SS and AH

FAMILY COURT OF AUSTRALIA

SS & AH

[2011] FamCA 8

FAMILY LAW - CHILDREN – extensive history of litigation – children now aged 17 years and 13 years – the children live with the father weight to be attributed to the children’s wishes – children wish to continue living with the father – mother seeks that the younger child live with her and that she have sole parental responsibility – high level of conflict and hostility between the parents – order for equal shared parental responsibility not appropriate – unresolved argument between youngest child and the mother and its effect on their reconciliation – psychiatric evaluation report prepared – injunction in relation to either party instituting further proceedings.

Family Law Act 1975 (Cth)

Rice & Asplund [1979] FLC 90-725

APPLICANT:

RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRF

1040

1999

DATE DELIVERED:

14 January 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Justice Fowler

HEARING DATE:

15 – 18 November 2010

REPRESENTATION

APPLICANT:

Applicant mother in person

SOLICITOR FOR THE RESPONDENT:

Mr Cooper

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER :

Mr Drysdale

Orders

The father have sole parental responsibility for all sort term and long term decisions concerning the children JH born in October 1993 (“J”) and KH born in September 1997 (“K”).
K live with the father.
The mother may spend time with K at all such times as the parties may mutually agree in writing.
K is at liberty to communicate with the mother by telephone, mail, SMS or email at any time.
The mother is at liberty to respond by email to any email communication, by SMS to any SMS communication or telephone to any telephone communication from K but that such response be limited to one response per each communication from K. The mother may send a letter of apology of the type referred to in the Judgment delivered this day.
The mother may send cards and/or presents to K and J on special occasions such as Christmas, Easter and K and J’s birthdays.
The father is to ensure that K and J receive any cards or gifts from the mother to K or J, unless the cards contain material denigrating the father, K or J.
The father is to authorise the school to provide copies of school reports of the children and/or newsletters to the mother.
In the event the school indicates to the father that they are unwilling to provide copies of the school reports and/or newsletters to the mother, then the father is to be responsible for forwarding copies of K and J’s school reports and/or newsletters to the mother within seven (7) days or receiving same by father.
The father is to notify the mother of any illness or injury (other than minor illness or injury) suffered by K or J.
Neither party is to denigrate the other party or do so in the presence or hearing of K or J.
The mother is restrained from attending upon K and J’s school, places of education or work and from attempting, by any means to communicate with or come into contact with K and J’s school, place of education or work.
The father is at liberty to remove the children from Australia for an overseas holiday not exceeding six weeks upon giving to the mother 28 days notice of his intention together with an itinerary and contact telephone numbers.
The children are to meet with the Family Consultant at a time arranged by the Independent Children’s Lawyer, for the purpose of the Family Consultant explaining to the children the Court orders.
Neither party is at liberty to commence or file any further applications concerning the children without first obtaining the leave of a Judge of the Family Court of Australia.
Any application referred to in Order 15 above be made in the first instance on an ex parte basis.
All outstanding applications are dismissed.
Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
All material produced in response to subpoenas is to be returned to the party who produced it.
The matter is removed from the list of Active Pending Cases.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 1070 of 1999

Applicant

And

Respondent

And

Legal Aid Queensland

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court are proceedings in which the applicant mother seeks parenting orders in respect of the two children of herself and the respondent father, namely JH (“J”), currently aged 17 years and KH (“K”), currently aged 13 years.
Pursuant to orders of this Court, the children presently reside with the father and have no face-to-face contact with the mother. There are some orders which permit communication between the children and the mother by SMS and email, and on terms as decided between them. The mother blames the estrangement of the children from her on the influence of the father, however the father says that the mother has been the cause of the problem. He takes the view that it is for the mother to reconcile with her children. On such reconciliation, he says, there is no difficulty in providing contact between the children and their mother.
The litigation between these parties commenced in 1999 and has continued through a total of some 42 applications to the Court and the preparation of numerous reports about the children. In 2005 a hearing of this matter took place over 11 days which was the subject of a careful Judgment. Still the conflict did not subside. These parties have been the subject of some

30 applications including for a variation of parenting orders and Contravention Applications, and there have been interlocutory orders made on some

20 occasions. The decisions in the matter have, from time to time, been the subject of appeal to the Full Court of the Family Court of Australia and an Application for Special Leave to the High Court of Australia. There has also been litigation between the father and the mother and certain others in another jurisdiction in which it is claimed that the father has been defamed.
There has been a maelstrom of legal proceedings and conflict surrounding these children. The evidence is that the youngest child, K, who is aged

13 years, simply wants the conflict to stop. Given the history of the matter and the longevity and intensity of the conflict one can understand the child’s appeal to her parents to remove what appears to be one of the great causes of her unhappiness. It seems to the Court that this child has been abused by the litigation. She has been questioned, assessed, spoken of and argued about. She has heard criticism of each of her parents as unworthy and has seen them fighting with each other about her. She is the progeny of each of her parents and what this might do to her self-esteem and her capacity to form relationships in the future is not known, but it is unlikely that her future in that regard will be much enhanced by it.
The mother and the father are also victims in the fight and their losses must by now be legion. One hopes that when they leave this battlefield and observe the cadavers littering the field of time, money and emotion that they will resolve never to go that way again and that they will realise that the process hurts the ones they love and seek to protect.
To abate the storm of litigation the father seeks an order under section 118 of the Family Law Act 1975 (Cth) (“the Act”).
The orders that the mother now seeks are firstly that the eldest child J, who is 17 years of age, reside where he wishes and see the other parent as and when he desires but that the mother have sole parental responsibility for the child.
That child has expressed clear and unequivocal views about what he wants to happen and what will happen in the event that orders are made that do not accord with his wishes. Those wishes have been expressed independently to the Family Consultant. He is said to be a leader amongst his peers, popular and mature. Although not a brilliant student and once having been diagnosed with learning difficulties it now seems likely on the evidence that he is working hard toward tertiary education. He is but one year away from his majority.
Secondly, in relation to the parties’ daughter the mother seeks that the child live with her, contrary to the child’s presently clearly expressed view (which in the words of the Family Consultant represented a mature and reasoned view). She further proposed that the child only see her father at her (the mother’s) discretion.
The father seeks orders which include that he have sole parental responsibility for the children, and that he deliver to the mother school reports and medical reports in relation to the children. It is otherwise sought by him that there be no order referable to J and that K live with the father and spend time and communicate with the mother as agreed between the parties.
The Court is thus faced with deciding what is in the best interests of these children including what decision should be made to try and stop the continuing conflict.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
In 1960 the father, AH, was born (“the father”) and is currently 50 years of age.
In 1961 the mother, SS, was born (“the mother”) and is currently 49 years of age.
In July 1992 the parties were married.
In August 1993 the parties moved from the United Kingdom to Australia.
In October 1993 the parties’ child, JH (“J”), was born and is currently 17 years of age.
In September 1997 the parties’ child, KH (“K”), was born and is now aged 13 years.
On 4 January 1999 the parties separated finally. The children remained with the mother and the father had contact with them.

Previous Family Court Litigation

On 5 January 1999 the father filed an Application for Final Orders that the children reside with him and that the parties have joint responsibility for long term issues.
On 10 February 1999 the father filed an Amended Application seeking additional orders concerning property settlement.
On 11 March 1999 the mother filed a Response seeking orders that the children live with her and that the parties be permitted to take the children out of Australia for the purposes of going on holiday.
On 21 June 1999 the mother filed an Application seeking orders that the father deliver the children to her or that a warrant be issued.
On 21 June 1999 interim orders were made by Justice Jerrard that the children live with the mother and that during school terms the children live with the father on each Tuesday and Thursday night from 4.00 pm until the father returns J to school on Wednesday and Friday mornings and K to the mother’s home at 11.00 am. It was ordered that during school holidays the children stay with the father overnight on each Tuesday and Thursday night from 4.00 pm and the father shall return the children to the mother on Wednesday and Friday mornings at 11.00 am. Orders were further made that the father have contact with the children each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday and that until further order he be restrained from removing the children from Australia. It was further ordered that, upon either service of this order on the father or the contents being made known to him by the mother’s solicitors, that he forthwith deliver the children to the mother no later than 11.00 am on Wednesday, 23 June 1999.
On 19 October 1999 interim orders were made by consent that the children have contact with the father during the December 1999 and January 2000 school holidays, from 5.00 pm Tuesday, 21 December 1999 to 2.00 pm Christmas Day and from 9.00 am Tuesday, 28 December 1999 to 5.00 pm,

30 December 1999. The matter was set down for trial and Mr E was appointed as the Court’s expert to provide a report.
On 6 March 2000 a five day trial before Justice May commenced. Orders were made on 5 April 2000 to the effect that the children live with the mother, that each party have sole responsibility for the children’s day to day care, welfare and development and that the parties have joint responsibility for the children’s long-term care, welfare and development. It was further ordered that the father have contact with the children each alternate weekend from after school Friday to before school Monday for J and from 9.00 am Friday to 8.30 am Monday for K and on Tuesday of each week from 2.30 pm to 6.30 pm for K and from after school to 6.30 pm for J. Orders were also made in relation to the school holiday period, contact on birthdays and Father’s Day and other special occasions in addition to telephone contact. Property settlement orders were also made.
On 28 August 2002 the mother filed an Application for both interim and final orders seeking that contact be varied and reduced to each alternate Sunday from 8.00 am to 4.00 pm with no provision for mid week or holiday contact. The mother also filed a Notice of Risk of Abuse or Risk of Child Abuse.
On 5 September 2002 an Order was made by Justice Bell that parts of the Orders of Justice May dated 5 April 2000 be suspended and that pending further hearing the father have supervised contact with the children for four hours each alternate Saturday and four hours each Sunday. An Order 30A Expert was appointed and it was ordered that the father ensure that the children have no contact with named persons.
On 2 December 2002, Mr A prepared his first report. Furthermore, negotiations were undertaken by the parties and an agreement was reached that supervision of the children with the father be waived.
On 4 February 2003, Orders were made by Registrar Dittman that paragraphs 2 and 3 of the Orders made 5 September 2002 be discharged (which provided for supervised contact). It was ordered that the father have contact with the children at all such times as may be agreed between the parties, to include each alternate weekend from after school Friday to the commencement of school on Monday and provided the father is available to supervise the children for the first half of each school holiday period from after school on the last day of the school term. The children’s contact with the father was also to include telephone contact each Tuesday and Thursday between 6.30 pm and 7.30 pm with the father to initiate the call on Tuesdays and the mother to initiate the call on Thursdays. The father’s application seeking that a second opinion be obtained on the diagnosis that the child J suffers from ADHD was dismissed and each party was restrained and an injunction was issued restraining each party from denigrating the other party or members of the party’s family to or in the presence or within the hearing of the children and making audio or video recordings of the children for use in evidence directly or indirectly in any court proceedings.
On 13 October 2004 the mother filed a Form 2 Application seeking that paragraph 2 of the Orders made on 4 February 2003 be discharged (relating to contact) and that this application be adjourned pending finalisation of further reports for consideration as to ongoing contact between the children and the father. The mother sought that all contact be suspended until investigation in respect of the report of Dr L and Dr C was undertaken and that contact take place between the father and the children in the presence of an approved supervisor.
On 21 October 2004 Orders were made by Judicial Registrar Smith that the matter be adjourned to 28 October 2004, that the children be separately represented and a section 91(b) Order was made. It was further ordered until further order that the father have contact with the children each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday commencing 30 October 2004 together with holiday periods of one week over the 2004/2005 school holiday period. It was ordered that all such contact be supervised by either Ms and/or Mr K and provided further that the father not stay in accommodation where the children sleep between 9.00 pm and 7.00 am and that the Independent Children’s Lawyer have liberty to re-list the matter on short notice.
On 7 February 2005 the matter was listed for an eight day trial before

Justice Buckley.
On 10 June 2005 Orders were made by Justice Buckley after a twelve day hearing that:
a)the children live with the father
b)the parties have sole responsibility for day-to-day care and joint responsibility concerning long term care, welfare and development decisions including but not limited to the education of the children
c)
the mother have contact each alternate weekend from after school Thursday to the commencement of school on Monday, commencing

14 July 2005 and for half school holidays being the second half of school holidays commencing in 2005 and in alternate years thereafter and the first half commencing 2006 and alternate years thereafter
d)changeovers take place at McDonald’s …
e)special day contact
f)the father provide the mother with copies of all notices received from the school and all functions, parent and teacher nights and other activities
g)the father provide the mother with copies of all school reports and any other reports on school progress and behavioural issues
h)the parties were restrained from denigrating each other and from making audio or video recordings of the children to use in evidence
i)the parents have joint responsibility for decisions about medical treatment, dental treatment, speech therapy, physiotherapy et cetera, except in emergencies
j)the parents ensure that the children attend confidential counselling with Mr T and that the Independent Children’s Lawyer provide a copy of the Reasons for Judgment to Mr T, together with a copy of the Orders for the purposes of Mr T explaining the orders to the children and counselling them with respect to the outcome of the proceedings
k)pursuant to Section 65L the compliance with the orders as far as practicable by the parties was to be supervised by a counsellor nominated by the Manager of Mediation, Brisbane Registry with such counsellor giving each party to the parenting orders such assistance as was reasonably requested in relation to compliance
l)each party was to be responsible for maintaining a communication book and
m)liberty was granted in relation to re-listing the matter.
In August 2005 The Australian newspaper published an article on the front page under the heading, “Family Court Putting Children Last”.
On 1 September 2005 the father filed an Application to allow publication of the Reasons for Judgment of the decision of Justice Buckley delivered on 10 June 2005.
On 2 September 2005, Chief Justice Bryant made orders pursuant to Section 121(9)(d) of the Act that a formal judgment of this matter be produced by the Court and made available to the father and his legal representatives that identifies the expert witnesses by name but not the parties or children or other witnesses. The father was granted leave to publish the judgment so provided in any newspaper or periodical publication et cetera together with a copy of the Chief Justice’s Reasons for Judgment delivered on 2 September 2005. In addition to publication of the formal judgment a publication of the judgment or any portion thereof by any newspaper et cetera was permitted pursuant to the provisions of Section 121(9)(d). The father was ordered to cause a copy of this Order to be served on the respondent, and the Application was otherwise dismissed.

On 25 September 2006 both children were at the mother’s residence exercising holiday time. An incident occurred which resulted in the mother shutting J out of the house. The evidence of the mother is that J was abusive towards her. J has not attended contact pursuant to the orders of Justice Buckley since that time.
During the Christmas holidays in 2006/7 the father did not make K available for Christmas holiday contact with the mother (the mother was to have the first half of holidays pursuant to the Orders).
On 8 February 2007 K’s weekend contact with the mother was due to resume after the school holidays.
On 9 February 2007 K’s contact with the mother resumed and continued pursuant to the Orders of Justice Buckley until August 2008.
On 8 October 2007 the mother filed a number of Contravention Applications and an Application initiating proceedings seeking orders that the children live with her and that the children spend supervised time with the father. She further sought an order for the renewal of the children’s UK and Australian passports (which was struck out) and the issuing of a subpoena to various parties without any specificity (which was dismissed).
Orders were further sought by the mother in relation to educational, medical and psychological assessment and support of the child J and support of his learning needs, with a particular person to be appointed to tutor him. In addition, orders were sought that either Dr X, Dr Y and Dr G, Dr C and Dr L be appointed to fully assess and monitor J’s ADHD, learning difficulties and need for medication when required.
It was further sought that there be ongoing monitoring of J and support, findings and consultations of all specialists and court mediators be

non confidential and fully reportable and that the parents each pay each specialist half of the associated cost for the children. If the specialist advises in writing that they would like the mother and the father jointly or separately to attend at their rooms with or without the children then the mother sought that the mother and father do this.
The mother also sought that the father be prohibited from collecting the children from school at any time and that he be prohibited from attending the children’s extra curricular activities up to and including 30 April 2008. It was further sought that within 14 days O School provide all information in writing in relation to the children at the school once they were requested by either the mother or father in writing and that O School ensure that both the father and mother are granted access to all information regarding the children, including access to the parent lounge, parent teacher meetings and copies of test results. The mother sought that the father pay the costs of and incidental to the proceedings and ensuing proceedings.
On 5 December 2007 the father filed a Response to an Application for Final Orders and a Response to an Application in a Case seeking an order that the mother’s application be summarily dismissed. He proposed that the final orders of Justice Buckley dated 10 June 2005 continue.
On 1 February 2008 the mother filed three Contravention Applications alleging breaches of Orders made on 10 June 2005. Firstly, it was alleged that on

9 December 2006 the father failed to make K available for contact and that this continued until 8 February 2007. Secondly, it was alleged that on 19 April 2007 the father failed to ensure that J was made available for contact and had refused to confirm in writing, or otherwise via Mr [C], that he would not attend at the school on her contact days, and at the times that the father has made K available for holiday contact he has failed to ensure that J is made available. Thirdly, it was alleged that on 10 June 2005 the father failed to maintain a communication book since the inception of the orders.
On 13 March 2008 orders were made by Justice Barry and the mother’s Contravention Application filed 8 October 2008 was dismissed. Interim orders were further made that the mother’s Contravention Applications filed

1 February 2008 and 25 February 2008 be adjourned to 23 July 2008 for hearing and the mother’s application in Forms 1 and 2 filed 8 April 2007 relating to the children’s issues were adjourned to 23 July 2008. The father’s response and Forms 1A and 2A filed 5 February 2007 relating to the children’s issues were adjourned to 23 July 2008 and the father was to file any further application and supporting affidavit within 21 days of the date of these orders.
The mother was further ordered not to file any further material in relation to her outstanding Contravention Applications or her applications in Forms 1 and 2 but may file an affidavit in reply to any further application filed by the father provided such affidavit is filed within 21 days of service. By 20 June 2008 the parties were to file a list documents upon which they intend to rely at the hearing on 23 July 2008. The mother was given leave to issue a subpoena to the Junior School Head Mistress, O School, to give evidence by telephone link on 23 July 2008 and the father was given leave to issue a subpoena to the Headmaster, O School, to give evidence by telephone link on 23 July 2008.
On 31 March 2008 procedural orders were made.
On 14 April 2008 procedural orders were made.
On 23 July 2008 the Contravention Applications were heard before the Court. Three Contravention Applications were dismissed and judgment was reserved in relation to the fourth Application.
The father also sought an order in accordance with the principles expounded in Rice & Asplund [1979] FLC ¶90-725 that the mother not be permitted to bring further Applications as there had been no significant change since the 2005 orders. Issues regarding whether the parenting matter should be re-opened were adjourned to 29 September 2008.
On 23 July 2008 Reasons for Judgment were published in relation to

His Honour’s findings that a prima facie case had not been made out in relation to the second and third alleged contraventions and that the father without reasonable excuse failed to maintain a communication journal and in relation to the father’s failure to ensure that J was made available for contact on

19 April 2007.
Between 24 and 28 July 2008, K had a contact visit with the mother after which K ceased spending time with her.
On 7 August 2008 the mother’s contact visit with K did not proceed.
On 22 August 2008 the father filed an Application in a Case seeking to suspend further contact between the mother and K, and other orders. The father sought that nominated orders of 10 June 2005 on an interim basis be suspended. Those orders provided in summary that the parties have joint parental responsibility for decisions concerning the long term care, welfare and development of the children and that the mother have contact with the children at all times between the parties as may be agreed between the parties to include each alternate weekend from after school on Thursday until the commencement of school on Monday and for half school holidays and time on special occasions, as set out in the orders. In addition, the father was to provide to the mother in a timely manner, copies of all notices received from the children’s school and details of all functions, parent and teacher nights and other activities to which parents are invited in addition to copies of all school reports and any other reports on school progress and behavioural issues in relation to the children. The father further sought that the order in relation to the mother and father having joint responsibility for decisions about medical, dental treatment

et cetera, except in emergency situations, be suspended and that the order in relation to each parent maintaining a communication book also be suspended.
In the abovementioned application the father further sought to include in the provision of those orders that the mother be prohibited from attending the children’s school and any of the children’s extra curricular activities and that the Court appoint an Independent Children’s Lawyer. In addition, the father sought an urgent injunction to prevent the mother speaking to any third party regarding previous proceedings in the Family Court with the exception of her legal representatives, or disseminating or being a party to the dissemination of any information about the proceedings.
On 11 September 2008 the mother filed a Response to the father’s interim Application and sought orders for interim residence, sole parental responsibility for all matters concerning the children’s health, education et cetera, supervised contact for four hours every other Sunday at a contact centre and that the father be prevented from attending the children’s school or extra curricular activities. In the alternative, the mother sought that the father be prohibited from attending school on the days the children are supposed to have contact with the mother as per the contact calendar drawn up by Mr C for 2008, and that he be requested to draw up a 2009 calendar. In addition, orders were sought that the school only allow the children to be released to the parent marked on the calendar, that the father deliver the children to school on time and that if the father does not take the children to school, that he provide a medical certificate. In addition, the mother sought orders that an urgent Family Report be prepared by Mr C and that J be urgently and independently educationally assessed and that the school provide all necessary information. The mother asserted that there needed to be a full, proper and professionally accurate assessment of J’s intellectual and other difficulties and a full discussion of and evidence detailing how his special and specific needs were to be best served. In addition, it was sought that an order directed to the school be made, that they provide copies of all tests and assessments to the parents upon a written request being made, and including NAPLAN-QSA tests. It was further sought that the matter be heard in an inquisitorial manner and that it be heard urgently on a final basis.
On 29 September 2008 Justice Barry ordered that an Independent Children’s Lawyer be appointed and that they engage a psychiatrist to assess the parents, but not the children. The Independent Children’s Lawyer was given leave to inspect the Court file and forward such material to the psychiatrist engaged to assess the parents. The orders further prohibited the parties from filing any further material regarding contraventions or children’s matters without leave of Justice Barry or, in his absence, another Judge of the Family Court of Australia. The matter was adjourned to 30 September 2008.
On 29 September 2008 Justice Barry rejected the request that the principle in Rice & Asplund [1979] (supra) should be applied in this case and decided to proceed on the basis that both parties were seeking orders for sole parental responsibility and that since the weekend of 7 August 2008 the mother was no longer seeing K.
On 30 September 2008 Justice Barry made orders that until further order the father was to have sole responsibility for the long term and short term decisions concerning the children and that he not change the schooling of the children without the written consent of the mother or further order of the Court.

His Honour further ordered that Orders 3, 4, 5, 6, 7, 9 and 14 of the Orders of Justice Buckley dated 10 June 2005 be suspended (and which are summarised at paragraph 34 above). In addition, orders were made that the children be at liberty to communicate with the mother by telephone, mail or email at any time but that the mother was not to telephone or attempt to telephone either child.

In addition, the mother was not to have physical contact or attempt to have physical contact with either child.
Notwithstanding any other provision, it was ordered that the mother may spend time with the children at all times as the parties may mutually agree in writing and that she be at liberty to respond by email to any email communication from the children, but such response was to be limited to one response per communication from each child. The orders provided that the mother may send cards to the children on special occasions such as Christmas, Easter and the children’s birthdays. The proceedings were adjourned for case management review and trial directions on 8 December 2008 and were set down for trial for three days commencing on 6 April 2009.
On 27 October 2008 the mother filed a Notice of Appeal against Orders 2, 3, 4 and 5 of the orders made on 30 September 2008 and relied on three Grounds. In Ground 1 the mother contended that His Honour erred in ordering that both children not be part of the psychiatric assessment, especially given the nature of J’s learning difficulties and other issues. In Ground 2 the mother considered that His Honour erred in prohibiting the filing of further contraventions and in Ground 3 the mother asserted that His Honour erred in not considering the paramount best interests of the children.
In relation to her Appeal, the mother sought orders that each party be at liberty to forward to the psychiatrist material they consider relevant and that the matter be adjourned until the appeal was heard, including any appeal to the High Court of Australia. It was further sought that another Judge hear the matter

de novo, including but not limited to the contraventions and that the Judgement of Justice Buckley be revoked in view of the disciplining of Dr A.
On 27 October 2008 the mother filed a Notice of Appeal against the Orders made on 30 September 2008, which contained 72 Grounds of Appeal. The Orders sought included that a highly experienced psychiatrist with substantial experience in child sexual abuse/child abuse, learning difficulties and personality disorders be appointed to interview both children, the mother and the father, that the subpoenas the mother seeks be issued, that a full independent educational/medical assessment of J be urgently conducted by a person who has the necessary qualifications with regards to his learning difficulties and that a plan be put in place immediately to assist J. It was further sought that the decision of 23 July 2008 to dismiss two of the mother’s contravention applications be reviewed and that the Full Court of the Family Court make a decision regarding the third application for contravention (contact with K) and that the mother’s contravention applications be heard by a Judge other than Justice Barry. In addition, it was sought that the Full Court make a specific finding regarding the standing and admissibility of the Judgment of Justice Buckley in light of the disciplining of Dr A and the non-existence of Parental Alienation Syndrome and that the matter be re-heard by another Judge.
On 3 December 2008 the mother filed an a Form 2 Application seeking a stay of the bulk of the orders made on 29 and 30 September 2008, although the appointment of the Independent Children’s Lawyer was not appealed. The mother sought orders that the Orders of Justice Barry of 29 and 30 September 2008 be stayed, pending the appeal and that no further directions be made with regard to the hearing of the matter until the appeal decision was made. In addition, the mother sought orders that Mr C urgently arrange to meet with the children in order to fully explain the orders to them if the stay was not granted. It was sought that the children be placed in the interim care of the mother and that the father have supervised time with the children, and that if that order was not granted, that the Orders of Justice Buckley of 10 June 2005 be fully reinstated. The mother sought that the father be prohibited from attending at or collecting either child from school on the mother’s contact days and that Mr C draw up and provide to the Court and each party a contact calendar for 2009. It was sought by her that the Appeal be expedited and that an Order be made that the school provide to the parties within seven days of a written request being made, copies of all test results, assessments et cetera relating to the children and that an independent educational assessment of J be conducted by an experienced, competent professional.
On 8 December 2008 the mother filed an Amended Notice of Appeal in relation to the Orders of 29 September 2008 (Orders 2, 3, 4 and 5). The Grounds of Appeal were firstly that His Honour erred in ordering that the children not be part of an experienced, competent psychiatric assessment; secondly, that

His Honour erred in prohibiting the filing of further material; and finally, that His Honour failed to consider the best interests of the children.
In relation to her Amended Notice of Appeal the mother sought Orders that both children be part of a thorough report prepared by a competent and experienced psychiatrist and that each party be at liberty to forward material to the psychiatrist involved. It was further sought that another Judge hear the matter, including the contraventions and that the matter be adjourned until the outcome of the Appeal, including the High Court of Australia Appeal, was known. The mother further sought orders that the Judgment of Justice Buckley be revoked; that the rules of evidence be dismissed and that all contraventions be re-heard by another Judge. In addition, it was sought that Legal Aid and the Attorney-General investigate the financial form completed by the father so that he could receive Legal Aid in 2005, given the decision of the SSAT into the father’s finances.
On 15 December 2008 there was a procedural hearing before Appeals Registrar Spink.
On 30 January 2009 an Order was made in chambers vacating the trial set down for three days commencing 6 April 2009.
On 26 February 2009, Justice Barry dismissed the mother’s Application for a Stay of Orders dated 29 and 30 September 2008. His Honour further ordered that the father present the children to a Family Consultant on a date and place to be determined by the Regional Coordinator of the Court’s Dispute Resolution Service, to have a Family Consultant explain to the children their rights and entitlements pursuant to the orders made by this Court on 29 and

30 September 2008. The Contravention applications filed by the mother on

1 February 2008 were dismissed.
On 6 March 2009 procedural orders were made by Appeals Registrar Spink.
On 6 May 2009 the Independent Children’s Lawyer filed an Application in a Case seeking orders that the parents attend upon interviews with Dr X and that the mother pay the Independent Children’s Lawyer’s costs.
On 3 June 2009 the Independent Children’s Lawyer filed an Amended Application in a Case seeking additional orders that in the event that either party should fail to attend the interviews arranged by the Independent Children’s Lawyer that party pay any cancellation fee.
On 10 June 2009, Justice Barry, upon application of the Independent Children’s Lawyer, ordered that the parents attend interviews with Dr X as arranged by the Independent Children’s Lawyer and that if a party does not attend that that party shall pay any cancellation fee. In addition, it was ordered that the mother’s application in her Response to an Amended Application in a Case filed 9 June 2009 be dismissed and that the mother pay the Independent Children’s Lawyer’s costs fixed at $1,320.
On 25 June 2009 the mother filed a Notice of Appeal against orders of Justice Barry.
On 1 July 2009 an order was made by Appeals Registrar Spink that the Appeals be listed on 4 and 5 August 2009 and procedural orders were made in relation to the preparation of the Appeal books and the filing of a Summary of Argument.
On 4 August 2009 the mother’s Appeal was heard before the Full Court of the Family Court of Australia.
On 27 October 2009 the mother filed an Application in a Case in relation to the father’s failure to provide details of the children’s current address. It was listed for hearing on 3 December 2009.

On 24 November 2009 the Independent Children’s Lawyer filed an affidavit by Ms YN in relation to the issue of whether J should be educationally assessed or assessed for Attention Deficit Hyperactivity Disorder (ADHD).
On 24 November 2009 the mother filed a Notice of Discontinuance in relation to her Application in a Case filed 27 October 2009.
On 3 December 2009 it was ordered by Justice Barry that the mother’s Applications for Contravention filed 25 February 2008, 25 August 2008 and

26 August 2008 be adjourned for case management review on 25 May 2010.
On 8 December 2009 the mother filed an Application for Contravention in relation to father’s alleged failure to comply with the terms of paragraph 4 of the Orders of 26 February 2009, requiring him to provide the mother and Independent Children’s Lawyer with copies of any communication from the school in relation to either child, including K’s last semester school report within forty eight (48) hours, by posting to her postal address. The Application was listed for hearing on 25 May 2010.
On 8 December 2009 an affidavit of Dr X, an independent Psychiatrist, was filed by the Independent Children’s Lawyer.
On 5 February 2010 the Full Court of the Family Court of Australia delivered a decision. The Appellant mother’s three Appeals were dismissed and orders were made in relation to either party being at liberty to make written submissions as to costs incurred in relation to the Appeal.
On 5 March 2010 the mother made an application to the High Court of Australia for special leave to Appeal the decision of the Full Court of the Family Court of Australia.
On 16 March 2010 the mother filed an Application in a Case seeking orders that the Independent Children’s Lawyer arrange for K to spend supervised time with the mother at a Contact Centre and that the matter be listed urgently before 25 May 2010. In addition, orders were sought that the parties jointly agree to appoint Dr WN to conduct an educational assessment of J and that they jointly agree on the instructions and material to be provided to

Dr WN within ten days, and that if no agreement is reached that the Court then decide. The mother sought that Dr WN’s report be provided simultaneously to the parties and that the costs of the report be shared.
On 25 May 2010 the father filed a Response by leave, in response to the mother’s Application in a Case filed 16 March 2010. He sought orders that the mother’s Application in a Case filed 16 March 2010 be adjourned to be heard at the final stage of the trial and that the Court allocate the earliest possible dates for trial directions and the hearing of the final stage. In addition, the father sought that Orders 1 to 9 in relation to interim time and communication and educational assessment of J be dismissed or alternatively adjourned until a hearing of the final stage of trial. The father sought that the previous Consent Orders providing for Mark Ryan of Ryan Kruger to hold the children’s passports be discharged and the passports be ordered to be delivered exclusively to the father’s sole care and that the father be granted authority to be the sole signatory authorised or required to obtain and/or renew the children’s passports as required from time to time.
On 31 May 2010 the father filed an Application in a Case seeking orders that the father be given authority to renew the Australian passports for the children and use those passports in accordance with the draft orders annexed to his affidavit.
On 2 June 2010 the mother filed a Response to the father’s Application in a Case filed by him pursuant to on 25 May 2010, seeking orders that the father file evidence in relation to the proposed visits including names of the persons with whom the children will be staying, that the father renew the children’s UK and Australian passports and lodge them with the Registrar of the Family Court of Australia, other than as mentioned in the Orders. In addition, the mother sought that the parties be restrained from removing the children from Australia and other orders.
On 4 June 2010 orders were made that the father arrange for K to attend upon the Family Consultant who would assess in what manner K’s time and/or communication with the mother might be progressed and the Family Consultant was to provide such assistance with the resumption of K’s time and the progression of her communication with the mother as the Family Consultant deemed appropriate. If the Family Consultant so recommended, then K was to attend upon a Counsellor or Therapist. It was further ordered that J attend upon a Family Consultant if he expressed a wish to do so and the Family Consultant would provide assistance with the resumption of J’s time and/or communication with the mother as the Family Consultant deemed appropriate. An Order was made under section 65L and other procedural orders.
The mother’s Application for Interim Parenting Orders filed 16 March 2010 was adjourned for further hearing on 14 July 2010 and the matter was listed for trial for five days commencing 15 November 2010. The Independent Children’s Lawyer was given liberty to issue a subpoena to the Commissioner for Police and the school and orders were made regarding documents produced on subpoena. The mother’s Application for supervised time with K at a Contact Centre was adjourned for further determination on

14 July 2010 and paragraphs 2 and 3 of the father’s Form 2 Application filed 31 May 2010 were dismissed. The Application by the mother and the Independent Children’s Lawyer for Dr WN to prepare an Education Assessment was dismissed.
On 4 June 2010 Reasons for Judgment were delivered in relation to the matter before the Court on 25 May 2010.
On 18 June 2010 the High Court of Australia’s Special Leave Dispositions

SS AH 2010 HCASL 169 (18 June 2010) ordered that the mother’s application for Special Leave be refused.
On 30 June 2010 the mother filed a Notice of Appeal (71/2010) appealing Orders numbered 1, 3, 7, 8, 10 and 12 of the Orders made by Justice Barry on

4 June 2010, and which Appeal was later discontinued. The orders the mother was appealing related to K’s attendance upon a Family Consultant, J’s attendance upon a Family Consultant if he expressed a wish to do so, the adjournment of the mother’s Application for interim parenting orders filed

16 March 2010, the listing of the matter for five days, the inspection and copying of documents produced pursuant to subpoena and the dismissal of paragraphs 2 and 3 of the father’s Form 2 Application filed 31 May 2010.
On 12 July 2010 a Specific Issues Report was produced by the Family Consultant, Mr C.
On 14 July 2010 a hearing of the mother’s adjourned application for interim time took place. Orders were made by Justice Barry dismissing the mother’s Form 2 Application filed 16 March 2010, and orders were made regarding the renewal of the children’s passports and in relation to overseas travel.
On 14 July 2010 Reasons for Judgment were published.
On 2 August 2010 the Independent Children’s Lawyer filed an Application in an Appeal seeking security for costs in relation to mother’s appeal NA71/2010.
On 23 August 2010 the matter was listed for trial directions before Registrar Coutts. The mother did not appear and her Application in a Case filed

20 August 2010 seeking to adjourn the directions hearing was dismissed. In addition, trial directions were made on that date.
On 24 August 2010 procedural orders were made by Appeals Registrar Spink.
On 31 August 2010 the mother filed an Application in a Case seeking a review of the trial directions made on 23 August 2010.
On 31 August 2010 the mother filed an Application for Contravention alleging the father had breached an Order made on 26 February 2009, which required the father within 48 hours of receiving any communication from the school in relation to either child, including K’s last semester school report for 2008, to forward copies to the mother at her postal address.
On 6 September 2010 trial directions were made upon review by Justice Barry.
On 13 September 2010 Orders were made at a procedural hearing by Appeals Registrar Spink.
On 15 September 2010 the mother filed an Application in a Case seeking orders that the Orders of Justice Barry made on 6 September 2010 be stayed pending the mother’s Appeal and determination of same. In addition, the mother sought that the final hearing be adjourned pending the determination of outstanding matters and that a new judicial officer give decisions and reasons in writing on issues, evidence and related matters prior to the final hearing.
On 15 September 2010 the mother filed a Notice of Appeal (NA105/2010) from all the Orders of Justice Barry dated 6 September 2010. The Appeal was later discontinued.
On 22 September 2010 the mother’s Application in a Case filed 15 September 2010 was listed before Justice Loughnan. The Application was adjourned to the week commencing 4 October 2010. Trial directions were required to be complied with in the meantime.
On 1 October 2010 the mother’s Application in a Case filed 15 September 2010 was listed for hearing before Justice Ainslie-Wallace.
On 4 October 2010 the mother filed an Amended Initiating Application and sought final orders that the children live with her, that she have sole parental responsibility and that the children have contact with the father at the sole discretion of the mother. In addition, the mother sought orders that the children have no contact with … and in relation to the provision of information to the father, previous orders being discharged and costs. The mother also sought interim orders for the educational assessment of J, that her outstanding Contravention Applications be heard prior to final hearing. In addition, it was sought that her Application for a Stay filed 15 September 2010 be heard prior to the final hearing and that she be permitted to issue subpoenas for matters which she believed to be relevant to the determination of the matter.
On 20 October 2010 the Independent Children’s Lawyer filed an Application in an Appeal seeking security for costs (Appeal NA105/2010).
On 28 October 2010 an Order was made for the release of the Family Report prepared by Mr H.
On 29 October 2010 the mother’s Application in a Case filed 15 September 2010 was listed before Justice Ainslie-Wallace and the final hearing was to proceed. Orders were made regarding the issue of subpoenas for trial.
On 2 November 2010 the father filed an affidavit of evidence in chief in which he detailed Orders sought by him. The father sought that the mother’s application be dismissed and that the children live with him and that he have sole parental responsibility. He sought that the children have no contact with the mother unless agreed between the parties and that she be restrained from administering medication to the children or having them assessed by any medical practitioner, specialist or counsellor without the father’s written consent. It was further sought that the mother be prohibited from attending the children’s school or any of their extra-curricular activities without the father’s consent and that she be prohibited from allowing the children to visit named persons and from contacting the children’s treating professionals or therapists. The father further sought that the mother be prohibited from sending the father correspondence at his place of business or employment and that she be prohibited from sending communications via any means to families of the children’s friends or the father’s friends. Orders were sought that the mother pay one-half of the children’s compulsory school fees and that the mother be determined a vexatious litigant and prohibited from making any applications to the Court involving the father or the children, without leave of the Court.
On 3 November 2010 the mother’s unsealed copy of a Notice of Discontinuance (Appeal NA 71/2010) was filed.
On 5 November 2010 the mother’s unsealed copy of a Notice of Discontinuance (Appeal NA 105/2010) was filed.
On 15 November 2010 the matter was listed for the final stage of hearing for five days.
I have taken the time and space to set out a history of the course of this litigation as it is relevant to the Application before me for an order under Section 118 and the history is of a conflict which has been the environment that the children of this marriage have had to live and breathe since 1999.

The Issues

At the conclusion of the trial the issues were different to those created by the initial applications for orders.
In her final submissions the applicant mother sought the following orders:
1.That there be no orders be made in relation to [J].
2.That [K] live with the mother.
3.That the mother have sole responsibility in relation to all parental responsibility issues and matters regarding [K].
4.That [K] have contact with the father at the sole discretion of the mother.
5.That both children, as soon as possible after the final orders are made, have them explained to them by a staff member, if possible, by [Mr H] of the Child Dispute Services of the Brisbane Family Court.
6.That the mother forward, in a timely manner, to a postal address nominated and maintained up-to-date by the father in writing, copies of the children’s school reports and any other reports in relation to their medical assessments.
7.That all previous orders be dismissed.
8.That the father’s application be dismissed.
9.That neither party be permitted to bring applications in the Family Court or Australia, without first obtaining the leave of the Court.
10.That the father pay the expenses and other related expenditure of the mother in respect of and incidental to these proceedings.
In the event that his Honour determines that it is in the “paramount” and “best interests” of [K] that she remain in the sole care of the father and that he retain sole parental responsibility, the mother seeks the following orders:
1That there be no orders in respect of contact between [K] and the mother.
2That the mother be permitted to send cards and presents to the children, at the postal or residential address nominated and maintained in writing by the father, to the mother’s maintained written postal address.
3That the father be at liberty to remove the children from the Commonwealth of Australia for no more than 28 days, having first given 28 days written notice to the mother’s written, nominated and maintained postal address to do so, and within that communication, he provide details of:
a.The addresses and phone numbers of the places where the children will be staying. The mother is not to contact the children or the father there unless and in case of an emergency situation.
b.The father provide a written itinerary of the trip, including copies of all outgoing and return flights. The return flights for the children must be booked by the father before he leaves the Commonwealth of Australia.
The father in his final submissions sought the following orders:
1.That the Father have sole parental responsibility for the children [JH] born … October 1993 (“[J]”) and [KH] born … September 1997 (“[K]”) provided that at all times the father shall deliver to the mother, in a timely fashion:-
a.any school report or educational assessment of either [J] or [K]; and
b.any written medical or other therapeutic assessment of either [J] or [K].
2.That save and except for order 1, there be no order referable to [J].
3.        That [K] live with the Father.
4.That [K] spend time and communicate with the Mother at all times as may be agreed between the parties, in writing, and failing any agreement, by email, letter, card, telephone, sms, or other form of electronic communication initiated by [K].
5.        That the Mother be restrained from:-
a.        attending upon [K’s] school, place of education or work;
b.attempting, by any means, to communicate with, (with respect to any matter raised in any proceedings between the parties) or come into contact with:-
i.         [K], save as provided by these orders;
ii.the Father, except via the Mother’s legal practitioner;
iii.[K’s] school, place of education or work (or any employee thereof);
iv.any organisation known to the mother to be involved in [K’s] extra-curricula or social activities;
v.any of [K’s] treating medical or other therapeutic practitioners;
vi.any person known by the Mother to be a personal associate of:
A.       the Father; or
B.       [K];
c.Denigrating the Father to [K]; and
d.Denigrating [K] at any time.
6.That pursuant to section 121(9)(g) of the Family Law Act 1975, the Father be at liberty to publish the report of:
a.        Dr [X] dated 4 December 2009; and
b.        Mr [H] dated 28 October 2010.
to any person appointed by the Father to provide medical and/or other therapeutic treatment to [K].
7.        That the Mother’s application be dismissed.
8.That pursuant to section 118(1)(c) of the Family Law Act 1975, prior to the institution of further proceedings under this Act (save for any appeal of these orders), the Mother first seek the leave of the Court.
9.That the mother pay the Father costs of and incidental to the proceeding to be assessed or agreed.
The Independent Children’s Lawyer proposed orders in the following terms:
1.That the Father have sole parental responsibility for all short term and long term decisions concerning the children
[JH] born … October 1993 and [KH] born … September 1997.
2.The children live with the Father.
3.The children are at liberty to communicate with the Mother by telephone, mail, SMS or email at any time.
4.The Mother is at liberty to respond by email to any email communication, by SMS to any SMS communication or telephone to any telephone communication from the children but that such responses be limited to one response per each communication from each child.
5.The Mother may send cards and/or presents to the children on special occasions such as Christmas/Easter/birthdays.
6.The Father is to ensure that the children receive any cards or gifts from the Mother to the children, unless the cards contain material denigrating the Father.
7.The Mother may spend time with the children at all such times as the parties may mutually agree in writing.
8.The Father is to authorise the school to provide copies of school reports and/or newsletters to the Mother.
9.In the event the school indicates to the Father that they are unwilling to provide copies of the school reports and/or newsletters to the Mother, the Father is to be responsible for forwarding copies of the children’s school reports and/or newsletters to the Mother within seven days of receiving same by the Father.
10.That the Father notify the Mother of any illness or injury (other than minor illness or injury) suffered by the children.
11.That neither party denigrate the other party to or in the presence of the children.
12.The children are to meet with Mr [H] at a time arranged by the Independent Children’s Lawyer for the purpose of Mr [H]l explaining to the children the Court Orders (it is noted that the Father will not discourage the children from spending time with the Mother).
13.That neither party be at liberty to commence or file any further applications concerning the children without first obtaining the leave of a Justice of the Family Court of Australia.
In essence, the Orders sought by the father and the Independent Children’s Lawyer were very similar, although there were some differences. The father sought that, with the exception of an order that the father have sole parental responsibility for both children, he otherwise sought that there be no order referable to J. However, the Independent Children’s Lawyer sought an order that both children live with the father, and orders in relation to communication between the mother and the children; that the father notify the mother of any illness or injury (other than of a minor nature) suffered by the children and that neither party denigrate the other party to or in the presence of the children.

In addition, orders included by the Independent Children’s Lawyer and which were not specifically sought by the father were that the mother be at liberty to respond to any communication from the children, in the same form that was initiated by that child or children and that such responses be limited to one response per each communication from each child. In addition, orders were sought in relation to the mother sending cards and/or presents to the children on special occasions. Furthermore, the Independent Children’s Lawyer sought that the children spend time with the mother as agreed by the parties in writing, and the father sought a similar order, but the father also included that failing agreement that such communication be as initiated by K.
In addition, the father sought that he provide to the mother, in a timely fashion, any written medical or other therapeutic assessment of either J or K, whereas the Independent Children’s Lawyer sought that the father notify the mother of any illness or injury (other than minor illness or injury) suffered by the children.
The orders sought by the father, and which were not included in the orders sought by the Independent Children’s Lawyer, also included restraints in relation to the mother attending upon K’s school, place of education or work and in relation to attempting to communicate with certain persons and that the mother be restrained from denigrating K or denigrating the father to K, whereas the Independent Children’s Lawyer sought only that neither party denigrate the other party to or in the presence of the children. It was also sought by the father that he be at liberty to publish Dr X’s report of

4 December 2009 and Mr H’s report of 28 October 2010 to any person appointed by the father to provide medical or therapeutic treatment for K.
The father sought that an order be made under section 118(1)(c) of the Family Law Act 1975 (Cth) (“the Act”) in relation to the mother, whereas the Independent Children’s Lawyer sought that neither party be at liberty to commence or file any further applications in relation to the children without first obtaining the Court’s leave. The Independent Children’s Lawyer also sought, and the father did not, that the orders be explained to the children by the Family Consultant.
The issues that thus remained for the Court to consider included:
a)The issue of parental responsibility for the children, namely whether an order for equal shared parental responsibility should be made or whether some other order should be made, and if so what order;
b)With whom K lives. The mother does not seek an order that J live with her, but she is seeking to change the residence of the child, K;
c)Whether there should be any further educational assessment, psychological assessment or assessment in relation to ADHD for J;
d)Whether there should be a sanction or restriction on the parties commencing further proceedings and
e)Whether there should be restrictions on the mother’s communication with the various entities, including the children’s school.

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975

(“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the children as the paramount consideration

(see section 60CA). In determining what is in the children’s best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the children’s best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Subsection (4) provides as follows:
… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the child’s parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

That these children would benefit from a meaningful relationship with both of their parents, other things being equal, is hard to gainsay. Other things are not, however, equal.
It is a matter of evidence that the impact on a child not having a relationship with a mother can be devastating. That that impact can and in this case will be ameliorated by the strong relationship with her father is some comfort.
It is clear that these children will not be benefited by having a relationship with their mother and father in which they continue to be exposed to their parents’ capacity for hostility, dispute, disagreement and denigration of each other and continued litigation. Such practice has been unenviably evident and has attended their parents’ dealings with each other since 1999.
The level of hostility which attends this case was described as “palpable” and is continuing.
Dr X, Psychiatrist, gave evidence. That evidence provided a litany of damage to these children which could be occasioned (if it had not already not been occasioned) by a continuation of the conflict and these proceedings.
Although the Court finds that the level of disputation is high and is continuing, there were some signs that in the future some reasonable relationship between the children and their mother might be possible, although those signs were not ones which gave rise to a high degree of confidence in that occurring.
The Court finds that such a relationship between K and the mother, although not possible in the present circumstances, would be of potential benefit to K. She is going through puberty at the present time and it would be good for her to have the support of a loving mother. However, to achieve that end the relationship between the child and the mother needs reconciliation and repair.
K firstly requires a gesture of apology from the mother. K maintains that she left the mother’s care and decided not to return for a number of reasons - the first of which was what she describes as an argument with her mother in which the mother called her a “lying cow”. She has told the mother that she loves her. I am sure that she does but perhaps having some of the mother’s capacity for determination she has said she will not again see her if she does not apologise to her. These views come from a grade A student who is popular at school and who is achieving academically at a level well above average.
The mother with equal determination has rejected K’s request for such a gesture on her part. She has simply said she will not apologise for an argument that she says did not occur. She has not been able to formulate for herself a series of words that might appease the child, yet leave her integrity intact. She has clearly said to the Court that she does not intend to agree to a proposition that she had an argument which she denies ever occurred.
A suggestion was made by the Court to the mother that she might consider writing a letter expressing regret at the present situation and apologising if anything she might have said or done had created some hurt for the child. She did say that she would consider a letter along those lines. The Court’s suspicion is that if such a letter were sent it would be an important first step in possibly re-establishing the lines of communication with K.
In the event that such a communication was re-established I am sure that in the absence of an environment with the mother in which the father is criticised and providing the conflict is at an end that the child would wish to continue her relationship with her mother, which seems otherwise loving. I accept the evidence of the father that he would do all that he reasonably could to facilitate contact with the mother. All it may need is that first step by the mother, coupled with an acceptance that the child loves her father and that to criticise or denigrate him is to criticise or denigrate the child by denigrating her expression of that love.
However, absent that reconciliation I cannot see on the evidence that this child could have other than a remote relationship with her mother for the foreseeable future. The evidence of the Family Consultant, Mr H, does I think clearly indicate that result.
The child has a close, loving and meaningful relationship with her father as exemplified in Mr H’s evidence.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
In 2005 the mother put matters before the Court which suggested that the child was the subject of sexual abuse. In the hearing before me she emphasised that she did not allege sexual abuse but simply that she reported what she said she was told. In any event, it has clearly been determined by the Court in the decision of Justice Buckley that such abuse did not take place. Even given that finding the mother was party to the publication of scurrilous and unjustified assertions that the Family Court had somehow failed her daughter and she continued, it appears, to denigrate the father.
The children have approached the mother for reconciliation and the mother has made no response to them. Her attitude was sought to be justified by her on the basis that she was seeking to “protect herself from false allegations”. I do not accept that response as being the response of a parent with empathy for their children nor of insight into their hurt and their concerns. She was unable on interview to put herself in the place of her children and express what she thought their reaction might be. She was cruel in her rejection of their approach. I find that this conduct subjected these children to the danger of psychological harm.
The mother has made allegations that the children are in danger of harm from their father, whom she described to the Family Consultant as being “narcissistic and sociopathic”. No evidence of an acceptable nature was before the Court in relation to these matters. Even if the mother had produced evidence to support her allegations that the father was a womaniser and was dishonest, there was no expert evidence that the father for that reason would be so diagnosed, although they might generally be thought to be some indicators of that condition.
Notwithstanding those allegations, there is no evidence of any such harm occasioned at the hands of the father whom the mother describes as manipulative and clever. The evidence is that the children are relaxed in his company. They will stand up to him. They are progressing well at school and are achieving both socially and educationally and otherwise. There is no evident anxiety. Although J had learning difficulties there are no present signs of that and he is progressing toward a university entrance result. Some attempt was made by the mother to say that he was still underachieving but the results on which she relied were not, in the view of the Head of Senior School of J’s school, of currency in relation to his achievement. Her view of him was that he was successful, popular, a leader and an average student trying hard to gain university entrance, which, she said, was not beyond him.
K is also popular and achieves at a high standard at school. There is nothing in her behaviour or conduct to suggest anxiety in relation to the father’s treatment of her.
I do not find that K or J are in danger of psychological harm in the care of their father.
I do find that K and J are in danger of such harm both in the short and long term if the dispute about them, between the parents they love, continues. Such conflict must cease if these children are to grow up with well developed self-esteem and an ability to form relationships with others. This is the clear evidence of Dr X.
It would be of less danger, but nevertheless a significant danger, to the psyche of K if her mother continues to denigrate the father and does not reconcile with her. To do that the mother needs to put her child’s interests above her own. Time will tell if she can achieve this but until she does I find that it is important to remove K and J from ongoing dispute and conflict and, whilst leaving the door open to reconciliation, to provide a secure, known and safe haven for them in the proven care of their father which has led to successful outcomes for them and in which they can be protected to some degree from the incipient harm described above.

Additional considerations

(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

Each of these children has expressed views. They have done so in correspondence with their mother and in conversation with the Family Consultant. Dr X also gave evidence in relation to these matters.
Exhibit 9 comprises a letter from K to her mother which is described by the Independent Children’s lawyer as a heartrendering plea from K to have her mother engage with her to end the estrangement. I agree with that description.
The email is dated 11 April 2010 and says:
Hi mum
PLEASE answer my question. i want to talk about the fight that we had the last time i saw u. if I want to see you again, i need to know that we have sorted out the fight we had and we are both clear on wat was meant and wat happened. PLEASE reply
from [k]
To this email the mother replied the following, on 15 April 2010:
Hello Darling
I don’t have anything to discuss with you on an argument that we didn’t have.
How was your first week back at school?
What sports are you doing this term?
Love you.
Mum
xxxxx
ooooo
When asked by the Court why she had written that response the mother said in effect that she would not compromise her integrity by giving an answer which was wrong. When asked whether she would put her integrity above promoting her child’s welfare, she said that she would.
That answer, in the Court’s view, gave some indication of the mother’s priorities but also some indication of her lack of ability to find a way of dealing with the problem, short of confrontation, in which her view of events and that of her daughter would, unprofitably and damagingly from K’s point of view, be pitched against each other with a determination which would render reconciliation but a remote possibility.
As recently as a few days prior to the hearing J had sent an SMS to his mother telling her he wants to see her and despite the “ups and downs” wants to “move on and have a great time with you [the mother]”. The mother’s response makes no reference to those pleas.
Whilst it is asserted by the mother and is probably true, that the ongoing communication between her and the children is evidence of their unbroken attachment and love, the father submits that those expressions of their views are positive proof of there being no effort on his part or indeed at all to alienate the children from their mother. I accept that this is so.
The difficulty it seems is found in the mother’s inability or unwillingness to see the children as unable to cope with the ongoing conflict. It seems to the Court that they want nothing more than an end to these proceedings and an end to the crusade of the mother to evidence failures in the father and the family law system.
The father says, in effect, that the mother’s inability or unwillingness to see the effect on the children of what she is doing is evidence of her obstinacy and fixation and that it is a tragedy.
It is in the Court’s view a tragedy that these children who are making pleas to a parent they love for reconciliation are ignored or rebuffed in those attempts. It is still not too late for the problem to be remedied. On the evidence these children presently love their mother but cannot give expression to that love by reason of the ongoing conflict and the effect it has had on all concerned. The Court does not accept the assertion of the mother that the children are manipulated by their father and that they live in fear of him, and that they are unaware of their fear. The evidence of the Family Consultant is clearly to the contrary and despite the mother’s attempts to challenge it, it is with the other evidence of the lack of anxiety in the children and their achievements socially and academically a clear indication of the absence of feelings of fear of their father.
It is the Court’s hope that the mother will see the necessity of placing her enmeshment in the litigation process as of no importance compared to the need for a response to her children’s approaches and request. Were she to come to that realisation the healing could begin and these children would have a burden, which has been imposed upon them by these proceedings and the parental attitudes to the conflict, lifted. If that were to take place then they might then have some hope of having a meaningful relationship with each of their parents and be protected from further trauma.
It seems clear that the children have had happy times with their mother. They have also been embarrassed by her and J speaks in Exhibit 9 of the problems he had in coping with some of her conduct and discusses the mother’s enmity for the father and the things she said about him. He goes on to say, in that email to the mother dated 11 March 2008:
You and my Father are in court once again. As I have said previously in this letter I have a great deal of respect for my father and what he has done to help me in the past and im sure he will be there for me in the future as I grow up to become more like a gentleman. if I may suggest some things you can do to make life easier on people are: you need to stop thinking that my Father is wrong about everything and your always perfect, stop thinking everyone and everything revolves around you, stop saying lies and making up bits and pieces to make yourself feel better or look better of what ever the reason maybe. I however would appreciate it if you gave my dad a break and stopped living in the [W shop], because you have put him through a lot and I believe that he is tired and sick of it.
You must also understand something else, I don’t care what you think about me, where you think I’ll end up or if you think im going to fail, I ask you to keep your immature thoughts to yourself and not bother others with it as they don’t want to here the crap you talk about. You can sell my stuff or do what ever you want with it but always remember the things you have done to my life.
In conclusion im asking for you to leave me, my father and my friends alone and stop causing trouble in our lives as we want to move on along with life.
Yours truly,
[J].

This is an expression of J’s view in 2008. To it the mother responds:
Hi [J],
I received your email
Love Mum.

In 2010, J, in a communication some few days before the commencement of this trial, sends a text to his mother in the following terms:
Hey mum just letting you know I’m thinking about you :) And would you like to do something this Saturday xxxx love you
To this the mother replies:
Hello Darling…I am always and have always thought of you. Have you had the excitement of getting your driving licence? I still remember getting mine and taking my car out for the first time…very very exciting and very grown up…and yes would be great to do something. love you xxxx Mum.
In response J writes:
I want to thank you for everything you have done for me mum. Even though we have had our ups and downs in the past I want to move on and have a great time with you :). I thought I’d tell you how I feel xxxx.

In this latter communication J expresses a maturity in his understanding that there must be some reconciliation of the past and that for his part he is prepared to put it behind him. I have confidence that, subject to the stressors which previously existed in the relationship between the mother and the son being eradicated, that the relationship can find its feet. I do not, having regard to the age of J, make any order save one for sole parental responsibility in relation to the father. I do this because it might operate to assist in the removal of some possibility of conflict in relation to the child. Just because he is nearly at his majority does not mean he is out of harms way when it comes to the adverse effects of continuing parental conflict. It is also my intention for his protection to make other injunctive orders including as to the denigration of one parent by the other.
The Family Consultant’s evidence was to the effect that J was happy with his current life living with his father and his sister and was happy with his school friends and activities. He was described by the Family Consultant as well spoken, co-operative and polite. J expressed the view that he does not want each of his parents to have dealings with his school and that he wants to continue to live with his father and for his father to be the only parent that has any communication or dealings with his school.
J said to the Family Consultant:
I don’t want mum making decisions or going into the school. If both (parents) are involved it ends up with conflict and becomes about them, it should be about me.
However, the Family Consultant further records in his Report that:
[J] said he was happy for his mother to receive school reports and information about what is happening in his life but that he does not want her to have a day to day or decision-making role.
The Family Consultant goes on to say the following:
Whilst [J] presented himself as assertive and confident, and was stating that he wants to arrange his own contact with his mother with a view to starting again, he does seem ambivalent about doing so. He acknowledged the past conflict but stated that it no longer concerns him, and that he feels he can cope with seeing his mother by himself.
Despite the confident and assured approach observed by the Family Consultant, he also observed that anxiety would be attendant on such an initial meeting because of the past conflict and that he detected some such anxiety in J.
Given his age and maturity and the fact that his decisions are well reasoned and reflect a mature consideration of the matter, the Court will give strong weight to his views.
The Family Consultant said of K and her views that:
[K] is now 13 years old and is in grade 7 at [the school]. She presented as a confident and assertive child with good social skills. She understood the purpose of the interviews was to inform the judge about her views, and she understood the issue to be whether or not she sees her mother. She was outspoken, polite and co-operative.
[K] described herself as very happy with her current life, living with her father and brother attending [the school]. She talked happily about her friends and the activities she does with them, her sport and music at school. Her only complaint was that she does not like some of the teachers at her school, finding them to be a bit authoritarian. Her school records indicate she is performing to a very high academic standard, is well regarded by her teachers and has no behaviour problems.
[K] was adamant that since her last big argument with her mother, which she said was in August 2008, that she has not wanted to see or talk to her mother, and that she still does not wish to. She described how prior to that whilst she had found it difficult to cope with her mother’s negative comments about her father that she had still been able to enjoy many aspects of visiting and spending time with her mother.
The argument, she says, was a turning point for contact as [K] felt her mother turned on her in aggressive and hurtful ways. She still recalls, in vivid detail, what she says her mother said to her. [K] appears to have enough maturity and understanding to accept that her mother was angry and may not have meant everything she said, and does not appear to feel as hurt and angry as she did at the time.
She described how after that incident she was still willing to communicate with her mother by email, and that she has occasionally sent her mother emails and has received responses. Mostly she was comfortable with this process and said she has shown them to her father, though she said he does not ask to see them.
[K] spoke of how she decided that she wanted to try and sort out with her mother what had happened in an attempt to improve their relationship. She said that she did this in an e-mail but that the response she received from her mother was that her mother was denying that the argument happened and that hurtful things were said. [K] was both angered and annoyed by this and has not communicated with her mother since then.
She said “I tried to sort it out but she does not want to. She won’t accept it happened. I think we won’t get on. I now don’t want to even try it now. Maybe when I’m older. [K] said that if she was required by court orders to see her mother that she would find it very stressful and that she would do her best to avoid talking with her mother. She said “I can’t forget what she said, and she knows it.”
When asked what she would like to have happen [K] said that she would like for her mother to acknowledge what had happened and to apologize for it. She added that she would still not wish to see her mother as she was worried they would have further arguments. [K] was also quite clear that she does not wish her mother to be involved in or attend at her school because “She [the mother] hates the people there and because of how she behaves and talks to them. She gets angry with them.”
While [K] appears to hold on to some hope that in the future she may be able to have a relationship with her mother where she does not need to worry about conflict and arguments [K] believes that this is not possible in the foreseeable future. [K] spoke in a manner and in language that is consistent with her expressing her own thoughts and feelings based on her own experiences. Despite her estrangement from her mother she appears to be a happy well-adjusted child who is developing normally and progressing particularly well in school achievement. She describes herself as happy with how her life is now and that she does not miss seeing her mother.
Although [K] want’s [sic] her views to be listened to in determining her family arrangements she said she would cooperate with and abide by court orders if they included her spending time with her mother. She said that she was very worried about this and fearful that there would be arguments between herself and her mother and that she would cope by staying in her room and refusing to talk to her mother. [K] was also adamant that she did not wish to attend counselling or supervised visits with her mother, as she thought it would feel awkward and false, and likely to achieve little change.
When observed interacting with her father informally [K] was happy and relaxed and communicated with him in an assertive manner. There was no indication that she was tense or anxious in any way and she was able to joke with him and at times to challenge him and be less than fully co-operative with him.
The conclusion of the Family Consultant was that the children were both assessed to have the maturity and understanding needed for them to be able to form and express their own views. Each time that they have been interviewed they have impressed as children who are speaking from their own experience. The Family Consultant concluded that J’s age and maturity are such that his views and wishes should be the determining factor in what his family arrangements should be. He does not need orders to manage his relationships with his parents but only to help prevent their conflictual relationship from interfering with his life. Upon a consideration of the totality of the evidence, the Court substantially agrees with this view.
However, the Family Consultant observed that K is at a developmentally different stage to J and does need the support of Court orders to assist in the determination of her family arrangements. She is more vulnerable to the emotional impact of conflict and needs some protection from it. The Family Consultant later considered that:
While [K] could be forcibly removed from her father and placed with her mother it would cause her an enormous amount of distress, leading to anxiety and possibly depression. This would negatively impact on her academic, social and emotional development in ways she may well not fully recover from. Coping with her reactions would require a very high degree of parental skill and emotional empathy in the parent caring for her.
Empathy is not a quality that the Court has seen demonstrated in the mother’s communications with the child, nor is it seen from the following observations of the Family Consultant in the Family Report:
[The mother] presents as vague and uncertain when asked about how she would cope with [K’s] possible reactions to living with her, and seems completely reliant on there being an immediate and dramatic change in [K’s] attitude when removed from her father and his perceived control. This does not inspire confidence in her capacity to empathise with or manage [K’s] emotional reactions. It would be a high risk option and based on the accuracy of [the mother’s] perceptions and her skill as a parent.
(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)
In relation to K, the Family Consultant described that:
[w]hen observed interacting with her father informally [K] was happy and relaxed and communicated with him in an assertive manner. There was no indication that she was tense or anxious in any way and she was able to joke with him and at times to challenge him and be less than full cooperative with him.
K’s relationship with her mother is exemplified by her statements to the Family Consultant, as set out earlier at paragraph 175.
It seems that K has no current significant relationship with her mother. The Family Consultant goes on to say:
While [K] appears to hold on to some hope that in the future she may be able to have a relationship with her mother where she does not need to worry about conflict and arguments [K] believes that this is not possible in the foreseeable future. … Despite her estrangement from her mother she appears to be a happy well-adjusted child who is developing normally and progressing particularly well in school achievement. She describes herself as happy with how her life is now and that she does not miss seeing her mother.
However, K said that she did not want further counselling or supervised visits with her mother as she thought it would feel awkward and false and it would achieve little change. It is the view of the Independent Children’s Lawyer, and with which view I respectfully agree, that there should not be an order for further therapy for this child. She has had to endure more than enough of the conflict engendered by this litigation, and its associated attendance upon experts, and having considered the evidence as discussed I do not consider that it would be of benefit to K, or in accordance with her wishes to be further involved in such a therapeutic process.
It seems that Dr X’s suggestions as to counselling for the mother and for K as a possible precursor to a reintroduction of the two would in any event presently founder on the rock of the daughter’s attitude to such processes.
The child has developed in her father’s care a sister-type relationship with a child, …. They are at least best friends. The mother is aware of the closeness of the relationship. The mother gave evidence that if K came back to her she would not allow the friendship with the other child to continue. She has feelings of hostility towards the child’s mother which it is said is reciprocated. Dr X said that the mother’s conduct showed a lack of empathy with her daughter and is another demonstration of her inability to put her own needs below those of her daughter. She has shown a similar lack of empathy with her son, J, to whom she has refused to apologise because “she could not do it in person”. It seems to the Court that good parenting requires the parent to put the child’s needs above their own.
It seems on a consideration of the whole of the evidence that K has a happy, loving, relaxed and nourishing relationship with her father and that she is estranged from a relationship with her mother at least for the foreseeable future.
The mother asserts that the child is living in an abusive relationship with the father. No evidence to support such an assertion is found by either of the experts and, according to Mr H, K has no symptoms of suffering stress or anxiety in her life and thus it appears unlikely that she has been abused or threatened or is living in fear, as the mother contends. Mr H said that were the child living in fear of an abusive parent it would be highly unlikely that this would not be evidenced by adverse effects in some part of her life.
It is noted that the mother has said that if the Court were to leave the child in the sole care of the father she would not wish any order to be made concerning contact between her and the child.
I hope that when the dust of this battle subsides, and the parties leave the field, they will contemplate for a short while the cost in time and emotion expended and come to the realisation that in the battle the real losers for it having taken place are the children, for whom they profess such love.
(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
The Court accepts as genuine the statements of the father that he would encourage a continuing relationship between the children and their mother, subject only to a reconciliation of the children and their mother and an end to conflict and denigration which is obviously distressing to the children.
In making that assertion the father readily acknowledged that he had at times been critical of the mother. He nevertheless heard the evidence of the effect of mutual criticism on the children and I believe has taken it to heart and will put protections in place so that further harm is not caused.
I am not confident that the mother, given the intensity of her feelings and her ill-disguised loathing of the father, would have the ability to restrain herself from voicing that loathing in the presence of the children.
However, for more abundant caution the Court proposes to make an order restraining each of the parents from denigrating the other to the children.
The order sought by the mother in relation to K having contact with the father only at her discretion, without any further assurance does not give the Court confidence that she would facilitate and encourage a close and continuing relationship between K and the father.
The order the mother seeks in the event that K lives with the father and that he has sole parental responsibility for her would in that event make it difficult for the father to encourage a close and continuing relationship with the mother.
(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
The Family Report says that changing the arrangements as to with whom K is living and how she communicates with her mother would, absent specified changes in attitude and practice, cause K significant long term emotional and psychological harm.
She is doing well in her current arrangements and despite the poor relationship with her mother is likely to continue doing well living with her father.
The Family Consultant further observed that:
[t]he history of this family is that it is extremely difficult, if not impossible, for the children to maintain a positive relationship with both their parents.
The Family Consultant went on to say:
The Court and numerous professionals have not been able to change this over the last 11 years. The best outcome of changing the parent she lives with is that she has a good relationship with her mother and a poor relationship, or no relationship, with her father. In my assessment the risk of a poor outcome is too high to justify making the change.
The Family Consultant further considered that:
[f]orcing [K] to spend time with her mother is also unlikely to lead to a good outcome.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There appears little difficulty occasioned by expense or geography which would substantially affect the child’s right to maintain relations and direct contact with both parents on a regular basis. However, there are other difficulties as adumbrated in this Judgment and in the evidence before the Court.
(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
There was evidence that K’s relationship with the mother of her best friend provides a further support person in her life. If such a relationship continues I consider she will provide additional support and guidance for K, particularly as she enters her teenage years.
The Court finds that the mother would be less likely to provide for K’s emotional needs given the climate of conflict and enmity largely created by the mother and the mother’s view that the child should only have contact with the father at her discretion, whereas the father says he will promote contact, subject to reconciliation between the mother and the child. The mother has demonstrated a lack of empathy with the child and a lack of insight into the effect on a child who loves both her parents of the conflict and parental denigration. Furthermore, her displayed unwillingness or inability to recognise and respond to the child’s clearly expressed needs in this case does not give rise to confidence in her ability to provide for this child’s emotional needs.
A history of the mother’s attempts at communication with the children since they have been living with the father also sheds some light on the mother’s capacity to provide for their needs.
The mother asserted that she was inhibited by Court orders from spending time and communicating with her children. There were some restrictions imposed but there was a provision in the orders of September 2008 that:
Notwithstanding any other provision the Mother may spend time with the children at all times the parties may mutually agree in writing.
The mother conceded that she had made no request to the father to spend time with the children.
In his Report, Dr X said the following:
I asked [the mother] about her communication with the children and she states that she is “not allowed to record the calls” and is “not taking calls”. “They have rung and left messages.” She states that “[J] asked me to call him back but he knows the Court Orders”. “He does not understand that I cannot ring him.” She recalls that he rang saying that he wanted to see her for Mothers’ Day and also that “he had broken up with his girlfriend and wanted to talk to her”. “He does not understand that he cannot see me without the permission of his father and he is too scared to get this.”

The Independent Children’s Lawyer wrote to the parties in August 2009 proposing the involvement of a Family Consultant to assist with the

re-establishment of the relationship between the mother and K and for subsequent unsupervised time at the discretion of the Family Consultant, pending the matter proceeding to a hearing. The mother did not respond to the email.
Although there was a repeat of the proposal in 2010 the mother did not provide the names of any proposed supervisors and did not agree that the Family Consultant should be a person who assisted and monitored a reintroduction of K and the mother.
(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
The child is said to be reasoned and mature. She is progressing through puberty. She is popular and happy in her present situation and is achieving well at school. She has friends and is loved by her father who is supportive of her and with whom she has a good relationship. The mother is Indian and has a culture in which the child shares. It will be difficult to provide for access to that culture in an ideal way at the present time, however the father has indicated that he will provide to the child such information as he can concerning aspects of her mother’s culture. The child appears to not be wanting for the necessities of life.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This is not applicable in this case.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother has no doubt been a responsible parent for much of the children’s lives. It is unfortunate that the breakdown of the relationship with the father and the ensuing constant litigation has lead to a situation in which the Court sees the mother as meeting her own needs for vindication rather than continuing a responsible parental role.
The mother has, it seems, been concentrating on the litigation and its processes. She has from time to time made threats to O School, which is where the children attend school. Her correspondence with the school was highly critical of it and offensive in that it accused the school of joining with the father to present her as difficult, vexatious and harassing. The school responded in a letter, and in my view not unreasonably, saying that they did not intend to respond to her gratuitous and pejorative remarks. There was an attempt by the school to bring to an end the “relentless abusive, negative and unhelpful correspondence you have continued to rain upon the [School].” The school asserted that if the conduct continued the children’s enrolment might be declined.
This was a school in which the children were being educated and where they had friends. In due course the children have achieved well in this school. It is fortunate that the authorities at the school were restrained and that the mother’s excessive language (including threats to both the school and the staff) did not cause direct harm to the children and their education. The mother appeared to have no understanding of the possible effects of what she was doing on the children and the Independent Children’s Lawyer alleges she has been unable or unwilling to accept the decision of Justice Buckley. Indeed, this seems to be the case and her lack of empathy towards the children as described is probably a product of her lust for the fight by which she has (it appears) been consumed.
When the mother was asked why she could not have written a letter to her daughter regretting that the relationship had come to the current state and stating that if anything she said might have hurt her she apologised for that and that she wanted to start again, she stated that her integrity was more important.
Asked whether she would rank her need for a positive perception of her integrity higher than the needs of her daughter she said she would.
It having been explained in effect that such a letter as was suggested might have been written without assaulting her integrity she conceded that she “might” be able to do that.
It is possibly too late but I urge upon her sending a letter to the child in accordance with the order I propose to make as at least an attempt to meet her daughter’s needs for a reconciliation. Even though at this time it might not lead to anything of substance there is at least some hope that time will serve the cause of seeking to put real meaning and substance into a reconciliation.
The father is not without fault and he conceded as much in his evidence. He failed to provide school reports to the mother as he was obliged to do and given her particular sensitivities it appeared that in that way he added fuel to the flames.
The Court was unimpressed with what appeared to it to be an implausible excuse for not facilitating the children’s receipt of letters sent to them at his post office box for which they had to sign within a limited time. He sought to exculpate himself by saying that he had asked the mother to send the items to his home by ordinary post but that did not excuse his failure.
It is reported by the Family Consultant that K is able to challenge the father and appears entirely relaxed when in his company and in his presence displays no evidence of being tense or anxious.
It seems that the father’s attitude to the children’s relationship with the mother takes into account not only the benefits of such a relationship but the need to establish it in accordance with the wishes of his children. He has said that he will facilitate such a relationship if the children want it and he will not seek to prevent them from seeing their mother if that is what they wish.
(j)any family violence involving the child or a member of the child’s family
I do not find on the evidence that any such violence has occurred.
(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
There is none.
(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
It is the Court’s view that there must be an end to these proceedings, however the Court has been asked to add inertia to the possibility of further litigation and conflict. The Court takes the view that continuing conflict can only be harmful to these children, and which event Dr X said was the worst possible result in this matter.
The Court has been asked to make an order under section 118 of the Act. The Court has discussed that proposal with the parties and is disinclined to make an order under that section. There was a finding in this matter that the present proceedings did not offend the rule in Rice & Asplund [1979] (supra). It seems, therefore, that there was a basis for its commencement. However, I am persuaded by the evidence of Dr X. There needs to be a restraint on continuing conflict and indeed each of the mother and the father have consented to an order for an injunction against further proceedings without leave.
I will make that injunction to promote the welfare of the children and not under section 118. On the evidence it will provide some possibility of some protection against the children again being surrounded by a maelstrom of conflict in which their progenitors spend significant time denigrating each other. In order to save costs of any such application, that application is to be made ex parte in the first instance.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of these children for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence. In this case there has been no family violence, as has been set out earlier.
Notwithstanding that there may have been family violence, it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case there is reason for the presumption not to apply and each parent suggests that it should not. Each of them admits that communication between them is hostile or non-existent. The thought that they might be able to productively consult on any level in a co-operative way in co-parenting these children is on the present state of the evidence a forlorn hope. It is in K’s interest that no such order should be made. It is in the interests of this child, given that she has been in the care of her father now for some time, and given that it is in that care that she is thriving and flourishing, that there be no change in that care. In those circumstances the Court proposes to make an order that the father have sole parental responsibility.

Section 65DAA

This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.
I do not propose to make an order for equal shared parental responsibility.

The Orders to be made

I therefore propose to make the orders in relation to parenting as set forth above.
In relation to J I will make limited orders as set out above, in relation to the mother not being involved with the child at his school without his consent. I will also make orders in relation to the mother receiving copies of his school reports, sending cards and/or presents to the children, that the father notify the mother of any illness or injury (other than of a minor nature) and that neither party denigrate the other party in the presence of either child.
This is in accord with J’s wishes for the time being. I take the view that J is a mature child and it is for that reason that I have agreed to the proposal that no other order should be made in relation to J. I nevertheless restrain the mother from attending his school because of the embarrassment from which the child has suffered in the past following such attendances.

I certify that the preceding two-hundred and thirty-five (235) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 14 January 2011.

Associate:

Date: 14 January 2011

[2011] FamCA 8

14 January 2011

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies

Jurisdiction

Procedural Fairness