Ward and Ward (No 2)
[2016] FamCA 890
•20 October 2016
FAMILY COURT OF AUSTRALIA
| WARD & WARD (NO. 2) | [2016] FamCA 890 |
| FAMILY LAW – CHILDREN – Parental responsibility – where parents have equal shared parental responsibility – where there has been family violence – where the presumption of equal shared parental responsibility does not apply – whether equal shared parental responsibility is nonetheless in the best interests of the children – where mother sought sole parental responsibility – where mother sought children not to communicate with father for six months – where the Independent Children’s Lawyer supports the mother proposal – where Independent Children’s Lawyer is the moving party – where father did not participate in the proceedings – where father made it clear the orders he proposes – where father seeks equal shared parental responsibility – where father seeks children be free to live with either parent. FAMILY LAW – CHILDREN – Unacceptable risk – Where mother alleges father is an unacceptable risk of emotional harm – where there is a risk of emotional harm by exposure to parental conflict – where risk of emotional harm is not of a magnitude that is unacceptable – where the mother’s household poses a risk of continuing exposure to parental conflict – where mother remains abstinent of alcohol – where the mother does not presently pose a risk of harm to the children arising from alcohol abuse. FAMILY LAW – CHILDREN – With whom the children should live – Where effect on forcing the younger child to live with his mother is likely to be emotionally cataclysmic – where there is a prospect of alienation from the mother if the younger child lived with the father – where there is reasonable prospect of the older child being able to live with the father – where the effect on the younger child not spending time with the father would be considerable – where the younger child’s primary source of support, nature and comfort is the father – where the younger child has not spent time with the mother for two years. FAMILY LAW – CHILDREN – With whom a child communicates and spends time – where children spend time with parents as agreed – where children have the choice to live and spend time with each parent – where mother and father support the choice of the children – where it is in the children’s best interest to spend time and communicate with each parent as they see fit. FAMILY LAW – CHILDREN – Children’s wishes – where both children have expressed wishes – where some weight is given to both children’s wishes – where weight is reduced given that they in some part are the product of influence – where giving a child the choice as to which parent they live with is a considerable burden for them – where this case does not permit a less burdensome outcome – where there is a fractured relationship between the two children – where there is a prospect that their estrangement may become permanent. |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA(1), 65DAB, 65DAC Evidence Act 1999 (Cth) s 140 |
| Banks & Banks [2015] FamCAFC 36 B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569 |
| APPLICANT: | Ms Ward |
| RESPONDENT: | Mr Ward |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Sinclair |
| FILE NUMBER: | CSC | 260 | of | 2013 |
| DATE DELIVERED: | 20 October 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 19, 20, 21, 22 and 23 September 2016 |
REPRESENTATION
| THE APPLICANT: | In person 19 September 2016 only |
| COUNSEL FOR THE RESPONDENT: | Mr Jacobs |
| SOLICITORS FOR THE RESPONDENT: | Cuthbertson & Co Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Ms Dart |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Sandra Sinclair Lawyers |
Orders
All previous parenting orders are forthwith discharged.
Mr Ward (“the father”) and Ms Ward (“the mother”) have equal shared parental responsibility for Y born … 2002 and X born … 2004 (“the children”).
The children live and spend time with the parents as may be agreed between the parties from time to time, but in default of agreement, then:
(a)Each of the children may choose to live with and spend time with either or both parents, including on a week about basis, and in the event that one or both children so express a choice:
(i) The mother and father shall support the child’s choice;
(ii) The parents shall facilitate and promote the children living with or spending time with the other parent;
(b)If Y does not express a choice, then he will live with the mother and spend such time with the father as he may choose;
(c)If X does not express a choice, then he will live with the father and spend such time with the mother as he may choose.
Whilst in the care of either parent, the children are to communicate with the other parent as may be agreed between the parties from time to time, but in default of any such agreements, at times and by means of the children’s choosing.
For so long and for all periods as the children are not residing in the same household for at least two nights per week, then the parents must do all acts and things necessary to facilitate the children spending time with each other after school on Monday and Wednesday each week from 3:30pm to 5:30pm.
The children’s time with each other under order 5 shall occur at such locations as may be agreed between the parties from time to time, but in default of agreement, then:
(a)The mother is to forthwith, and every six months thereafter, nominate and advise the father of 3 locations, which may include either parent’s house, but must include at least one other place;
(b)The father is to choose one of the mother’s nominated locations which choice shall thereafter bind the mother for the next six months;
(c)If the father does not so choose within 7 days of the mother communicating her nominations to him, then the mother may choose, which choice shall thereafter bind the father for the next six months.
For the purposes of the children spending time with each other under order 5, each party is responsible for transporting the child in their care to and from the chosen location, and responsible for ensuring that an adult is present at that location during the time the children are spending time together.
The Independent Children's Lawyer is forthwith discharged upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
A family consultant is to explain these orders to both children as soon as possible, and each party is to comply with her directions as to making the children available for that purpose, and must not, or permit, anyone else to, explain or discuss these orders with either child until the family consultant has first done so.
Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ward & Ward has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC 260/2013
| Ms Ward |
Applicant
And
| Mr Ward |
Respondent
REASONS FOR JUDGMENT
INDEX 1
INTRODUCTION 3
THE FACTS 4
The father 4
The mother 4
The relationship 4
Post-separation 5
Current situation 25
THE ISSUES 27
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES 28
The statutory regime 28
Abuse, neglect and family violence 30
The standard of satisfaction required 31
The notion of unacceptable risk 32
“No contact” orders 33
THE NATURE OF THE RELATIONSHIP BETWEEN THE CHILDREN, THE PARENTS AND THEIR PARTNERS 33
Overview 33
The older child Y 33
The younger child J 35
BENEFIT OF MEANINGFUL RELATIONSHIP WITH PARENTS AND FACILITATION OF IT 38
The father 38
The mother 38
RISK OF HARM POSED BY THE FATHER’S HOUSEHOLD 38
Overview 38
Emotional harm 38
Alcohol Abuse 42
Evaluation 43
RISK OF HARM POSED BY THE MOTHER’S HOUSEHOLD 43
Emotional harm 43
Alcohol abuse 44
Other household members 44
Evaluation 46
PARENTS’ ABILITY TO FACILITATE RELATIONSHIP BETWEEN CHILDREN AND OTHER 46
The father 46
The mother 46
LIKELY EFFECTS OF CHILDREN OF VARIOUS ORDERS 47
Children being required to live with the mother 47
Being required to live with the father 49
Not spending time with the father 50
Not spending time with the mother 52
Spending time with the mother 52
Spending time with the father 53
WOULD FATHER FACILITATE REUNIFICATION 53
COULD PARTIES COMMUNICATION SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY 54
SECTION 60CC CONSIDERATIONS 54
PARENTAL RESPONSIBILITY 57
WITH WHOM SHOULD THE CHILDREN LIVE 58
TIME AND COMMUNICATION WITH NON-RESIDENT PARENT 63
INTERIM OR FINAL 63
CONCLUSION 64
INTRODUCTION
Francis Bacon famously warned that care needs to be taken to avoid an outcome where “the remedy is worse than the disease.” This case exquisitely exemplifies that conundrum.
Ms Ward (“the mother”) is the titular applicant[1] in these proceedings, which relate to the parties’ two children, Y (born in 2002, and hence presently 14 years of age) (“the older child”) and X (born in 2004, and hence presently 12 years of age) (“the younger child”) (together “the children”). At the conclusion of the trial before me, the mother sought orders that she have sole parental responsibility for both children, who should live with her, and neither spend time nor communicate with Mr Ward (“the father”) for at least six months. After that time, if certain preconditions were met, she then proposed a gradual re-introduction of the father into the children’s lives, initially by way of short supervised visits, but ultimately, if further preconditions were met, unsupervised time. She was supported in those orders by the Independent Children's Lawyer. Both justified them on the basis that the father is an unacceptable risk of emotional harm to the children, arising from alleged parental alienation.
[1]I say “titular” because, unusually, the actual moving party is the Independent Children's Lawyer, who commenced this iteration of the litigation by Response filed 22 June 2015.
The father is the titular respondent to these proceedings. After he unsuccessfully sought to have the trial adjourned on the first day of the hearing, he did not further participate in it. However before absenting himself, he made it clear that the orders which he proposed should be made were that the parties have equal shared parental responsibility in respect of both children, and that the children be free to live with either parent, with the parties being obliged to ensure that the children’s choice was accommodated and respected. Both the mother and the Independent Children's Lawyer strongly urged against such orders.
THE FACTS
The father
The father was born in South Australia in 1969, and hence is presently 47 years of age. He told Dr K, a psychiatrist who examined him for the purposes of these proceedings, that his mother “was a good enough mother but he does not speak with her because she interferes too much.” He further told Dr K that he was educated to year 10, and then commenced a trade apprenticeship. Sometime after completing that, he followed his interest of game fishing, and it seems likely that it was that passion that brought him to Town N. At some point he commenced employment in the family business conducted by the mother’s father, and it was whilst in that employment that the parties met in 1997, when the father was 28 years of age.
The mother
The mother was born in New South Wales in 1964, and hence is presently 52 years of age. When she was five years old, her family moved to Town N where she undertook her education, leaving school at year 9. She told Dr K that she then did an apprenticeship for one year, before becoming employed in the entertainment industry. When she was 20 years of age, her mother passed away and Dr K noted that “she was obviously devastated by her mother’s death and was apparently anorexic for a couple of years thereafter and had psychiatric treatment.” Even in 2015, when discussing her mother’s death with Dr K, she became tearful. Moreover she told him that she started to drink after her mother died, and that “she would get drunk and have a good time.”
In 1989 she was accepted into the Z Academy, and moved to Sydney where, upon completion of her training, she obtained work in theatre productions, television and film, making a reasonable living from those pursuits.
In 1997, during one of her holidays back to Town N to visit her family, she met the father. At the time, the mother was employed in an Australian television series. She would then have been about 32 years of age.
The relationship
The parties identify that they commenced a de facto relationship in early 1998, and married in mid-1999. It appears as though they first lived together in Sydney but at some stage moved back to Town N, initially living with the mother’s father. The mother says that at that time she gave up her career.
It does not seem to be in dispute that from the commencement of the relationship, both parties drank heavily. It is noteworthy that the mother is of slight build, and becomes intoxicated easily. Moreover the mother had what seems likely to have been a gambling addiction, which the father told Dr K he discovered when found that there was money missing from their tax account. It appears as though the parties socialised regularly, but the mother would become intoxicated and refuse to leave the premises. When the father left, she would accuse him of abandoning her, and would come home herself later that night. It seems plain that both the mother and father had a number of extra-marital affairs during the course of the relationship; certainly the mother admitted it to Ms B, who is the most recent Family Report writer.
Unfortunately, the parties’ drinking led to heated arguments and domestic violence. In 2014 the father told Ms C, an earlier Family Report writer, that “he and the mother were unhappy and always argued,” and that “their marriage was fractious and they clashed constantly.” The mother reported to Ms C that “[the father] was always angry, violent and controlling. They both drank too much and then he treated her badly. She became deeply distressed and unhappy during their marriage.”
More unfortunately, the birth of the children did not cause the parties to amend their ways, and their drinking and arguing took place in front of them. Mr H, a family consultant who interviewed the children in 2014, noted “[b]oth boys have vivid memories of many instances of conflict between their parents and of being upset and afraid of it.” To like effect, the children reported to Ms C that “they remembered a lot of drinking and a lot of angry arguments which upset them. They both said that “when they drink, its worse (meaning the arguments).”
Sadly, it appears as though drunken arguments between the parents were regular and distressing features of the children’s lives when the parties were together.
The parties separated on Mother’s Day 2012, being 13 May. The older child was then 10 years of age, and the younger child seven, although nearly eight. The mother concedes that at that time, she was drinking heavily and quite unwell. The father immediately commenced living with his current wife (“L”),[2] although he says at the time they were not then in a relationship. Nothing turns on whether or not that is true.
[2]No disrespect is intended by referring to her by her Christian name, which is used because to describe her as “Mrs W” is apt to confuse her with the mother.
Post-separation
Initially after separation the parties were able to agree that the children should reside with the mother, but spend weekends with the father. The mother told Ms C that after separation she continued to drink heavily, and lost a lot of weight. Worryingly “[she] acknowledged the boys have been through a lot, witnessing how unwell she became.” The children expressed to Ms C that “[t]hey remembered how unhappy and sick she was when their parents separated and they said they were worried she might go back to being like that once more.”
In July 2012, the maternal grandfather unexpectedly died. The mother reported that she was very upset by this, and, happening shortly after the father moved out of her home, it felt like she had lost “the two great loves of her life.”
The father, who had been close with the maternal grandfather, attended the funeral and wake. The mother’s account of the father’s behaviour at the funeral is as follows:
21. Around two months after separation on or about 27 July 2012, the respondent father attended my father’s wake, got extremely drunk, and in front of everybody there, including the children, became very abusive and yelled out, amongst other abuse, “you [mother’s family name]’s are a bunch of cunts !!!”, at my father’s funeral wake.
22. He then went into the toilets at the venue, and started kicking and punching the walls, and he was escorted out, ranting and screaming, in front of the children.
23. I was in full grieving for the recent passing of my father, and this only added to the stress and upset. The whole incident was also very traumatic for the children.
Ms C reported that after the father’s abusive behaviour at her father’s funeral “[t]he mother finally broke down. Heavily abusing alcohol, she became ill and struggled to look after herself and the children. All this was played out in front of the children.”
In August 2012, the parties agreed to an arrangement whereby the children lived week about between the parents. The mother says the father was motivated to shared care because of child support issues, but I cannot so conclude.
The mother commenced a relationship with her present de facto partner, Mr F, in September 2012. They began living together in March 2013. As I shall shortly discuss, their relationship also involved verbal arguments and abuse, seemingly from early on.
The father married his present wife in 2013.
In November 2013, the parties began to negotiate their matrimonial property settlement. It proved to be a major source of conflict between them. Probably related to that, there was an argument between the parties at a changeover in November 2013. The mother’s evidence of what occurred was as follows:
24. On or about 11 November 2013, at approximately 3:30pm in front of my home, and in front of the children, the respondent father totally lost the plot, and in a state of utter rage seriously verbally abused me, using the foulest language, and calling me a “total fuckhead!!” and “you’re fucked!!”. I immediately said “stop now”!!...not in front of the kids, you are frightening them” – the kids were really scared and the children had their heads hung down low.
25. He then said “the kids already know you’re nothing but a total fuck head”, and I then said that I was going inside now, and fled inside and locked the door. The respondent father then continued to rant and abuse me at the top of his lungs outside the door, calling me the worst names, all in front of the children.
26. It was an extremely violent and aggressive outburst that really scared me and traumatised the children. Later the children told me that he continued to yell and rant and rave against me, calling me all sorts of names, all the way to the father’s home as he was driving home with the children in the car. [The older child] told me the next day that it really hurt him and [the younger child] to hear their dad do that to me, and that they couldn’t sleep that previous night and that they were very sad for me.
On 7 December 2013 a far more serious altercation occurred between the parties at a fishing club social event, where both of the parties and their partners were present, together with both children. Both parties were intoxicated; Ms C was of the view “heavily intoxicated.” Apparently the father inquired of both children whether they wished to come out with him fishing on the following day, and the younger child was enthusiastic. The child asked his mother if he could go, but she refused. The child then went and asked his father if he (ie the father) would go and ask the mother for the child. The father then went to approach the mother’s group, however the mother called out to her partner to help her. He then jumped over a chair and spoke to the father, apparently speaking so that his face was directly in front of the father’s face. That caused the father to push Mr F back. A fight then started. It is unnecessary to determine precisely what occurred. Certainly it appears as though the father was physical towards the mother’s partner, and was later found guilty (albeit not convicted) of assaulting him. It may also be the case that the step-maternal grandmother was also struck by the father, but although also found guilty of having done so, the father still denies it. An argument then ensued as to what in fact the father had done, with the father’s wife also becoming involved in the incident. All of this occurred in plain view of both children.
In her first Family Report, Ms C concluded:
It must have been like old times for the boys, whose memories of their parents unhappy separation were still fresh. In stark contrast with the peaceful year they had just had, this incident would have been deeply shocking, triggering old memories of their parents “drinking and fighting.” The loss of their father and grandfather, as well as memories of their mother being unwell and heavily abusing alcohol.
After this event the mother withheld the children from the father, on the basis that they were too distressed. However she did permit ongoing telephone calls, although both of the parties recorded them. Particularly in evidence before me were both a recording and a transcript of a recording of a telephone call between the father, the older child and the father’s wife, which took place on 1 January 2014. Initially the conversation is between the older child and the father. The child becomes very distressed and cries during the phone call, which during the early part of it is largely comprised of the father trying to overbear the child, and tell him that he did not in fact strike Mr F. To his credit, the child persists with his recollection and does not allow himself to be suborned to the father’s version of events, however the child regularly expresses his distress, which is not acknowledged, much less dealt with, by the father. When that fails from the father’s perspective, then the father’s wife enters the fray, asserting that there is no reason for the child to be scared of the father and telling the child that the father misses him.
Plainly the conversation was completely inappropriate. However equally plainly, the mother’s response to it, namely to record it and not intervene to stop it, was also inappropriate. She was prepared to allow her child to be emotionally hurt so as she could gain some evidence. Ms C correctly concluded that “it is a testament to both parents’ lack of judgement that neither parent ended that phone conversation.”
Ultimately the mother agreed that the children could spend overnight time with the father on his birthday early in 2014. However without telling the mother, the father and his wife arranged for the children and the father to travel to the Gold Coast for a week, quite contrary to the parties’ agreement. Even after they returned from the Gold Coast, the father did not send the children to the mother, but retained them until 3 February 2014. Upon the children being returned to the mother, the week about arrangement resumed, however not long after, the mother filed an application seeking to reduce the father’s time.
I have already adverted to the fact that the mother and Mr F’s relationship saw them, at times, argue and abuse each other. In her Family Report interviews on 22 September 2015, it is noted:
…[the mother] described the relationship as “excellent” but stated it had been turbulent for sometimes and that there were instances of mutual verbal abuse at the beginning of the relationship.
However, obviously their arguments continued, since in either late 2013 or early 2014, the mother and her partner were arguing over Mr F’s mobile phone: the mother was trying to take it off him, but her partner was resisting. Seemingly accidentally, in the course of that, the mother scratched her partner’s neck. He then called police, he says to ask them to take her away for the night “to scare her and teach her a lesson.” Police indeed attended, and the mother spent the night in a hotel.
Moreover, it appears that their arguments were played out in front of the children. For instance in 2015, the younger child told his therapist that there was a lot of fighting between Mr F and the mother about the mother’s drinking. Given that the mother’s partner rarely drinks, and clearly disapproved of the mother’s drinking, I accept the child’s observations. Further, in the first Family Report interviews, the older child reported to Ms C that there was then “increased tension between [the mother] and Mr [F] about her drinking.” The older child also told Ms B in September 2015 that the relationship between the mother and her partner “has improved since his mother ceased drinking.” The child stated they had previously argued and the adults would yell and Mr F would say “go away leave me alone” and [the mother] would “keep going on about stuff.”
On 13 June 2014, after a hearing in the Magistrates Court, the father was found guilty of assaulting both the mother’s partner and the maternal step-grandmother in December 2013.
Next, following an interim hearing, the children’s living arrangements changed by court order in July 2014, which orders saw the children live primarily with their mother and spend time with their father every second weekend from Friday afternoon until Tuesday morning before school. Unsurprisingly, this greatly distressed the father.
It appears likely that the father and his wife were anxious to try and find some justification to re-visit that change. It is also likely that one or both of the children were unhappy with the restricted time which they were now only able to spend with their father. Whatever be the case, a potential opportunity presented itself when the younger child apparently complained to the father about an incident involving the mother’s partner attempting to discipline him.
The event in question occurred in August 2014, on the mother’s birthday. The mother and her partner went out to celebrate that occasion with the children. The mother had some alcohol to drink, but both she and her partner deny that she was intoxicated. The children told Ms C their recollection of the night, as follows:
When asked why they were so worried, they said they went to a restaurant for her birthday and [Mr F] left because, “… [Mr [F’s] child to a previous relationship] was being a pain…We stayed with mum and we had a good time, but she kept drinking and then she couldn’t walk… She said embarrassing things.” The older child said he had to look after her. She had to be helped into a cab. When she could not tell the cab driver where to go, the child had to tell him. They both felt “upset, scared and unhappy.” They said, “when she’s not drinking she is a wonderful mum…and mostly she’s not drinking, but when she drinks she has a lot…. We love her lots, bit it’s worried us for a long time.”
It seems plain that upon returning home, the mother had an argument with the younger child about her drinking. That was because apparently she had promised the child to only have two or three drinks, but according to him, she had more. That seems quite likely; firstly there are her actions in the taxi; secondly, the older child told Ms B in September 2015 that although the younger child had asked his mother to only have three glasses of alcohol, “she had a bit more than three drinks.” The younger child told police in a later s 93A interview that she had seven drinks.
The younger child became distressed. He accused the mother of having six drinks. He started yelling at his mother and made abusive comments, in the course of which he was screaming and swearing at her. At some point he retreated to his room. It seems plain that he was lying on his bed and crying and refusing to settle down. The mother could not get him to stop. Unwisely, she asked her partner to assist. According to the child, the mother’s partner physically placed his hands upon his head and turned it so that the child was facing him, in the course of doing so twisting his neck and causing serious pain. The child also says that Mr F told him that he would need to be punished or words to like effect. The mother’s partner in his affidavit filed 26 July 2016, denied that he physically touched the younger child but said that he took a pillow off his head and told him “go to sleep and stop being disrespectful.”
It is unnecessary to resolve the conflict between the younger child’s assertions and Mr F’s evidence. Whatever occurred, plainly it greatly upset the child, who reported it to the father. In due course on 18 August 2014 the father reported the alleged assault to Queensland Police. Both children were subsequently interviewed, and those interviews were in evidence before me. The younger child’s distress at having been disciplined by the mother’s partner is obvious from his demeanour in the video recording. He plainly resented being the subject of discipline by the mother’s partner, rather than his mother.
It appears as though the investigation went nowhere and indeed the mother’s partner was not even contacted by police.
I have to say that it was no coincidence that, after the father had been convicted of assaulting the mother’s partner in June 2014, and then the following month his time with the children was reduced dramatically, he went to the police in August in relation to what was, on any view, touching in the context of discipline. I am well satisfied that seeking police involvement was a tactical move by the father. A more responsible approach would have been to raise any use of the mother’s partner in disciplining the children with the mother directly, even notwithstanding that there was a DVO in place restricting contact. I am quite persuaded that the father’s response was part of a plan to try and restore the previous parenting arrangements which had only changed a month earlier.
In September 2014, Ms C conducted interviews for the first Family Report. In her report of 16 October 2014, she recommended that, after the parties resolved their property proceedings, the week about arrangement be reinstated. She also recommended that both parents “attend counselling and honestly review their drinking behaviours…”
It may be that this latter recommendation caused the mother to engage with ATODS. It appears she first attended that organisation on 14 November 2014, and advised the relevant officer that, although after separation her alcohol intake had increased up to one bottle of wine a day, she had “recently cut down.” Considering that on 1 September 2014 she had told Ms C that “she has not abused alcohol since she met Mr [F]” in September 2012, and had told Mr H on 8 April 2014 that “she rarely drinks now,” her report to ATODS shows she was not honest with either Mr H or Ms C. Indeed the mother admitted that in her oral evidence before me.
Sadly, I am satisfied that her drinking problem continued and was well known by both children. In the Family Report interviews in September 2014, the children told Ms C that “their mother was drinking more lately and she was hiding it, but they knew what it is.”
I am further satisfied that in 2014, the mother was hiding and understating her consumption of alcohol, and seeking to downplay the significance of the problems which it created. In March 2015, she even went so far as to say to Ms C “I had a little problem with alcohol… I made a mistake and I changed my ways.” In my view, the mother was grossly understating the problem.
The next matter of significance in the chronology of this case was on 12 December 2014. The mother had arranged for an early Christmas celebration for the children, and during the evening the children opened their Christmas presents. The mother again consumed alcohol, but both she and her partner say it was only two drinks.
The mother’s partner recalls that at the conclusion of the evening, a difficulty developed in relation to getting the children to go to sleep. Initially the mother asked them to turn off their bedroom light and go to bed, about which the younger child complained. Mr F further recalls that the mother had occasion to return to the children’s bedroom a few times, requesting the younger child to turn off his computer and go to sleep. The child told the mother to “get out” and “shut up.”
This then occasioned Mr F’s ill-advised intervention again, and he recalls that he went up to the bedroom and said “[X], get off the computer and go straight to bed.” He concedes that he made that statement in a stern voice. He recalls that the child was angry with him, however he did go to bed. He further recalls that the younger child continued to talk loudly to the older child, and the mother had to return to their room a few more times to calm the younger child down. Eventually the child became quiet and they assumed he was asleep.
The mother’s partner and the mother went to sleep at about 12:45 am, and were awoken at 1:10 am by the attendance of police. That had come about because it transpired that the younger child had been texting his father from bed, stating that the mother had been drinking, that she and her partner were fighting, and that he was scared and wanted his father. Apparently the child sent these texts several times, continually saying he was scared and wanted to be picked up. That caused the father to attend upon the Police Station at 12:45 am on 13 December, and police then attended upon the mother’s home to conduct a welfare check on the child. It seems as though the father also drove there.
The relevant police report, although redacted in part, was in evidence before me and reads as follows:
..Stepfather [redacted, but clearly Mr [F]] and mother [Ms Ward] answered the door. Police explained they were conducting a welfare check on [X]. [Redacted – [Mr F]] firstly refused to let police speak with [X]. Police observed mother [Ms Ward] had mascara running down her face as though she had just been crying. After conversations [redacted – [Mr F]] went into [X’s] bedroom and told him police were at the front. [Redacted – [Mr F]] was worked up telling [X] that he was going to be punished for causing so much trouble and that he was going to take his mobile phone from him so he couldn’t contact his father. He said he didn’t care what the court order stated and he had to be punished. [X] ran out of the house and outside where his father was in the street. [X] told police that he was scared and wanted to be with his father however would not go into why he was scared. Mother and [redacted – [Mr F]] stated he was just throwing a tantrum and he was made to turn computer off. [Redacted – [Mr F]] was worked up, saying things like “he’s going to pay for this, he’s getting his mobile phone taken off him, not getting it back and he’s a little shit that needs to be punished.” [Redacted – [Mr F]] was refusing to let [X] go with his father saying “no he’s not going anywhere, he’s going to bed and then to be punished for what he has done.” [X] was still refusing to go with mother. DDO SNR SGT attended and spoke to mother and [redacted – [Mr F]] a decision was made that the child go with his father. Mother [Ms Ward] agreed with this however [[Mr F]] argued about it nonstop.
The mother’s partner denied that he acted as set out in that report. Particularly he denies having been angry or threatening that punishment would be visited upon the child. However I reject his version of events where it is inconsistent with the police record. There is absolutely no reason to doubt that the contemporaneous report (accepting that it appears to have been in fact made on 15 December) is in any way inaccurate. Moreover, he told Ms B in September 2015 that “he was upset on that evening, and that it was his state of mind at that time that if indeed [the younger child] left the mother’s care that night, he would never return.” Therefore he had every reason to be agitated and defiant.
Sadly, as it has transpired, the mother’s partner’s prediction was correct. Since that date, the younger child has not returned to the mother’s home, and save for some occasions I will detail in due course, has not spent time, nor communicated in any meaningful way, with her again.
The treatment notes for the mother’s first attendance on ATODS after 12 December are dated 19 December. She reported the events of 12 December to her counsellor and is noted to having admitted “to drinking on the night of the incident with youngest son and aware this was used against her and now says is planning on not drinking any alcohol whilst has care of the children in the future…”
On 12 January 2015 the father attended upon his general medical practitioner. As well as seeking assistance for his own mental health issues, including depression, it is noted that he told the doctor that “issues with second son are ongoing.” There was also a discussion between the general medical practitioner, the father and the father’s wife, who “requested a report to their solicitor about [X’s] mental health and risks of deterioration in mental health.” That then led to the child attending that medical practitioner on 28 January 2015. That resulted in the doctor forming the opinion that the child did not need counselling, and he refused to prepare a mental health plan, but expressed a willingness to review the matter if the child began to exhibit some psychological symptoms or requested a review himself. Notwithstanding that opinion, in fact on a date and for reasons which are not clear on the evidence before me, shortly afterwards both children were referred by the doctor to a counsellor, Ms E, who worked in the practice of Ms R.
Sometime in the week commencing 12 February 2015 the younger child commenced upon seeing Ms E. Ms R noted in a letter of 18 February 2015 to the father’s then solicitors that “as we were not familiar with the family we took on [the child] as a matter of urgency from his doctor who phoned our office personally to ensure that he was seen.” However on 17 February the parties’ then solicitors jointly retained Ms R to undertake “urgent family therapy and mediation in relation to an ongoing dispute between [the parties] and in relation to their co-parenting and the future parenting arrangements for their two children…”
In evidence before me were Ms R’s records of a meeting which she had with both children on 25 February 2015. Amongst those notes are as follows:
[The younger child] described many of the incidents that [the father] had told me about in which [the mother] was drunk. He doesn’t trust that she can change. She has promised before and he has found alcohol in her bag and she lied and told him it was for the neighbour. Everyone knows she is a liar. I asked [the child] how he remembered so many incidents about his mum so well given he was only little. He stated that his dad helps him remember.
…
[The child] says that he hopes one day to be able to see and be with his mum but that she would have to have stopped drinking and he doesn’t think that she can do that.
There was a further consultation between Ms R and the younger child on 4 March 2015. Relevant parts of the notes of that attendance include:
[The child] was playing with the Lego as we talked. He would often stop and stare into space. When asked what he was thinking about he would say “I’m so worried that they will make me go back to my mum’s.” We explored him going back there and he is adamant that he would run away and that he had a plan of where to go. He said that he doesn’t believe that his mother would change “I’d like my mum to be a normal mum who doesn’t drink and looks after me but she tries to act like a normal mum in front of the other people then when we are alone she tells [Mr [F]] to “sort me out.”
…
[The child] stated he is very confused. He says he wants to see his mum and he misses her too but then he remembers how much she has lied about the drinking and about [Mr F] and that makes him not want to see her. He has agreed to meet her in my office to tell her that he is angry with the things she has done but he doesn’t want to do that until after the court case. I asked why and he shrugged and stated I just don’t.
On 10 March 2015 Ms C, conducted interviews with the children at Ms R’s rooms. Ms R accompanied the younger child. Paragraphs 26 to 28 of that report are as follows:
26. Now [the younger child] was emotionally fragile and traumatised. He appeared regressed and clung to the therapist. He refused to make eye contact. Whilst he was deeply upset, he refused the offer to cease the interview and go back to his father. Instead he insisted on talking to the writer as he had something to say.
27. He said he wanted to live with his father who he loves and trusts. He did not want to see his mother at all because she drinks and then they (meaning mother and [her partner]) fight about it. He said he was afraid that night [ie 12 December 2014] because she had been drunk and they were fighting (when [the older child] was asked, he said he did not hear any fights as he was asleep). The younger child said he knew they were fighting as they had been whispering angrily. He said his mother will never stop drinking and he does not trust her at all as she lies about it. She drinks vodka now because it does not smell. He knows she is drinking because her voice changes and gets “louder and louder.” She “laughs funny.” Then [Mr F] would tell her to quiet down. [The child] said he does not like [Mr F], who he said had hurt him and pushed his head into a pillow once. He said his mother has asked [Mr F] to speak to him when he is being naughty. Then he feels outnumbered. He said he feels safe with his father and wants to stay there. He said he might go and see her when [the older child] tells him she has “changed.”
28. [The older child] said very little during this conversation until [the younger child] mentioned that he ([the older child]) would know when his mother was “safe.” He immediately responded to [the younger child], that his mother was safe as she was not drinking at all now. [The younger child] became teary and upset. He said she will always drink behind their backs when they are not there. When [the older child] insisted it was okay at mum’s now, [the younger child] said spontaneously, “you know I can’t see mum until after the court case.” [The younger child] became deeply distressed then and the writer ended the interview. [The child] went outside to his father.
In that Family Report, Ms C made recommendations that the younger child continue to live with his father, but be reintroduced to the mother according to Ms R’s advice, and that the older child move to a week about arrangement between his parents. That Family Report was prepared in the context of a looming trial, apparently set for 23 March 2015.
On 23 March 2015 the trial did not proceed, but rather the parties entered into final consent orders which resolved the bulk of the parenting matters in dispute between the parties, with the exception of the appropriate school for the younger child. Those orders provided for equal shared parental responsibility in relation to both children, for the older child to live week about between the parties and for the younger child to live with the father for six weeks (or such other period as was recommended by Ms R) on various conditions, with a view to him then recommencing week about time with each parent so that his arrangements mirrored those of the older child. It is difficult to understand where the notion of a six week period came from, particularly given that Ms R had written to the parties on 1 March 2015 expressly saying “I cannot estimate how long the process will take in this case as the pace of therapy will also be determined by the child.” Moreover the pace of the progression to equal time – perhaps only six weeks – is troubling, and to my mind was highly optimistic.
The consent order also provided for the Independent Children's Lawyer to remain appointed for a further 12 months.
The parties then proceeded to have a hearing about the appropriate high school for the younger child. The mother wanted the child to attend W High School, which was where the older child attended. However the father wanted him to attend N High School, even though he was not in fact in the intake area. Apparently the child was expressing a desire to go to N High School, and the father believed that his wishes should be acceded to. Judge Scarlett resolved that controversy in favour of the mother on 24 March 2015. His Honour then proceeded to make consent orders in relation to the parties’ property proceedings on the following day.
On the same day as the property proceedings concluded, the father and the younger child attended upon Ms R to settle her account. Ms R suggested they make an appointment to commence the family therapy, but the father “stated that he wanted the children to have a break from all the stress of the past few months, and that he would call to arrange an appointment for some time in the first week back at school (20 April 2015).”
It appears as though on 26 March 2015, the Independent Children's Lawyer emailed the parties. The father’s wife emailed back later that evening recording that, in relation to the school issue, the younger child was “so distraught on Tuesday night” which I assume to mean that he was upset that his wishes as to his high school were not acceded to by Judge Scarlett. Indeed, as shall be seen, the controversy about the younger child’s school did not go away.
The younger child next attended Ms R on 20 April 2015. Noting that the child was difficult to engage with, her notes record “I reminded [the child] that during our previous session he had told me that he missed his mother and he did want to work on rebuilding his relationship with her as long as she stopped drinking. He stated that he had changed his mind and he never wanted to see her again and that I should stop talking to him about it.” It then appears she spoke to the father and explained to him that he needed to adopt a firmer approach when encouraging the child to contact his mother. However she noted “[the father] insisted that he would not force [the child] to do anything he didn’t want to do.”
Ms R’s notes for that attendance then contain some ruminations of hers in relation to the potential existence of parental alienation in this case.
On 8 May 2015 the Independent Children's Lawyer wrote to the father, expressing concern that no ongoing arrangements had been made for the younger child to see Ms R. In his response, the father denied that he was contravening the consent orders.
Then on 10 May 2015 the father’s wife organised for the younger child to give his mother a card on Mother’s Day. It read “Children are like glasses of wine... mums love them.. but they do tend to cause a few headaches.” The mother said she was greatly upset by the choice of card, and reported this to Ms R, who raised it in an email on the next day to the father’s wife. That precipitated an explanation in somewhat heated terms from the father’s wife saying that she purchased it at a supermarket and that it was “the best one of about the ten that were there.”
On 26 May 2015, when being driven to school by the father’s wife, the younger child told her that, should he be forced to go back to his mother’s, he would kill himself. There can be no doubt that this conversation occurred, as the child later confirmed it to a psychologist at N Child and Youth Mental Health Service as I shall shortly recount.
It appears as though the final counselling session between the younger child and Ms R was on 19 June 2015. Relevant parts of Ms R’s notes record as follows:
[The child] then becomes very angry and says “no I already told you its not what my dad says, I don’t want to see my fucking mother you won’t fucking listen.” [The father] sat very calmly listening to [the child] swearing at me. I asked him if he thought his son’s behaviour towards me was appropriate.
The session was unproductive. No responsibility was taken by [the father] as to the outcome of this case… He stated that he himself doesn’t have a relationship with his mum and he’s fine; [X] will be the same.
On 22 June 2015 the Independent Children's Lawyer filed a Response in the Federal Circuit Court asking the matter be listed for mention before Judge Scarlett. No specific or other relief was sought. In fact the matter was listed before another judge, who on 5 June 2015 directed that a report be obtained from Ms R addressing the progress under the consent orders. That report stated:
Forcing [the younger child] to live with his mother at this stage would severely compromise his mental health. I recommend that reunification therapy continue with an experienced therapist familiar with such cases and willing to work within a Family Systems Model…
Ms R further recommended, given her “grave concerns and doubts that the father and his wife can encourage and facilitate the process of reunification,” that for the duration of that reunification therapy, it may be best if [the child] stayed at an unbiased house, for example an aunt/uncle or family friend. However she expressed concerns that the child “will abscond back to his father’s house.”
Ms R concluded that “the therapeutic relationship that the children had with me was not wholeheartedly supported by the father and his wife and as a result has been broken.” Pessimistically she concluded “there is therefore little or no chance of success that [the child] continue therapy [sic, with] me.”
On 15 July 2015, a further order was made in the Federal Circuit Court requiring the younger child to attend the Child and Youth Mental Health Service, and for the parties to organise for a replacement reunification counsellor. A further Family Report was ordered as well. Indeed the child did present for assessment by a psychologist at the Child and Youth Mental Health Service, a Mr G. His report of 12 August 2015 was in evidence before me. In relation to the alleged suicidal ideation expressed by the younger child to The father’s wife in May 2015, Mr G reported:
The second and most recent incident was at the end of May (unclear of exact date) while on the way to school he informed his father’s partner that he wanted to die. [The child] stated that this was due to being upset about the court proceedings and his view that someone will take him and force him to live somewhere where he doesn’t want to..
Mr G assessed the child’s risk of self-harm as low. However he further reported:
With regards to absconding risk [the child] noted on two occasions that if he is placed in his mother [Ms Ward’s] care before he is ready to return then he will run away. So it should be noted that his absconding risk would be high in this situation. However [the child] went onto say that he wishes to return to stay with his mother in the future, he is just fearful of this decision being made by others and without him being ready.
The report continued:
In conclusion [the child] presented as (sic) stable young boy with minimal current risks and a fair level of insight of his needs and wishes at this point in time.. At this point in time I wouldn’t recommend forcing [the child] to engage with therapy as my concern would be that this may turn him off seeking help in the future..
Towards the end of July 2015, the father again raised the issue of the younger child going to N State High School. Some civil but combative emails were exchanged between the parties, before ultimately on 5 August 2015, the mother capitulated and agreed to him seeking enrolment (it being a selective process). Given she had litigated that very issue only four months earlier, her change of mind is difficult to fathom. However in fact the child was not successful in his application, which was rejected in September 2015.
The further Family Report was prepared by Ms B on 19 October 2015. It recommended an interim arrangement whereby the younger child would live with his father, but spend alternate weekend time with his mother, initially from Friday after school until Saturday afternoon at 4:00 pm for four occasions, then increasing until Sunday afternoon for another four occasions. It then recommended that there be a Child Dispute Conference, but if the parties proved unable to then reach further agreement, that the child’s alternate weekend time with the mother increase from Friday after school until Monday before school. She recommended that an updated Family Report be prepared in about six months’ time.
Notwithstanding those recommendations, on 21 October 2015, after a contested hearing, orders were made that the mother spend time with both children for only two hours between 11:30 am and 1:30 pm each Saturday, with changeovers to occur at a MacDonald’s restaurant at a shopping centre. It appears as though the intention was that the time would be spent at the shopping centre. I say it appears that was the case, as no reasons were given for the decision, or if they were, have never been reduced to writing. Particularly it is unclear where the rationale for the orders was derived from, given that they were quite contrary to the Family Report recommendations. Various prohibitions were made restraining the parties attending with others or making recordings of the mother spending time with the children. The matter was then directed to come back before the court on 10 December 2015.
The mother’s affidavit filed 7 December 2015 details the results of those initial visits. Although the mother says that at the first visit on 24 October 2015, in response to her saying to him that she loved him, the younger child “mouthed back” that he loved her, when she sought to affirm that, he “became upset” and said words to the effect of “I didn’t say that .. I’m not coming with you.” The mother then records that the child became angry and said amongst many other things “[y]ou are evil. I hate you, you break hearts. You don’t do anything with me. Dad takes me fishing and camping” and “your not my mum, [L] is my mum now.” The mother detailed her attempts to ignite a conversation with the younger child, but they failed, and she decided to end the visit because the child was upset, and the older child was feeling awkward.
The second visit was on 31 October 2015. The mother attended alone without the older child, contrary to the orders. She told the younger child at the outset that she just wanted to spend some time alone with him, however he “repeated quietly” that he was not staying with her.
The third visit was on 7 November 2015. The older child attended. The father delivered the children and then walked off. The children sat down opposite the mother and the older child said “mum, I didn’t want to come here. I have been upset about this and crying. I told you this isn’t going to work. Dad did encourage [the younger child] to come today mum.”
The mother records that the younger child made comments, again referring to her past alcohol abuse, and expressing ambivalence about whether or not he would ever in fact return to spend time with her. Apparently this continued on for about 20 minutes, and the mother attempted to disengage, but the child said “no, I’m not finished talking yet. Let me talk. I’m not finished.” However it appears as though in fact the child was interrupted by the older child. The mother concluded, even though the visit shortly terminated, that “[The younger child] appeared to me to enjoy the visit much more than on the other visits.”
A further visit occurred on 14 November 2015. Whilst the father delivered the younger child to the mother, after the child telling her “I’m not staying” he then followed the father who was walking away. The father made no attempt to bring the child back to the mother or encourage him to talk to her.
Another visit occurred on 21 November 2015. Again the child refused to engage with the mother, albeit that during the course of about a ten minute conversation between the mother and the father, the father did say to the child “you can talk you know [X]” to which he shook his head.
A sixth visit occurred on 28 November 2015. The child wholly ignored the mother, and after putting his arm around his father’s neck said “I am not staying.” There was then a discussion between the parents as to the appropriate schooling for the child, but there was no interaction between the mother and the child.
Plainly the visits were not achieving any progress in the re-establishment of a relationship between the mother and the younger child, and, worse, were disquieting the older child, who by virtue of his frequent attendance at the appointments, was embarrassed by them.
On 17 December 2015, with the interim regime ordered on 21 October 2015 having proved a complete failure, and without any attempt at repairing it having been made, the proceedings were transferred to the Family Court of Australia. It was said to be ready for a trial, which was estimated to take in excess of five days. Considering that the most recent Family Report’s interim recommendations had not been accepted, but no other report had been ordered to address the consequences of the failure of the 21 October orders or to formulate final recommendations in the circumstances, it plainly was not ready for trial.
On 19 December 2015, a further food court visit was undertaken, but on this occasion the father brought two other children. The mother says that those children mimicked the younger child’s behaviour and acted in a disrespectful manner to her, and the child refused to sit with the mother so as they could spend time together. The father did not appear to encourage the child to spend time with the mother.
It appears as though the shopping centre visits continued, but remained a complete disaster. Correctly Ms B said in her oral evidence that they caused more harm than good.
Although up until this point in time the older child had been continuing to spend week about between the parties, on 4 March 2016, during a telephone call between the older child and the father, it appears the father said to him that he was disappointed with him, and that he could live with the mother from now on. That was followed up by a text message between the parents in which the father told the mother the following:
.. I am not playing this game anymore where [Y] tells us things about you and [Mr F] and tells u stories about me and [L]. I have had enough. We have rules here and he doesn’t like them. Its up to u if u think its good to have no rules. [Y] (sic) schooling is not good so I would appreciate if u could concentrate on trying to get him to do better. Leave that to u. [Y] can stay with u. U will need to keep a close eye on what is going on [Y’s] phone and computer. I have copies of things from his phone I am disgusted about it. He knows that and he is not happy. I would suggest u check his phone and computer as he is still only 14 not 18. [Y] knows I still love him as much as [X]. Thanks [Mr Ward].
This is probably the appropriate time to record that the father does not have good literacy, in consequence of which his wife attends to most of his communication. It is plain that she wrote this email, and indeed virtually all of the father’s email and longer text messages. On the other hand, short text messages, especially if they contain poor spelling, are probably authored by the father.
On 11 March 2016 the mother’s solicitor wrote to the father indicating that the mother did not intend to continue her shopping centre visits with the younger child, but proposed that the older child should spend time with the father so as to maintain contact between the two children. She also proposed that the younger child spend every second weekend with the older child in the mother’s care for increasing periods, as had been proposed by the Family Report writer in the previous year. No response was received from the father in relation to that.
After that the younger child invited the older child, by text message, to his birthday party, however the older child refused on the basis that the father’s wife would be present at the party.
On 18 April 2016, with the assistance of the parties, I prepared a Draft List of Issues for the forthcoming trial, and directed that an updated Family Report be prepared addressing them.
On 29 April 2016 the older child (then aged 14) personally telephoned the Independent Children's Lawyer. He told her that he wanted to speak with her about some things. The Independent Children's Lawyer is not based in Town N, and accordingly she made arrangements for the Family Report writer to speak with the child in person, although the Independent Children's Lawyer was involved in that conversation by telephone. During that meeting the older child disclosed that he had witnessed the father’s wife “put her hands around [X’s] throat in the early hours of the morning after a recent social event, which was on 8 December 2015.
The older child contacted the Independent Children's Lawyer directly again on 2 May 2016 on which occasion he told her that he missed the father, his brother and his dog, and said that he was very sad to be apart from the father for such a long time. However according to the Independent Children's Lawyer’s correspondence to the father of 3 May 2016, the older child was adamant that he was not prepared to see the father if the father’s wife was present. It appears as though there was no response to that correspondence.
The mother says that she encouraged the older child to remain in contact with the father and provide him with updates about his life. Apparently the child did that by text message, to which the father did not reply.
On 12 May 2016 the mother, by email, proposed to the father that the older child spend some time with him. It appears as though there was no response.
On 14 May 2016, the older child attended the Police to report the alleged assault of the younger child by the father’s wife on 8 December 2015. He attended with his uncle. According to the police records, the uncle told police he and the child “had been advised by their lawyer” to make an official statement to police.
On 17 May 2016, the mother contacted the father suggesting that the two boys catch up for a movie over the weekend. That was arranged for 21 May 2016.
On 18 May 2016 I conducted a Trial Management Hearing, during which it was ascertained that in fact the likely time for hearing was eight days. It was then listed for trial in the next sittings of the Family Court in Cairns, being the sittings commencing 12 September 2016.
On 21 May 2016 the children went to see a movie together, however there was a conversation between the father and the older child when the father was collecting the younger child which upset the older child, who returned to the mother’s care in tears.
From about the time that the father told the older child that he should live with the mother, it appears as though he continued to intermittently communicate with him by text. Again it must be taken for granted that in fact the person who inputted the message into the phone was likely to have been the father’s wife. Although the messages were often emotionally manipulative, the father did at least indicate that he continued to love the child and that “our door is always open.” Thereafter it appears as though some text messages of a typical father/son kind were exchanged between the father and the older child.
Some far more bitter exchanges occurred after the movie on 21 May. Again it may be taken that the father’s responses were authored by his wife. Those messages had a degree of emotional manipulation in them, although on 22 May 2016 the older child wrote a very long text message back, in which he asserted that he had observed the father’s wife strangle the younger child, and asserted that L and the father “have told me shit about [the mother] too much.” This elicited a very long response, obviously authored by the father’s wife, which raised completely inappropriate adult topics, for instance the involvement of the Independent Children's Lawyer. Plainly there was pressure being applied to older child by the father’s wife.
On 25 May 2016 the father responded to the mother asking her to send all future correspondence via her solicitor. It appears as though the mother has nonetheless continued to communicate with the father directly in relation to the children, providing him with, for instance, information in relation to the older child.
On 31 May 2016 the younger child was interviewed by police. The child said he, the father, the father’s wife and the older child had all attended the function on 8 December 2015 for a number of hours, but he “wanted to go home and started to get upset as he didn’t want to be there anymore.” Later he became very angry “and began hitting his father and [L] telling them he wanted to leave. From there the family has walked outside…. and sat down and spoke with [L] about his behaviour. During this conversation [[X]] stated he told [L] that he wanted to kill himself. He states he was talking and acting silly.” He then attempted to get up and run off, but the father’s wife “then placed her hand on the shoulders of [[X]] and pushed him back down to where they (sic) sitting.” The child explained she did this because she was worried about what he was going to do.
Interestingly, the police report noted that the child “was very protective of his father and stepmother and stated that he does not wish to have any contact with his mother or his stepfather.”
On 1 June 2016, the father’s wife was also interviewed by police. She gave a similar account to the younger child. Police, unsurprisingly, concluded that her actions were not malicious nor was there any intent to assault the child. No charges were laid.
On 17 June 2016 the mother asked the father to provide her with the younger child’s current telephone number. It has not been provided.
The mother annexed to her affidavit all of the text communications between her and the younger child from 4 August 2014 to 26 June 2016. On 3 February 2015 the child responded for the first time, saying “mum I told you to leave me alone.” The mother again contacted him however, and the child responded telling her that she had broken his heart, that she was mean and nasty and he didn’t love her any more. He said that “you force me to back and I will hate you more and I mean it because I will run away.”
The mother continued to send him intermittent text messages, and on 14 June 2015 the child said “everything will be alright if you leave me alone. Why won’t you listen to me I don’t want to come back I am happy at dad’s and want to stay here. Stop texting me I am sick of you.”
The mother then took to sending family photos through on the phone, but it appears as though that did not elicit any response from the child, and the most recent and final communication from him was on 27 March 2016. In that message he said “I told u every time at food court to leave me alone I will never forgive u for what u did to me and now u doing same to [Y] and I feel sorry for [Y] because you keep lying to him too.. against dad like u tried to do to me I will never forget what yous did and said to me when I was there. I told u to stay away from me I am throwing my phone today so you can’t keep annoying me every time I turn my phone on there is a stupid message from u. I am 12 now not 5… I am happy where I am leave me alone forever.”
In August 2016 the mother obtained accommodation independent of her partner. The explanation which she gave for doing so was that she recognised that the younger child, if he returned to live with her, would have issues in relation to sharing accommodation with Mr F again.
On 23 August 2016 the parties attended a mediation in Cairns. Apparently it took in the order of eight hours, however did result in a parenting plan. Although in remarkably vague terms, it contemplated that the parties would meet with the children on 27 August at a shopping centre food court, and thereafter would attempt to facilitate regular contact between the mother and both children. Particularly it was agreed that “[The children] will be encouraged to visit mother one day after school and mother will drop him [presumably [the younger child]] back to father.” It was then contemplated that in the longer term “when things have settled with the children” the parties would work towards living arrangements where the children would spend equal time with each parent on school holidays, and provide for some arrangements on special days. Although it is not stated in the plan, it appears as though it was intended that the children would continue their present living arrangements ie, the older child with the mother and the younger child with the father.
It will be appreciated that the plan which the mother agreed to is vastly different to the orders for which she presently contends. In her evidence, she said she had only agreed to the plan because she was very tired, and in effect was badgered into signing it, having been told that it was not legally binding in any event. Further she explained that at the time, legal aid funding for the forthcoming trial had been refused.
Unfortunately, I find that evidence hard to accept. I am quite satisfied that the mother was well aware of what she was agreeing to, and did so voluntarily and not as the result of duress. Moreover, she has not subsequently, on the evidence before me, sought to impugn the plan. I am therefore obliged to have regard to its terms under s 65DAB, if satisfied doing so would be in the children’s best interests.
Notwithstanding the parenting plan, the next day the father informed the mother that the younger child would not in fact be made available for the scheduled meeting on 27 August 2016. On 30 August 2016 the father (accepting that the father’s wife was likely the author) emailed the mother. In that communication he reiterated that “the last thing [the younger child] needs is to be pressured into spending time with you until he is ready.” He continued “you simply need to give him time and space to make that decision for himself. Once trust is broken, it is not a simple process of fixing it immediately.” He attached draft proposed orders which provided for equal shared parental responsibility, and that the children are free to live with either parent, with both parents to accommodate and respect the children’s wishes. Those are the orders he sought on the first day of trial.
On 30 August 2016 interviews for the updated Family Report were conducted by Ms B. Although they attended, the father and his wife were hostile, and the father’s wife read out to Ms B a prepared script, which was ultimately appended to the Family Report. In effect they expressed resentment at being enmeshed in a process which they thought was not working, and indicated that they did not believe that Ms B could report fairly and accurately in the best interests of the children.
On 4 September 2016 the older child spent time with the father and the younger child for Father’s Day. They all went out for breakfast. The mother reported in her oral evidence that the older child enjoyed that time, and enjoyed spending time with his brother X as well.
On 15 September 2016 the father filed an Application in a Case seeking to adjourn the trial. He sought the adjournment on the grounds that he was unable to attend the trial because his father had requested him to return to Adelaide, given that he was in the final stages of his terminal illness. I listed that application for the first day of trial. However as it transpired, by then the father had left Town N and was in Adelaide. During the course of hearing the father’s application, I offered the father the opportunity to participate in the trial from Adelaide, where facilities were available to enable him to participate. However he indicated that if the application for an adjournment was dismissed, he did not wish to take up that opportunity, and would not participate in the trial. That is what in fact occurred.
Current situation
At the time of trial the younger child was living with the father and his wife, and attending W High School. His semester 1 school reports for 2016 were in evidence before me. They are replete with comments such as “[X] is a pleasure to teach, an example to others and an asset to the class” and “[X] has displayed an excellent attitude and a very high level of reliability. He always demonstrates courteous and co-operative behaviour.” Moreover it appears as though he was either given, or elected, the position of Form Captain at the commencement of the year.
Because the younger child was not presented for interview with Ms B for the purposes of the most recent updated Family Report, it is difficult to otherwise get up to date information in relation to him.
Ms B opined that the younger child’s uncharacteristically assertive and disrespectful behaviour towards the mother at the shopping centre contact visits was demonstrative of a boy in distress. However the Independent Children's Lawyer tendered into evidence a report dated 21 March 2016 from the child’s general medical practitioner, Dr U, in which he explained he had seen the child on four occasions over the last 15 months, and had referred him to Ms R in February 2015.
In that report Dr U said:
My impression of [the child’s] health at the moment is that he is coping admirably, and that despite the stressors pertaining to the damaged relationship he shares with estranged mother, he is not currently depressed. He does display obvious signs of anxiety and emotional distress when discussing reconciliation, but is generally calm and rational.
It appears that [the child] was removed – under instructions from police – from his mother’s house prior to taking up residence with [the father]. The psychological trauma associated with this event, plus the unhealthy environment leading up to it, have left [the child] emotionally scarred. He has not adequately reconciled these experiences, and as such finds it difficult to confront the possibility of rebuilding his relationship with [the mother].
This has put him at odds with the Family Court and the court appointed Independent Children's Lawyer … who have consistently required that [the child] spend time with his mother. This has caused [the child] considerable angst, for which I have been asked to help. It is apparent to me from my discussions with both [the child] and [the father] that the impediment to reuniting [the child] with his mother comes from [the child] himself. He is not yet ready to forgive and is therefore not ready to redevelop the previously damaged relationship. I believe that although [the child] is reluctant, he needs some ongoing psychological assistance to work through these issues…
As recently as 4 September 2016, the children and the father have been able to spend time together, apparently in a way which was enjoyable for all. The boys also apparently speak, or otherwise communicate, with each other whilst playing online games. That much is plain from the younger child’s school records in evidence, as on 15 July 2016 the father reported that the night before, the older child had been bullying the younger child in a computer game. It seems that they also at times play handball together at school.
The older child is presently living with the mother, and has no regular arrangement for spending time or communicating with the father, although he does both seemingly on an ad hoc basis.
Again his semester 1 school reports from W High School were in evidence before me. They contain observations such as “does not stay on task and struggles to work independently,” “working below an acceptable level in this subject,” “He displays a poor attitude and work ethic during class” and “greater effort in participation would help improve results.” That said, in some subjects he is described as well behaved, cooperative and usually courteous.
The older child was interviewed by Ms B on 30 August 2016. He told her “I hate [L] – she’s broken everything – tearing our family apart.” However he went on to say “its not all [L], dad’s to blame he knows what she is doing wrong – she makes all the rules, he doesn’t stick up for us, [X] got strangled and he was ok with it the next day.”
The older child remains in counselling with Ms R. Interestingly he has reported to Ms B earlier this year that “[X] was very popular at the [recent] school disco… and had many friends.”
I know little of the father’s present circumstances. It appears that he is likely still highly stressed and probably depressed by the ongoing parental dispute.
As to the mother, she is residing independently in a two bedroom apartment with the older child. She conducts two businesses, one of which is sales promotion at retail establishments, and the second is a training business. She remains in a relationship with Mr F, although they do not cohabit. Their evidence was that they went out to dinner a couple of times a week and may meet up during the course of the day for a coffee.
THE ISSUES
During the course of the pre-trial management of this case, the following were identified as the issues likely to determine the proceedings:
1.What is the nature of the relationship between each of the children and:
(a)The father;
(b)The father’s wife;
(c)The mother;
(d)The mother’s partner.
2.Would each of the children benefit from a meaningful relationship with:
(a)The father;
(b)The mother.
and if so, how might it best be facilitated.
3.What, if any, risk of harm is posed to each of the children by the parents’ respective households, particularly in relation to:
(a)Emotional harm, including alienation from the other parent;
(b)Alcohol abuse;
(c)Exposure to parental conflict;
(d)Other household members engaging with the children.
4.Does either party have the ability to facilitate a relationship between the children and other parent.
5.What is the likely effect on each of the children:
(a) Being required to live with the mother;
(b) Being required to live with the father;
(c) Not spending time with the father;
(d)Not spending time with the mother;
(e)Being required to spend supervised or unsupervised time with the mother;
(f)Being required to spend supervised or unsupervised time with the father.
6.Would the father facilitate the younger child being reunited with the mother.
7.Could the parties’ communication support equal shared parental responsibility in relationship to one or both of the children.
Once I have addressed the relevant statutory provisions and legal principles, I will consider those issues in advance of a traverse of the relevant residual section 60CC considerations, and then consider the appropriate parenting orders in this case.
Although not without some considerable reservations, I assess that there is a reasonable prospect of the older child being able to go back to living with his father within a relatively short period of time, and that he would cope with that.
Not spending time with the father
I have already observed that the younger child’s present primary source of support, nurture and comfort is the father. He is completely estranged from the mother, and presently derives no support from her whatsoever. The effect of the child not spending time or communicating with the father, therefore, would be to deprive him of the primary source of nurture that he presently has the benefit of. I assess that the impact on him of that loss is likely to be profound, in that he will likely go through something akin to a kind of grieving for the forced termination of the relationship which he presently has. The likely effect of him not spending time or communicating with the father is therefore considerable.
Interestingly, Ms R, notwithstanding her support for the removal of the younger child from the father’s care, baulked at prohibiting communications between them during the moratorium period, even for six weeks, as the mother’s proposal then was when Ms R was giving her evidence. She said that she preferred that the child be able to initiate phone calls with the father, albeit that they might need to be supervised at the outset. To my mind, that concession underscores the gravity of the mother’s proposal, which is to, for at least six months, remove the father root and branch from both boys’ lives.
As to the older child, plainly he is experiencing a sense of loss of relationship with his father and brother. The mother, recognising this, has been, at least on the material she put before me, at pains to almost badger the father into spending time with the older child. She has been successful in some small way, and in any event the father (albeit accepting that it is actually likely the father’s wife) has communicated by text with the child from time to time. I must say I find it contradictory, given that the mother’s position before me was that the older child should not spend time nor communicate with the father for at least six months, that she has recently made such an effort to in fact maintain the relationship between the child and the father.
However where the real problem with the mother’s (and indeed the Independent Children's Lawyer’s) case comes into prominence, is the live prospect that, if the father is required to meet a number of conditions before he is offered the opportunity of spending a meagre two hours of fortnightly Contact Centre time with the children, with only a possibility that he thereafter may move to (unspecified) unsupervised time if he meets even further conditions, he may elect not to start down that path at all. As ultimately formulated, the Independent Children's Lawyer’s orders tried to accommodate that by providing that in that event, after 11 months, the father would automatically become entitled to two hours of supervised time per fortnight, if the 65L supervisor (which her orders contemplated) obtained advice from the children’s therapists that they were “now ready to progress to supervised time with the father.” I should note that in that event, the father’s time with the children would thereafter remain supervised indefinitely, with no prospect of it ever moving to being unsupervised (as to which see, for instance most recently, Gorman & Huffman [2016] FamCAFC 174).
Moreover the proposed conditions on the father even beginning to spend supervised Contact Centre time with the children are, in my view, oppressive. They are that the father must attend upon a psychologist or counsellor for as long as they require “to address the issues of parenting or personal function identified by the Family Reports of Ms [B] and the report of Ms [R], and in particular the father’s inability to recognise the significant risk of emotional harm to the children if he is not able to honestly and openly encourage the children to have a meaningful relationship with the mother.”
Then, unless and until “the father’s therapist [has provided] a written report that the father has progressed to the extent that the father is able to acknowledge the significant risk to the children of not having a meaningful relationship with the mother” then he would not qualify even for supervised time with the children, even after six months.
The father is an unsophisticated and illiterate tradesman, whose main interest is fishing. He is under the influence of his wife, who dominates him. The chances of him meeting the conditions sought to be imposed upon him by the mother and Independent Children's Lawyer are, I assess, not great.
Both of the children have enjoyed an excellent relationship with the father (until very recently in the case of the older child), and plainly they both revel in his “outdoorsy” nature and the fact that he engages with them in ways that the mother and her partner do not. If they were not to again spend time with the father for 11 months, and even then only get to spend two hours of supervised time at a Contact Centre with him each fortnight (being otherwise prohibited from communicating with him) I have little doubt that it would be devastating, and approaching catastrophic for the younger child, albeit perhaps a little less so for the older child.
Not spending time with mother
Other than the failed attempt at shopping centre contact, the younger child has now not spent time with the mother for approaching two years. Whilst I accept that his opposition to spending time with the mother is likely the product of distress, I am not convinced that it is the distress at the absence of a relationship with his mother that is motivating it. There is little reason that I can detect why I would not accept the child’s own explanation – which has now been proffered by him consistently for more than 18 months – that the cause of his distress is that his, at least initially justifiable, wishes are not being listened to, but are being sought to be overborne.
The evidence of Ms R is that a child who is alienated or estranged from a parent suffers adverse emotional outcomes in consequence. To like effect was the evidence of Ms B. I accept their evidence, however that is not to say that I accept that the consequences of forcing the younger child to spend time with the mother would necessarily substantially mitigate or outweigh them. Although Ms B so opined, she conceded that the success of her recommendations was dependent on the mother’s ability to simultaneously control and nurture the child, and worked on the optimistic belief that the mother would be able to do so. I do not share that view. Ms B conceded that if her recommendations were ordered and failed, it would effect serious emotional harm on the child.
In respect of the older child, he has always maintained a relationship with his mother, and I accept that the consequences of the termination of that relationship would be profound.
Spending time with mother
It cannot be doubted that the older child would not be adversely effected by spending time with his mother. The focus of this subheading is in relation to the younger child.
There is no need to speculate as to what the younger child is likely to do if he is required to be forced to spend time with his mother: is clear beyond doubt that he will be highly oppositional and is likely to behave disrespectfully as he did, on every occasion, at the shopping centre. There is no reason to think that he would behave any differently at a Contact Centre, or if he were to spend unsupervised time somewhere other than at a shopping centre with the mother. Therefore I am satisfied that if he were required to spend time with the mother, he will be oppositional, defiant and disrespectful.
I have already discussed the expert evidence which predicts he will abscond, damage the mother’s property, and otherwise act inappropriately. However I should again emphasise that, even by her own admission, the mother has never been a successful disciplinarian of the child, as is demonstrated by her recourse to have her partner perform that role in the past. In her oral evidence she said that she recognised that, perhaps for the first time in her life, she will need to impose real boundaries on the child, and actually consistently enforce them. However as I have previously detailed, she was unable to really articulate any strategy for imposing discipline, resorting to notions of withdrawal of privileges such as screen time, something she has never been able to successfully implement before.
Put simply, I do not accept that the mother will be able to control the child’s undoubtedly adverse and likely prolonged reaction to being required to spend time with her.
Spending time with the father
Plainly the younger child has no difficulty spending unsupervised time with his father, nor indeed does the older child. The real question is what will be the effect on the children of only spending limited supervised time with the father.
I have emphasised throughout these reasons that the nature of the relationship between the father and both children relates to and revolves around outdoor activities, such as fishing. To spend very limited supervised time with him at a Contact Centre would be an utterly alien experience both to the father and the children. It may be doubted that the children would obtain any real benefit from such time, other than to barely maintain a relationship with their father. They would not be able to experience each other in the way they are accustomed to. It would be hollow, and only likely to make the children sad as they compare that experience with those in their past.
WOULD FATHER FACILITATE REUNIFICATION
In my view, the father mouths the appropriate platitudes consistent with facilitation of reunification of the younger child with the mother, but he has consistently failed to then deliver. The most recent example is his failure to adhere to the specific requirement of the parenting plan that he produce the child so that the family could be reunited at the shopping centre. His explanation, based upon the child’s alleged resistance, could best be described as weak. On one view, in negotiating the parenting plan, the father had disingenuously done so to try and circumvent the forthcoming trial. I am far from convinced that the father in fact intended to carry through on his promises in the parenting plan, and in this respect, I note that he has not subsequently attempted to do so in any meaningful way in any event. Rather all he has proposed is an even less specific proposal, again giving the children complete right of veto in relation to spending time with either parent.
I am not satisfied that the father would facilitate the younger child being reunited with the mother. That is not to say that I am satisfied he would actively obstruct it, but that rather he may passively do so, as I assess he has done to date.
COULD PARTIES’ COMMUNICATION SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY
Ironically, the text messages in evidence between the parties do not suggest to me that the parties are incapable of appropriate communication. Rather each of them has suspiciously thought that the communications advanced by the other was strategic in nature and little more than the manufacturing of evidence, and have crafted their responses accordingly. I think those suspicions were largely correct. However the real difficulty is that it is not the father, at least in written communications, who is undertaking the negotiation, but rather his wife. Moreover, the father’s wife seems to have a habit of listening in to conversations involving the father, and if they appear to not be going as well as might be hoped, to intervene.
Therefore whilst I am satisfied that these parents could communicate sufficiently to discharge equal shared parental responsibility, the reality is that the chances of excluding the father’s wife from those negotiations are problematic. I assess that she and the mother are unlikely to ever be able to communicate in a non-confrontational way, no doubt in large part because the mother sees her as having been the “other woman” into whose arms the love of her life fled on the night of separation. It matters not whether in fact that is true: plainly the mother believes it to be so. However, despite it all, they have been able to muddle through joint decision making to date. There is really no reason to think that they could not hobble on.
SECTION 60CC CONSIDERATIONS
It will be appreciated that in discussing the issues, I have dealt with both of the primary considerations. Further I should expressly note that I am obliged to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, and I do so.
I have also already addressed many of the additional considerations. However I make the following further observations.
Both of the children have expressed wishes. The older child’s wishes are to maintain a relationship with both parents. The younger child’s wishes are to not be forced to reunify with the mother unless and until he is willing to do so. I should note that the older child has never expressed a desire to terminate his relationship with the father, and I frankly think he would be horrified that his mother and Independent Children's Lawyer were advocating for orders which would certainly suspend it completely for six months, and perhaps for longer. Given that he is 14, and apparently at an emotionally attuned boy, I give his wishes some weight, accepting that nonetheless they are quite possibly influenced by the mother.
The younger child is more complex. It is said that his wishes are not truly his, but have been the product of emotional manipulation. There is a live prospect that at least the vehemence of the expression of his wishes, and perhaps their longevity, is indeed substantially the product of the father and his wife. However a number of points tell against that conclusion. The first is that his wishes were expressed from a very early stage, and had a reasonable factual basis for them at that time. Further, he has now expressed those wishes for a long period of time, and is assessed by his general practitioner as “coping admirably, and not currently depressed. He only displays signs of anxiety and emotional distress when discussing reconciliation, but is otherwise generally calm and rational.”
Moreover in other respects, the younger child appears to be functioning well. He is doing well at school, and is socially popular there, with many friends. He experiences distress and anxiety only in relation to the prospect of reunification.
Although he is only 12 years of age, I do give the child’s wishes some weight, which is reduced because I am satisfied that, in some part, they are the product of influence by the father and his wife. Nonetheless I am satisfied they are genuinely held by him. They are founded in his long experience of his mother’s drunken arguments with her partners, and his recognition that she would likely never change. That she has changed does not diminish the validity of his 12 December 2014 decision.
I should advert to the mother’s evidence that, on occasion, she believes that the younger child has mouthed to her that he loves her, and has smiled or otherwise behaved in an encouraging way. Unfortunately I am not persuaded that was anything other than wishful thinking on her part. If the child genuinely wished to reunite with the mother, I am confident he is sufficiently wilful to do so. He is, as I have related, effectively able to manipulate both parents to comply with his wishes.
The younger child appears to have a good relationship with his terminally ill grandfather in Adelaide. That is not insignificant, in that he is expected to pass away shortly. It could be anticipated that the child will go through a period of grieving for his grandfather, and is likely to find greater comfort in respect of that from the paternal side of the family, than the maternal.
A major issue in this case is the fractured relationship between the children, and the prospect their estrangement may become permanent. Ms B’s evidence on the importance of sibling relationships was at [98] of her most recent Family Report:
98. Whilst [the children’s] current separation from one of their parents is of serious concern, it is of grave concern that there has been such a significant deterioration of their sibling relationship. Sibling relationships are emotionally powerful and critically important not only in childhood but over the course of a lifetime. As children, siblings form a child’s first peer group, and they typically spend more time with each other than with anyone else. Children learn social skills, particularly in sharing and managing conflict, from negotiating with their siblings. Sibling relationships can provide a significant source of continuity throughout a child’s lifetime and are likely to be the longest relationships that most people experience. After parental separation, siblings can serve as a buffer against the worst effects of separation, for example, a younger child’s secure attachment to an older sibling can diminish the impact of adverse circumstances such as continued parental conflict, parental mental illness, substance abuse, or loss. Whilst [the mother] reported contacting [the father] to organise for the children to spend time together, [the older child] reported no action by his father to assist the children to repair this fractured relationship. It is of concern that [the mother] reported [the father] continued to request permission for [the younger child] to attend a different school to [the older child]. As this appears to be the only continued connection the two children have, it is essential for the children to remain at the same school. It is of critical importance for the siblings to be supported to repair this relationship and as soon as possible.
I accept that evidence.
It is not in dispute that in the past the children’s relationship has been excellent, with both telling Ms C in September 2014 that the other was “the best.”
In her oral evidence, Ms B said that if the bond was not repaired now, the fracture could be long lasting, especially if the boys perceive the other had chosen a parent over them. She also emphasised that insecure sibling bonds can lead to significant consequences such as are often seen in separated foster siblings, including delinquency, substance abuse, poor educational outcomes and problems establishing intimate peer relationships. Whilst accepting that in foster children, there may be risk factors from their family of origin at play too, she said that sibling separation of foster children was only done if there was no other option because of the recognised poor outcomes.
I accept Ms B’s evidence in this respect.
Child support obligations do not appear to be a feature in this case.
Both parents live close by each other, and therefore there is no practical difficulty in the child maintaining relations with each of them.
The father identifies as aboriginal. The children to a lesser extent may identify as being aboriginal, although I note their school enrolments do not indicate that. This, however, is not a case that likely turns upon questions of aboriginality.
Plainly there has been family violence, and there have been family violence orders, including a current order obtained by the mother in July 2016. The inferences which can be drawn from that is that the father has become violent when drunk. However the mother has likewise become unruly when drunk, to the point where her partner called police after she accidently scratched him when drinking.
PARENTAL RESPONSIBILITY
Since there are reasonable grounds to believe that there has been family violence here, the presumption does not apply. The question then is whether equal shared parental responsibility is nonetheless in the best interests of the children.
The following points tell in favour of an order for equal shared parental responsibility:
·In effect, that has been the position since separation, including under the consent orders of 23 March 2015;
·Oddly, given the fact that the father presently has the care of the younger child, he nonetheless proposes equal shared parental responsibility;
·The parties have been able to discharge equal shared parental responsibility from time to time, for instance the mother agreeing to let the younger child to apply to enrol in N State High School, albeit that was not successful;
·It would signal to both children that both parents maintain a live interest in their lives and the decision making associated with them;
·Both parents have much to bring to the table from their life experiences, which would be of benefit in decision making.
On the other hand the following points are against an order for equal shared parental responsibility, or favour sole parental responsibility being given to one parent:
·Whilst communication between the parties is likely adequate enough to be able to achieve equal shared parental responsibility, the input of their respective partners is likely to significantly muddy those waters;
·The mother knows little in relation to the younger child’s present life, other than what she has been able to glean from school and medical records and other materials produced on subpoena in these proceedings.
Ultimately I weigh those factors as weighing in favour of an order for equal shared parental responsibility.
However, in the event I were to accede to the mother’s and Independent Children's Lawyer’s proposal that the children live with the mother, and impose a moratorium on them spending time or communicating with the father for at least six months, and potentially longer, it would plainly be impracticable to make an order for equal shared parental responsibility, as the father would have no ongoing knowledge of the children’s lives. Therefore I shall revisit the question of parental responsibility after I have considered the children’s living arrangements.
WITH WHOM SHOULD THE CHILDREN LIVE
The mother contends that both children should live with her, and in that regard she is supported by the Independent Children's Lawyer, Ms R and Ms B. The father contends that the children should live with the parent of their choosing.
Central to the mother’s case and expert recommendations, is the contention that the only means of reunifying the younger child with the mother is to immediately place him into her care, and impose a moratorium on both children spending time or communicating with the father for six months (noting Ms R did not support the communication moratorium).
During the course of submissions, I circulated a draft list of points against and in favour of the mother’s proposal, which were then modified during the course of those submissions.
The points which favour the status quo or are against the mother’s proposal, are as follows:
·The younger child is strongly antipathetic to the mother and has some basis to be so;
·Previous attempts at reunification of the younger child with the mother have all been dismal failures (noting that the mother says this is the fault of the father);
·The mother agreed to the status quo in the parenting plan as recently as August 2016, and her justification for doing so is weak, but somewhat plausible [accepting that I have now determined she entered it knowingly and voluntarily];
·The current situation reflects the children’s wishes (leaving aside that the older child has a wish to see his father, and that the mother contends the younger child’s wish is not genuine [which I have discussed earlier in these reasons]);
·The younger child has a strong bond with his father (which therefore also predicts that it will likely survive any moratorium);
·The mother’s proposal is wholly contrary to the younger child’s strongly expressed wishes, and he is a child who always seems to have gotten his way with both parents;
·The mother’s proposal would cause great upset for the younger child, with no real likelihood that he will avail himself of therapy to assist him cope, noting importantly that he has no established bond with a therapist which he could immediately avail himself of to deal with any grief upon dislocation of his relationship with his father;
·The younger child (and indeed the older child) will in any event shortly be grieving the loss of their paternal grandfather (with, on the mother’s proposal, absolutely no access to – even to talk with – the father to help in this grieving process) and further, he is at the end of his first year in high school where he appears to have been doing well;
·The mother’s proposal would see great turmoil in the children’s lives for at least a further 12 months, and probably longer (accepting that even the alternative proposal of Ms B discussed below would see some turmoil);
·The success of the mother’s proposal is wholly dependent on her ability to control/discipline the younger child, which in the past she has unable to do, except with the assistance of the mother’s partner, who no longer lives with her and plans to have no part in the reunification strategy;
·The mother has no concrete plans about how to manage the younger child on his return, and seems naïve about his likely reaction;
·It would wholly sever both children’s relationship with the father for at least six months, and perhaps longer, and if permanently, thereby effecting the very harm the solution is designed to avoid;
·Whilst the mother is likely to better facilitate a relationship between the children and the father than he would with her, there is no guarantee that she will do so, especially given Mr F’s strong antipathy to the father and the father’s wife having anything further to do with the children;
·There is no strong probability that the mother’s orders would in fact effect reunification [in fact as has been seen, I assess their likely success as low].
On the other hand, the points in favour of mother’s proposal, or against the status quo, are:
·The mother has the greater capacity to protect the children from emotional harm;
·The mother’s proposal might reunify the younger child with her;
·The mother’s proposal might promote a healthier relationship between the children and the father;
·The mother’s proposal might reunify the children;
·The status quo, and the children’s presently expressed wishes, are likely in some respect the product of manipulation or alienation by the father and his wife, and perhaps to a lesser extent the mother and her partner;
·The mother’s proposal would best protect the children from the coercion and control of the father’s wife;
·The younger child is unlikely to otherwise voluntarily re-establish a relationship with his mother;
·The siblings are presently separated, save for going to the same school and playing handball and online games together, noting that they did spend time successfully together both at a movie on 21 May 2016 and on 4 September 2016 with the father for Father’s Day;
·There is a risk of further emotional harm to the younger child if he remains in the father’s care;
·There is a risk of deterioration of the younger child’s mental health if he remains in the father’s care;
·There are some asserted risks of harm in relation to alcohol abuse in the father’s care [accepting I have not found them to be of any great moment].
There are several further worrying observations that I should make in relation to the mother’s proposal. Firstly, it promotes the younger child’s interests over those of the older child. The relationship the older child has with his father is presently somewhat fractured because of the father’s rejection of him, but it appears to still be intact (witness, for example, the recent lunch for Father’s Day). The effect of the mother’s proposal would be to wholly suspend – and perhaps sever – that relationship, when it is still functional and not poisonous. It is quite contradictory for the mother to have sought to maintain that relationship by her many emails in recent months, but now say it must be suspended, and if certain conditions are not met by the father, effectively terminated save for meagre Contact Centre time.
Secondly, I am very troubled that the mother as recently as August agreed to a parenting plan quite different to the proposal she now advocates. I simply do not accept that her will was then overborne, or that she was so tired that she simply capitulated out of exhaustion. I am satisfied it is in the children’s best interests to have regard to the plan, and do so.
Thirdly, I am particularly troubled that the mother has a naïve belief that simply extricating the younger child from the father’s house is all that is required, and that she has not put any serious thought into how he is likely to react, or developed any strategies for managing and coping with it. Simply, she has no plan other than a very loose one to, probably for the first time, actually try and exert consistent disciplinary control over the child. However the plain fact is that in the past she has almost always capitulated to the younger child’s wishes, or not enforced boundaries for him. Indeed I am comfortably satisfied that it is the risk of capitulation which informs the Independent Children's Lawyer’s proposal that there be some specificity in the orders as to the circumstances and preconditions in which the father would again spend time with the children, rather than as the mother initially proposed, that it be left up to her.
Two further things occur to me. The first is that there is a potentially misplaced belief that there in fact must be a solution to the problems which these parties have created. As to that, I observe that sometimes parties can create insoluble problems. The second is that I fear that there are unstated – and perhaps unacknowledged – notions of crime and punishment at play here. The crime is that father has been suborned to the evil step-mother’s alienation of the younger child and has defied the Independent Children's Lawyer’s injunction to play fair, as she had judged it; his punishment is that the younger child must be removed. Unfortunately, if such a notion is at play, it is not child focussed.
On the other hand, I am deeply troubled by the fact that there is no other mechanism which anyone contends is likely to effect reunification between the younger child and the mother, and if it does not occur, will likely cause significant emotional harm to the child, as detailed by Ms B and Ms R.
It is interesting to note that at the commencement of trial, the mother only proposed a six week moratorium of the children spending time with the father, and Ms B suggested that the mother should thereafter determine when the father should commence to spend time with the children. Both the mother’s and the Independent Children's Lawyer’s position hardened during the trial.
I have to say that the moveable feast of proposals underscores that no one really has a precise prescription for how to solve this problem. Ms R admitted it was the most difficult case of alienation she has ever had. Moreover, the necessary supports for reunification identified by Ms C – the child undertaking reunification counselling with Ms R – failed, yet no one seems to think they remain necessary. I have great difficulty in understanding that. If they were not essential, or at least highly desirable in 2015, why did Ms C recommend them, and the mother and Independent Children's Lawyer’s consent to the court ordering them? To my mind, the absence of any such preparation of the child for reunification tells strongly against its prospects of success.
Ultimately it comes down to a consideration of whether the potential benefits of the mother’s proposal outweigh the likely risks. I am not satisfied that they do. The only certainty of the mother’s proposal is that it will greatly and adversely affect the younger child, and the older child also, in that they will be deprived of any communication, much less face-to-face time, with the father for at least six months, and perhaps longer. As I have observed, if their relationship with the father is permanently lost, that will effect the very harm that the proposal is designed to remedy.
Counsel for the mother argued that his outcome preferred hope, over fear. The other construction, as I said to him during submissions, is that it was the triumph of hope over experience. Unfortunately in my view, it is the latter. The benefits of the mother’s proposal are by no means likely, particularly because they are dependent upon the mother acting in a way she has not hitherto not been able to demonstrate. Unfortunately, I am not satisfied that she is likely to in fact be able to consistently control the younger child, even with s 65L assistance, and hence I am not satisfied that her proposal enjoys any substantial prospects of success.
What then should be ordered? I am well satisfied that the arrangement that has prevailed in relation to the older child to date, namely that he has spent week about time with each parent, is likely that which best suits him, subject to his recent rejection of the father’s wife, and the father’s recent rejection of him. However, obviously I would not order that the older child live week about between the parents when the father does not seek such an order, and has recently rejected him. On the other hand, I am not inclined to make an order that requires the older child to live solely with the mother, as plainly if he can patch up his relationship with his father, he would probably like to revert to a week about time.
Although it is most unsatisfactory, it seems to me as though the only real option in his case is indeed to require the parents to respect the older child’s wishes as to where he chooses to live from time to time, and absent him expressing any wish, for him to remain living with the mother.
As to the younger child, I am not satisfied that an order requiring him to live with the mother would be in his best interests, for the reasons discussed above, but on the other hand I am not satisfied that an order requiring him to live with the father is necessarily in his best interests either, because it would effectively preclude even steps towards reunification with the mother. Interestingly, the father does not seek an order obliging the child to live with him; he only seeks an order that the children’s wishes be respected. Again, although not without considerable reservations, that does seem to me to be the outcome in the best interests of the younger child, save that if he does not express any wish, then he is to remain living with the father.
I do not overlook Ms B’s evidence that giving a child the choice as to which parent they live with is a considerable burden for them. However the facts of this case do not permit a less burdensome outcome.
Against that background I then return to the issue of parental responsibility. Given that I have rejected the mother’s proposal and intend to, in effect, let the children vote with their feet as to which parent they wish to live with, there will be orders for equal shared parental responsibility. That requires me to consider orders for equal time, or substantial and significant time. I have done so, but am not satisfied, given the younger child’s antipathy towards the mother and the father’s position in relation to the older child as discussed, that orders for equal or substantial and significant time are presently in either child’s best interests.
TIME AND COMMUNICATION WITH NON-RESIDENT PARENT
As has been seen, I am persuaded that the effect of requiring the younger child to spend time with the mother would be to perpetuate the debacle of the shopping centre visits. Likewise, it appears as though the father does not in fact press for any orders for time with the older child, and plainly it would be counterproductive to require the child to spend time with an unwilling parent. The only outcome – although I concede it is far from desirable – which I can identify as being more in the children’s best interests than the others, is that the children be permitted to spend time and communicate with the parents as they may see fit. In the case of the older child, I am satisfied that the mother will likely promote his relationship with the father, but as has been seen, I am not satisfied that the father is likely to actively promote a relationship between the younger child and the mother. In reality therefore, the orders which I propose to make will likely see the older child spend time with his father, but not the younger child with the mother.
Although with great reluctance, Ms B contemplated an alternative regime of orders, in the event I did not adopt her primary recommendations, that would be appropriate so as to maintain the sibling bond between the children. She recommended that they be required to spend time with each other, on at least two afternoons a week, at a neutral location. However neither party in front of me actively embraced such a proposal, to the point that there was not even any suggestion of any such neutral location. Ms B’s further recommendations were that, after such a period had operated successfully, it could move to one, or indeed alternate between both, of the parents’ houses. However I am troubled that the younger child would resist going to the mother’s house, as he may see that as a proxy for being forced to spend time with her. I therefore do not propose to order that it proceed to each parent’s house, although the orders should be flexible enough to permit it.
Notwithstanding the mother’s lack of enthusiasm for such an order, I am nonetheless satisfied that such a regime, expressed as flexibly as possible, would be in the children’s best interests and will order it. Given the mother’s failure to suggest a neutral location, I will structure orders requiring her to nominate three locations to the father, and for him to choose one, and in default of him doing so, then she may choose. To keep the location current, relevant and appropriate, it should be reviewed each six months.
INTERIM OR FINAL
At one stage it had occurred to me that the regime I propose should only be on an interim basis, as if a point was reached where both children had reinvigorated their relationships with both parents, that more concrete orders could be made. However the reality is this litigation has been going on for too long, and to continue it any longer would only be enormously damaging to these children, as the parties likely continue to seek to align them to their causes. I am therefore persuaded that these orders should be final, even though they may not adequately cover the future developments in the matter.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding two hundred and ninety six (296) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 20 October 2016.
Associate:
Date: 20 October 2016
Key Legal Topics
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Family Law
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Jurisdiction
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