comment that [Y] was, as she put it, capable of writing the letter, but then went on to emphasise that she, Ms D, did not observe her being able to do the various specific things, such as the sentence structure and use of words, outside her normal vocabulary in 2009.

Having determined that equal shared parental responsibility is rebutted in this matter it is not, at least legislatively, required that I should consider those matters that are set out in section 65DAA of the Family Law Act. However, just because there is not the legislative requirement does not mean that there should not be consideration of what arrangements should be made in relation to time to be spent by the children with both parents. There are two considerations that arise pursuant to provisions of section 65DAA relating to whether equal time should be spent with each parent and if not practicable, or in the child’s best interests, then consideration needs to be given to substantial and significant time. These same considerations arise in relation to any determination as to whether a child should spend substantial and significant time with each parent as arise in relation to considerations of equal time.
The first therefore is to consider the best interests of the child or children and how that might be put into effect. In this matter, of course, indications have already been given quite properly I would think, that there are not specific orders to be sought with regard to the child, [X]. There are hopes of a change in situation or circumstance as between the father and [X], but there will be time required for that to occur. Just as clearly the circumstances that currently exist as between the father and the child, [Y], and the relationship that exists between them is something that will need to be the subject of counselling and development. As suggested by the independent children’s lawyer that should occur, if it has not already done so, as soon as possible, and of course there should be movement toward the possible, quick, reintroduction of a relationship and developing time with the father and each of these two children.
In relation to the child [Z], however, different considerations arise. Equal time is, at least on the face of it, a possibility, but I must indicate that I have concerns as to whether that would be in the best interests of [Z], because of the possible effects upon her. First and foremost it would mean far less time spent within the home of the mother with whom there would appear to be primary attachments and primary responsibility having for significant time vested in the mother.
More particularly however, there would be a significant reduction in the opportunity for interaction and time to be spent with her siblings and that would be of concern, both as a result of the issue of less opportunity for the development of that sibling relationship but also because of the possible concerns that were alluded to by the report writers, in relation to the effect upon [X] and [Y] of [Z] being seen to treated differently and to perhaps be favoured, in relation to the father’s and her relationship. That already appears to have arisen as a possibility in relation to this matter and has been alluded to in the various reports.
What is more appropriate is for the opportunities for time to be spent by the father with [Z] to continue, with the expectation and hope of increases in time being effected, but at the same time there not being a situation where [Z] is treated differently, at least until such time as there is either reunification between the father and two older children, [X] or [Y] or, and it would be a tragedy, a complete breakdown in any real expectation or hope of a relationship between the father and the children, [X] and [Y], such that there must be a distinction drawn, in relation to the opportunities for time to be spent.
It is clear, on the evidence to date that there cannot be equal time, nor in relation to the children, [X] and [Y], can there be significant and substantial time, at least until reintroduction has occurred. It is appropriate, therefore, that the orders that are made are less extensive in time for [Z] than might be sought by the father but that there is the opportunity for there to be growth in that field. There also needs to be an alignment, if it can be effected, between the older children and [Z] and the time to be spent by them with the father, as that can only be positive, both in relation to the children’s relationships with each other and the children’s relationships with their father.
I turn, then, to considerations with regard to the matters that are set out in section 60CC, of the Family Law Act. That section is headed ‘How a Court Determines what is in a child’s best interests’. Section 60CC(2), (3) and (4), are particularly relevant and are in these terms:
Primary considerations
(2)     The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations
(3)     Additional considerations are:
(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;
(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);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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;
(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 parent son a regular basis;
(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;
(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;
(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 of any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)     the order is a final order; or
(ii)the making of the order was contested by a person;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)     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; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
(4A)If the child’s parents have separated, the court must, in applying subjection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The primary considerations, then, are set out in subsection (2), and they should be considered first. They do not necessarily take priority over the additional considerations, set out in subsection (3), but, by the same token, the legislature has clearly been mindful of the desire to ensure that they are to the forefront in any determination to be made.
Accordingly, one must consider what benefits there might be for these children, in having a meaningful relationship with both parents, but in this instance, especially with the father. Clearly, if the relationship were of a positive nature, then there would be little that could be suggested, other than that it would be beneficial to all of the children.
In this instance, however, there are clearly issues that need to be dealt with. I have commented already about the circumstances that exist, and whilst not finding that there is, at least on the face of it, an alienated child or a situation arising of that nature in relation to [X] and [Y], there are certainly circumstances of estrangement from the father and they need to be addressed in relation to ensuring that the opportunities for a meaningful relationship and, therefore, the fostering and development of a relationship with the father, is able to most appropriately be dealt with.
The circumstances in relation to [Z] are different. There is a meaningful relationship with the mother and the father and it is proposed by all, including the mother, that that relationship should be able to be developed and, at least on the face of it, that there should be greater and immediate opportunities for the child to continue in time being spent with the father.
It is important that that be looked at and balanced against those considerations that arise pursuant to the provisions of section 60CC(2)(b). The children need to be protected. I am not at all of a mind to think that the father has, in any excessive way if at all, physically disciplined these children. The suggestions that were raised in material previously, that the father had lined the children up, had berated and had excessively disciplined them in a physical sense, are not matters which arise now, the father having given evidence and I accept that that evidence is to the effect that he is not physically disciplining the children.
However it may have come about and there are, of course, differing views from the perspective of the mother and the father, the children do have concerns about behaviours of the father and there are concerns about his interaction with them. The father says that there has not been an abusive relationship in relation to particularly the two older children, [X] and [Y], whilst the mother has concerns in that regard, and, more particularly, [X] and [Y] are expressing concerns. The balance must be met and the Independent Children’s Lawyer’s proposal, and the acceptance by the father in particular with regard to [X] that there should not be specific orders, but rather arrangements put in place for reunification counselling and for there to be a graduated increase, is an appropriate course to follow in respect to balancing the need for protection of the children and their psychological and emotional wellbeing, as against the children’s right to, and the benefits that would flow from a meaningful relationship with the father.
I am satisfied that, again, the proposals by the Independent Children’s Lawyer, addressing those primary considerations, is an appropriate course to follow in respect of this matter.
I turn, then, to the provisions of section 60CC(3) and the need for there to be additional matters considered in light of the evidence in these proceedings. The children’s wishes are a relevant consideration and they must be taken into consideration and given appropriate weight in light of circumstances that might exist with regard to the maturity of the children and the appropriateness of taking those considerations into account. The wishes of the child, [Z], are different to the wishes expressed by each of her older siblings and, in fact, it would appear, on the most recent evidence called in relation to this matter, that the wishes of [Y], or at least the perceptions of [Y], are different to the perceptions of [X].
Ms S commented upon the growth or development that she had seen in relation to the child, [X], leading to the possibility of reunification between the father and [X] occurring in April or in ensuing months. With [Y] there was further progress, obviously, that had to be made and that is one of the matters that will need to be dealt with in relation to the proceedings. The wishes of the children are relevant, but there must, of course, also be that greater consideration as arises pursuant to the provisions of section 60CA. The children’s wishes must be tempered in light of the need to ensure that they and their relationships with each other are fostered appropriately as well. Of course, in that regard I have already commented upon the need to ensure that the children do not, even in an irrational way, begin to believe that one or other is treated differently, or is held in higher regard by one parent or the other.
For that reason, the wishes of the children, whilst relevant, must be balanced against the other factors to which I have referred. It is important, also, to look at issues with regard to the relationships of the children with others important in their lives and, of course, primarily here with regard to the relationships between the children and their mother and their father. There is, of course, a positive relationship in respect of each child with the mother and there is a positive relationship, at this time, as between [Z] and her father. There was, certainly, a positive relationship in the past between the father and all three children, and there is the hope and expectation on the part of all involved in these proceedings, that that relationship can be rekindled and that there can be an appropriate arrangement put in place with regard to the redevelopment of that relationship.
It is important that that be recognised and that needs to be looked at in conjunction with a recognition of the capacity of each parent to foster the relationship with the other parent. There have been concerns expressed by me in that regard and it would be appropriate to note that there appears, clearly, to have been an awakening on the part of the mother, in recognising the need for the relationship with the children being fostered and developed with the father, and it being to the forefront in her mind. She has previously acknowledged that she had, perhaps, not been as determined in relation to such matters, as was appropriate and that the circumstances would be changed and that in the future, particularly, with regard to [X], that arrangements would be made immediately in relation to time and opportunities being taken for the father to spend time with [X]. I take the mother at her word in that regard and am satisfied that there can be an appropriate development in relation to such issues.
There needs also to be consideration of those matters that arise pursuant to the provisions of section 60CC(3)(f) and (3)(i). They relate to the capacity of the parents, to provide for the needs of the children, including their emotional and intellectual needs and, similarly, to consider their attitude to the child or children and to the responsibilities of parenthood demonstrated by each of the child’s parents.
There are positives and negatives here. I have no doubt that each parent can meet the child’s physical needs and aspirations. There would, of course, be no question as to their capacity to put a roof over the children’s head, clothes on the children’s back, and food in the children’s mouths. Each would be, to use the psychological term, “good enough,” in relation to ensuring that those physical needs are met.
But in relation to meeting their emotional and intellectual needs, and in relation to the attitude shown to the children and to the responsibilities of parenthood, there are concerns that arise in relation to each parent. Neither has been as determined as would be hoped or expected, in relation to meeting the emotional needs of the children. The relationship between [X] and his father and [Y] and her father, has deteriorated. There is no doubt that both parents have, at least to some degree, had some responsibility in relation to that and have allowed it to occur. Not necessarily with an intent that that be the case, but certainly have allowed it to occur on the basis of not being willing or able to recognise that their actions, their words and their behaviours have all, in some way, exacerbated the difficulties that have arisen.
Similarly, and perhaps it is unnecessary to reiterate it, each has shown an inappropriate or less than appropriate attitude to the child and to the child or children’s needs and to the responsibilities of parenthood. It is clear that parents must put their own feelings, hopes and aspirations to one side, or at least on what might be called the backburner, so that the best interests of the children are able to be met. Both have fallen short in some degree in that respect and, of course, both have indicated that they will be working towards ensuring that the children’s best interests and their responsible approach to parenthood and to the responsibilities of parenting will be more fully appreciated and more appropriately acted upon by them.
Each has indicated a willingness to participate in the counselling and therapeutic involvement of experts, so as to work toward a more positive relationship with the children and with each other. I am satisfied that that is a positive in relation to this matter and is one which will enable there to be progress made, in relation to the relationships that currently exist and, in particular, the re-establishment of the relationship between [X] and [Y] and their father.
It is an unusual case. It is a difficult case and it is, in many respects, tragic. There needs to be progress made and there are indications that the parents and the children are willing to take those steps. The Independent Children’s Lawyer has made extensive recommendations in relation to counselling for the children, counselling for the parties, and reintroduction and reunification arrangements, particularly as between the father and the children, [X] and [Y].
It appears appropriate that that should occur and so that there can be at least a continued opportunity for the matter to be considered in relation to the proceedings, I intend to make an order, additional to those that have already been commented upon in relation to this matter, and that is that there be a fresh mention or further opportunity for mention of these proceedings before me, after, say, four months from now, so that there can be consideration by the parents, the Independent Children’s Lawyer and the court of the progress made and whether there are other arrangements or other orders that might be appropriate in relation to the matter.
It is a matter of extreme difficulty. It is a matter in which hurt has come to the fore on the part of both the mother and the father and, of course, most tragically, on the part of at least the two older children.

The recommendations of the Independent Children’s Lawyer are reflective of those hurts and those concerns, and of the attempts that properly can and should be made with regard to the reunification of this family and these children with both of their parents. I intend to make orders generally in terms of those which are proposed by the Independent Children’s Lawyer and I note that they are an accurate reflection of what, in the end, I consider to be arrangements with regard to the best interests of the children.

I certify that the preceding two hundred and seventy-eight (278) paragraphs are a true copy of the reasons for judgment of Coker FM

Date: 14 October 2010