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…
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- Pierce and Pierce [2010] FMCAfam 1137
- Case
- [2010] FMCAfam 1137
- Decision Date
CaseChat Overview and Summary
The court examined the evidence and submissions from both parents, along with the reports from the Family Consultant, the Independent Children's Lawyer, and the children's counsellor. The court found that the children should live with the Mother, and she should have sole parental responsibility for the long-term care, welfare, and development of the children, with specific communication and notification requirements to the Father. The court also established detailed contact arrangements between the children and the Father, with a phased re-introduction process for the two eldest children. The court emphasised the importance of the children's ongoing counselling and therapy, as well as the parents' individual and joint counselling to foster a cooperative parenting relationship.
In summary, the court made orders for the children to live with the Mother, with specific arrangements for the Father's contact and involvement in the children's lives. The court also mandated ongoing counselling and therapy for the children and their parents, and set out clear guidelines for communication, discipline, and professional care for the children.
Orders
Orders of the court
1.
That 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.
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.
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.
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.
6.
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.
7.
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.
8.
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.
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.
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.
12.
That the reasonable remuneration and expenses of Ms S, Psychologist be paid equally by the parents.
PARENT’S COUNSELLING
13.
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.
14.
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.
15.
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
16.
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.
17.
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.
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.
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.
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.
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
22.
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.
23.
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.
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.
26.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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