Udall and Oaks

[2010] FMCAfam 1482

FEDERAL MAGISTRATES COURT OF AUSTRALIA

UDALL & OAKS [2010] FMCAfam 1482

FAMILY LAW – Parenting arrangements – allegations of physical abuse – allegations of sexual abuse.

Family Law Act 1975, ss.4, 60CC, 60B, 60CA, 60I, 61DA, 65DAA(5)
Evidence Act 1995
Declaration of Human Rights 1948

Goode & Goode (2006) FLC 93-286
Marvel & Marvel (No.2) [2010] FamCAFC 101
MRR & GR [2010] HCA 4
M & M [1988] HCA 68; (1988) 166 CLR 69
Re W Sexual Abuse Standard of Proof [2004] FamCA 768
A & A [1998] FamCA 25
B & B (1993) FLC 92-357
Re David (1997) FLC 92-776
S & S 1994 NZFLR 657
AA and SNA 2009 BCSC 387
Lamusga 29/04/2004 SCCal Unreported 107355
PM & MN 2008 BCSC 1501
IMMS & DJS 2010 BCSC 306
Abbott & Abbott BCSC 323
Bennett & Bennett [2001] FamCA 462
R & K-R [2010] Benjamin J unreported
Briginshaw & Briginshaw [1938] HCA 34
“Parental Alienation Syndrome and Alienated Children:  Getting it wrong in child custody cases” (2002), Carol Bruch
“Parental Alienation Syndrome:  Its time has come”, Katherine Andre 2005
“Parental Alienation Syndrome” Bone & Walsh
“The Alienated Child” Kelly and Johnson 2001
“Expanding the parameters of parental alienation syndrome” Cartwright 1993
“Children’s Alignments with Parents in Highly Conflicted Custody Cases” Lampel et al 1996
“Children Resisting Post Separation Contact with a Parent:  Concepts, controversies and conundrums” Fiddler & Bala January 2010

Applicant: MS UDALL

Respondent: MR OAKS

File Number: PAC 134 of 2009

Judgment of: Harman FM

Hearing dates: 19, 20, 21 October 2010

Date of Last Submission: 21 October 2010

Delivered at: Parramatta

Delivered on: 22 October 2010

REPRESENTATION

Counsel for the Applicant: Ms Druitt

Solicitors for the Applicant: Legal Aid NSW

Counsel for the Respondent: Ms Petrie

Solicitors for the Respondent: Abigails Solicitors

ORDERS

1. All existing parenting orders with respect to the child, [X], shall be and are hereby discharged and specifically the interim airport watch-list order made 23 January 2009.

2. The parents of [X], namely, Ms Udall and Mr Oaks , shall have equal shared parental responsibility for [X].

3. [X] shall live with his mother, Ms Udall.

4. [X] shall spend time with his father as follows:

   (a)until the commencement of term one 2011 - each alternate Saturday from 9.30am till 4.30pm commencing 6 November and, in addition, from 11am till 7.30pm Christmas Day;

   (b)thereafter and until the commencement of term two 2011 - each alternate weekend from 9.30am Saturday till 4.30pm Sunday;

   (c)thereafter:

   (i)each alternate weekend during school terms from the conclusion of school Friday until the commencement of school the following Monday, to commence the first weekend of each school term;

   (ii)for the second half of each short New South Wales school holiday period and being from 4.30pm on the middle Saturday until 4.30pm on the last Sunday;

   (iii)for one-half of the Christmas school holiday period in each year, being the first half in 2011, to commence 9.30am on the first Saturday, conclude 4.30pm on the fourth Saturday, and each alternate year thereafter, and for the second half in 2012 to commence at 4.30pm on the fourth Saturday, conclude at 4.30pm on the last Sunday before school resumes and each alternate year thereafter;

   (iv)such further and/or other times as agreed between the parents from time to time.

5. For the purpose of [X] passing between his parents changeovers shall occur:

   (a)if a school day, by collecting from and/or returning to school;

   (b)if not a school day, changeover is to occur at [omitted] Contact Service or, if that service is not available for the parties, in the foyer of [omitted].

6. Each of the parents is restrained and injuncted from attending at [X]’s school on any day when he is in the care of the other parent save:

   (a)if required to attend for changeover;  or

   (b)if the parent is attending any special occasion at the school to which parents are invited or to participate in any activity at the school with the consent of both parents.

7. Each parent shall be entitled to communicate with [X] whilst not in their care by email and [X]’s parents shall, save in the case of emergency, also communicate with each other regarding [X]’s welfare by email.

8. Ms Udall and Mr Oaks are each restrained from denigrating the other or any member of the other’s household or extended family in the presence or hearing of [X] and nor shall they allow any other person to do so.

9. Ms Udall, Mr Oaks and [X] shall each forthwith attend upon their general practitioner to obtain a Medicare referral for them and [X] to attend family therapy with Ms V and for the purpose of obtaining therapy and assistance for themselves, and should Ms V consider it appropriate for [X], and:

   (a)Ms Udall and Mr Oaks shall each attend and cause [X] to attend all and any appointments made with and to follow any referral made by Ms V:

   (b)Ms Udall and Mr Oaks shall share equally any cost not covered by Medicare;  and

   (c)Family therapy provided by Ms V shall be considered to be family counselling pursuant to section 10B of the Family Law Act 1975 and all communications in such therapy shall be confidential and inadmissible pursuant to sections 10D and E, save for the purpose of mandatory notification of any allegation of abuse and for the purpose of advising this court in the event either party fails or refuses to attend or to continue to attend as directed; and

   (d)the independent children’s lawyer is authorised and requested to forward to Ms V a copy of these orders, together with a copy of the reasons for judgment and Dr R’s report prepared in the proceedings.

10. In the event that either party should desire to file any further application seeking parenting orders with respect to [X] or any contravention application such application is to be listed before me and not otherwise.

11. Until 26 June 2016 there will be an airport watch-list order in the usual terms to expire at the age of 12.

12. Each parent is to do all things, sign all documents and give all consents and authorities necessary to enable any health or education professional or any school attended by [X] to provide to each parent copies of reports and any other information or documentation relevant to his health of education.

13. Each parent is to immediately advise the other of any significant illness or hospitalisation and sufficient authority and information to enable each parent to discuss treatment with any doctor and to visit him if hospitalised.

14. Each parent will do everything necessary to ensure that each parent’s contact details are recorded with any school or any other extracurricular activity in which he is attending and so each parent can obtain information or materials.

15. Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.

16. All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

17. That pursuant to s.65DA(2) and s.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.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 134 of 2010

MS UDALL

Applicant

And

MR OAKS

Respondent

REASONS FOR JUDGMENT

1. These are proceedings involving competing parenting applications with respect to a young man, [X], born [in] 2004.

2. At the outset of the case, I note the words of British writer Louis de Bernières that “children are the messengers that we send into the future.”  And that quote, I feel, has some particular application to this case, particularly the messages that have been sent to and that [X] will, no doubt, continue to carry forward with him in life. 

3. It is my usual practice in any judgment, indeed in the conduct of any trial, to endeavour to accentuate positives wherever possible and to try and bring an approach of optimism both to the relative strengths of each of the parents and their child and to the future.

4. It is with some heaviness of heart that I find in this case, which has troubled me more than any other thus far this year, some real difficulty in finding reasons to be optimistic for [X]’s future, and that is not, regrettably, because [X] finds himself the product of two parents who don’t love him. Indeed, part of the issue, in my mind, for [X], is indeed how much his parents do love him and how that has been expressed both in words and actions from time to time, and perhaps, on many occasions, misguidedly. But as proceedings under the Family Law Act, I am seized not with producing an optimal outcome (and regrettably, in this case, I don’t feel an optimal outcome is possible), but the outcome that will best promote and hold as paramount this little boy’s interests.

5. The proceedings were commenced very shortly after the separation of the parties.  Indeed, the proceedings were commenced within four days of the parties’ separation and within one or two working days of their separation.

6. The applicant in the proceedings is [X]’s mother, Ms Udall, and by her application filed 13 January 2009, she sought orders that [X] live with her, that the parties have equal shared parental responsibility and that [X] spend time with his father at times as agreed between the parties. 

7. A response was filed and accordingly in a very real sense, in these proceedings, battle joined by [X]’s father, Mr Oaks, which sought orders in opposition and as follows: 

   a)That the mother’s application be dismissed;

   b)That [X] live with his father;

   c)That [X]’s father be solely responsible for the day-to-day care, welfare, health, education and development of the child whilst with him;

   d)

   That the child spend time with his mother in the presence of an approved supervisor each Tuesday and Thursday between 3 and

   
   

   5 pm and every Sunday between 4 and 6 pm;  and,

   e)That there be shared parenting responsibility for long-term (sic) care of the child. 

8. The evidence in the proceedings has come from a number of witnesses.  In the mother’s case, it has been only her. In the father’s case, a number of affidavits were filed although, ultimately at hearing, were not all relied upon.

9. Each of the relevant affidavits that were identified have been read and considered together with the parties’ case outline documents and a number of exhibits tendered in the proceedings: (11 in the mother’s case; 1 in the father’s; 2 in the independent children’s lawyers case) and a report by clinical psychiatrist, Dr R, who was appointed as the Court’s expert in the proceedings. 

10. Each of the parents, the paternal grandmother and Dr R have been cross-examined in the proceedings and given further testimony. I have also had the benefit of considering a volume of case law and social science literature dealing with and speaking to the issues between these parties and as raised in the proceedings.

The issues

1. At the time that the matter was commenced, and as would be obvious from the orders proposed by [X]’s father, Mr Oaks, there were serious allegations raised regarding the mother’s capacity and fitness to care for [X], hence the proposal that time be supervised. The allegations at that point in time related to a generalised malaise of care and concern by [X]’s mother, Ms Udall, towards him and an alleged rejection of him at different times.  What in the evidence was put as, or at least one can infer was put as, periods of abandonment, particularly three periods of travelling from where the parties then lived, in Spain, to [C], South America, where the mother hails from, to visit her child [Y] of a previous relationship who had not been able to leave the country with her at the time that she had fled following a number of unpleasant events in her life arising from terrorist activities in regions of [C] and relating to the FARC.

2. There were also allegations of physical abuse of this child, allegedly by his mother, together with, at that point in time, an allegation that sometime earlier, in or about 2006, that [X] had been sexually abused or inappropriately touched by his elder sibling [Y], who had ultimately left [C] and commenced to live with the parties in Spain. 

3. During the time that the matter was before the Court, further allegations arose in both parties’ cases but principally in Mr Oaks’s.  Each of the parties have made an allegation of abuse.  The allegation made by Ms Udall was in or about November of 2009 and resulted in Ms Udall retaining [X] in her care for a few days, whilst investigation was undertaken by the Department of Community Services.

4. That allegation was not ultimately the subject of any disclosure and, it would appear and I accept on the evidence, was accordingly not pressed as an allegation of abuse by the mother in her case, she having been satisfied with the investigation by the relevant authorities.  Whilst those investigations were on foot, it appears common ground, the child was removed from the mother’s care on what, at best, was a chance opportunity when the child was seen with the mother at a café and returned by the father into his care.

5. There have been various allegations made by Mr Oaks during these proceedings. The most serious of those, perhaps, related to an allegation of sexual abuse which arose in or about August of 2009 and wherein it was suggested, in a variety of contexts, including at one stage, in a lift at a station or police station, that [X] had been sexually assaulted by his mother through her inserting a finger into his bottom and various other assaults of a sexualised nature by his elder brother [Y].

6. There were also a number of allegations of threats made by [X]’s mother to [X], including to cut his throat, to have him killed, to have his father killed and a myriad of allegations including, by reference to some of the material produced on subpoena, to which I will return shortly, of physical abuse and which allegations would have appear to have arisen on a regular basis.

7. The unrelenting allegations continued throughout 2009 and into the earlier part of 2010.

8. From a consideration of the material which I had been directed to before the trial commenced, it appeared that the significant issues between the parties were:

   a)has there been sexual abuse of [X] by his mother or by his brother (or any other person);

   b)has the father engaged in alienating behaviour as regards [X]’s relationship with his mother or any form of behaviour that has had a negative impact upon that relationship or upon [X];  and

   c)what is the present nature of the child’s relationship with each of his parents and possibly other people such as his brother, his grandparents and, subject to the determination of those three issues, what should be the future care arrangements for [X]?  What should his time with each of his parents be and what conditions, if any, such as supervision, should attach?

9. At the outset of the trial, and having raised the issues of sexual abuse which were canvassed in the parties’ evidence and subsequently addressed in material that came into evidence through tender and also specifically addressed by Dr R, I was advised by counsel for the father that there was no issue pressed in his case wherein the Court was or would be asked to make any finding of fact that [X] had been sexually abused by his mother or whilst in the mother’s care.  That opening statement and the context of the case changed dramatically what the Court was ultimately called upon to address, although two very important issues arise from the allegations themselves and that opening position, being:

   a)the issues which arise from the allegation and the other allegations that precede and postdate that allegation of sexual abuse remain relevant to the matter as regards additional considerations under s.60CC and, in my mind indeed, each of the primary considerations; and

   b)the father, in his evidence, certainly presented a belief system regarding those allegations and a more generalised anxiety as to risk of harm to this child, which is inconsistent with the position advanced on the father’s behalf at the commencement of the case.

Approach to parenting cases

1. The Full Court has been clear in cases such as Goode & Goode (2006) FLC 93-286 and Marvel & Marvel (No.2) [2010] FamCAFC 101 as to the approach to be adopted by the Court and the Full Court has, in those cases, considered the various legislative provisions which, whilst unfortunately not sequential within the Act, all tie together to produce a total fabric by which parenting cases are decided. The steps are often described as lineal although there is, in fact, a complex inter-dynamic relationship between factors, some or all of which are supported by the same evidence and which must be seen in combination with each other rather than serial steps. The legislation, in fact, makes no sense if one is to take it in individualised steps and it simply becomes a repetitive exercise of considering the same facts over and over.

2. The Court must commence by considering the objects and principles in s.60B of the Act which guide and inform the outcome which the Court should strive to achieve in a philosophical, rather than practical, nature. The legislation does not prescribe or presume any outcome in any given circumstance but each case is dealt with on its own facts and based upon an application of the law to those facts.

3. The objects and principles in s.60B provide in sub.s(1) the objects being to ensure that the best interests of children are met by:

   (a) ensuring children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence; and

   (c) ensuring children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.

4. Subsection (2) provides the principles which underlie those objects and as follows:

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

   (b) children have a right to spend time on a regular basis with and communicate on a regular basis with both of their parents and other people significant to their care, welfare and development, such as grandparents and other relatives;

   (c) that parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

   (d) parents should agree about future parenting of their children;  and

   (e) children have a right to enjoy their culture, including the right to enjoy their culture with other people who share that culture, being an amendment to the legislation consistent with international conventions on cultural, civil and political rights.

5. The main focus of the objects and principles and the overall object of the legislation, whilst not a substantive part of the law to be applied to the facts of the case but rather to inform and guide the Court’s decision-making, are all particularly apt to this case and the evidence as it has unfolded. 

1. The objects and principles also make clear two important aspects of this court’s exercise of discretion. The first follows from the next requirement of the legislation, being s.60CA, and the obligation in making any parenting order in relation to a child to regard the child’s best interests as the paramount consideration. The second is that the objects are designed to create and envisage a rights-based approach to the determination of parenting disputes.

2. First, and fundamentally, with respect to the rights-based approach that the Court adopts, the rights focused upon are those of [X], not his parents or either of them. The only right which [X]’s parents have in these proceedings is a right to natural justice and procedural fairness and that has been accorded to them. They do not have rights of property in [X]; he is, in fact, not their child but the community’s child. They are seized of his custodianship in the way the traditional custodians of this land, prior to white settlement, understood their obligations both as to land and family and community.  Their job, their duty and their responsibility is to raise this child to become a functioning member of society and to do so, the Court is informed by the legislation and also informed by the social science that speaks to those relevant considerations.

3. The rights which apply to [X] are broad. They are derived from the Act itself. Section 60CC which commences with two primary considerations, can be seen as providing rights for [X]. I will return to s.60CC shortly.

4. Other rights also attach to [X] because he is, albeit a young and precious, vulnerable and fragile human being, nothing less than a human being. Accordingly, he is entitled to and has all of the rights prescribed for him by both domestic and international law, commencing with the Declaration of Human Rights, the International Convention on the Rights of the Child 1948 – which our jurisprudence has been slower to adopt as applicable to each decision that this court makes without specific enabling domestic legislation but which other jurisdictions, such as Canada, England and most European countries, have no such difficulty with, but it sets out a body of rights that children have and enjoy.

5. Principal amongst which is a right to be – to paraphrase the totality of those rights – a child to enjoy and experience a childhood, the important, special, magical and, one would hope, safe place – regrettably for many children in this world and possibly, at times, [X], not as safe as it could or should have been – a place where he can develop his own personality and venture out, in years to come, with self-esteem and self-assurance - although one would hope not arrogance – to explore his world and take his place within it.

6. That rights-based approach is particularly germane to this case as, in my mind, a volume of evidence speaks towards his rights having been infringed – his basic right to dignity, to the love and respect of those around him and particularly his parents and, importantly, his emotional growth and development, fundamental to his important contribution to this world in years to come.

7. Having turned to objects and principles and having been reminded by the legislation that [X]’s best interests are, at all time, the paramount consideration – the Court is required to turn to s.61DA and the presumption of equal shared parental responsibility and to consider whether it applies or does not apply. If it does apply and is not rebutted, then one is also required to turn to s.65DAA and consider, in turn, equal time and substantial and significant time before considering any other time arrangement.

8. In doing this and, indeed, in performing all of the Court’s roles, there are two important yardsticks by which everything is judged.  Firstly, whether arrangements are reasonably practical, as defined in ss.(5) of s.65DAA and as discussed by the High Court in MRR & GR [2010] HCA 4 and the second and equally important test of what is, indeed, in [X]’s best interests with a list of primary and additional considerations as set out in s.60CC. After having considered the evidence, I will return to each of those considerations.

The approach of the Court to allegations of abuse:

1. Regrettably, both this court and the Family Court have a long history of dealing with allegations of abuse. They are no less plentiful now than they were in the early days of this court. I have had the benefit in reviewing the history of case law, both from first instance decisions, the Full Court and, on occasions, the High Court, of an excellent paper prepared by my brother, Slack FM, in August of 2010 which provides a convenient summary of both that case law and the resulting approach to be adopted when such allegations arise. The case involving an allegation of abuse is, in many ways, not remarkable or special; it is a parenting case like all others. It is simply an aspect of the evidence involved in that case that sets it apart perhaps.

2. The approach that is adopted by the Court, and as I have indicated helpfully set out in Slack FMs excellent paper, is that in any matter involving allegations of abuse the only duty of the Court is to make such an order for custody or access, (as it was at the time of M & M [1988] HCA 68; (1988) 166 CLR 69), which will, in the opinion of the Court, best promote and protect the interests of the child.

3. The Court does not have an obligation or a duty to resolve in any definitive way the disputed allegations of sexual abuse.  The Court’s role is to decide whether the evidence is such as to establish that there would be an unacceptable risk to the child if they were to have contact or even supervised contact, let alone to live with the parent.

4. If in the course of that consideration the Court can, although is not compelled to, after a careful evaluation of the evidence, determine whether it can be sufficiently satisfied that it is likely that abuse has occurred, then the Court may make such a finding.  Although the resolution of the question is not the primary function the Court is not enjoined from making a finding in appropriate circumstances, although some caution is urged to make any finding unless absolutely necessary to the determination. 

5. Subsequent case law such as Re WSexual Abuse Standard of Proof [2004] FamCA 768 and A & A [1998] FamCA 25 set out other useful tests in describing what might be considered the evidential standard by application to what is usually referred to as the Briginshaw & Briginshaw [1938] HCA 34 test, though that has probably now been codified into the Evidence Act 1995 in any event. Slack FM goes on to quote from B & B (1993) FLC 92-357 that:

   If the Court is unable to conclude that sexual abuse has occurred, then as a separate question, the Court should consider whether it can be satisfied that the allegation is not proved.

6. Again, caution is ventured as to whether that finding need occur as a matter of absolute necessity, because the Court’s role remains to determine the wider issue as to what is in the child’s best interests rather than specific issues of fact.  The High Court in M & M has been clear in stating that the Court’s role is:

   To define with greater precision the magnitude of risk that will justify a court in denying a parent access to a child.  The test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

7. Other case law has gone on to broaden the test set out by the High Court to consideration of more generalised abuse than sexual abuse, particularly physical abuse, and in case law such as Re David (1997) FLC 92-776, and as I would find in this case, emotional abuse.

8. Overseas jurisprudence also adds some weight to arguments as to the role of the Court in dealing with sexual abuse.  The New Zealand Family Court in 1994, in a case of S & S 1994 NZFLR 657, states as follows:

   Qualifying words in relation to risk, such as ‘unacceptable,’ ‘real,’ ‘serious,’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.

9. Shortly I will turn to the evidence in this case, and that will make clear the finding that will ultimately follow, that I am satisfied that there is no reasonable foundation for any allegation of abuse, and I find that the child, [X], has not been sexually abused by his mother or his brother.

The approach and research with respect to alienation and alignment:

1. A great deal arises in this case with respect to allegations that [X]’s father has engaged in behaviour that has had the effect of alienating or otherwise damaging [X]’s relationship with his mother. 

2. The mother’s case and the evidence in that case seek to suggest a pattern of concerted effort by the father, and possibly others, to interfere in the relationship. 

3. It is urged upon me by counsel for the father that I would not focus solely upon that issue and I don’t, for one moment, intend to.  I intend to undertake the broader inquiry that the Family Law Act 1975 requires me to, of which this issue is but one. However, there is also some contention regarding the use of terms such as “parental alienation syndrome” as originally enunciated by Richard Gardner.

4. In an article cautioning against giving any credence to parental alienation syndrome as either a syndrome or phenomena “Parental Alienation Syndrome and Alienated Children: Getting it wrong in child custody cases” (2002), Carol Bruch cautions as follows:

   PAS or parental alienation syndrome, as developed and purveyed by Richard Gardner, has neither a logical nor a scientific basis.  It is rejected by responsible social scientists and lacks solid grounding in psychological theory or research.  Alienated Children or AC, although more refined in its understanding of child/parent difficulties entails intrusive, coercive, unsubstantiated remedies of its own. Lawyers, judges, and mental health professionals who deal with child custody issues should think carefully and respond judiciously when claims based on either theory are advanced.

5. The caution urged in that case is taken up by a number of other authors, but it is useful in the context of this case, and for the benefit, if nothing else, of these parents’ understanding my thought process in arriving at the decisions that will inherently interfere in their lives, to canvass some of that controversy. 

6. In an article by Katherine Andre, “Parental Alienation Syndrome:  Its time has come”, from 2005, the following is advanced:

   Most psychologists agree the least understood and often most destructive type of child abuse is emotional.  Considered the most difficult abuse to diagnose and prevent, its scars are not physical but invisible, with profound and far-reaching consequences.

7. It goes on also to describe the symptoms and psychological dimensions generally accepted as relevant to parental alienation syndrome, whether referred to purely as parental alienation or as a syndrome:

   In its mildest form PAS may be observed as a child’s reluctance to visit a parent.  In its severest form PAS children use extreme oppositional behaviours to reject and denigrate the previously loved parent.  The children’s perceptions are black and white.  The targeted parent is hated for seemingly small or ridiculous reasons.  PAS alienators lie about their brainwashing while empowering their children to behave irresponsibly towards the other parent.  Alienators attempt to mislead evaluators [in this case, Dr R] using deceitful accusation tactics to deflect intervention.  Discerning an alienator’s true intent requires a trained professional.  Just as child sexual predators groom their child victims, so alienators groom children by testing for compliance. Common themes are that the other parent is crazy, bad, or to be feared.

8. Quoting research from Clawar and Rivlin (1991):

   The child endures scenarios in which correct responses are rewarded and incorrect responses punished.  Children aligned with alienators are taught to tell half-truths. 

9. Bone and Walsh state:

   PAS children’s lies are survival strategies that they are forced to learn to avoid emotional attacks from the alienating parent.

10. Clawar and Rivlin’s research indicates:

    Alienators use persuasive techniques and brainwashing tools to isolate children from other family members. Alienators promote denial of the child’s other parent by deliberately refusing to acknowledge the other parent at events or in the child’s presence.  Alienators also rewrite history, causing the child to doubt his or her perceptions of reality, making the child more vulnerable to the alienator’s distortion.

11. Cartwright states:

    Parental alienation is a serious form of child abuse.  When an alienator isolates a child from another parent, through programming techniques and control, harm and symptoms of mental illness result.  Emotional abuse results when an alienator controls a child’s beliefs through rejection and fear.

12. Bone and Walsh state:

    Healthy and established parental relationships do not erode naturally of their own accord.  They must be attacked.  It is emotional abuse when an alienating parent attacks the other parent/child bond intending to destroy it.

13. More importantly, the consequences of this behaviour that are then described by the author are as follows:

    Childhood abuse’s emotional effects are well-documented.  Consequences include perpetuating abuse in to the next generation for those who remain unaware, low self-esteem, self-destructive behaviour, anger, aggression, cruelty, depression, anxiety, and post-traumatic stress.

14. Some of those symptoms are matters that are spoken to and described by Dr R in his report to which I will turn when considering the evidence. 

15. Further material dealing with alienation and alienating behaviours returns us to the research just quoted of Bone and Walsh in an article published by them, “Parental Alienation Syndrome” in the Florida Bar Journal.  It describes:

    Any attempt at alienating the child from the other parent should be seen as a direct and wilful violation of one of the prime duties of parenthood.

16. That research also goes on to refer to material authored by Doctors Kelly and Johnson in 2001 under the heading “The Alienated Child”.  They describe, in commenting upon and in large part reformulating Dr Gardner’s theory of alienation, that one should focus primarily on the child rather than on the alienating parent.  This paper advances the theory that there are many different factors that can cause a child’s relationship with a parent to deteriorate apart from a purely malicious parent and, indeed, that is a sage and important matter to remember.  It is certainly suggested, in the father’s case, that it is the mother’s behaviour itself which has caused the child to reject her.

17. Johnson and Campbell in a study describe children with strong alignments as forfeiting their childhood because of the adult role they are forced to play when they become the alienating parents nurturing and support system.

18. Dr Rand notes that:

    Divorce almost inevitably burdens children with greater responsibilities and makes them feel less cared for. Children of chronically troubled parents bear a greater burden. The needs of the troubled parent override the developmental needs of the child with the result that the child becomes psychologically depleted and their own emotional and social progress is crippled.

19. It goes on to also quote from research from Dr Cartwright in a paper “Expanding the parameters of parental alienation syndrome” published in the American Journal of Family Therapy in 1993.  He repeats the same long-term psychological problems that children who have experienced such behaviours manifest including depression, anxiety, stress, delayed emotional maturity, psychosomatic illness and long-term feelings of guilt and loss. 

20. Lampel and others in their review, “Children’s Alignments with Parents in Highly Conflicted Custody Cases”, published by the AFCC in 1996, describes children exposed to such behaviours as being

    “…angrier than children who have not; being less well-adjusted, less academically gifted and less able to conceptualise complex situations”.

21. In dealing with the evidence it will become clear that they are all issues and concerns which have been raised and are beginning to manifest themselves with respect to [X]. 

22. In a most recent article by Barbara Fiddler and Nicholas Bala,

    “Children Resisting Post Separation Contact with a Parent:  Concepts, controversies and conundrums”, published January 2010, those authors advance the following:

    There are no reliable statistics on the prevalence of alienation, even in high conflict separations where it is common for each parent to express negative sentiments about the other parent to the child.  Most children continue to long for and seek contact with both of their parents.  Further, whilst alienating behaviours are common, not all children exposed to such behaviours become alienated.  Writers note that even abused children are likely to want to maintain a relationship with an abusive parent.  Research consistently indicates that boys and girls experience alienation about equally but that adolescents are more likely to become alienated than younger children.  Both mothers and fathers can be alienated although most successful alienation is perpetrated by the parent with custody or prime care of the child and it is difficult for a parent with limited time to alienate a child from the primary care giver.

23. It goes on to quote the historical development of the debate regarding what is now referred to by Gardner as parental alienation and by other authors, such as Johnson, as Parental Alignment by commencing in 1949 with work by Wilhelm Reich.  It moves though to the present day quite quickly and describes the following of Gardner’s initial theory. 

    Gardner placed particular emphasis on three contributing factors:

    Parental brainwashing, situational factors and the child’s own contributions.  The diagnosis of PAS is dependent on eight primary factors identified in the child.

    (1) A campaign of denigration.

    (2) Weak, frivolous or absurd rationalizations for the depreciation of the parent [And in that regard, I note that Dr R has commented regarding the allegations of abuse for which he was originally appointed to investigate];

    (3) Lack of ambivalence by the child.

    (4) The independent thinker phenomena.  The child claims these are their own thoughts and not those of their alienating parent.

    (5) Reflects the support of the alienating parent in the parental conflict.

    (6) Child’s absence of guilt over cruelty to or exploitation of the alienated parent.

    (7) Presence of borrowed scenarios.

    (8) A spread of rejection to his extended family and friends.

24. Warshak, in 2001, identified three components that must be present for a bona fide identification of alienation being:

    (1) Persistent, not occasional, rejection or denigration of the parent that reaches the level of the campaign.

    (2) An unjustified and unreasonable or irrational rejection by the child;  and

    (3) Rejection by a child that it is partially a result of the alienating parent’s influence, ie, by that time they have wholly adopted the allegations.

25. In discussing a differentiation of parent/child contact problems from alienation the authors had this to say:

    A child may resist or reject a parent for many reasons.  Research and writing has resulted in the development of a more nuanced and better understanding of parent/child contact problems.  Kelly-Anne Johnson, 2001, concluded that Gardner’s formulation placed too much emphasis on the conduct of the alienating parent with insufficient consideration to the many other equally significant contributing factors, including the role of the rejected parent.  In an effort to focus on the child they refer to the alienated child who freely and persistently expresses unreasonable negative feelings and beliefs such as anger, hatred, rejection and/or fear towards a parent that are disproportionate to the actual experience of the parent.

1. Kelly and Johnson provide a reformulated, systems based and multifactor model to explain why some children resist contact or reject a parent and remain aligned with the other.  The identified factors include:

   (1)The alienating behaviour and motivation of the aligned parent.

   (2)The rejected parent’s inept parenting and counter rejecting behaviour whether before or after the rejection.

   (3)Domestic violence or abuse of the child.

   (4) Chronic litigation that typically includes tribal warfare involving family, friends and new partners.

   (5)Sibling dynamics and pressures.

   (6) A vulnerable child, sickly, dependent, anxious, fearful, emotionally troubled and with poor coping and reality testing.

   (7) Developmental factors such as age appropriate separation anxiety, response to separation or conflict consistent with the cognitive development of the child.

2. It goes on to speak, at length, in relation to the impact on children,  but summarises a number of studies including studies by Baker 2005 and Darnell 2006 as to the strategies that are adopted as a checklist by an alienating parent and these are:

   (1) Bad mouthing. Example: qualities betrayed as dangerous, mean, abandoning, not loving the child, using the rejected parent’s first name or a genetic term such as ‘the mother’.

   (2) Limiting, interfering with parenting time, eg, moving away, arranging activities during scheduled time, calling during a contact period, giving the child choices to whether they go, withholding the child.

   (3) Limiting or interfering with mail or phone calls.

   (4) Limiting or interfering with symbolic contact. Limiting mentioning of the parent, no photographs, having the child call someone else mum or dad, changing their name, objectifying the other parent.

   (5) Interfering with information, eg, refusing to communicate or provide important information regarding the child, especially school and medical information.

   (6) Emotional manipulation. Withdrawing love, inducing guilt, interrogating the child, forcing the child to choose or express loyalty or reject, rewarding for rejection, etcetera.

   (7) An unhealthy alliance, eg, fostering dependency, having the child spy or keep secrets;  and

   (8) Miscellaneous, eg, bad mouthing the other parent to teachers, doctors, interfering with counselling, creating conflict.

3. Each of those are matters that are raised in the mother’s case. 

4. Again, the effects of alienation upon the child are discussed at length reviewing 20 years of research and reporting. It concludes with the following:

   Amy Baker’s results from her qualitative retrospective study of adults alienated as children are sobering being research conducted in 2005 and 2007.  Many of these adults suffered from low self-esteem, have internalised the negative characterisation by the alienating parent of the rejected parent.  Self-hatred, self-blame, guilt for abandoning siblings were noted.  Seventy per cent disclosed suffering significant episodes of depression.  Approximately one-third reported having had serious problems with drugs or alcohol during adolescence using such substances to cope with painful feelings arising from loss and parental conflict.

   The respondents in Baker’s study reported that their own experience and memories did not match the picture painted by their alienating parent which caused them to experience self-doubt about their own perceptions and feelings about themselves and others.  They had difficulty trusting that anyone would ever love them.  Two-thirds had been divorced once and one-quarter more than once.  Consistent with case studies and clinical literature Baker’s respondents reported that they became angry and resentful about being emotionally manipulated and controlled.  Eventually, this negatively affected their relationship with the alienating parent. About half of Baker’s sample reported that they had become alienated from their own children.

5. Such research is startling and recommends that, certainly, intensive therapy or counselling is generally needed and required. 

6. In the same journal of the AFCC Family Court review in which that literature was published there is also an insightful article by Justice Donna Martinson of the British Columbian Supreme Court, Family Law Division, entitled “One Case, One Judge:  Why courts have an obligation to manage alienation and other high conflict cases”, which contains as its basic premise - and following upon a case that had been determined subject to a number of appeals and re-hearings by Judge Martinson of AA and SNA 2009 BCSC 387 – the basic premise being to postulate that all such cases where such issues are identified need to be judicially managed and by the same consistent, judicial officer and that will be addressed in the orders I will make.

7. In an article published in the Journal of Child Custody in 2004 Benjamin Garver proposes as follows:

   Any discussion of alienation pre-supposes the existence of an emotional bond between a child and each caregiver.  Attachment theory describes the development and vicissitudes of precisely these bonds.  In general, the quality of a child’s attachment to a particular caregiver refers to the child’s willingness and ability to use the caregiver as a secure base from which to draw emotional comfort. Because ‘attachment’ describes the dynamic and adaptive relationship specific to each caregiver child pair it should not be confused with dependency, bonding or imprinting.  Attachment has yet to be completely understood.

8. The article goes on and describes the concept of alienation in attachment terms and by reference to the child’s internal working model of the world developed with the assistance, one would hope, of healthy, functioning parents. It indicates:

   When co-parents are mutually supportive, cooperative and respectful, regardless of their marital status children are more likely to encounter consistent messages about each caregiver across time and settings. As co-parental conflict increases so, too, does the likelihood that the child will be exposed to information about one or both caregivers that is discrepant from what she has previously experienced.  Mum calls dad names in the heat of anger.  Dad curses mum when on his cell phone thinking that their daughter is asleep. Each parent’s narcissism, immaturity or rage prompts maligning words or actions about the co-parent within earshot of, or directly to, the child.  In the extreme, one caregiver denigrating and inaccurate messages can prompt a child to accommodate her IWM [or inner working model] of another caregiver such that their subjective experience of security with that caregiver has little or no relationship to their actual sensitivity and responsiveness.  In effect, the child’s security with the caregiver has been corrupted or distorted.  In this relatively rare scenario Johnson indicates the child speaks of their caregiver in the extreme and inflexible terms of good versus evil.

9. These are terms which, I pause to note, are consistent with recent interviews from those who participated in international war crimes tribunals in Rwanda in speaking of the impact of imported Christian-based religions and the concepts of absolute good and bad in perpetrating hatred. Interestingly, in the discussion of such matters, further material brings to light issues particularly germane to this case.  In an article by Anita Lampel, “Children’s Alignment with Parents in High Conflict Custody Cases”, the following is opined:

   Parents of aligned children were different from parents of non-aligned children in ways that were both statistically significant and clinically thought-provoking. Parents of aligned children were more naively defensive. They were more repressed lacking insight into themselves and the effect of their behaviour on others both in their self-assessments and in their assessments of their competency as parents. Although parents of aligned children overtly struggled with the stress of visitation refusal and other difficult behaviours in their children they assessed themselves as less stressed and more accepting of their children than did parents of non-aligned children. Although Garrity and Barris focused on the preferred parent’s dynamics and less on the shared parental dynamics for aligned children, their proposal that child alignment emerges from a closed and defensive parental system received some support from these findings.  These results did support the hypothesis the parents of aligned children were more disturbed, at least on some measures, than parents of non-aligned children.

10. That passage, in particular, speaks to portions of the evidence regarding this child’s behaviour which I will return to shortly. Much work has been undertaken with respect to a discussion of parental alienation syndrome by Janet Johnson who is regarded most highly in this field.  The cautions that have been expressed by Ms Johnson have already been referred to in articles and summaries of articles of others but Ms Johnson does give the following useful insight:

    Common personality predispositions of the aligned parent include narcissistic vulnerabilities that escalate under threat and present as paranoid and borderline dynamics. Such parents may not be consciously spiteful and vindictive but, nevertheless, behave in emotionally abusive ways that damages the child’s relationship with the other parent. They often harbour intense abiding distrust of the rejected parent; hold convictions that the other parent is, at best, irrelevant or, at worst, a pernicious or dangerous influence on the child and believe that he or she has never loved or cared about the child. Consequently, they see the child as urgently in need of protection from the rejecting parent. On the other hand, typical personality predispositions of the rejected parent are associated with a range of parenting limitations that do not, however, rise to the level of abuse and neglect.  These may include passivity and withdrawal in the face of conflict;  a tendency to be self-centred and immature; to have diminished empathy and limited parenting skills; and/or to be overtly critical, demanding and counter-rejecting in response to the child’s provocative and obnoxious behaviour.

11. Again, words from research that resonates with the evidence of this case. 

12. Much work has also been undertaken and much written by Philip Stahl.  In an article “Alienation and Alignment of Children” a useful synopsis of that which has preceded is given and a similar list of manifesting behaviours of an alienating parent given.  He adds, though, to the list of eight factors already discussed the following:

    Denial or refusal to accept the relationship between the child and the alienating parent.

13. As well as adding to that list an unbalanced account of the child’s behaviours always talking in extremes and absolutes. Perhaps one of the more useful and noteworthy documents that is available to discuss and canvass the whole controversy regarding parental alienation and alignment comes from an amicus brief prepared in a case before the Supreme Court of California of LaMusga 29/04/2004 SCCal Unreported 107355.  The authors of that brief, Richard Warshak, Sanford Braver, Joan Kelly, James Bray are amongst the most eminent psychologists in custody evaluations in the United States.  Their amicus brief, whilst dealing with a relocation case, also touched upon elements that relate to alignment and alienating behaviour and perhaps as a middle ground regarding the controversy as to the validity of that theorem advanced the following.

    Wallerstein and Blaxely have written about the long-term damage that can result in families where one parent uses the child to express hostility towards the other.  Introducing the term ‘medea syndrome’ to refer to parents who use their child to extract revenge on their former spouse they wrote.  They exact it by destroying the relationship between the other parent and the child.  In doing so, they severely damage and sometime destroy the child’s psyche as well.  I have seen a great deal of evidence that medea-like anger severely injures children at every age.

14. Note the reference to “destruction” rather than “temporary interruption” of the parent/child relationship. Underscoring this point they add:

    When one or both parents act the ‘medea’ role children are affected for years to come.  Some grow up with warped consciences having learned how to manipulate people as the result of their parent’s behaviour.  Some grow up with enormous rage having understood that they were used as weapons.  Some grow up guilty with low self-esteem and recurrent depression.

15. There is then some discussion, which I will deal with now, relating to children’s views and wishes in a general sense, but particularly in the pressure cooker of such behaviour.  It commences:

    Honouring children’s right to be heard, though, is not as simple and clear-cut a guideline as Wallerstein et al suggest. Once again, the determination of children’s best interests requires a more nuanced approach. Courts cannot simply grant children’s stated wishes. Warshak has recently outlined the various risks and rewards of giving children a voice during custody litigation.

16. And, indeed, that arises from an article published in the Journal of Family Relationships, “Pay‑Offs and Pitfalls of Listening to Children”, which, far more thoroughly than is required for the purpose of these reasons, canvasses that theorem:

    Unless one assumes that children’s words always express their genuine thoughts and feelings and that children always know and always want what is best for them, in order to assess the proper weight to give to children’s stated wishes it is important to understand the basis for their statements.  Even when a child’s preference to be with a parent is stable and long-term, it may not reflect the child’s best interests as understood by objective observers.  For instance, a boy may have a close identification with a father who treats the mother with violence and disrespect.  The boy’s closer tie to his father may be long-standing and may lead the boy to express a preference for a parenting plan that maximises time with his dad whilst minimising time with his mum.  Such a plan is likely to further entrench the boy’s unhealthy identification.

    A simplistic approach to hearing the child’s voice fails to recognise the tension that exists between empowering children and placing them in the middle of their parents’ dispute.  The more weight accorded children’s stated preferences, the greater the risk of children being manipulated or pressured by parents. If we delegate too much authority to children, rather than assist their coping, we may burden them with an inappropriate degree of power. A fairly robust finding in the divorce and parenting literature, and one with which Wallerstein et al agree, is that children do best in authoritative structures that combine warmth and control, both at home and at school. Although most children complain about not having as much control over their lives as they wish, from the standpoint of developmental psychology, empowerment of children must be carefully tied to their level of maturity

    Giving children too much authority can create excessive anxiety, a sense of entitlement and impaired relationships with adults.  Children raised in non-authoritative environments are more likely to be impulsive, aggressive and irresponsible. When children express strong preferences in custody disputes, the Court should entertain several alternative possibilities. Rather than hearing a child’s voice, the parent, the evaluator and Court may be receiving a distorted broadcast laced with the static of a charged emotional atmosphere, or the voice may be delivering a script written by another, or it may reflect a desire to placate, take care of or pledge loyalty to a parent.  When the evidence shows that children speak in a voice that is not their own or that does not advance their best interests, the Court must take this into account when making custody determinations.

17. I respectfully agree with those authors. It concludes with this:

    When a parent’s attitudes and behaviour taint the child’s relationship with their other parent, just as with physical abuse, the damage to the child is the same whether or not it is inflicted with conscious awareness and whether or not it is intentional.  When parents are unable or unwilling to provide for their child’s welfare, the Court is obligated to intervene to protect the child.

18. In this case, I am satisfied the Court is obligated to intervene.

Case law

1. The case law that I have been referred to by counsel is limited, but appropriately so. The case that probably has the most marked relevance to this case is, in my mind, the Full Court’s decision in Re David.  That case had dealt with a child the same age as [X], six, a child who had been the subject of a false allegation of sexual abuse.  A child who had had, what was described in that case, as a ‘campaign’ of hostility towards a parent.  In that case a report had been prepared by an expert dealing with the allegation of sexual abuse and that was summarised as follows:

   Mr Q [the report writer] expressed considerable suspicion of the sexual abuse allegation and recommended that the child should be encouraged to talk to his father over a period of time.  However, he thought that because the mother was going to be implacably against any idea of any form of contact taking place, perhaps even therapeutic counselling was doomed to failure.

2. In this case, I observe that Dr R’s report, when dealing with the allegation of abuse, describes it in dismissive terms. Indeed, it describes that:

   [X] made the statement that his mother put her finger in his bottom.  He also said that his brother [Y] hit him in the shower.  During the course of evidence, and particularly through subpoenaed material tendered in the matter, a myriad of other allegations have also been made in a period of 18 months or less.  However, these statements were made in a parrot-like fashion.  He wasn’t able to explain them or elaborate on these statements.  He wasn’t distressed or emotionally upset. These appeared to be matter-of-fact statements as if he were reporting a previously prepared sentence.

   Dr R, feeding into the comments expressed in the amicus brief:

   I believe there is a lot of motivation in the father to support statements that are adverse towards the mother.  There is a lot of investment in trying to ‘rescue’ the child from the mother because of the fear of him disappearing with her.  It is worth noting that the mother also began to allege possible sexual abuse against the father previously, although, as I have indicated, the mother would appear to have accepted the determination of that investigation.

3. The allegations of abuse are dismissed by Dr R as being, “at best, spurious.” And I am satisfied that this is perhaps a euphemistic description of the allegations. 

4. The evidence had made clear during the course of the trial that this little boy has difficulty toileting. And at the age of six, moving towards seven, still requires substantial assistance in wiping his own bottom.  Indeed, that is consistent with a number of other developmental failures to thrive and develop, although I would place it no higher than that, an observation of them, in that this child appears to still sleep in the same room with his father; needs great assistance in showering and dressing;  and is, otherwise, largely addressed, in terms of authoritative parenting, in anything but an authoritative fashion and, indeed, in a fashion that is consistent with a child much his junior chronologically.

5. Re David also went on to consider that which arises from the literature regarding parental alienation and alignment, and general denigration or interference in a parental relationship, as to whether that should be addressed by the child remaining in a settled, and I use that term loosely, environment.  As I don’t believe that an arrangement that is not appropriate or emotionally nurturing and that involves a degree of enmeshment, an unhealthy relationship could, in all accuracy, be described as “settled” or whether the child should be moved to the other parent, the alienated parent. 

1. Much controversy arises from the literature regarding that issue. In Re David, the Full Court dealt with it as follows:

   Where a parent is the resident parent pursuant to a residence order [the terminology at that time] they have a clear obligation, not only to comply with the order, but to take all reasonable steps to ensure that a child is made available to the other parent for the purposes of contact in accordance with the order.  All too often, such parents behave as this mother has done and rely upon a child's purported refusal or stated lack of desire as a justification for denying contact.  However, in high conflict situations such as this one, it is frequently the case that the child is doing no more than seeking to adopt a position that he or she thinks will be the one desired by the parent concerned because of the powerful position that such a parent occupies.  To permit such a situation to continue is extremely damaging [that word again] to such a child and should not be countenanced.  The first difficulty is to identify that this really is the situation and that there is not some more significant basis for the child's attitude, such as a genuine complaint of ill treatment or abuse.  In the present case, this process has been undertaken and the trial judge has concluded that there is no such basis.  Moreover, as mentioned earlier in this judgment, the mother through her counsel effectively conceded that the sexual abuse allegations were ill-founded.

2. Again, significant parallels with this case, although [X]’s father’s evidence did not resile from his deep held, at the back of his heart, genuine belief that the child had, in fact, been abused by both his mother and brother and was at risk of being so abused again in the future. The Full Court goes on:

   The second difficulty is to achieve a positive solution. In the present case there were exhaustive attempts to bring about a situation where a previously satisfactory contact regime could be resumed, all of which were thwarted by the mother and her husband.

3. As a consequence, the Court went on to express:

   The opinion of a change of residence must therefore be seriously considered in cases such as this one as being the only way in which contact with the other parent can be preserved.

4. What is important in my mind since Re David is that we have had substantial amendment to the Family Law Act, not once, but twice, and particularly in 2006. 

5. 2006 saw the introduction of the two primary considerations in s.60CC, the first of which is the benefit to the child of having a meaningful relationship with both parents. And accordingly, in my mind, the rationale of Re David weighs more heavily upon the Court having regard to those amendments. 

6. Overseas jurisdictions, particularly North American and British, have had much greater cause to deal with and publish decisions regarding alienation.

7. I previously referred to a useful summary of Canadian case law published in the Association of Family Conciliation Courts Journal. In a Supreme Court of British Colombia decision by Justice Lynn Smith, the following is said:

   In extreme cases involving parental alienation, the Court may award sole custody, being in that context sole parental responsibility, as well as physical care, to protect a child from one parent’s attempts to alienate the child from the other.

8. AA & SNA 2009 BCSC 387 is referred to as the case already cited.  In that case, the judge had found that the mother’s conduct in blocking the father’s access to the child was so detrimental that it was causing psychological and emotional harm, but had declined to vary the custody status quo.  The Court of Appeal reversed the trial judge’s decision and awarded sole custody to the father. 

9. In another case involving claims of parental alienation, PM & MN BCSC 1501in 2008, Gropper J awarded sole custody and guardianship to the father and denied access to the mother.  The circumstances included the following: 

   a)the parties had an intensely acrimonious relationship; 

   b)the mother severely restricted the father’s access; the mother repeatedly breached court orders regarding the father’s access rights; 

   c)the child’s relationship with the father had badly deteriorated;  and an expert report found indications that the child was suffering from parental alienation.

10. In a decision of the Supreme Court of British Colombia in IMMS & DJS, 2010 BCSC 306 Justice Arnold Bailey also considered issues and allegations relating to parental abuse at some length, and provides a very useful summary and descriptor of prior Canadian case law in that regard, particularly referring to a decision of Pitfield J in Abbott & Abbott (2001) BCSC 323. 

11. Pitfield J has the following to say in relation to change of arrangements:

    What must not be forgotten is that whatever words, phrases or concepts are employed and howsoever the rights and obligations of child rearing may be assigned, it is the best interests of the child rather than parents that courts and parties must work to promote and protect.  The status quo is an important consideration, however, if the long‑term best interests of the child involve a change to the status quo, even where that change could have short‑term difficulties, then those changes should be made.

12. And again, reference is made to AA & SNA.  The Court of Appeals decision in that case is then quoted as follows:

    We agree with counsel for the appellant that the trial judge wrongly focussed on the likely difficulties of a change, which the only evidence on the subject indicates will be short-term and not devastating, and failed to give paramountcy to the child’s long-term interests.  Instead, damage which is long-term and almost certain was preferred over what may be a risk, but a risk that seems necessary if the child is to have a chance to develop normally in their adolescence.  The obligation that the Court is to make the order it determines best represents the child’s interests cannot be ousted by the insistence of an intransient parent who is blind to their child’s interests.

    The Court went on to say:

    While it is obvious that no court should gamble with a child’s long‑term psychological and emotional wellbeing, the trial judge’s findings show that the status quo is so detrimental to the child that a change must be made in this case.  Although the child has not been permitted to have a normal relationship for two years, the expert opinion suggested that she will succeed in adjusting, although the process may be difficult.

13. I have no doubt that, in this case, there may be difficulties in the adjustment, but certainly what is observed and reported by Dr R, asserted by the mother, but not accepted by [X]’s father, is that there is a sufficiently strong relationship. 

14. There is then also a further decision made by Martinson J in the same case of AA & SNA, it having been returned for rehearing and, in fact, having had not less than three.  It is indicated at that time by her Honour:

    I concluded that the allegations are unfounded: that she’s continued to undermine the relationship between the child and the father and has acted in ways that are detrimental to the child’s psychological healing. I decided, amongst other things, that the child’s short and long-term bests interests require that the father shall continue to have sole custody and guardianship and that neither the mother nor her mother shall have any contact whatsoever, directly or indirectly, until at least 31 March 2010 -

    which was about a month after that decision, such was the seriousness taken by the Court in that circumstance.

15. The final decision to which I’ll refer is the decision of the Supreme Court of Judicature Court of Appeal from the United Kingdom, an appeal from a decision of Wall J and determined by Wilson LJ and Hedley J.  It refers to in this passage:

    In my judgment, the child will initially find the move difficult. He will no longer be living with his mother, nor near his friends and maternal grandparents, and he might have to change schools.  There will be some homesickness. This emotionally stable boy will, in my judgment, within a few weeks find that he is otherwise easily able to overcome the initial homesickness or unhappiness.  The long‑term benefits to him of a move are a great deal more significant and they outweigh the initial homesickness.

The evidence

1. As I have indicated, each of the parties filed affidavits, several, and were cross‑examined. Without canvassing each portion of that evidence, it is fair to say that the mother’s evidence sets out a catalogue of concerns with respect to both [X]’s behaviour towards her and the father’s behaviour towards [X].  This involves:

   (a) the child being aggressive and hitting his mother;

   (b) the child speaking disrespectfully including calling his mother a slut, a whore, ‘You’re shit, get fucked’, and calling her consistently a ‘liar’;  and

   (c) the child being obstinate, disobedient, having tantrums and generally behaving in a fashion that most civilised members of the community would find completely repugnant and unacceptable from a six year old child.

2. Set against that, and particularly having regard to [X]’s alleged behaviours, the father indicates that he does not have such difficulties with [X]’s behaviour and never has.  The paternal grandmother goes further and says that he is an obedient child and she has never had any difficulties or concerns in relation to his behaviour.

3. It is urged upon me in submissions that I would find that curious and that I would be comforted by those observations. I am not. Consistent with the literature to which I’ve referred an alternate explanation is perhaps that this child, to put it in the vernacular, “rules the roost” and his behaviour, as obstinate and as obnoxious as it may be from time to time, is simply overlooked and accepted in the father’s household.

4. What is of more concern is that material produced on subpoena and tendered into evidence by the child’s school suggest that his behaviour there is also deteriorating, that he is being rude and impolite and uncooperative and disruptive at school. Again, the kinds of symptomology that is referred to in the literature from which I have quoted and what one would expect if such a campaign were occurring as regards this child’s relationship with his mother. 

5. Also of some concern in that regard are careful and detailed notes kept by the Children’s Contact Service where, since May 2009, these parties have affected changeovers. 

6. The father was cross‑examined at some length in relation to the notes and to summarise his responses in evidence, wherever the notes suggest actions that are critical of him, he denies them and the centre has got them wrong.

7. I don’t accept that. The business records of the centre are admissible, are in evidence, and I accept them as a faithful representation of what has been heard and observed by the workers who have made the notes. 

8. There is reference, in the mother’s case, to an event that had occurred and was reported 10 January 2010 where the child came back from a visit with his mother with some bruising. He gave an explanation, a cogent explanation, as to how that had occurred.  He is reported as then giving the same cogent explanation to his father.  He adds to his father that his “pee-pee”, his genitals, were sore in the shower.  His father asked him immediately, “Why? What happened?” 

9. On 20 November 2009, it is reported that the mother collected [X] but, after 10 minutes, returned. [X] was reported as saying, “I want my dad”.

10. He was told his father had left and he cried quietly and then said, “I have to go to my dad.” I asked why he didn’t want to go with his mother. He said, “Dad said my mother will hurt me”.  That was denied. 

11. On 27 November 2009 it is reported that the child had been taken in to the father’s care outside a coffee shop after the mother had retained the child, contrary to the orders of this court, and in the context of the allegation and the investigation to which I have referred.  The father then indicated clearly to the centre that [X] would not be made available for contact, and indeed was not made available for contact again until the matter had returned to court. 

12. And on 29 May 2009 the worker at the centre observes that:

    [X] was happy to come through when I asked him to. Dad kept pulling the child back, asking for another kiss, telling him how much he loved him and would miss him. Each time dad pulled the child to him, the child blessed dad by the child making a cross on the father.  The child came through and left with the mother.  About five minutes later they returned and the child asked for dad.  Workers spoke with the child and he again left with his mother. 

13. That is also consistent with what had been occurring prior to the use of the contact centre, wherein [X]’s mother was to collect him from school. An order that was, no doubt, put in to place to avoid these parties coming in to contact and to avoid difficulties with changeovers.  And, yet, it is reported – and there is no issue or controversy in the evidence – that the father and his mother, and at other times, his father, attended at the school on the very times and dates that the mother was to collect the child, with fruit for the child, expressing a concern or, I accept, inculcating in the child a concern that he wouldn’t be fed by his mother.  And it beggar’s belief as to why they would be there knowing the stress – or a reasonable person knowing the stress – that presence would create for all concerned and particularly [X].

14. But when cross-examined with respect to those issues the father could not concede that it had been ill advised, could not concede that it would have created any stress, or that it would have been better for him to not be there.

15. Of more concern in relation to the father’s evidence, and relating back to the research to which I have quoted, is the father’s implacable belief in his son’s endangerment by his mother from perceived past abuse and suspected future abuse and his inability to recognise or acknowledge his child’s possibility of a relationship with his mother. 

16. A great deal of cross-examination of the mother was focussed on criticisms of her for having left her eldest son, [Y], for some years in [C] after she had left as a political refugee following being seriously injured in activities involving terrorism and the FARC.

17. That criticism does not do the father any credit in those circumstances.  The plight of refugees, political or otherwise, in escaping an unsafe environment is not something that anyone who has not been in that position is in a position to criticise. More importantly, in my mind, the abject lack of warmth exuded by the father towards the mother, and indeed by the paternal grandmother towards the mother.  

18. Counsel for the Independent Children’s Lawyer and the mother, as well as myself, directed questions to the father regarding his views about her. When asked what his proposals were the father had initially indicated, “Leave it as it is,” wherein, under the present interim orders, [X] spends each weekend with his mother from Friday to Sunday, “Leave it as it is, and in a couple of months, when the mother is more settled, then a bit more.”

19. This ultimately expanded to five days and four nights and, ultimately, five nights per fortnight as proposals.  But when put to the test regarding the matters that would be needed to successfully make that work counsel for the Independent Children’s Lawyer returned to the issue and asked the question, 

    “Would this time be unsupervised?” The father’s response, “Well” – with a significant pause – “if it appears to the Court, I’ll agree to that.”  “As a father, what would you want?”  I would prefer that it be supervised.” 

20. The father was cross-examined at length by counsel for the Independent Children’s Lawyer regarding whether he had indeed abandoned or at least resolved in his own mind the allegations of abuse and the fears and concerns that [X] would be abused in the future.  It was put to the father:

    You have the same belief that [X] has been abused, notwithstanding that he was examined on two occasions by doctors in August 2009 and, having read Dr R’s report, and there is no evidence?‑‑‑I still believe it.

    It’s still your belief, notwithstanding all of these investigations?‑‑‑Yes, I still believe it.

21. The father was critical of the police and the joint investigation team as to how they had conducted interviews with the child and was of the view that they had failed in their obligation to elicit appropriate evidence or to protect this child.  It is to be remembered that for a period of time following the allegations in August of 2009 of sexual abuse, as well as, from a consideration of the hospital records now in evidence as an exhibit, of a significant number of allegations of physical abuse of a non-sexual nature, that an apprehended domestic violence complaint was taken out by the police on behalf of the child, although ultimately, thankfully, discontinued.  The father was cross-examined at some length by the Independent Children’s Lawyer regarding the allegation of abuse itself.

22. It was put to the father that, indeed, the allegation was that the mother had touched the child’s bottom with tissue or paper, and could he accept that there might be an alternate explanation - that, in fact, the mother was doing exactly what the father, in his evidence, indicates he still does - assisting this child to wipe his bottom. The father indicated:

    That didn’t occur to me.

23. When put to him that what was stated by the child, in one of the hospital interviews, that the sexual abuse had occurred in a lift in a public place, and that that was really completely unrealistic, the father insisted it was possible.  When again put to the father as to whether he really believed that there had been abuse, and notwithstanding the statement made by his Counsel at the outset of the case to which I’ve referred, no doubt, on the husband’s instructions, the father indicated that he was concerned for the child’s safety. He believed that the child had been abused, genuinely believed it, would not change his mind, nothing would dissuade him from that view and there was no evidence that persuaded him that it was other than accurate. 

24. When put to him that there were many explanations for a number of the allegations he had raised, particularly about bruises to the child, the father accepted there may be many explanations but he believed that the child had been sexually abused.  When put clearly to the husband:

    Do you believe that your child is unsafe in the care of his mother?

    His response:

    Yes.

25. I had been more interested in the early part of the husband’s cross-examination, having regard to the statement made by counsel at the outset of the case, that there was no issue of sexual abuse being advanced in the father’s case, as to the father’s general attitude and demeanour in relation to the mother and her relationship with [X] and [X]’s with her.  It was put to the father whether time with his mother was good for him.  The response:

    I can’t answer that.  I don’t know what he’s thinking.

    When asked:

    What do you think?‑‑‑I don’t know.  I haven’t seen her around being involved with him.

    Does his mother take good care of him?‑‑‑I don’t know.  I’m not there.

    Does he say good things to you?‑‑‑He tells me everything, the good and the bad.

    I had asked the father:

    Do you believe that [X]’s mother is a good mother?

    His response:

    I’m not sure. 

    I asked:

    Do you love her?

    His response:

    No.  I did when we were married.

26. The father, when asked whether he still did, did not elaborate, but I can take the answer as, “No”:

    Do you think that [X] gets the message about how you feel about his mother?‑‑‑Maybe.

    Do you think that [X] loves his mother?‑‑‑I don’t know.  I’m not sure.

27. There was a great deal of questioning of the father in relation to the statement made by [X] in the presence of Dr R and made to his mother that she was a “liar”.  The father was asked:

    Have you ever heard [X] call his mother a liar?‑‑‑Yes, on many occasions.

    How often?‑‑‑Every time he sees her.

    So you’ve never tried to stop him?‑‑‑I’ve said, “Don’t use that word,” but he continues to.

    So he’s disobedient of you?‑‑‑No, he’s a very obedient child.

    Why is he disobedient in relation to this one word?‑‑‑I don’t know.

    How often does he say it?‑‑‑He says it every time he comes back from his mother.  His mother is a liar.

1. It had also been put to the father as to whether he had any idea of where [X] might have got that word from, it being described by Dr R as being an adult concept perhaps beyond this child’s cognitive ability to formulate and understand properly (although from an inspection of the subpoenaed material that did not stop a JIRT officer interviewing the child making the statement, apparently without any supporting material, that the child understood the concept of truth and lies).  The father was asked did he know where he might have got it from.  The father’s response:

   It is not a word in my vocabulary.

2. And yet, consistently throughout the father’s evidence, whenever any portion of the mother’s material was put to the father, he consistently responded with, “That is a lie.” Clearly, lying and words associated with it, whether adjectival, noun or otherwise, are within the father’s vocabulary. 

3. When it was put to the father that he has had a chance, since reading

   
   

   Dr R’s report released in April of this year, some six months ago, to address this further with [X] he has indicated that there is nothing in his behaviour that has changed and he has not been able to stop [X] from calling his mother a liar. But he was insistent that he had never made any comments about the mother at all, and I take that to mean positive, negative or otherwise. 

4. Another troubling aspect of the evidence related to the period when [X] was being collected by his mother from school. There was a period of about seven weeks when the father had determined, on the basis of the child having returned to his care from a visit with his mother, a visit of three hours, and the father asserts [X] had told him his mother said he would cut his throat. As a consequence of that the mother did not see the child for seven weeks until the matter returned to court. The father engaged in a program of attending at the school at around lunchtime on each of the days the mother was to collect him, twice a week, and removing him from school. I accept this was for the sole purpose of ensuring that he could not be collected by his mother in the afternoon.

5. Most regrettably, this was not communicated to [X]’s mother for some weeks, until a letter was sent by the father’s lawyers, with the consequence that the mother kept attending, did not have any idea what was going on or why the child was not available. 

6. The evidence in its totality suggests quite clearly that the father is genuinely concerned, and I put it as high as fixated, with the child:

   a)not receiving any positive benefit from a relationship with his mother, and

   b)being at serious risk of harm, physical or sexual.

7. I am satisfied by reference to the father’s evidence and to the literature which I have laboriously quoted, that, indeed, that obsessive, albeit genuine belief, is and will continue to be emotionally damaging for [X]. 

8. When I had asked the father in the witness box specifically what he was fearful of, the response was, “How she looks after him, he can run freely.”  I had asked the father,:

   Are you still concerned about sexual abuse?‑‑‑Yes, at the back of my mind.

   You believe that [X] has been sexually abused by his mother?‑‑‑Yes, I believe that.

9. Dr R’s report, when released in April, provided some support for a maintenance of the status quo.  It concluded:

   On balance I believe that the father is probably the more capable of the two parents.  He has a much better track record of stability in his life.  He’s had longer marriages and had stronger family support.  The mother has had a very chaotic life and hasn’t been able to achieve a lot of stability.  Therefore, on balance, I believe that the father is able to provide a more stable environment than the mother.  However, I also believe that the mother would be capable enough of caring for the child should it be necessary for her to take over the role.

10. It had also been suggested in the report:

    Should there be further spurious allegations of sexual abuse, or should there be a reluctance of the father for the child to see the mother, I would have great concern that this could escalate in a more serious process of alienation. Under these circumstances it may be necessary to place the child in the mother’s care as the primary carer and for there to be restricted daytime contact with the father on a monthly basis, until such time as the alienation process has subsided and then weekend contact with the father could be reintroduced.

11. In cross‑examination Dr R elaborated in questions from counsel for each of the parties and the Independent Children’s Lawyer and questions from myself regarding those views.  He had indicated, after being advised of the contents of the father’s evidence regarding adherence to allegations of abuse and ongoing fears and concerns for the child’s safety out of his care and in the mother’s:

    If allegations are continuing, then the child’s placement with the father may come into question as not being in his best interests.  The father’s motivation, and whether conscious or less conscious, he is highly motivated to retain the child.

12. When put to him that there would be a risk that the mother’s relationship would continue to deteriorate if the present arrangement subsisted and without a substantial change in the father’s attitude and support of the mother’s relationship, Dr R indicated:

    Short term the relationship with his mother would be jeopardised.  He may be alienated.  He may adapt to the father’s belief systems.  Long-term he would lose his relationship with his mother and his brother and that would be a tragic outcome for [X].

13. When it was explored with Dr R that the mother could, in fact, adequately care for [X], the issues and concerns appeared to relate to the mother’s past history of fleeing political violence in [C] and difficulties that had subsequently created, primarily during a period when she was in a relationship with the father, of disrupted time with [X] during trips to [C] and, at the time that the parties came to Australia) the father came some six to seven months before and the mother awaited in Spain with [Y] until tickets and fares were sent) and Dr R concluded:

    If the child stays with dad, he may become alienated from mum.  That would particularly be so if the father still believes these allegations, which have no foundation.  The mother could be an alternative carer.

14. When it was suggested that both parents were guided, inappropriately, by the child’s wishes and that substantial time arrangements might occur, it was indicated that could be something worth considering, “…but for that to work you need a high level of communication and cooperation to manage”. 

15. If the father is unmovable regarding the allegations or his concerns about risk, it would seem, if in the father’s care, he would inevitably lose his relationship with his mother.  If substantially in the mother’s care, that could be a possible scenario, being both parents having substantial involvement, as the Act requires absent concerns as to that being contrary to the child’s best interests. 

16. When it was put clearly to Dr R whether one had to balance the child’s long-term best interests with shortcomings described in the father’s parenting, Dr R had indicated:

    There are potential difficulties from the father’s shortcomings.  The issue is really about change versus long-term alienation.

17. When it was suggested by counsel for the father that, in fact, this child wishes to remain in the father’s care, Dr R’s response, consistent with the literature to which I have referred:

    I wouldn’t place too much weight on what he says at his age.  He is unable to understand the concept.

    The father needs to accept any decision the Court makes and despite his fears re abuse put the outcome above it.  He shouldn’t question the outcome or the child.  He should allow free time with the mother without contaminating it.  He may require some particular professional assistance to achieve this.  If he can support the relationship, then he could stay with his dad.  It would be the logical outcome. But I am concerned about the animosity and each parent’s inability to not pursue allegations and that could require a change of residence.  It alarms me that the father has not been able to take that, being the dismissal of the allegations, or a tempering of the frequency of them into account. 

18. When it was put very starkly to Dr R, by counsel for the father, whether the father’s beliefs really mattered, in light of the fact that his proposal to the Court at the conclusion of the hearing was for five nights a fortnight between [X] and his mother, Dr R suggested:

    There is a real contradiction. He says he supports the relationship and he will do what needs to be done, but he feels that it’s potentially harming to the child by sending him.

19. And I accept that that is a real contradiction and conundrum.  Indeed, it begs the question as to which is genuine: the desire to support the relationship or the belief in the allegations, and I am satisfied that the father is truthful in that aspect of his evidence and he genuinely believes that the child is at risk in the mother’s care.  When it was suggested that the child remain with his father and spend five days and nights a fortnight with his mother, Dr R concluded his evidence:

    I see that as possibly the best outcome, but only if the father can support the relationship. If he couldn’t, then it needs to change.  His belief system may come to dominate his behaviour. As long as he believes that the child is at risk it would lead to further allegations and harm.

20. I accept that the allegations and the conduct of the father that is complained of (and, in that regard, I prefer and accept the evidence of the mother to that of the father) is, in fact, damaging to this child. 

21. The evidence of the parties regarding their present arrangements does not place any real dissimilarity between them. They both live within relative proximity of the child’s school.  The father lives some minutes away, the mother 15 to 20 minutes walk. Much was made of the fact that that is an onerous burden for the child.  I don’t accept that it is so.  There are children in Sydney who travel hours to get to school.  Some children have the luxury and benefit of living very close, but I am not concerned that a child might have a 15 to 20‑minute walk or a bus ride to get to school.

22. The other aspects of the evidence particularly arising from the subpoenaed material that causes me some concern is as follows.  Material is tendered, exhibit M8, from Dr B from [omitted].  Two entries in particular are of some concern. On 13 July 2009 [X] is presented to the doctor’s surgery and the following is recorded:

    The boy is complaining of abdominal pain.  He says that his mother punched him in the stomach during a visit on Sunday.  Somebody else informed also.  Quite a dossier building up.

23. No evidence was found to support any injury, although the phrase recorded by the doctor, “Quite a dossier building up” has no explanation.  It is in fact, from considering the rest of that material, an accurate description of the continuous, regular, near-weekly and at times weekly, presentation of this child.  Indeed, for the period of these notes, the presentations occur weekly to fortnightly.  There is an entry of 13 May 2009:

    Came today as problem: coughing since Friday night;  perspiring and coughing since.  Now on max Ventolin and still coughing a lot.  Lots of fears expressed by his father about custody, behaviours as expressed by the father suggest a lack of stability and judgment.

24. That is by the father’s own doctor. 

25. The joint investigation response team has produced material through the auspices of the Department of Human Services. It refers to numerous allegations and, in particular, contains an assessment report from the [omitted] Hospital dated 20 August 2009 when this child was presented and physically examined regarding an allegation of sexual abuse involving:

    [X] having a reddened anus and telling his father that his mother had put her finger in his bottom.

26. There were also allegations of physical abuse whereby his mother and [Y] had punched him in the stomach, slapped him on the face and [Y] had bent [X]’s finger back.

27. [X] was initially presented to [omitted] Hospital who referred him to [omitted] hospital.  It would appear that he is, accordingly, examined twice in the one day.  It goes on to then indicate that the father was interviewed:

    He presented as open and concerned about [X]’s welfare.  He maintained that every weekend on access [X] is hit by his mother or stepbrother, sometimes both.  Once [X] had been laid on a bed and a piece of timber was used to hit him through a pillow on the bum.  For a week afterwards he had a sore hip and was limping.  This was reported to the police and the GP.

28. Indeed, the dossier or catalogue of complaints referred to in those documents suggest a weekly incident being reported and involving [X] being the centre of an investigation, a discussion or an examination. 

29. This is a child who at the time was five years of age and entitled to a childhood. 

30. In returning to the law, I am urged by each of the parents and by the independent children’s lawyer, that the presumption under s.61DA should apply and that the presumption is not rebutted by the evidence in the case.

31. The presumption of equal shared parental responsibility is an important and central aspect of the Court’s considerations.  If nothing else, a failure to rebut the presumption and the presumption applying triggers a consideration, as I’ve indicated, of equal and substantial and significant time under s.65DAA.

32. The presumption can be rebutted if the Court is satisfied that there are reasonable grounds to believe that a parent of the child or a person who lives with a parent has engaged in abuse of the child or another child, who at that time was a member of the household, or family violence, or in circumstances where I am satisfied that it could not be in the child’s best interests for the parents to have equal shared parental responsibility. 

33. Certainly the evidence of the parties is that their communication is nearly non-existent. Again, the father was cross-examined at some length about an absence of communication and, in particular, a failure by him to communicate matters relating to the child’s medical and schooling arrangements.

34. Indeed, at one point in the evidence, the father went so far as to concede that whilst he alleges that [X] suffers severe asthma controlled with precautionary medications, that he doesn’t send those with [X] when he goes from Friday to Sunday on weekends. He had also indicated, in response to questions from counsel for the mother, that he hadn’t imparted information about school, hadn’t provided school reports, hadn’t passed on other information in relation to the child because, “She didn’t ask for it,” suggesting clearly that the father doesn’t see that it is at all his responsibility to fulfil that aspect of parenting.

35. I am satisfied that [X] has been exposed to behaviour that, consciously or unconsciously, has caused abuse within the terms as referred to in the literature that I’ve recited.  And that abuse has flown from the father’s behaviour and attitude and actions and words and, accordingly, I am satisfied the presumption is rebutted.  However, the rebuttal of the presumption does not preclude an order being made for equal shared parental responsibility. It simply rebuts the presumption.  But I do propose to make an order for equal shared parental responsibility, as all parties and the independent children’s lawyer urge me to do, notwithstanding that I have some real and grave concerns as to how that will operate or benefit [X] in the short term.

36. But I also propose to accede to make orders for therapy, as urged upon me by counsel for the mother and the independent children’s lawyer and as suggested to be appropriate and perhaps necessary by the literature to which I’ve referred.

37. This little boy will need some substantial support and assistance in adjusting to arrangements in the future.  And one would hope that his parents, if they appropriately engage in an insightful and embracing manner with the therapist, may be able to move forward themselves and accordingly co-parent and, if not, better parent [X] and shield him from the behaviours that I am perfectly satisfied have damaged him and caused him to be abused because abuse is not confined to physical or sexual abuse. 

38. The definition of abuse within s.4 of the Family Law Act 1975 is limited.  It means an assault, including a sexual assault, which is contrary to a law of a state or territory, or engaging in a sexual activity.  But that is purely the definition within the section which flows on and has importance for a number of procedural matters.  What has occurred to this little boy, whether we call it a process of alienation or alignment or anything else, has been damaging and emotionally abusive of him. 

39. If I am wrong in that regard, and I am required still to apply the presumption and accordingly consider equal and substantial time, pursuant to s.DAA, I will turn to and do that.  Indeed, even if the presumption is rebutted, the Court is still entitled to consider those matters and to consider them within the dual context of what is reasonably practical and what is in this child’s best interests.

40. As regards both equal time and substantial and significant time, I am satisfied, for reasons that will become apparent shortly, that it is neither reasonably practical at present, nor in this child’s best interests, for there to be equal or substantial and significant time. 

41. The parties do not live any substantial distance apart, as is required to be considered by sub.s(5) of s.65DAA, but the balance of those factors cause me some concern. 

42. I am required to consider the parents’ current and future capacity to implement an arrangement, and I have difficulty accepting that they could implement any arrangement at this point in time, that involved them communicating or having substantial involvement with each other.  I could, of course, obviate that by having all changeovers occur at school and I will move towards that in the fullness of time.

43. But in considering the parents’ current and future capacity to communicate and resolve difficulties I have nothing but evidence to suggest a manifest inadequacy in that regard and, accordingly, I could not be satisfied that such an arrangement would be sustainable. 

44. The impact of an arrangement on the child, again, with the current level of hostility, lack of support and the manifestly false and misplaced, albeit, I accept, genuine but misplaced beliefs that the child is at risk in the mother’s care or presence, in my mind, make an equal or substantial time arrangement at this point damaging to this child. 

45. In turning to s.60CC the primary considerations are:

    a)the benefit to the child of having a meaningful relationship with both parents;  and

    b)the need to protect the child from physical or psychological, which would include emotional, harm from being subjected to or exposed to abuse, neglect or family violence.

46. I’m satisfied that an equal or substantial time arrangement at this point and without significant therapeutical intervention would expose [X] to ongoing emotional harm as he has been exposed to. 

47. I am concerned that the benefit to the child of having a meaningful relationship with both parents is probably the central issue in this case.  Putting it bluntly and simply, I don’t believe, beyond the very short term and, begrudgingly and with a complete lack of willingness or charity, that the mother will have the opportunity to continue to develop or to maintain a meaningful relationship with [X] nor [X] with his mother if he remains in the father’s care. 

48. The campaign of fear, anxiety generation and general interference in the mother’s relationship and the child’s perception of his mother could not permit a meaningful relationship to occur and I take some comfort from Dr R’s evidence in that regard.

1. In turning to the additional considerations: 

Wishes and views

1. I am not satisfied that I would place any weight upon [X]’s views in this matter, having regard to the literature to which I’ve referred and, specifically, his age, his cognitive ability, his somewhat troubled behaviour as demonstrated not only in the mother’s evidence but also, for instance, in the material from the school.  But, most importantly, I am satisfied that [X] is highly enmeshed in his relationship with his father, the nature of the relationship between the child and each of his parents and other people. 

Relationships

1. I accept that [X] has a strong relationship with his father. I have some concerns from Dr R’s evidence and from the evidence displayed from the father himself as to that relationship having some elements of interdependence, parentification and generally being enmeshed and potentially unhealthy.

2. That is not a criticism of the father, whom I accept loves this child dearly, in fact, loves him so much that he cannot share him. But I am concerned that the relationship is typified by those elements which otherwise overshadow, block and preclude [X] receiving, what I genuinely believe lies within the heart and soul of his father, a desire to do what is best for him, to love him and to nurture him, but which, due to his own belief system, in the words of Dr R, “impedes that ability.”

3. I accept that [X]’s mother loves him. I accept that their relationship at present has some difficulties. This court need not be concerned to a large extent, in that regard, as to how the difficulties came about but, more, how those difficulties would impact upon arrangements and whether those arrangements, as ordered, would meet this child’s best interests having regard to those difficulties.

4. I’m satisfied that each loves the other and there lurks, beneath the myriad of difficulties that this litigation has no doubt helped to generate, a perfectly sound relationship. 

Change

1. Whilst much has been made as to the difficulty and, in submissions, the “trauma” that the child may suffer by a change in place of primary residence, I am not satisfied that a change would be traumatic for this child. The change will be attenuated with difficulty but I don’t see that it’s going to, in any way, harm the child. And to adopt the ethos of the Court of British Columbia, and the British decision, to which I have referred, the long-term benefits greatly outweigh the short-term difficulties which difficulties will be assisted with therapy I do not accept that there will be significant homesickness and yearning for past arrangements which he has settled into and I am not satisfied past arrangements have necessarily always promoted or met his best interests.

2. I am satisfied that the change that I propose to make in arrangements will advance this child’s best interests and will, more probably, allow him to continue and maintain a relationship with each of his parents rather than a focus upon maintaining an enmeshed and intense relationship with one parent and an ever-diminishing relationship with another.

Practical difficulty and expense

1. There is little practical or difficulty in expense, although at present the parties do not cooperate well and do not react well when in each other’s presence.  As a consequence, I propose the changeovers will, as far as possible, keep the parties out of the transaction with each other and keep each other out of each other’s way in the day-to-day activities that this boy participates in. 

Capacity

1. In relation to the capacity of each of the parents, there are shortcomings for both, sub.s(f), dealing with capacity, particularly focuses upon the need to meet the child’s emotional and intellectual needs. 

2. Being satisfied, as I am, that the child’s emotional needs are not being met in the present arrangement, that compels a change. 

3. I am satisfied that the mother is capable and, on balance, notwithstanding the criticisms and the difficulties that have also flowed from her allegations and, at times, misplaced beliefs, that she is more capable at his point in time of meeting the child’s emotions needs and that both parents are perfectly capable of meeting his physical needs. 

Maturity and Culture

1. As regards maturity, sex, lifestyle and background of the child including culture, that is not a matter of great moment although each of the parents has presented their case in a fashion whereby they seem to listen to and be led a great deal by [X] and his views and wishes.  He is a child of six and the parents should remember that.

2. He does not parent himself – that is their role. He should be parented authoritatively, ie, know who is in charge. His views may be taken into account in inconsequential ways, such as, “Do you want to do your homework now or after dinner” rather than being given the choice of whether he is doing his homework, so he is sent clear authoritative messages.

3. It is perhaps natural in the circumstances, with the heightened tensions and what has flowed from the literature regarding the personality predispositions that I accept have some application to these parties, that the this child’s wishes have become prioritised. I do not intend to do the same as his parents in that regard. 

4. [X], in his developmental sense, seems immature and accordingly I don’t place great weight or any on his views as expressed to the extent they are and I am satisfied that his move towards maturity may, perhaps, and only perhaps be faster in his mother’s care.

5. In relation to culture, not much turns on that in this case, although both parties are from disparate cultures, although they share a common language. I’m satisfied the orders I make will allow this child to continue to experience and enjoy his culture, including through activities such as flamenco lessons peculiar to his Spanish heritage. 

6. [X] clearly is not an Aboriginal or Torres Strait Island child.

Parental attitude

1. The attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents is again a matter of concern in this case. The inability to accept, endorse, facilitate, foster and encourage [X]’s relationship with his mother is perhaps the gravest criticism that I can make in this case.

Family violence and abuse

1. I am satisfied, as I previously indicated, and I so find that [X] has not been sexually abused by his mother. 

2. I was advised at the commencement of the hearing that such allegations were not pressed.  In any event, I accept wholeheartedly the evidence of Dr R which wasn’t challenged that he does not see or find any indicia whatsoever of truth to the allegation, as well as the material tendered from medical examinations and the like which similarly are dismissive of those allegations. 

3. Family violence is raised in the mother’s case, although has not been advocated as a significant portion of her case. Again, the definition of family violence contained within s.4 of the Family Law Act 1975 is limited, objectified and of little assistance to the Court in making any determination in any matter, with the greatest of respect to our legislators.

4. The broader social science definition of domestic violence certainly comes into play in this case in that the same behaviour and beliefs that have been the basis of my finding that [X] has been exposed to emotional abuse would also satisfy me that there has been family violence.

5. There are no family violence orders in force of which I’m aware. 

Future proceedings

1. Whether it is preferable to make orders that will least likely lead to the institution of future proceedings also has some relevance and I am satisfied that it is more likely that there will be future proceedings in the event that I leave things as they are. 

2. Allegations, in the long-term, I hope, will begin to dissipate.  But I have perfect satisfaction from everything that I’ve read that since these parties separated and, indeed, prior to their separation, the allegations have been at least weekly and I have seen nothing in the demeanour of the father from his evidence or from the material that he has filed that gives me any comfort that that will change any time soon.

3. The mother has also made allegations, although she has acted more responsibly regarding them, and accepted the verdict, as it were, of those who have investigated the allegations and not sought to parade them before the Court and nor has she sought to withdraw them and indicate that they will not be asserted but then make quite clear that they are still genuinely held and believed. 

4. The other aspect of avoidance of future proceedings flows from the literature to which I have referred and, in particular, to the article to which I have referred from the Association of Family and Conciliation Courts by Martinson J.  This is a matter, I feel, where if these parties return to court I am not in a position to preclude them doing so.

5. I doubt that Bennett & Bennett [2001] FamCA 462 is still good law since the 2006 amendments (as was certainly accepted by Benjamin J at first instance in an unreported decision of R & K-R unreported). I am not in a position on the evidence and, in any event, not asked to declare either party a vexatious or frivolous litigant. Accordingly, the parties are at large to return to court if they need to and subject to the provisions of s.60I that will, unless they meet one of the exceptions, require that they attend family dispute resolution. But as Martinson J has opined in her piece to which I have referred, I propose to order that any application filed is to come back before me. I also intend to order a transcript of my reasons so it will remain on the file if, for any event, the matter is not dealt with by me due to absence, disqualification or otherwise, and so as to ensure that the reasons that have given rise to this arrangement and the treatment and findings with respect to allegations of abuse, sexual and emotional, are clearly before all and including the therapist who I intend to appoint.

Other facts and circumstances

1. To the extent that this is relevant such issues are probably addressed in the above matters and particularly noting that for these parties this has been, on each of their evidence, a less than satisfactory adult relationship for them. 

2. I am not prepared to run the risk that [X] will have a less than satisfactory adult experience as well.  And all of the evidence that is before me, and particularly the comments in his oral testimony by Dr R regarding the father’s adherence to and inability to move away from unfounded and unrealistic and unreasonable fears, concerns and anxieties regarding [X]’s treatment by and care by his mother, compel me to take the drastic action that the Canadian authorities to which I have referred allude, being that I must intervene and use the Court’s authority to maximise the potential for long-term benefit rather than long-term detriment for [X], even if there will be teething problems, and no doubt some real upset of adults and probably [X] as well.

I certify that the preceding two hundred and ten (210) paragraphs are a true copy of the reasons for judgment of Harman FM

Date: 15 February 2011