Riemann and Riemann

[2016] FamCA 222

FAMILY COURT OF AUSTRALIA

RIEMANN & RIEMANN [2016] FamCA 222

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the father seeks sole parental responsibility for the children with the mother to spend no time with and have no contact with the children for a period of three months – Where the father alleges that the mother’s conduct has alienated the children from him – Where the mother proposes that the father spend time with the children as recommended by the family therapist or alternatively, that the father spend time with the children on a graduated basis – Where the Independent Children’s Lawyer opposes the father’s application –Where there is conflicting expert evidence as to the cause of the children’s poor relationship with the father – Consideration of section 60CC – Orders made for the children to spend unsupervised time with the father on a graduated basis – No orders made allocating parental responsibility.

Family Law Act 1975 (Cth) ss 60CA, 65AA, 60CC

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Riemann

RESPONDENT: Ms Riemann

INDEPENDENT CHILDREN’S LAWYER: Mr O'Dowd

FILE NUMBER: SYC 5764 of 2014

DATE DELIVERED: 8 April 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 15 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr North SC

SOLICITOR FOR THE APPLICANT: Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT: Mr Dickson QC

SOLICITOR FOR THE RESPONDENT: Lander & Rogers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central Family Law

Orders

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The orders of 30 July 2015, 14 September 2015 and 22 October 2015 are suspended to the extent that those orders conflict with the operation of these orders.

2. For a period of four weeks commencing from the date of these orders, the father is to spend time with the children, B born … 2002, C born … 2005, and D born … 2007 (“the children”), as agreed between the parties and, in the absence of agreement, as follows:

   a.     Each Sunday from 11.00 am until 4.00 pm, with that time to be spent at the mother’s home. During that period the mother will vacate the home and it is a matter for the father whether he takes the children out with him; and

   b.    Each Wednesday afternoon, with the father to collect the children from their school and take them to tennis, have dinner with them and then return them to the mother at the mother’s home by no later than 7.00 pm.

3. Unless otherwise agreed between the parties, in the period subsequent to the first four weeks as set out in Order 2 above, the children’s time with the father is to be spent in three cycles of three weeks as follows:

   a.      From after school each Tuesday and Thursday until 7.00 pm, with the father collecting the children from school at the commencement of his time with them and delivering them to the mother’s home at 7.00 pm; and

   b.    For the first and third Sunday in each three week cycle, from 11.00 am until 4.00 pm,  with such time to be spent at the mother’s home, with the mother to vacate the home during the father’s time with the children and  the father to take the children on an outing if he so chooses.

4. Unless otherwise agreed between the parties, in the period subsequent to the three cycles of three weeks as set out in Order 3 above, the children are to spend time with the father as follows:

   a.     From after school each Tuesday and Thursday until 7.00 pm with the father to collect the children from school at the commencement of his time with them and is to  deliver the children to the mother’s home at the conclusion of this time; and

   b.    Each alternate Sunday from 11.00 am until 4.00 pm with the changeover to occur at the father’s home.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5764 of 2014

Mr Riemann

Applicant

And

Ms Riemann

Respondent

REASONS FOR JUDGMENT

1. Mr Riemann (“the father”) is seeking orders for sole parental responsibility for the three children of the parties’ marriage and for the children to live with him for a continuous period of three months. He proposes that, during this time, the children be prevented from having any communication with their mother.

2. The children are B born in 2002 and currently aged 13, C born in 2005 and currently aged 10, and D born in 2007 and currently aged 8. 

3. The application is opposed by the mother, Ms Riemann (“the mother”), who has been the children’s primary carer since birth.

4. The father asserts that the mother has deliberately alienated the children from him. This is denied by the mother who attributes the children’s reluctance to spend time with the father to the father’s own conduct.

5. The issues the Court has to consider in these interim proceedings are:

   a.Is the mother deliberately alienating the children from their father?

   b.Should orders be made placing the children in the sole care of the father?

   c.If the father’s application is dismissed, should the children nonetheless be required to spend time with him?

   d.Should the parties be compelled to attend family counselling?

The competing applications

1. By Application in a Case filed 20 January 2016 the father sought the following orders:

   1. The hearing of the parenting and property proceedings be bifurcated.

   2. That the parenting proceedings be expedited…

   3. That Lander and Rodgers be restrained from acting for the wife in these proceedings.

   4. That Orders 2.2 and 2.3 of the Orders made on 22 October 2015 be discharged.

   5. That the husband have sole parental responsibility for the children…

   6. That from the date of these Orders for a continuous period of at least three months the children live with the husband.

   7. That for a period of three months from the date of these Orders the children have no communication with the wife.

   8. That within 30 days of the date of the Orders the parties do all things to cause Dr E to prepare an updating Expert’s Report in respect to the children and consider specifically the appropriate parenting orders to promote the children having a meaningful relationship with their father.

   9. That following a period of three months from the date of these Orders, and failing agreement between the parties, the children spend time with the parties as recommended by Dr E in his updating report.

2. During the course of the proceedings senior counsel for the father advised the Court that the father was no longer seeking Order 3 in respect to restraining Lander and Rodgers from acting for the mother. That position was noted to be without prejudice to the possibility of the father raising that issue on a subsequent occasion.

3. By Response to an Application in a Case filed 12 February 2016 the mother sought orders to the following effect:

   1. The parties and the children attend family therapy at F Psychology with Dr G and any other person at the direction of Dr G.

   2. That Dr G be at liberty to discuss the progress of the family therapy with Dr E, Dr H and Dr I.

   3. That the cost of the family therapy be shared equally by the parties.

   4. That the conciliation conference set down for 22 February 2016 be vacated with no loss of priority in the list of proceedings awaiting final trial, and with liberty to either party to apply at short notice for a new conciliation conference listing.

   5. The husband’s Application in a Case filed 20 January 2016 be dismissed.

   6. The husband pay the costs and disbursements and/or incidentals to the wife’s response to the husband’s Application in a Case filed 20 January 2016.

Approach in interim proceedings

1. It is important for parties seeking orders in interim proceedings to appreciate that the Court is not in a position to resolve competing factual contentions. In Acton & Burton [2015] FamCA 469 at [26], Hogan J observed:

   The nature of the interim hearing process is such that parties are afforded a truncated process in which it is not possible to make findings about matters that are significantly in contest between them.

2. Similarly, in Iphostrou & Iphostrouand Ors [2011] FamCA 20 at [44], Cronin J noted:

   In any situation of an interlocutory nature where the facts are controversial and in dispute, a court cannot make findings of fact.

3. Recognising that difficulty, the Full Court in Goode & Goode[1] suggested an appropriate approach in dealing with applications for interim parenting orders. That approach involves considering the contentions of the parties in the context of identifying those facts that can be regarded as non-contentious.

   [1] Goode & Goode (2006) FLC 93-286 at 80,903 – 80,904.

Non-contentious facts

1. The mother is currently 47 years of age and the father is 48 years of age.

2. The father is a partner in a successful asset management business and the mother has been engaged in home duties.

3. The parties met in about 1991 and were married in 1999. The parties separated on several occasions during 2014. They attempted reconciliation between November 2014 and March 2015. This proved unsuccessful but the parties continued to live under the same roof at the former matrimonial home.

4. On 30 July 2015 consent orders were entered into in respect of interim parenting arrangements for the children. The orders were to the following effect:

   1. The children live with the mother and spend time with the father over a 10 week period gradually building to a routine as follows:

   a. from after school Friday until the commencement of school Monday morning each alternate weekend;

   b. from after school Tuesday until the commencement of school the following day in each week.

5. As a result of what the father regarded as an unsatisfactory operation of the consent orders, on 3 September 2015, he filed an Application in a Case seeking a variation of the orders.

6. On 14 September 2015 the parties were able to reach agreement and the following consent orders were entered into:

   1.That by way of variation of the Orders made by consent in these proceedings on 30 July 2015:

   1.1.the husband shall have and the wife shall do acts and things to facilitate the children [B] born … 2002, [C] born … 2005 and [D] born … 2007 (“the children”) spending time with the husband from 3.00pm to 8.00pm on 15 September 2015 with the husband to collect the children from and return the children to the wife’s home;

   1.2.the wife shall be permitted to take the children to [Asia] at a time convenient to her after 17 September but ensuring they arrive prior to 24 September to facilitate time with the husband as appears hereafter:-

   1.3.The children shall be handed over to the husband at such resort in [Asia] as the parties may agree in writing and in absence of agreement then as or nominated by the husband on the afternoon of 24 September at such time as the husband may nominate by text or email and the wife may then remain to facilitate the handover of the children for a period not exceeding 3 hours;

   1.4.The children shall then remain in the care of the husband and the wife shall not approach him or them until Wednesday 30 September at a time to be nominated by the husband by text or email, when she shall attend and resume care of the children in [Asia] from that time and she shall then ensure that the children are returned to Australia before their first day at school;

   1.5.In the event that the three children do not attend the time with the husband in accordance with Order 1.1 then the permission otherwise contained in these Orders for them to travel to [Asia] is revoked;

   1.6.Notwithstanding the other provisions of these Orders, in the event that the handover of the children to the husband pursuant to Order 1.3 does not take place in accordance with that Order then the wife shall forthwith do all acts and things necessary to ensure that the children are returned to Australia by not later than midnight on 26 September 2015 subject to flight availability, and if unavailable then on the first flight thereafter.

   2.For the avoidance of doubt, form the time the children return to Australia the Orders of 30 July 2015 shall apply.

   3.That Orders be made in terms of the Orders set as numbers 7 and 8 in the case outline document filed in Court by the husband today and set out below:

   7.   That during the school holiday periods when the children are in the father’s care:

   7.1 the father to communicate to the mother by text message or email twice per week on a Tuesday and a Friday between 11:00 am and 1:00pm to advise the mother of the children’s wellbeing; and

   7.2 that once each week on Monday the father to arrange for the children to telephone their mother for a period of 15 minutes and the mother to ensure the telephone call is brought to an end after no more than 20 minutes;

   7.3 and during this period the Mother shall not otherwise do any act or thing to endeavour to communicate with the children or any of them in any manner

   8.   That during the school holiday periods when the children are not in the father’s care:

   8.1 That the mother is to communicate to the father by text message or email twice per week on a Tuesday and a Friday between 11:00 am and 1:00pm to advise the father of the children’s wellbeing; and

   8.2 that once each week on Monday the mother to arrange for the children to telephone their father for a period of 15 minutes and the father to ensure the telephone call is brought to an end after no more than 20 minutes;

   4.That the balance of the husband’s application filed 3 September 2015 be adjourned to a Registrar’s Duty List at 10.00am on 22 October 2015.

   5.That unless the parents agree in writing, neither of them shall cause or permit [B] to attend upon any counsellor/therapist more frequently than once per week.

   6.The Court notes that the parties have agreed that:

   6.1.the wife shall pay and be responsible for all accommodation and resort costs whilst the children are within her care in [Asia] and the husband pay for such costs when they are in his care;

   6.2.each of the parents shall pay for their own airfares and they shall each pay 50% of the airfares relevant to the children.

7. On 22 October 2015, further consent orders were made suspending the operation of the earlier orders and providing for the children to “spend time with the father in accordance with their wishes and as frequently as possible”.

Evidence

The Father

1. The father’s evidence essentially related to three periods of time. The first period was prior to the father holidaying in Asia with the mother and the children in September 2015. This period was characterised by the children, and in particular the two elder daughters, being reluctant to spend time with him. The second period was from approximately 25 September until 17 November 2015 when the father spent time with the family in Asia, and when he subsequently spent time with the mother and B in the United States. The father’s evidence was that during this period there was some degree of reconciliation with the mother and the children. The third period is after the parties’ and B returned from the US on 17 November 2015 up to the date of hearing. According to the father’s evidence, the children have again, during this period of time, become reluctant to spend time with him.

The period prior to 25 September 2015

1. In contending that the mother is deliberately alienating the children from him, during the period prior to 25 September 2015, the father asserted that the following events occurred:

   ·    On Friday 31 July 2015 the father attended the children’s school in order to collect them. However, the children refused to leave with the father. The father asserts that “the girls were at times tearful, defiant, rude and anxious, particularly B whose behaviour was the worst that afternoon”.[2]

   [2] Father’s affidavit filed 20 January 2016 at paragraph 27.

   o   On that afternoon the principals of both the senior and junior schools conferred with the children with a view to attempting to persuade them to leave with their father. With the assistance of the junior school principal, the children were persuaded to leave on the basis that the father drove them straight to the mother’s home.

   o   The father then observed the mother at the fence of the school as he was walking to the car park with the children and asserts that she called out to the children: “Hey guys. Mum is here.” The father states, however, that he “[does] not know whether the wife arrived of her own accord. The Orders specifically provided for the wife not to attend the school.  At no stage during the afternoon did I ask the school to call the wife or agree for the wife to take the children home.”[3]

   [3] Ibid at paragraph 27.9.

   o   During the course of the trip from the school to the mother’s home, the children made a number of comments to him indicating that the mother had been disparaging of him.

   ·    On 4 August 2015 when the father attended the school to collect the children, they were again “rude and disruptive” and sat in the school principal’s office for a period of an hour until they were persuaded to leave with the father.

   ·    On 6 August 2015 the parties attended a group therapy session with the children at “F Psychology” which the father described as “a disaster, with the children expressing and exhibiting extreme opposition to me”.[4]

   [4] Ibid at paragraph 31.

   ·    On 9 August 2015 the father attended the mother’s home in order to collect the children and asserts that, despite texting and telephoning the children’s mobile phones as well as having “face-time” with C and D, the children declined to come out to see him.

   ·    On 10 August 2015 the principal of the children’s school wrote to the father advising that the school was not in a position to “police and enforce” the orders of the Court.

   ·    On 11 August 2015, the father again attended at the school to collect the children. D, the youngest child, was prepared to leave with the father; however, C and B were not. The father described having an enjoyable afternoon and evening with D.

   ·    On 13 August 2015, the father again attended the school in order to collect the children. Once again the children refused to leave with him. The father stated that, after approximately thirty minutes of unsuccessfully attempting to persuade the children to leave the school with him, he telephoned the mother who collected the children.

   ·    On 16 August 2015 the father attended the mother’s home at approximately 9.30 am and he was met at the gates by D and C and, subsequently, by B. The father asserts that, during the course of conversing with the children, they made disparaging comments concerning his loyalty to the family.

   ·    The father asserts that, as a result of difficulty in collecting the children from school, he caused his solicitors to propose alternative arrangements on 18 August 2015 whereby he would collect the children from the mother’s home.

   ·    On 22 August 2015 the father attended the mother’s home and the children spoke to him over the driveway fence. The father asserts that “the girls continued to berate me”. Specifically, the father asserts that B and C, in particular questioned his loyalty, asserted that he had a girlfriend and that he failed to do for them what their mother did.

   ·    On 29 August 2015 the father arrived at the mother’s home to collect the children at approximately 9.00 am. The father asserts that the children attended the front gate but would not open it for him and that during the course of his conversation with them, again, B and C “continued to rebuke me” including making comments saying:

   You have girlfriends. 

   You drink too much.

   You aren’t loyal.

   You are friends with bad people.

   You are a bad Dad now because Mum is sad.

   Father’s Day is for good dads. Not you.

   You sold the house.

   You don’t know what it is like to be a dad because you never had  one.

   ·    The children then declined his invitation to leave the home with him in order to have breakfast or to visit a friend to meet her new baby.

   ·    The father expressed concern that, as a result of his experience during the course of the visit on 29 August 2015, he became “extremely concerned with the deterioration of [D’s] behaviour towards me” as compared to the pleasant and affectionate afternoon they had experienced on 11 August 2015.

   ·    Subsequent to the consent orders being made on 14 September 2015, the father alleges that, on 15 September 2015, the children refused to spend time with him when he attended the mother’s home. Further, the father alleges that at that time the mother also came to the gate and made disparaging comments to him. This included saying in front of the children that she was not going to force them to act in accordance with the consent orders made on 14 September 2015 in respect to the children spending time with the father in Asia. As a result of that conversation, the father expressed opposition to the children travelling to Asia.

   ·    By way of summary the father asserts that the consent orders of 30 July 2015 were not complied with and the only times that he spent with the children was as follows:

   o   On 31 July 2015 for approximately two hours.

   o   On 4 August 2015 for approximately one hour.

   o   On 6 August 2015 for approximately two hours.

   o   On 11 August 2015 for approximately one hour (save for D who spent the extended period as described above).

   o   On 13 August 2015 for approximately one hour.

   o   On 16 August 2015 for seventy minutes.

   o   On 22 August 2015 for approximately one and a half hours.

   o   On 29 August 2015 for approximately forty-five minutes.

   o   On 6 September 2015, with the assistance of a mutual friend of the parties, the children spent some time with the father on Father’s Day.

   o   The father also spent some time with C and D at school on 7 September 2015.

   o   On 10 September 2015 the parties attended joint therapy session at F Psychology.

The period from 25 September 2015 to 14 November 2015

10. After consulting with the family therapist, Dr G, from F Psychology and a child psychologist, Ms J, the father agreed for the mother and children to travel to Asia and the father subsequently travelled to Asia to meet with the mother and children on 25 September 2015. The father stayed with them for a period of nine days.

11. At paragraphs 67 to 70 of his affidavit filed 20 January 2016, the father refers to this period with the mother and children in Asia in the following terms:

67. During the day when the children spent time with me, part of the time was in the wife’s presence. On many occasions the children and I spent time together without the wife, including swimming, water sports, exercising and other general activities. Throughout the entire period and without exception the children were warm and engaging with me. We laughed, talked, played and swam together…

68. During our time together in [Asia] the children cuddled me and hugged me spontaneously. Each of the children stayed with me in my room one night, the remainder of the time the children slept with the wife.

69. At no time during the time I was in [Asia] with the children did I act in a manner that would have led the children gaining the impression that the wife and I had reconciled.

70. When I returned to Sydney [B] continued to text me from [Asia].

12. The father asserts that, subsequent to the children’s return to Australia from Asia until 14 November 2015, his relationship with the children was characterised as follows:

·    The children continued to spend time with him “on an almost daily basis”. The time included occasionally having breakfast together, driving the children to school, collecting the children from school as well as having afternoon tea and assisting them with their homework.

·    The father’s evidence was also that he had dinner with the children at the mother’s home on several occasions. The father asserts that during the period he also “spent most of the weekend daytime periods with them, sometimes this was with the wife”.

·    In summary, the father’s evidence as set out in paragraph 71 of his affidavit filed 20 January 2016, was that in “the period from the children’s return from [Asia] [on 11 October 2015] and my departure with [B] and the wife to [the US], the children’s relationship with me reverted to the loving relationship it has been prior to separation.”

·    On 3 November 2015 the parties travelled to the US with the eldest daughter, B. The father says that, in the period from 3 November 2015 until 14 November 2015, “[B] was extremely affectionate and loving towards me and this proved to be very restorative of her relationship with me.”

·    The father asserted, however, that the mother engaged in a “tirade” against him on 14 November 2015 after she saw him sending a text message to a female friend. The father asserts that the “tirade” took place in front of B and friends who they were staying with at the time.

The period since 17 November 2015

13. The father asserts that, since returning from the US on 17 November 2015, the children’s attitude towards him has changed. As an indication of that, the father referred to an SMS exchange between himself and the eldest child, B, which was as follows:

Text message sent by father at 9.17 pm: “Sleep well [B] x. I want to come Tom am [sic] to take u for breakfast xx”

Reply from B at 6.15 am: “No you upset me and your [sic] embarrassing to me you make me sad I don’t like the daddy you are in Sydney you don’t care or listen to me you promised you wouldn’t change back to the yukky [sic] daddy I hate like I have been telling you daddy I love u but I don’t love this daddy.” 

The father also alleges that “the wife began withholding the children and avoiding taking them to tennis and other activities”.

14. Other events which the father alleges have occurred in the period since 17 November 2015 include:

·    On 3 December 2015 the mother failed to advise him of the fact that C sustained an injury requiring treatment at the K Hospital.

·    On 5 December 2015 the father again went to the mother’s home to try and see the children and only B came out to the front gate saying to him: “Leave me, my mum and my sisters alone. I have to hear from other people that you are out drinking with your girlfriend and other people last night.”

·    In early December 2015 the father attempted to see the children by visiting them at their tennis classes. However, he asserts that the mother failed to take them to those classes. The father further asserts that the mother failed to take the children to the school speech night in an endeavour to withhold the children from him.

·    On 10 December 2015 the father attended the girls’ school in order to be present when the children presented a gift for D’s teacher. The father asserts that, after initial preparedness, both C and D declined to spend time with him. The father also asserts that he was criticised by D for exchanging greetings with a person who D understood was unfriendly to the girls’ mother.

·    On 19 December 2015 the father found out that the children had been taken to stay with their maternal grandmother in Queensland in circumstances where there had been no consultation with him and he had not been advised of the trip.

·    The father also provided evidence of him flying to Queensland to visit the children and attempting to see the children through a series of text message exchanges with the girls’ paternal grandfather sent over the period from 3 to 5 January 2016.

·    As a result of the requests he made, the father spent a period of approximately 20 minutes with C and D in the presence of their paternal grandfather before returning to Sydney.

·    The father also complained that he was not informed by the mother or her lawyers of the mother travelling to L Resort with the children on 15 January 2016.

Conduct prior to separation

15. In addition to his evidence regarding failed attempts to spend time with the children since separation, the father relied on the contents of his affidavit filed 15 September 2014 as well as his affidavit filed 16 June 2015 in support of his allegation that the mother is alienating the children from him. This evidence related to a period prior to the parties’ separation and during the period of attempted reconciliation in early 2015. This evidence was largely unhelpful to my consideration of his application.

16. The father also asserted that, on 29 April 2015, once again in front of the children, the mother made a statement to the effect that the father had let the children down in wanting a divorce and attempting to break up the family.

17.  Also in support of his allegation that the mother is attempting to alienate him from the children, in paragraph 14 of his affidavit filed 16 June 2015, the father asserted that:

On the weekend of 7 June 2015, [Ms Riemann’s] mother, Linda, stayed at the [Suburb M] property. Together with [Ms Riemann], she also made comments that there designed to alienate the children from me. In front of the children, and [Ms Riemann], she said, “You are like .[Ms Riemann’s father]. I have told [Ms Riemann] and the kids. I say it all the time.” [Ms Riemann’s] parents separated when she was 9 years old and [Ms Riemann] has not had a relationship with her father since. Clearly by comparing me to him she is attempting to suggest I will have no relationship with the children in the future.

18. I found the father’s reference to an alleged conversation with his former mother-in-law to also be unhelpful in my consideration of this matter.

The Mother

19. By way of affidavit filed 12 February 2016 the mother deposed to events which took place after the making of the parenting consent orders on 14 September 2015.

20. The mother disputes the allegation that she had alienated the children from the father and refused him spending time with the children. The mother summarises the father’s time with the children as follows:

(a) The father holidayed with the mother and the children for ten nights in Asia in September 2015.

(b) In October 2015, the father saw the children almost every day.

(c) In November 2015, the parties took B to the United States.

(d) From November 2015 to January 2016 the father was given the opportunity to spend time with the children.

21. The mother recognises that, in the period from November 2015 to January 2016, the children have had an increasing resistance to spending time with the father. However, the mother asserts that she has proposed that the parties and the children attend family therapy in order to obtain assistance to address that issue.

22. The mother asserts that, when the father arrived to visit her and the children in Asia, she “was deliberate in [her] encouragement for the girls to be loving towards him when he arrived.” By way of example the mother asserted that upon the father’s arrival on 25 September 2015, she and the girls prepared a large and extravagant “Welcome” sign for him to greet him.

23. The mother asserts that in retrospect she can see how the children possibly thought the parties were reconciling. By way of example the mother referred to the parties having “family cuddles with the children each morning” and that she and the father behaved in a very relaxed manner around each other.

24. The mother also disputes that she attempted to control or regulate the father’s time with the children and referred to the fact that the father would wander to various parts of the resort with the children on his own.

25. The mother also asserts that discussions the parties had with the children concerning four annual family holidays may have contributed to the children believing that the parties were reconciling.

26. The mother’s evidence in respect to her and the children’s relationship with the father in the period subsequent to returning to Australia from Asia and prior to the parties leaving for The US in November 2015, was broadly consistent with the father. Specifically, at paragraphs 30 and 31 of her affidavit filed on 12 February 2016, the mother asserts:

30.During this period the husband would drop by our house in the morning and afternoon almost every day, had dinner there regularly, and on many occasions he stayed at our house overnight. I made no effort to regulate or restrict the husband’s time with the children, and he had every opportunity to go out alone with the children for activities, as I would freely leave the children under his supervision in my home, if for example, I needed to run errands or attend appointments.

31.The husband used the master bedroom in our home, where he slept one or two nights of each week, he would bring clothes with him in a gym bag when he stayed overnight.

27. The mother also gave evidence of her version of the parties’ trip to the US in the period from 3 to 17 November 2015. The mother said that in respect to that period the parties, with B “ate out with friends at expensive restaurants, and shopped as a family extensively.” The mother also asserts that they discussed in front of B “the idea of getting our family to ‘a better place’.”

28. The mother asserts, however, that she became concerned that the father wanted to discuss details of a property settlement between the parties in front of B. The mother asserts that in fact “as the trip progressed, the husband placed significant pressure on [B] to implore [her] to ‘sign the deal’.” [5]

[5] Mother’s affidavit filed 12 February 2016 at paragraph 41.

29. The mother’s evidence is that the father continued with that pressure on the flight from the US to Sydney.

30. The mother acknowledged an exchange between her and father in respect to a text message that he sent to a female friend. However, the mother gave a different account of those events, saying at paragraph 44 of her affidavit:

Around this time [B] saw a message on the husband’s phone from what appeared to be his girlfriend. [B] was visibly upset over this revelation, and had during the trip been repeatedly agitated with the husband for focusing on his phone.

31. In her affidavit the mother criticised the father for “his failure to properly interact with [B], to properly prioritise her, and to spend quality time with her.”[6]

32. The mother also asserts that during the time that the parties were in the US they had regular “face-time” communication with D and C who remained in Australia. The mother expressed the view however that “…husband did not appear interested, when these calls were taking place, to participate in them.”

33. More generally, the mother denies that she has been responsible for alienating the children from the father, but rather asserts that the deterioration in their relationship with him has been a result of the father’s conduct and the fact that the children have experienced bullying and taunting about their father’s behaviour, particularly from other children at their school.

34. In that respect, at paragraph 77 to 79, the mother asserts that the children “…have access to frequent gossip about the father through social media connections with their friends such as Facebook.” The mother asserts that the “gossip” to which the children have been exposed include their father’s relationship with women, consuming alcohol and possibly other illicit substances as well as late night socialising at night clubs and hotels.

Submissions

[6] Ibid at paragraph 47.

Submissions of the father

1. By way of summary, the submissions by senior counsel for the father were as follows:

   ·The children’s emotional health will suffer if their relationship with their father is not restored.

   ·The father has obtained professional advice from a clinical psychologist “…about how to deal with the children’s resistance” to the prospect of orders being made for them to spend three months exclusively with the father with no communication with the mother as set out in paragraph 123 of the father’s affidavit filed 20 January 2016.

   ·The father’s proposed orders are a last resort based on the report of Dr E dated 26 May 2015. Reference was made to Dr E’s experience and qualifications in providing advice in respect to parenting matters.

   ·In terms of the mother allegedly alienating the children from the father, it was submitted that there have been a “litany of events” that have occurred where by the mother has sabotaged the children’s relationship with the father, including “…notwithstanding an express order of the Court that she not be present in the school yard when the children are to be collected she made it her business to be there and interfere with the changeover” which, it was submitted, made the process a protracted negotiation. In those circumstances it was asserted that the mother’s presence at the school was only explicable by an inference that she was there to cause trouble.

   ·Reference was also made to events that occurred in January 2016 regarding the father’s attempt to spend time with the children during the summer holidays but that the father was only able to very briefly share an ice-cream with the two younger children and not B.

   ·It was submitted that, notwithstanding, that staged orders were put in place, in July 2015, those orders have “failed at the outset.”

   ·It was further submitted that the orders in respect to the trip to Asia “all but failed by reason of the [mother’s] behaviour” and that the mother would not permit the children to see their father “other than in her presence or under her supervision and control.”

   ·More generally it was submitted that “one needs to be inventive and imaginative to find an explanation for the girls’ conduct and what they are saying to their father, what their text messages are saying to their father other than inappropriate conduct by the mother.”

   ·It was submitted that while the children are in the mother’s care they will not have an effective relationship with their father because the mother will not permit that to occur.

   ·In those circumstances it was submitted that the only option is for the alternative proposal by Dr E to be put in place and that proposal is as is set out in the orders sought by the father.

   ·It was submitted that the long term adverse emotional consequences for a human being of being alienated from one parent is so serious that adopting a course of action that may cause short term distress to the children is necessary and appropriate.

   ·It was also submitted that the father accepts that the mother’s conduct “is largely due to what is apparently a personality disorder that deprives [the mother] of sufficient insight to even know that what she is doing is causing damage to these children.”

   ·While it is recognised that the orders sought by the father are not the preferred position it is the only realistic alternative as the “more conservative approach has failed utterly.”

   ·Senior counsel for the father submitted that the notion that family counselling is going to be a panacea that will resolve the problem of the children not wanting to spend time with the father “is nonsense” and accordingly is not a proposal that the father supports.

   ·Senior counsel for the father also submitted that the father had the care of the children for what was described as a seven week period from 20 September 2013. This, it was submitted, was evidence of his capacity to care for the children during the three month period proposed in the father’s application.

   ·It was submitted that orders requiring the children to spend time with the father in accordance with the recommendations of family therapy would result in a situation where the mother would have this matter “…limp along with the children’s contact with their father remaining essentially within her control.”

Submissions of the mother

1. By way of summary, the submissions of senior counsel for the mother were as follows:

   ·While there have unquestionably been difficulties as a result of the children’s reluctance to spend time with the father the Court is not, in these interim proceedings, in a position to address the competing factual contentions as to how that reluctance had come about.

   ·It is not accurate to describe the family therapy as a complete failure. In that respect reference was made to the parties’ trip to Asia. Counsel for the mother disputed the argument that the mother had attempted to control or regulate the father’s time with the children in Asia. It was submitted that, in so far as the father spent time with the children in the company of the mother, he chose to do so.

   ·The father had acknowledged some success in restoring the children’s relationship with him in the period between the return of the children from Asia in October 2015 and the parties’ departure to the US in 2015. That period was described as a period of successful “open door policy” where the father was going to the home on an almost daily basis.

   ·It was submitted that the mother was not controlling and was leaving the home where she was living so that the father could enjoy time with the children on his own.

   ·The evidence, it was submitted, is that the mother is not attempting to impede contact between the children and the father but rather is prepared to attempt to fix the problem and believes the appropriate way of doing that is through family counselling.

   ·It was submitted that, while it is the case of the father that the mother has alienated the children from him, that issue would be contested at trial and the Court would be asked to determine whether other factors are responsible for the deterioration in the relationship between the children and the father.

   ·In that context reference was made to the report from F Psychology regarding children’s perceptions in circumstances where their parents separate.

   ·Reference was also made to the children being the subject of bullying at school and embarrassment as a result of gossip concerning their parent’s relationship and the reports concerning their father’s behaviour.

   ·It was submitted that, while the competing factual contentions of the parties are live issues to be determined at final hearing, the Court will not make findings in respect to those matters in these interim proceedings and it would therefore be inappropriate for the orders sought by the father to be made.

   ·It was also submitted that there is insufficient evidence before the Court that the father is capable of addressing the emotional and physical needs of the children. In that context it was argued that the reference by senior counsel for the father to paragraph 123 of the father’s affidavit filed 20 January 2016 was effectively a submission that “…if I keep it upbeat everything will be alright.”

1. Senior counsel for the mother submitted that, in the event that the Court rejects the mother’s primary submission that the time the children spend with the father should be in accordance with the recommendations of F Psychology, then as an alternative the Court should consider a graduated approach increasing the time the children spend with the father.

2. It was submitted that family therapy should occur alongside the children spending time with the father.

Submissions of the Independent Children’s Lawyer

1. The Independent Children’s Lawyer (“the ICL”) opposed the orders sought by the father in these interim proceedings.

2. The ICL noted that there are many contentious issues and the only way of determining those issues is for the parties and expert witnesses to be subject to cross examination.

3. The ICL opposed any ongoing therapy on the basis that it was unlikely to be beneficial and would be another imposition on the children.

4. It was submitted that the children’s reaction their father needs to be seen in the context of “a roller-coaster in their own lives” and a roller-coaster with their relationship with their father.

5. It was submitted that the recommendation of Dr E appears to be based on addressing what has been described as parental alienation syndrome. It was noted by the ICL that some experts have suggested physically removing children from the alienating parent for a period of time will enable children to re-establish a relationship with the other parent.

6. It was submitted that caution would be required in adopting that approach and if the Court was minded to take such an approach, it would be necessary to consider the structure of therapy behind the arrangement including reintroduction of the children with their mother.

7. While the ICL did not propose any variation of the orders of 22 October 2015, he acknowledged those orders to be ineffective in so far as they had not created a stable relationship between the children and their father.

Consideration

The Law

1. Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) provides that, in deciding whether to make a parenting order, the Court "must regard the best interests of the child as the paramount consideration”. This obligation is also reinforced in section 65AA.

2. Section 60CC sets out what has been described as a "legislative pathway" to determine what is in a child's best interests. In Banks & Banks,[7] the Full Court outlined a practical approach to applying the section 60CC considerations in the following terms:

   49. … there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees.  It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.

   50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors.  Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations.  Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

   [7] (2015) FLC 93-637 at 80,116.

3. Consistent with Banks (supra), I have given consideration to the matters set out in section 60CC generally but will concentrate on those considerations which are of greatest relevance to this matter.

4. Those considerations which are most relevant are the primary considerations set out in section 60CC(2) and the additional considerations set out section 60CC(3)(a),(b), (ca), (d),(f),(g) and (i).

Primary considerations – section 60CC(2)

Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents.

1. In his report dated 26 May 2015 Dr E stated:

   In general, children who maintain a satisfactory relationship with both parents are less likely to experience emotional, behavioural, educational and relationship difficulties in the future. It is my view that these principles apply in this case.

2. Neither party raised an issue challenging that position. It was the father’s case, however, that the mother is deliberately engaging in conduct with a view to alienating the children from the father.

3. In that context, the interim orders sought by the father in this matter are, at least in the short term, directly contrary to section 60CC(2)(a) because it would prevent the children from spending time or communicating with their mother for a period of three months.

4. The father argues, however, that from a long term perspective, depriving the children of contact with their mother is justified on the basis that it is likely to achieve a restoration of a meaningful relationship with him. In that context, senior counsel for the father indicated that the current application by the father is very much a fall-back position and has been necessitated by the mother’s conduct in alienating the children from the father.

5. The proposed orders are based on an alternative recommendation made by Dr E in his report dated 26 May 2015. Specifically, at page 39, Dr E states:

   I note that [the father] did not spend a great deal of time with the girls during the period of physical separation in 2014. On his account this was because his wife was applying inappropriate pressure to the children. My assessment suggested to me that this was likely to be true, and it appeared to me that there has been an abrupt recurrence of the same behaviour virtually before my eyes in the couple of days leading up to and including my initial consultation, followed by better reactions by much of the next week, then more conflict. As I have indicated above, I believe that this is a serious matter and not one which is entirely due to the children’s sentiments but which in my view is largely driven by their mother’s behaviour and quite explicit conduct on her part which is drawing the children into a very significant conflict of loyalty, particularly [B] and to a lesser extent [C].

6. Dr E’s primary recommendation was for what he described as the “preferable outcome for the children” whereby they would “…live with their mother, for their mother to acquire a more positive attitude towards their relationship with their father and not sabotage it, and for the girls to spend regular and fairly extensive time with their father.”

7. However, Dr E indicated that if that arrangement was unsatisfactory then an alternative “may be necessary.” That alternative was described in the following terms:

   While it may be premature, another remedy which may be necessary if things deteriorate even further between the girls and their father is that the girls live with their father and do not see their mother for a period until their relationship with him and a routine is re-established (say a couple of months), then they would resume spending time with their mother or perhaps even go back to live with their mother and spend significant time with their father.

   (Emphasis added)

8. On the other hand, Dr H, Senior Clinical Psychologist and Clinical Director of F Psychology, in a report dated 27 July 2015, expressed the following opinion:

   It would be in the best interests of [B, C and D] to be able to have a loving relationship with their father but it appears, based on their current angst and worries, that they are not wanting to be with him until they feel safer and have rebuilt some of their attachments and relationship with him. It would be advisable for [Mr Riemann] to gain his daughter’s trust and to offer them structured contact that they agree to which can be built upon. Based on the current views of the girls about their father, it could be detrimental to both parties if contact is forced. It is highly likely that the girls will distance themselves even further if the process of contact is not collaborative.[8]

   [8]  Father’s affidavit filed 15 February 2016 at Annexure “A”.

   (Emphasis added)

9. In the context of these interim proceedings the Court is without the benefit of oral evidence of either Dr E or Dr H. In those circumstances the Court is not in a position to determine which view is correct.

10. In Acton & Burton [2015] FamCA 469 at [29], Hogan J said:

    The obvious limitations inherent in interim proceedings do not relieve the party seeking relief from the obligation of establishing the necessary prerequisites for the grant of the relief sought.

11. A prerequisite for the Court making such an order as significant as removing children from their primary carer requires the Court to be satisfied that the proposed course of action is likely to be successful in achieving its intended objective.

12. As a result of the conflicting views expressed by Dr E and Dr H, the Court is unable to have the requisite degree of satisfaction that would justify making the orders sought by the father.

Section 60CC(2)(b) requires the Court to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Section 60CC(2A) provides that the Court is to give greater weight to this consideration than that set out in section 60CC(2)(a).

1. There is no suggestion by either party that the children have been subject to physical harm of any sort.

2. The greatest risk to the children is to their psychological well-being from being embroiled in their parent’s ongoing conflict. This is particularly concerning where Dr E has expressed concern that the children may be “pawns” in their parents’ dispute. Indeed one possible inference to be drawn from the evidence is that the intensity of the parties’ conflict in respect to parenting correlates to progress being made in negotiations to achieve a resolution of the property proceedings. In these interim proceedings I am unable to make a positive finding to that effect. However, the Court would be very concerned if this is in fact occurring.

3. There is evidence that B is suffering from an anxiety condition and is receiving counselling form F Psychology in respect to that.

4. Again, noting that these are interim proceedings, I am without evidence as to what the psychological impact would be on B, in particular, in removing her from her primary carer even for a period of three months.

5. This is a further reason why I am not prepared to make the orders sought by the father.    

Additional considerations

Section 60CC(3)(a) requires the Court to consider any views expressed by the child and any other 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.

1. In this matter it was not disputed that B and C are reluctant to spend time with their father.

2. However, the central issue in these proceedings is the cause of the reluctance. It is the father’s case, supported by the opinion of Dr E, that the mother’s conduct has contributed, if not caused, the children’s alienation from the father. At page 31 of his report, Dr E states that the cause of the alienation is likely to have been due to contributing factors which he describes as follows:

   The first is simply having lived with their mother and learned from her a similar type of relationship formation and disruption, and the second factor being that their mother has said and done things which has reinforced this change in attitude. This has all contributed to [B] and [C] particularly having an ambivalent and anxious relationship with [their father] as well, but in my view this is more due to their mother’s conduct than his.

3. On the other hand, the views of Dr G, family therapist at F Psychology, suggests that the cause of the children’s attitude towards their father is more complex. In her notes dated 8 August 2015, Dr G expresses the following opinion:

   In my opinion the girls are experiencing grief due to the breakdown of their family unit, a normal reaction of children when their parents decide to separate. In [B, C and D’s] case, they would like to see their mum and dad reconcile as this would mean the family is back together again. However as this is not an option the girls need to process their feeling, particularly sadness and anger that their father no longer lives with them. Possibly they may think that if they do not see their dad then he will eventually have to come back to them and the family unit will be back the way it was, not separated.[9]

   [9] Ibid at Annexure “E”.

4. In these proceedings it is not disputed that the children, and in particular B and C, are reluctant to see their father. In circumstances where the evidence in these interim proceedings is not such that I am able to make a definitive finding as to the cause of that reluctance I place no weight on the views of the children that they do not wish to spend time with their father.

Section 60CC(3)(b)requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.

1. It is acknowledged by both parties that B and C have a poor relationship with their father and are reluctant to spend time with him. In one sense it may be counter-intuitive to order that, for a period of three months, they live with him and have no contact with their mother.

2. However, as noted the reasoning behind the father’s application is that the mother’s conduct in alienating the children from the father is such that removing the mother from the children is justified.

3. Recognising the difficulty for the Court in resolving factual disputes in interim proceedings, senior counsel for the father placed considerable emphasis on the events which occurred at the children’s school on Friday 31 July 2015.  The father’s version of events of that day have been described above.  It was submitted, by senior counsel for the father, that the only reasonable inference of the children’s conduct in refusing to go with their father on the day was their alienation from the father caused by their mother. In that context it was noted that the mother attended the school despite orders being in place for the father to collect the children from school on that day and for the mother not to be in attendance.

4. As noted, the father’s evidence is that the mother arrived as he was taking the children to the car park and said to the children, through the school fence, “Hey guys. Mum is here.”

5. Senior counsel for the father argued that the only reasonable inference from the mother’s presence is that the mother was responsible for the children being unwilling to leave with their father. However, the father frankly stated in his affidavit filed 20 January 2016:

   I do not know whether the wife arrived of her own accord. The orders specifically provided for the wife not to attend the school. At no stage during the afternoon did I ask the school to call the wife or agree for the wife to take the children home.

   (Emphasis added)

6. The submission of senior counsel for the mother that the mother’s presence on that day prolonged the discussion with the children and the school principals is, with respect, difficult to reconcile with the father’s evidence that the mother arrived when he was walking to the car park to drive the children home.

7. As senior counsel for the mother acknowledged, if at final hearing, the Court concludes that the mother has deliberately alienated the children from their father, it may have repercussions in terms of final parenting orders including which parent the children are to live with. As noted, however, the evidence in these interim proceedings is not such that I am able to make that determination.

Section 60CC(3)(c) requires the Court to consider the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child.

1. In her affidavit filed 20 February 2016 the mother asserted that the father had pursued other pursuits rather than spend time with B and not taken the opportunity to have “face-time” with C and D.

2. That evidence has not been properly tested in these proceedings and I do not have regard to mother’s assertion to that effect.

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

1. Aside from the significant issue of embroiling the children in their conflict, both parents have fulfilled their obligation in this respect.

Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living.

1. It was not disputed that the mother is the primary carer for the children. Further, whether it is appropriate or not, it appears that the girls frequently share the bed with their mother.[10]

   [10] Report of Dr E dated 26 May 2015 at pages 15 and 24.

2. Taking the children from their primary carer who they have lived with all their life and placing them solely in the care of their father for a period of three months, whilst preventing communication between the children and the mother during that period, would be a very significant change in the children’s circumstances.

3. As noted, that course would be only be contemplated in circumstances where the weight of evidence justifies that course of action being taken. That is not the case in these interim proceedings.

Section 60CC(3)(f) requires the Court to consider the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.

1. This consideration was of greatest concern to the Court. With respect to the father, little if any evidence was presented regarding the father’s capacity to provide for the needs of the girls including their emotional and intellectual needs for a period of three months. This is of greater concern in circumstances where the girls would be prevented from communicating with their mother during that period.

2. In response to concerns that I raised, senior counsel for the father, referred to paragraph 123 of the father’s affidavit filed 20 January 2016 which reads as follows:

   I have taken advice from a clinical psychologist about how to deal with the children’s resistance and how to help them cope and adjust to spending time with me. I anticipate that the children will resist spending time with me initially however I have discussed strategies with the child psychologist about how best to deal with the resistance and help the children. The child psychologist has advised me to continue to make attempts to spend time with the children and plan/engage in activities that the children enjoy. I will continue to work with the child psychologist to develop tools to ensure the transition for the children has as little conflict as possible. I have also spoken with a child psychologist about the importance of setting boundaries for the children, especially with respect to the children’s behavioural issues.

3. That evidence is insufficient to persuade me that the father has the capacity to be the parent solely responsible for the children’s physical, emotional and intellectual needs for a period of three months. This is particularly so in circumstances where, for whatever reason, there is significant reluctance on the part of B and C to spend time with him, and the father’s proposed orders would prevent the children from having contact with their mother for three months.

1. In that context, I note that at 13 years of age B is very much an adolescent and C is also approaching that stage in her development. There has been no evidence presented, for instance, as to how the father would cope with physical and emotional issues encountered by maturing young women. This is of particular concern in circumstances where the capacity for the young women to obtain advice from their mother, including about personal issues, would be prohibited.

2. In response to the Court’s concerns regarding these matters, the Court was also referred to paragraph 100 to 103 of the father’s affidavit filed 15 September 2014 as demonstrating that the father has the capacity to care for the children.  Those paragraphs were as follows:

   100. On 19 September we moved out of the first [Suburb N] apartment to the [Suburb] M apartment I had been renting. The following day, 20 September, [Ms Riemann] travelled back to [Asia] to look for furniture for the [Suburb M] house and to provide her with some time to relax. [Ms Riemann] did not return to Sydney until 26 November 2013.

   101. The children went to [Ms Riemann]’s mother’s home [in Queensland] the first two weeks of September/October school holidays. I flew up there for the middle weekend and spent time with the children, taking them to [various] attractions. On 30 September [D] flew with [Ms Riemann’s] friend, [Ms O], to [Asia] and joined [Ms Riemann]. [B] and [C] commenced term 3 at school. With the help of a nanny I got them ready for school each day and delivered them to school each morning, helped them with homework at night, ate dinners with them and looked after them on weekends. There were never any problems.

   102. On 23 October 2013 I flew with [B] and C to [Asia] were we met [Ms Riemann] and [D]. We then all flew to [the US] to attend my nephews [religious initiation] and have a family holiday together.

   103. On 6 November 2013 I returned to Sydney with all three children while [Ms Riemann] returned on her own to [Asia]. She did not return to Sydney until 26 November 2013. I cared for the children during this period, taking them to school, attending school events, arranging play dates and outings with family friends and generally attending to their needs with the assistance of our nanny. Again there were no problems at all.

3. Senior counsel for the father indicated that this is an example where the father had responsibility for the care of the children for a seven week period. I note, however, that the children spent the first two weeks of the seven week period with their maternal grandmother and that the children also spent time with their mother on a holiday during the period from 23 October 2013 to 6 November 2013. There is no suggestion that the children’s ability to communicate with their mother during that period was limited.

4. In summary, on the basis of evidence presented to the Court in these interim proceedings, the Court is not satisfied that the father has the capacity to be the parent with sole responsibility for the care of the children for a three month period in circumstances where firstly, it is proposed that the children have no contact with their mother during that period and secondly, for whatever reason, there is difficulty in the relationship between at least B and C and the father. Further, insufficient evidence has been presented, at this interim stage in the proceedings, as to how the father will address the physical and emotional needs of the children, and in particular B and C, who are maturing young women.

Summary

1. As noted, in interim proceedings the Court is limited as to the extent to which it can make findings of fact.

2. In this matter there is conflicting expert evidence as to the cause of the children’s alienation from their father. Without the benefit of oral evidence from those experts, I am unable to determine which view is to be preferred. Accordingly, I am not, at this stage of the proceedings, in a position to make a determination as to the cause of the children’s alienation from their father.

3. Moreover, even if I was satisfied that the mother had been responsible for alienating the children from their father, at this stage of the proceedings, I am not satisfied that the orders proposed by the father would be likely to contribute to the restoration of a meaningful relationship between the father and the children. As noted, one view of the expert evidence is that the father’s proposed orders would be entirely counter-productive.

4. Finally, I am not satisfied, on the basis of evidence presented in these interim proceedings, that the father has the capacity to be the parent with sole responsibility for the care of the children even for a three month period. This is particularly so in circumstances where the children would be prevented from communicating with their mother for that period.

5. Accordingly, I decline to make the orders sought by the father.

Parental responsibility

1. The father has sought sole parental responsibility for a period of three months. That application has been made in the context of the application that children live exclusively with the father for a period of three months and have no contact with the mother. As I have declined to make orders in accordance with the father’s application in that respect, I also dismiss the father’s application for sole parental responsibility on that basis.

2. The question then becomes whether the presumption of equal shared parental responsibility should apply.

3. In light of the significant factual controversy between the parties, pursuant to section 61DA(3), I determine that is not appropriate in these interim proceedings for the presumption of equal shared parental responsibility to apply.

4. Accordingly, it is unnecessary to address the questions of the children spending equal or significant and substantial time with either or both parents, as contemplated by section 65DAA of the Act.

Orders

1. In circumstances where both parties recognise that there are difficulties in the relationship between the children and their father, the Court agrees with the submissions of the ICL that the orders made by consent on 22 October 2015 “that the children spend time with the father in accordance with their wishes and as frequently as possible…” was in retrospect doomed to fail. That order was, however, made by consent after being proposed by the father.

2. Moreover, in the context of the intensity of litigation between the parties in respect to both parenting and property, it is unfair to place the children in a situation where they are responsible for determining how much time they spend with their father.

3. Accordingly, I am of the view that it is necessary to have a regime where the children spend some time with their father. The question is determining the most appropriate arrangement to put in place.

4. In that context, senior counsel for the father argued that, in the event that the Court declines to make the orders sought, that the Court should make orders implementing the recommendation of Dr E expressed in his report dated 26 May 2015, which were as follows:

   In my view the best arrangement would be something along a more conventional line of alternative weekends and perhaps some time during the other week as well as half school holidays. In this case one such suitable arrangement may be alternative weekends from Friday after school until Tuesday morning before school and then on the other week, from Monday after school until Tuesday before school as well as half school holidays.

5. As previously noted, however, senior counsel for the mother proposed that, in the event that the Court declines to make orders in accordance with the mother’s Response to an Application in a Case, that a graduated approach should be taken in respect to the children spending time with the father. That proposal was as follows:

   1. For a period of 4 weeks, the father spend time with the children as follows:

   a. from 11.00 am on Sunday until 4.00 pm, with that period to be spent at the mother’s home. During that period the mother will vacate the home and it is a matter for the father whether he takes the children out with him; and

   b. on Wednesday afternoons, with the father picking the children from school, taking them to tennis, having dinner with them and returning them to the mother.

   2. In the period subsequent to the first four weeks, time with the father be spent in three cycles of three weeks whereby the father spends time with the children by picking them up from school each Tuesday and Thursday and dropping them back to their mother’s home at 7.00 pm and;

   3. For two out of the three Sundays with the father to spend time with the children at the mother’s home from 11.00 am until 4.00 pm with the same arrangements in place for the mother to vacate the home and the father to take the children on an outing if he so chooses.

   4. In the period subsequent to 13 weeks, the children spend time with the father from after school on Tuesdays and Thursdays until 7.00 pm and the father spend time with the children on alternative Sundays from 11.00 am to 4.00 pm with the changeover occurring at the father’s home.

6. In the context where I propose that this matter be set down for final hearing for a period of five days commencing on 31 October 2016, I will make orders for the children to spend time with the father in accordance with the alternative orders proposed by senior counsel for the mother. At this stage of the proceedings, the evidence of the children’s psychological health is less than complete. I have noted however that B, in particular, is receiving professional assistance in respect of the challenges she is facing. In those circumstances, a cautious approach is appropriate. I am of the view that a graduated increase in the time that the children spend with the father is in their best interests.

7. The question then becomes whether I order that the parties to attend family counselling during this period that the children will be, pursuant to these orders, spending time with their father.

8. I note, in that respect, that the ICL submitted that, while it is unusual for the ICL to recommend against parties attending family counselling, on the basis of the facts in this case, he believes that such counselling would be ineffective and would adversely impact upon the children. In circumstances were the parents have not been reluctant to obtain therapeutic intervention for either themselves or the children, I find merit in the submissions of the ICL. I agree that there is a sense that the parents are prepared to delegate decisions in respect to the parenting of their children to either the State, in the form of this Court, or to clinicians.

9. Both parents are intelligent and successful people. The time has come for the parents to step up and recognise the impact of their ongoing conflict on their children and take responsibility for their own conduct and to act in the best interests of their children.

10. At this stage in the proceedings and in the circumstances of this matter, I am reluctant to make an order which may place additional pressure on the children in requiring them to engage in family therapy.  I therefore decline to make orders compelling the parties to attend family counselling.

Conclusion

1. It is of note that, in his report dated 26 May 2015, Dr E expressed the following opinion:

   I am very concerned that unless a reasonable and practical arrangement is put in place for the children as a matter of urgency, they will continue to be pawns in what may well be quite a protracted property matter.

2. The ICL indicated that, regrettably, there may be some substance to Dr E’s concerns. I am not in a position to determine whether that is the case. It goes without saying, that the Court would be very concerned if it is. In the circumstances it is appropriate for the Court to remind both parents that the Act is expressed in terms of the rights of the child. Specifically, the first two paragraphs of section 60B(2) relevantly provide:

   (2)  The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development…

3. The Court expects both parents to take such steps as are reasonably necessary to ensure that the children have the benefit of each of their parents having meaningful involvement in their lives. The parents’ conduct in the context of these orders will clearly be given further consideration by the Court at the final hearing. .

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 8 April 2016.

Associate: 

Date:  8 April 2016