Wiggins and Wiggins

[2010] FamCA 1111

FAMILY COURT OF AUSTRALIA

WIGGINS & WIGGINS [2010] FamCA 1111

FAMILY LAW – CHILDREN – Parental responsibility – Mother unduly influenced the children against the father – Primary cause of significant deterioration in the children’s relationships with the father – No real prospect of the children recovering their relationships with the father – Mother alleged physical and sexual abuse of the children by the father – Mother conceded no findings of actual abuse or unacceptable risk of abuse would be sought – Mother alleged the children were exposed to family violence perpetrated by the father against the mother – Allegations are not substantiated by evidence – Mother has been the children’s primary carer since birth – Under the mother’s influence the children have rejected the father – Eldest child has threatened suicide at the prospect of spending time with the father – Attempts to formulate a contact regime between the children and the father would fail in the current emotional climate – Finding that the mother shall have sole parental responsibility for the children – Finding that the children shall live with the mother – Children are not compelled to spend time with the father

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE

Goode & Goode (2006) FLC 93-286
McCall v Clark (2009) 41 Fam LR 483
MRR v GR (2010) 42 Fam LR 531

APPLICANT: Ms Wiggins

RESPONDENT: Mr Wiggins

INDEPENDENT CHILDREN’S LAWYER: Ms Fotheringham, Legal Aid Queensland

FILE NUMBER: BRC 11511 of 2007

DATE DELIVERED: 7 December 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Brisbane

JUDGMENT OF: Justice Austin

HEARING DATE: 16, 17 & 18 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carmody

SOLICITOR FOR THE APPLICANT: G Couper Solicitor

COUNSEL FOR THE RESPONDENT: Mr Watters

SOLICTOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Slade-Jones

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Fotheringham, Legal Aid Queensland

Orders

1. All former parenting orders relating to the children N, born … July 1997, and L, born … May 2000, (“the children”) are discharged.

2. The mother shall have sole parental responsibility for the children.

3. The children shall live with the mother.

4. Each of the parties shall take all reasonable steps to ensure that the children are able to communicate with the father in the following manner:

   (a)By the father being able to send letters, cards, and/or gifts to the children on or about dates proximate to their birthdays and Christmas Day, and

   (b)By the mother promptly sending to the father:

   i)Written acknowledgement of receipt of the father’s written communication, and

   ii)Any letters, cards, photographs, or other written communication that the children, or either of them, wish to be conveyed to the father.

5. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address.

6. The mother shall authorise and request the principal of any school attended by the children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the children.

7. The mother shall notify the father of any medical emergency, illness or injury suffered by either child whilst in her care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the father about the condition and treatment of the child.

8. Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.

9. The mother shall do all such things and sign all documents as may be necessary to ensure the commencement and continuation of therapeutic treatment by the child N with Dr T, psychiatrist, for as long as is deemed necessary by that psychiatrist, and to facilitate that therapy the Independent Children’s Lawyer shall forthwith furnish Dr T with copies of the following:

   (a)       These orders,

   (b)       The reasons published for these orders,

   (c)       Exhibit ICL3,

   (d)       Exhibit ICL4,

   (e)The reports of Ms S dated 12 June 2008 and 10 November 2010,

   (f)The reports of Dr W dated 28 March 2010 (being Exhibit ICL1), 2 August 2010 (being Exhibit ICL2), 19 August 2010, and 4 October 2010, and

   (g)The affidavit of Dr J filed on 15 April 2010 (being Exhibit F1).

10. The Independent Children’s Lawyer and Ms S shall together explain the meaning of these orders to the children within 7 days of the making of the orders.

11. Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

12. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

13. Costs are reserved for 28 days.

14. Any and all outstanding applications are dismissed.

Notations

A.No order is made providing for the children to spend time with the father or precluding them from doing so.

B.For the purposes of implementation of Order 9 hereof, the first consultation of the child N with Dr T is scheduled for 6 December 2010.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11511 of 2007

MS WIGGINS

Applicant

And

MR WIGGINS

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. The enmity between the parties to these proceedings has caused their children’s lives to be unbearably miserable.

2. The children’s traumatic reaction to the pervasive parental conflict has been to unconditionally reject the idea of any interaction between them and the father. So acute is their emotional disturbance that the thought of re-introduction to the father has caused the eldest child, now aged 13 years, to seriously contemplate suicide, and the youngest child, now aged 10 years, to perhaps suffer from enuresis.

3. In all probability, as the father and Independent Children’s Lawyer contend, the mother’s allegations of the father’s sexual and physical abuse of the children are either elaborate fabrications or delusions. It does not now really matter which it is. The children are seriously stressed at the prospect of any interaction with the father and it is immaterial whether their alienation from him arises from deliberate or inadvertent conduct on the part of the mother. Either explanation is an indictment of the mother.

4. The real question confronting the Court is whether the relationships between the children and the father are now capable of restoration. The sad reality is they are not – at least until the children have each attained sufficient maturity to decide for themselves whether the severance of their relationship with the father was a voluntary decision born of their own adverse experiences with him or a coerced response due to pressure exerted by the mother.

5. The best interests of the children are presently served by the termination of their exposure to the parental conflict, and regrettably, that outcome can only presently be achieved by terminating the interaction between the children and the father.

Proposal and primary evidence of the mother

1. The mother pressed for the orders set out within her Amended Initiating Application filed on 27 October 2010, in which she proposed that she have sole parental responsibility for the children, that the children live with her, and that the children spend no time with the father unless requested by them.

2. In support of that proposal the mother relied upon:

   a)Her affidavit filed on 4 November 2010.

   b)Her Form 4 Notice of Child Abuse or Family Violence filed on 29 March 2010.

   c)The affidavit of the maternal grandfather, filed on 4 November 2010.

3. The mother’s counsel confirmed at the commencement of the trial that the mother would not submit, nor seek any finding, that the father (or anyone associated with him) had abused the children physically or sexually, or that he posed an unacceptable risk of such abuse to the children. Belatedly, the mother’s case was confined to a contention that the authenticity of the children’s expressed dread of spending time with the father precluded the Court from making orders that they do so, irrespective of the manner in which the children’s sentiments were caused.

Proposal and primary evidence of the father

1. The father began the trial pressing for the orders set out within his Amended Response filed on 9 November 2010, in which he proposed a complete reversal of current parenting arrangements for a trial period of 12 months. He sought that he have sole parental responsibility for the children, that the children live with him, and that the children spend only supervised time with the mother each alternate weekend. The father anticipated that after the trial period it might be possible for the children to move to a residential regime of living for equal time with each party.

2. In support of that proposal the father relied upon:

   a)His affidavit filed on 9 November 2010.

   b)His affidavit filed on 11 November 2010.

   c)The affidavit of Mr M, a police officer, filed on 29 March 2010.

   d)The affidavit of Ms A, a psychologist, filed on 29 March 2010.

   e)The affidavit of Ms R filed on 9 November 2010.

   f)The affidavit of Mr C filed on 9 November 2010.

   g)The affidavit of Dr W, a psychiatrist, previously filed by the Independent Children’s Lawyer on 3 September 2010.

   h)The affidavit of Dr W filed twice on 5 October 2010 and 9 November 2010.

3. The father also wished to rely upon the contents of the affidavit of Dr J, a psychiatrist, previously filed by the mother on 15 April 2010. However, since the father did not wish to call the doctor as his witness, the affidavit was tendered as an exhibit[1] with the consent of the mother and Independent Children’s Lawyer.

   [1] Exhibit F1

4. Following closure of the evidence but before final submissions, the father tendered a fresh Minute of Orders proposed by him,[2] which represented another significant re-structure of the existing parenting regime. The father submitted those fresh orders as his new proposal, with the orders in his Amended Response as a fall-back position. When the fresh orders were discussed during submissions the father conceded that the orders were untenable, because they were unsupported by any evidence and proposed that the children live with a third party who was not a party to the proceedings and could not be bound by the orders. The father therefore reverted to his original position of reliance upon his Amended Response.

   [2] Exhibit F4

Proposal and primary evidence of the independent children’s lawyer

1. The Independent Children’s Lawyer began the trial with a settled position. The Minute of Orders sought by the Independent Children’s Lawyer was set out within her Amended Case Information document filed on 15 November 2010.

2. The Independent Children’s Lawyer essentially sought orders consistent with those sought by the mother, namely, that the mother have sole parental responsibility, that the children live with the mother, and that the children only spend time with the father should they express a wish to do so and then only as agreed in writing between the parties.

3. By the time of final submissions the Independent Children’s Lawyer changed her proposal in some respects, most notably by proposing that the children be treated differently from one another. The Independent Children’s Lawyer proposed unchanged final orders in respect of the eldest child, but only interim orders in respect of the youngest child, with a view to the recovery of her relationship with the father. The proposal of separate arrangements for the children, hinging upon the outcome of certain proposed therapy, was at odds with the positions of both parties and the evidence of Dr W and Ms S, all of whom considered that the children should be treated uniformly.

4. The Independent Children’s Lawyer relied upon:

   a)Her affidavit filed on 11 November 2010.

   b)The transcript of evidence given by Ms B, a Family Consultant, in interim proceedings before the Court on 7 October 2010.[3]

   c)The transcript of evidence given by Ms S, a Family Consultant and social worker, in interim proceedings before the Court on 12 October 2010.[4]

   d)The two reports prepared by Ms S – the first being the Family Report dated 12 June 2008, and the second being the Wishes Report dated 10 November 2010 annexed to her affidavit filed on 15 November 2010. The contents of both reports were adopted by Ms S when she was later cross examined.

   e)Earlier reports of Dr W dated 28 March 2010[5] and 2 August 2010,[6] which were not part of that doctor’s evidence adduced by the father.

   [3] Exhibit ICL4

   [4] Exhibit ICL3

   [5] Exhibit ICL1

   [6] Exhibit ICL2

Background

1. The parties began their cohabitation in 1992 and finally separated in about April 2001.

2. Two children were born during their relationship. N was born in July 1997 and L was born in May 2000. The children are now aged 13 and 10 years respectively.

3. For many years following separation the parties were in no need of any parenting orders to regulate arrangements for the children. Presumably the parties were able to negotiate those arrangements without undue difficulty.

4. On 27 November 2006 the parties agreed upon final parenting orders before the State Magistrates Court, which essentially provided for the children to live with the father for four nights in each fortnightly cycle and for half of all school holidays. Otherwise, the children lived with the mother. The parties shared parental responsibility for the children.

5. As a consequence of alleged contraventions of those orders by the mother, further litigation was instigated by the father. The proceedings were transferred to the Federal Magistrates Court, where the parties again agreed upon final parenting orders on 19 June 2008. Subject to a later amendment of the orders on 17 September 2008, those orders provided in part for:

   a)The parties to have equal shared parental responsibility (Order 1.1).

   b)The children to live with the mother (Order 1.2.1).

   c)The children to spend time with the father for six nights in each fortnightly cycle (Order 1.2.2), for half of all school holidays (Order 1.2.3), and on other special days (Orders 1.2.4 to 1.2.11 inclusive).

   d)The dismissal of the pending contravention proceedings (Order 2).

6. The mother later commenced proceedings seeking leave to bring her application for property adjustment orders out of time. That leave was granted and final property adjustment orders were made with the consent of the parties on 1 June 2009. However, in the course of those proceedings on 26 March 2009, the parties agreed to amend the previous parenting orders on an interim basis. The amendment was slight and related only to the time spent by the children with the father in school holiday periods.

7. The mother commenced the current parenting proceedings by filing her Application in the Federal Magistrates Court on 26 August 2009. She sought to discharge the existing parenting orders and substitute orders providing for her sole parental responsibility, for the children to live with her, and for the children to only spend time with the father as agreed between the parties. In essence, the mother wanted to stop the children from spending time with the father and retain unilateral control over whether it would ever be re-introduced.

8. The mother contends that her motivation for the commencement of the proceedings was a burgeoning reluctance by the children to spend any time with the father. She asserts that the children made disclosures to her at about that time from which she concluded that the father and/or his then partner were physically, sexually, and emotionally abusive to the children. The children made similar disclosures to medical practitioners to whom they were then taken.

9. The father filed his Response on 2 November 2009. He too thought that the existing parenting orders required revision. He proposed that the children live with the parties for equal time on a week-about rotation.

10. On 27 November 2009 the parties entered into consensual interim parenting orders and other procedural orders providing, in part, for:

    a)Suspension of the orders made on 19 June 2008 (as amended on 17 September 2008 and 26 March 2009) until the children’s treating psychiatrist informed the parties that the children’s psychological health would not be compromised by re-institution of those orders (Order 1). Although the order did not specifically say so, what was intended was that only the orders providing for the children to spend time with the father were to be the subject of suspension.

    b)The dismissal of the father’s numerous contravention and enforcement applications against the mother (Orders 2 and 3).

    c)The mother’s filing of a Form 4 Notice of Child Abuse or Family Violence (Order 4). That order pertained to the allegations raised by the mother as the platform for her commencement of the current proceedings. Although ordered to file that Notice within 14 days, the mother did not file her Notice until months later on 29 March 2010.

    d)The appointment of an Independent Children’s Lawyer (Order 5).

    e)The transfer of the proceedings to this Court (Order 6).

11. The children’s treating psychiatrist, referred to in Order 1 made on 27 November 2009, was Dr W. That doctor ultimately produced a report dated 2 August 2008,[7] in which he expressed a view that it was appropriate for the father to “resume contact with the children…prior to the Court’s final determination of the case, subject to regular supervision of each such contact.”

    [7] Exhibit ICL2

12. In reliance upon that report, the proceedings came before this Court for interim hearing on 14 September 2010, at which time orders having the following effect were made:

    a)The suspension of earlier orders, created by Order 1 made by the Federal Magistrates Court on 27 November 2009, was lifted (Order 1).

    b)The earlier orders made by the Federal Magistrates Court on 19 June 2008 (as amended on 17 September 2008 and 26 March 2009) were vacated (Order 2).

    c)The parties were allocated equal shared parental responsibility for the children (Order 3).

    d)The children were to live with the mother (Order 5).

    e)The children were to spend defined supervised time with the father (Orders 6 and 7), graduating to unsupervised time each alternate weekend (Order 8), for half of school holidays (Order 10), and on special days (Orders 11-14).

13. Pursuant to those orders, the children spent supervised time with the father on the first two defined occasions, being Sunday 19 and Saturday 25 September 2010. The arrangement then broke down. The father and his supervisor, Ms R, contend that those two occasions were happy, relaxed encounters. Conversely, the mother asserts that the children returned from the father so stressed that she was distraught herself.

14. The mother made arrangements for the eldest child, who was the most disturbed of the two children, to speak with the Independent Children’s Lawyer. An appointment was then arranged for both children to confer with the Independent Children’s Lawyer and a Family Consultant on 30 September 2010. As a consequence of that meeting the children did not thereafter return to spend time with the father.

1. The matter was immediately re-listed before the Court for further interim hearing on 5 October 2010.  The Family Consultant, Ms B, gave evidence at the hearing and was cross examined.[8] She related to the Court the alarming comments made by the children and her belief in the genuineness of the children’s expressed wishes not to spend time with the father. The Court then made further interim orders on 7 October 2010 to the following effect:

   a)Suspension of those orders made on 14 September 2010 providing for the children to spend time with the father (Order 1).

   b)Substitution of fresh orders that the children spend supervised time with the father each Sunday (Order 2).

   c)The preparation of an updated family report by Ms S, the Family Consultant who authored the previous Family Report dated 12 June 2008 relating to the family (Order 4). To facilitate that process, the children were ordered to consult with Ms S the following day, being Friday 8 October 2010.

   [8] Exhibit ICL4

2. Under those fresh orders, the children were again due to spend time with the father on Sunday 10 October 2010. That did not occur.

3. The children conferred with Ms S, as ordered, on Friday 8 October 2010. The children made comments to Ms S at that time which convinced her that the children genuinely did not wish to spend time with the father, and that the eldest child may commit suicide if forced to do so. The mother then decided to contravene the orders made some days before and did not make the children available to the father on Sunday 10 October 2010.

4. The matter was again urgently re-listed before the Court for further interim hearing on Tuesday 12 October 2010, at which time Ms S gave evidence and was cross examined.[9] At the conclusion of that hearing the Court made further orders to the following effect:

   a)The orders made on 7 October 2010 providing for the children to spend supervised time with the father were vacated (Order 1).

   b)Ms S was ordered to prepare a report pertaining to the expressed wishes of the children (Order 3).

   [9] Exhibit ICL3

5. The effect of those orders was to expunge any obligation for the children to spend time with the father. Of course, the parties were not precluded from reaching private arrangements, but there was no prospect of that occurring because of the conflict between them and the emotional state of the children.

6. The net effect of that history is that, apart from the two supervised visits between the children and father in September 2010, the children have not spent any time with the father since early August 2009 – a period of some 15 months.

7. Procedural orders were made by the Court to urgently list the matter for final trial. The trial commenced on Tuesday 16 and concluded on Thursday 18 November 2010. Judgment was reserved.

Summary of parenting law

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Children’s best interests – primary considerations

Section 60CC(2)(a)

1. There can be no real dispute that the children both enjoy meaningful relationships with the mother. The mother has been the primary carer for the children since the parties’ separation in April 2001, and their sole carer since August 2009 when the mother acted to sever their interaction with the father.

2. Even though the father argues for a reversal of the children’s residential arrangements so that they live with him, he contends that the children should continue to spend regular supervised time with the mother over the next 12 months, with an expectation that the children will then live for equal time with the parties on a weekly rotation. It necessarily follows from the nature of those proposed orders that the father believes the children should continue to enjoy their meaningful relationships with the mother, notwithstanding his belief that she has deliberately spoiled the children’s relationships with him. Credit is due to the father for recognising that necessity.

3. However, by comparison, there is considerable debate about the nature of the children’s relationships with the father. The father asserts that he has close and loving relationships with both children, whereas the mother contends that the children are now completely estranged from the father.

4. There can be little doubt that the children previously did enjoy meaningful relationships with the father. That is the only rational inference to draw from numerous uncontroversial facts.

5. In November 2006 the mother agreed that the children should spend time with the father for four nights in each fortnightly cycle. In June 2008 the Family Consultant reported to the Court that the children wanted to see more of the father[10] and the mother then agreed to further orders that the children should spend time with the father for six nights in each fortnightly cycle. In addition, in both November 2006 and June 2008, the mother agreed that the children should spend half of their school holidays with the father, and that the father should share parental responsibility for the children with the mother. The mother would not have agreed to parenting orders in those terms unless she acknowledged that the children regarded their relationships with the father as important, significant, and valuable.

   [10] Family Report dated 12 June 2008

6. Those views prevailed until shortly before the mother severed the interaction between the children and the father in August 2009. Since then, the evidence about the quality of the children’s relationships with the father is confined to:

   a)Observations of the father and his supervisor, Ms R, about the father’s interaction with the children on two discrete occasions in September 2010, and

   b)Reports made by the children about their relationships with the father to various other people, including:

   i)The children’s general practitioners in late 2009.

   ii)Dr W, during interviews in late 2009 and 2010.

   iii)The Independent Children’s Lawyer and Ms B in interviews on 30 September 2010.

   iv)Ms S in a series of interviews in October 2010.

7. The evidence of the father and Ms R is that during the two supervised visits by the children with the father in September 2010 the children engaged with the father and were content and excited in his company. I accept that the father and Ms R both gave honest accounts of those two occasions. I have little doubt that their evidence was genuinely reflective of their perceptions. However, the honesty of their perceptions does not prove the father’s case.

8. There is no doubt that the children have made statements to a variety of independent persons over the last 12 months, mostly in the absence of the mother, that they are apprehensive of the father and desire no interaction with him. The eldest child has gone so far as to repeatedly assert that he has seriously contemplated suicide in the event that he is compelled to see the father. He even graphically explained some preliminary planning he had undertaken. The youngest child has not been so florid in her presentation, but she still speaks of experiencing physical symptoms of high anxiety.[11]

   [11] Exhibits ICL3 and ICL4

9. The father does not dispute that such statements have been made by the children. Rather, he asserts that the children’s statements are disingenuous. He forms that conclusion because the statements are at odds with the easy and relaxed manner in which he perceives the children interact with him.

10. The persons to whom those statements have been made by the children include medical practitioners, a psychiatrist, and two experienced Family Consultants. The psychiatrist and Family Consultants are persons who are qualified to assess the veracity of such statements made by children. They were each convinced, independently of one another, that the statements made by the children were genuine.  

11. The evidence reasonably admits of two alternatives.  Either:

    a)The children’s relationships with the father are deteriorated, for one reason or another, and they were able to act in a contrary manner when they spent time with the father on two occasions in September 2010, or

    b)The children’s relationships with the father remain warm, loving, and meaningful, which they demonstrate when with him, but the children convincingly lie about that to others.

12. I am satisfied that the first of those alternatives is more probably correct. There are essentially two reasons for that.

13. Firstly, I consider it much more likely that the eldest child could falsely convince the father and Ms R on two occasions that he enjoyed being with the father, than that he could successfully deceive a bevy of qualified professionals over numerous independent interviews spread across a period of 12 months. Dr W and Ms S held uniform opinions that the eldest child had aligned himself with the mother against the father. I accept their evidence, which was reasoned and logical.

14. As for the youngest child, Dr W and Ms S both described her as being much more ambivalent than the eldest child. She probably did genuinely enjoy the time she spent with the father in September 2010, but there is no doubt that her primary alliance is with the mother. That is born out even by the evidence adduced by the father. The supervisor, Ms R, reported to the Independent Children’s Lawyer that during the visits with the father in September 2010 the youngest child needed re-assurance that she could see and communicate with the mother if she desired.[12] To his credit, the father did offer re-assurance to her.

    [12] Affidavit of Ms R, annexed email 27/9/10

15. Secondly, both children later reported to the Family Consultants that they tried to convey the impression to the father that they were enjoying their time with him.[13]

    [13] Exhibit ICL4, page 7; Wishes Report dated 10 November 2010, pars 4.6, 4.23

16. Even though the preponderance of evidence leads to a conclusion that the children’s relationships with the father are currently significantly corroded, the pivotal question is whether those relationships are capable of restoration. That is because s 60CC(2)(a) of the Act posits an inquiry as to the benefit of the children having meaningful relationships with the parents in the future (see McCall v Clark  (2009) 41 Fam LR 483 at 509-510). The answer to that question is inextricably linked to why the relationships deteriorated at all.

17. The children’s relationships with the father did not fall into disrepair without reason. They enjoyed loving relationships with the father over many years preceding the cessation of their interaction with him in August 2009.

18. The mother attributes the deterioration to the father’s anger, which causes him to yell at the children, and causes the children to be fearful of him. I reject that explanation, which is convenient but facile. The children’s vehement and absolute rejection of the father is wholly disproportionate to the available evidence about the extent of the father’s episodes of anger. It was also submitted for the mother that the children altered their views about the father because of the formation of his relationship with his partner. I do not regard that explanation as plausible either. I am far from satisfied that the relationship caused the father to treat the children differently.

19. I am satisfied that the mother has embarked upon a campaign to align the children with her and reject the father, as the father submitted. I am also satisfied that the mother’s conduct in that campaign was partly deliberate and partly subconscious, as the Independent Children’s Lawyer submitted.

20. There are numerous stark examples of the mother acting to impair the children’s relationships with the father. A selection will suffice to illustrate the point.

21. On 20 October 2007 the mother telephoned the father’s home and left a message on his answering machine, which message included the following words:[14]

    “Isn’t it interesting [E]…don’t worry, I’ll work on you getting completely out of the children’s lives…while he’s got ‘em you won’t be around…(sic)”

    [14] Father’s affidavit filed 11 November 2010

22. The reference to “E” is a reference to the father’s partner. Even though the mother was not threatening to remove the father from the children’s lives, she was clearly threatening to remove the father’s partner from their lives. That is still a highly manipulative tactic for the mother to employ, and offers valuable insight into the mother’s attitude extending back over a period of 3 years.

23. The mother was cross examined about the message. The tape recording was played to her and she was allowed to read the transcript. She professed uncertainty as to whether the voice was indeed her own, and she asserted no recollection of the telephone call. I reject her evidence, which was mere obfuscation. I am comfortably satisfied that the message was made by the mother, as the father alleged.

24. There can be little doubt that the mother denigrates the father and the father’s partner to the children. The children reported to Ms S in June 2008 that the mother did so.[15] Those interviews occurred before the mother had achieved ruination of the children’s relationships with the father, when the children still spoke positively of the father. I do not accept the mother’s protestations, made in both her affidavit[16] and in cross examination, that she has not and does not denigrate the father.

    [15] Family Report dated 12 June 2008, pars 7.12, 7.41

    [16] Mother’s affidavit, par 59

25. In March 2009 the mother alleged to Queensland Police (Child Protection Investigation Unit) that the father and/or his partner were abusing the children. The allegations encompassed sexual abuse.[17] The alleged sexual abuse occurred in 2006[18] and the mother said in cross examination that she learned of it within a couple of months of its alleged occurrence. The mother was unable to explain her delay of years in reporting the sexual abuse to the authorities. The mother also said the abuse was the reason she took the youngest child for counselling with Ms A,[19] but that counselling did not begin until early 2008.[20] The mother could not explain that temporal anomaly either.

    [17] Affidavit of Mr M, par 3

    [18] Mother’s affidavit, pars 7(b), 34

    [19] Mother’s affidavit, par 56

    [20] Affidavit of Ms A, par 3

26. In any event, the allegations were investigated by police. The investigation entailed inquiries with other agencies and also included interviews with the children, the father, and the father’s partner.  During the formal interview of the youngest child, she reported to police that she and the eldest child had been told that they would be rewarded if they “told the police about Daddy”. The circumstances caused the police to believe that the mother had been coaxing the children to make adverse statements about the father.[21] Following investigation, the police were dismissive of the allegations. A decision was made not to prosecute the father because the allegations were unsubstantiated. The mother knew that.[22]

    [21] Affidavit of Mr M, par 6

    [22] Mother’s affidavit, par 9

27. Following the decision by police not to prosecute the father, the mother sent to the police on or about 25 June 2009 a letter by registered post enclosing a Statutory Declaration signed by the eldest child.[23] There were no new allegations made at that time and the police took no further action.

    [23] Exhibit F3, page 8 of 15

28. It is trite to observe that the mother’s willingness to encourage both children to make criminal allegations against the father, and then enlist one child’s assistance to renew the allegations after the initial complaint was not acted upon, reflects extremely poorly upon her.

29. Ms A also noticed that the children appeared to be the subject of undue influence by the mother.[24]

    [24] Affidavit of Ms A, pars 7, 9

30. When the relationships between the children and the father broke down in mid 2009, the mother took the eldest child to see Dr W on referral from her general practitioner. At his first interview with Dr W on 2 September 2009, the eldest child produced a series of handwritten notes which he asked Dr W to read because he was resistant to engage orally. Dr W kept the original notes, but copies are in evidence.[25]

    [25] Mother’s affidavit, Annexure RW-7

31. Although Dr W assumed that the notes had been prepared by the eldest child, that is not an assumption I am prepared to uncritically accept as correct. The handwriting style throughout the notes is not consistent. The style is not always consistent with that of a dyslexic 13 year old boy. The inference is available that at least some of the notes were written by the mother. At the very least, the mother was present when the notes were made by the child, because she attests to that fact by writing at the conclusion of the notes:

    “I [name of the mother] watched [name of the eldest child] write this on his own accord.

    [mother’s signature, time, date]”

32. Self-evidently, if in the knowledge of his impending consultation with an expert to discuss problems with his father the child was writing notes explaining those problems, all the while being watched by the mother, it could hardly be said that the child was writing the notes “on his own accord”. The prospect of undue influence by the mother is patent. The most likely inference is that the mother was guiding the child’s creation of notes to vindicate the child’s rejection of the father. That is the inference I draw.

1. Contemporaneously, the mother had taken the children to an organisation called Bravehearts,[26] where they were each counselled about complaints they made against the father.  The counsellor reported those complaints to the Queensland Department of Child Safety in early and mid August 2009.[27] The Department investigated the matter. Officers of the Department were alive to the possibility that the youngest child may have been coached to make allegations, and noted that the eldest child revealed to them “My mum said if I don’t tell what happens at my Dad’s I will have to go back”.[28] As with the police, the Department decided to take no further action in respect of the complaints.

   [26] Mother’s affidavit, par 5

   [27] Mother’s affidavit, Annexure RW-2

   [28] Exhibit F2, page 8

2. By September 2009 the mother had taken the children to a variety of experts and agencies to report allegations of abusive conduct against the father and to secure emotional support for the children. Those experts and agencies included the Queensland Police, the Queensland Department of Child Safety, Bravehearts, general practitioners, Ms A, and Dr W.

3. It is unremarkable that the mother would act to report allegations of abuse perpetrated upon the children. However, none of the experts or agencies to whom the allegations were reported accepted the veracity of any of the allegations. What is remarkable is that the mother then still pursued the allegations and, worse still, actively railed against the independent findings and opinions. The mother now expresses a complete loss of confidence in Dr W and has even made a disciplinary complaint about Ms A.

4. The mother’s paranoia even invaded the children’s day to day lives. Although the evidence remains confused as to exactly when, the mother agrees that she kept the children home from school on occasions to prevent their abduction from school by the father,[29] which caused the children to fear that might actually happen. The mother even moved the children to other schools for that reason.[30] The anxiety of the mother and children had no factual basis. There is no evidence at all that it might even have been a risk. On one occasion at the end of 2009, after the orders were made on 27 November 2009 suspending the children’s time with the father, he attended the children’s school, by appointment with the principal, to leave some cards and gifts for the children.[31] The father did not see either child, nor did he try.

   [29] Mother’s affidavit, par 12

   [30] Mother’s affidavit, par 29

   [31] Father’s affidavit filed 9 November 2010, par 29

5. The most rational explanation or motive for the children’s current behaviour is that they desire to appease the mother and relieve the pressure she exerts upon them to reject the father. The eldest child has clearly felt a stronger need to do so than the youngest child, but they are both affected.

6. I do not accept the recent statements of the children to Ms S that their adverse views of the father are their own, free of the mother’s influence.[32]

   [32] Wishes Report dated 10 November 2010, pars 4.9, 4.26

7. Those conclusions are amply supported by the opinions expressed by Dr W in cross examination. The qualifications of Dr W were beyond dispute. He is an experienced psychiatrist with a specialty in child, adolescent, and family psychiatry. The oral evidence of Dr W was most impressive. He was a very measured, thoughtful witness who gave careful consideration to all questions and ensured that his answers were accurate and responsive. I have no hesitation in accepting his evidence.

8. Dr W said that the fears expressed by the children to Ms B and Ms S were the same as had been expressed by the children to him. He was unsurprised by that, but he was surprised by the intensity of the fears recently described by the children. He was convinced that the children’s fears were genuinely felt by them. He believed that there was sufficient description and elaboration in the statements made by the eldest child to conclude that his threatened suicide was indeed a real risk. Even though the youngest child’s fears were not expressed as intensely, he still rated the youngest child’s anxiety at 6-7 on a scale of 10.

9. In the opinion of Dr W, the children’s relationships with the father had undoubtedly corroded. The situation for the eldest child was worse than that for the youngest child. Dr W considered that the cause of the corrosion was the mother influencing the children’s thoughts and feelings about the father over a protracted period of time. He also believed that, in the case of the youngest child, she was influenced by the eldest child. Dr W described the mother’s conduct as an engagement of the children as her allies in her conflict with the father, which conduct was emotionally abusive to the children.

10. As explained by Dr W, the children’s complaints about the father’s alleged angry outbursts were nothing more than triggers for the children which released the tension they felt at the conflict between the parents. That explanation is logically sound because the children’s expressed concerns about the father have been escalating since mid 2009. In all the time since August 2009 the children have lived with the mother and only seen the father twice for short supervised visits in September 2010 when no-one suggests that the father was angry with either child.

11. Dr W was moved to recommend that the children not see the father for the foreseeable future, but realising the brutality of that outcome, was open to the possibility of the children seeing the father on the proviso that real caution was exercised about when and how that occurred. That opinion was explored with him in cross examination. He hypothesised about the imposition of cautionary measures in the form of counselling for the children and supervision of their time with the father, but he acknowledged that style of parenting regime had proven an abject failure over the last 15 months. As an alternative, Dr W left open the possibility of the children seeing the father only for the purposes of them maintaining a rudimentary familiarity with one another, which might be achieved by infrequent, short, supervised visits at a contact centre together with intermittent written communication.

12. Dr W agreed that the eldest child might benefit from therapy if he remained living with the mother and did not see the father. In those circumstances, Dr W thought that the eldest child would experience immediate relief and may not need the therapy, but did not discount the prospect of it still being beneficial to him. In Dr W’s view, by reason of past events, the eldest child was now vulnerable to developing a psychological condition known as “Dissociative Identity Disorder”. An appointment has already been made for the eldest child to see another psychiatrist, Dr T, on 6 December 2010[33] as a consequence of interim orders made by the Court on 12 October 2010. Dr W endorsed the choice of that doctor and asserted that Dr T could provide suitable therapy for the eldest child.

    [33] Mother’s affidavit, par 20

13. Much of the evidence of Ms S endorsed the views of Dr W. She agreed that the mother has, to some degree, engaged the children in the conflict.[34] She agreed the complaints by the children about the father’s anger are not an apposite explanation for the intensity of the children’s rejection of the father.[35] In fact, when she was again engaged in October 2010, Ms S was unable to recognise the case from 2008, so profound was the change in the children’s behaviour over that time from approbation of the father to rejection of the father.[36]

    [34] Wishes Report dated 10 November 2010, par 5.7

    [35] Exhibit ICL3, pages 7.30, 13.10, 18.45, 19.1, 35.40

    [36] Exhibit ICL3, page 22

14. In cross examination the mother was asked how much responsibility she was prepared to accept for the children’s current state of despair. Her answer was to the effect of:

    “I’ve done the best thing I can for my kids. I don’t know how to answer that.”

15. I am quite satisfied that the mother has had far more to do with the children’s predicament than the father. Although Ms W saw responsibility falling to both parties, I agree with the evidence of Dr W that the primary cause of the children’s desperate emotional turmoil lies with the mother.

16. Once it is accepted that the mother is the root cause of the children’s rejection of the father it becomes clear that the children cannot enjoy relationships with the father whilst ever they continue living with her.

17. However, the evidence points to the necessity for the children to remain living with the mother, for reasons later explained. Accordingly, there is no realistic prospect of the children recovering their relationships with the father for some years to come, and no benefit will accrue to either child through trying. In fact, detriment will be caused to them if further efforts are made.

Section 60CC(2)(b)

1. Although the mother filed a Form 4 Notice of Child Abuse or Family Violence alleging that the father and/or his partner had sexually and physically abused the youngest child, those issues were not pursued by the mother. The mother’s counsel made concessions at the commencement of the trial that no findings of actual abuse or unacceptable risk of abuse would be sought, which concessions were presumably made because of the absence of any genuinely corroborative evidence for the mother’s allegations. Even the primary evidence adduced by the mother was weak and unpersuasive.

2. As a consequence, no submission was made that there was any need to protect either child against the risk of physical or psychological harm from being subjected or exposed to any physical or sexual abuse by the father, or any person associated with him. There is no such risk. I accept the emphatic submissions of the father and Independent Children’s Lawyer to that effect.

3. The mother maintained her submission that the father was “emotionally abusive” to the children, but that is not a form of “abuse” as defined in the Act (s 4(1)), and is not therefore a primary consideration within s 60CC(2)(b) of the Act. However, it is convenient to deal with that submission at this juncture, and I reject it. As might be expected, the father’s frustration with the mother’s incorrigible behaviour has occasionally caused him to act in ways he may regret, but I am not satisfied that his conduct can properly be categorised as “emotionally abusive” to the children.

4. The mother made repeated, often unresponsive, references in her cross examination to the father’s abuse of her during their relationship and since separation. That evidence was not addressed in final submissions. There is no reasonable evidential basis to make a finding that the father abused the mother, or perpetrated family violence upon her, to which the children were harmfully exposed. The mother’s agreement to parenting orders in November 2006, in June 2008, and again in March 2009, all providing for expansive time to be spent by the children with the father, is testament to her contentment that the children are not at any risk of harm while with the father.

5. The father has never contended that the children are at risk of physical or psychological harm through subjection or exposure to abuse or family violence whilst with the mother.

6. Neither party made any allegation against the other of being harmfully neglectful of the children.

Children’s best interests – additional considerations

Section 60CC(3)(a)

1. The expressed views of both children are crystal clear, and not the subject of dispute. They each wish to live with the mother and not see the father. The views of the eldest child are more strident than those of the youngest child.

2. Although the father entertains doubts that those views are genuine, I prefer to accept the collective opinions of the professional witnesses that the children’s views are honestly held.

3. The eldest child is now 13 years old. Even though the father believes that he does not have the maturity to match his chronological age, I am satisfied on the evidence that his expressed views should carry considerable weight. He has actively contemplated committing suicide. The Court should treat that situation with the gravity it deserves.

4. The views of the youngest child, who is now 10 years of age, carry less weight but are still influential.

5. I accept the opinion of Ms S that the children’s views should be respected.[37]

   [37] Wishes Report dated 10 November 2010, par 5.12

Section 60CC(3)(b)

1. The nature of the children’s relationships with the parties have already been comprehensively discussed pursuant to s 60CC(2)(a) of the Act. There is nothing to add.

2. There is no evidence at all about the children’s relationships with any other member of the maternal family or any other person associated with the mother.

3. The children seemingly feel a degree of antipathy towards the father’s partner.

Section 60CC(3)(c)

1. For reasons already explained, the mother is utterly unwilling or unable to facilitate and encourage close and continuing relationships between each of the children and the father.

2. That conclusion is all the more compelling in the context of the mother’s outlandish, unsubstantiated allegations against the father, including that he installed a tracking device under the bonnet of her car, installed a covert surveillance camera in a tree outside her house, and staged multiple secret break-ins at her homes. The mother agreed in cross examination that there was no evidence available to corroborate those allegations, but she nonetheless persisted in making them. To say the least, the mother’s evidence was unsatisfactory. The mother’s adverse opinions about the father are immovably fixed.

3. The mother’s statement in cross examination that she has tried to foster a relationship between the children and the father is patently false. When she was challenged about the validity of that statement the mother tellingly retorted with words to the effect of “Well why would they [the children] want to pick up the phone [to the father]?” The inference was clear. The mother genuinely disdains the father and expects that the children adopt similar sentiments.

4. I am quite satisfied that, given the chance, the father is willing and able to facilitate and encourage close and continuing relationships between the children and the mother.

Section 60CC(3)(d)

1. An observation has already been made that the evidence points to the necessity for the children to remain living with the mother. Although the focal point of the father’s case was that the only solution to the current problem was to remove the children from the mother and order that they live with the father, I reject that proposal for numerous reasons.

2. The mother has been the primary carer for the children since birth. Following the parties’ separation in April 2001 the children remained within the care of the mother. Since early August 2009 the children have not even seen or communicated with the father, but for two supervised visits in September 2010. The children have never lived with the father and they last spent overnight time with him more than 15 months ago.

3. The father is in a committed relationship with his partner. Although their relationship broke down in December 2009,[38] that relationship has been re-kindled in the last month or so. The father intends that relationship to be long-term. Although the father and his partner still retain separate households, they are contemplating the prospect of cohabitation.

   [38] Father’s affidavit filed 9 November 2010, par 16

4. The children have indicated their dislike of the father’s partner to the experts, in much the same way that they have indicated dislike of the father.

5. Making orders that compel the children to live with the father in the face of their genuine rejection of him would be highly problematic and dangerous. The problems only compound if other persons, such as the father’s partner and her child, are introduced to the household, particularly if the father’s partner is also disliked by the children.

6. The father brazenly expressed confidence that the arrangement would work and the children would probably satisfactorily settle with him within a few weeks. That is, of course, a possibility. But there is no evidence at all from which to reasonably infer that it is a probability. The Court cannot make such a bold decision on such a fragile basis as the father’s uncorroborated confidence, particularly when his opinion is contradicted by a psychiatrist and two experienced Family Consultants who all say that the children should remain living with the mother and not be forced to see the father.

7. The father’s proposed remedy for any unforeseen opposition by the eldest child would be to refer that child back to Dr W for counselling. That too is unrealistic. As is the case with the mother, the eldest child has lost confidence in Dr W.[39] He sees Dr W as the person who authorised the resumption of the children spending time with the father, as indeed he was. Dr W’s report to the Independent Children’s Lawyer in August 2010 led to the interim orders being made on 14 September 2010. Dr W was initially engaged as the children’s therapist. For reasons beyond Dr W’s control, his role metamorphosed from therapeutic to forensic, and the eldest child feels that his confidence was betrayed.[40]

   [39] Exhibit ICL4, page 2.35; Exhibit ICL3, pages 4.35, 8.1

   [40] Mother’s affidavit, par 15

8. Although there was no discussion of it in either the evidence or submissions, a change of residence for the children could also mean a change of schools. That would be disadvantageous to the children. They are apparently settled in their current school environment.[41]

   [41] Wishes Report dated 10 November 2010, par 3.2

Section 60CC(3)(e)

1. Given that the evidence dictates an outcome where the children spend no time with the father, s 60CC(3)(e) of the Act becomes irrelevant.

Section 60CC(3)(f)

1. The mother has the proven capacity to provide for all of the children’s needs, other than their emotional needs. She has been largely responsible for causing their deprivation of meaningful relationships with the father and inducing in the eldest child a vulnerability to the onset of Dissociative Identity Disorder.

2. That would be reason for changing the children’s residence so as to require them to live with the father but, for the reasons explained under s 60CC(3)(d) of the Act, that is not a viable option.

3. In all probability, in the face of orders which do not require the children to see or communicate with the father, the mother’s conflict with the father will dissipate and the pressure on the children will be released. That was the opinion of both Dr W and Ms S. The household of the mother and children will therefore likely return to harmonious equilibrium where most of their emotional needs are met.

Section 60CC(3)(g)

1. There is no aspect of the parties’ maturity, sex, lifestyle, or background which is relevant to the outcome of these proceedings. Certainly no submission to that effect was made by either party or the Independent Children’s Lawyer.

Section 60CC(3)(h)

1. Neither the parties nor the children identify themselves as Indigenous Australian.

Section 60CC(3)(i)

1. The father demonstrates his proper attitude to the children and the responsibilities of parenthood in several ways.

2. Despite the frustration he has experienced in maintaining relationships with the children he has never once shirked his child support responsibility in indignation or revenge. The mother was compelled to concede that the father has “never missed a beat” with child support payments, and that he has contributed to the cost of tutelage for the eldest child. The latter admission was all the more surprising given the mother’s unequivocal denial in her affidavit.[42] Her explanation for the inconsistency was fanciful.

   [42] Mother’s affidavit, par 25

3. The father recognised in late 2009 that the children were under pressure to reject him and for that reason he desisted from the prosecution of contravention applications against the mother and agreed to temporarily suspend the parenting orders which provided for the children to spend time with him.[43] Since then he has steadfastly obeyed the interim orders of the Court, notwithstanding the personal anguish that has caused him.

   [43] Father’s affidavit filed 9 November 2010, par 28

1. For reasons already adequately explained, the mother demonstrates a delinquent attitude to the children and responsibilities of parenthood through having induced a situation in which the children feel compelled to reject the father.

Section 60CC(3)(j)

1. As discussed pursuant to s 60CC(2)(b) of the Act, there is no basis for any finding that the children were exposed to family violence. However, that is not to say that there has been no family violence at all between the parties.

2. The father previously admitted to a single episode in which he acted violently towards the mother.[44] That apparently occurred at or about the time of their separation in 2001. The mother previously asserted being the subject of violent conduct by the father during their relationship.[45]

   [44] Family Report dated 12 June 2008, par 5.8

   [45] Family Report dated 12 June 2008, par 5.30

3. The issue of family violence assumes no importance in the case because of the antiquity of the allegations, the mother’s uneventful interaction with the father for many years after their separation, the mother’s consent to the parenting orders made in 2006, 2008, and 2009, and the mother’s express abandonment of the issue in these proceedings. The Form 4 Notice of Child Abuse or Family Violence filed by the mother in March 2010 was completely silent about family violence.

Section 60CC(3)(k)

1. There are no family violence orders in existence affecting either of the parties or either of the children.

Section 60CC(3)(l)

1. Undoubtedly the father will be very disappointed by the orders. It is the very outcome against which he has been struggling since the proceedings began. It is difficult to predict whether he will institute an appeal.

2. On the other hand, the mother will feel that the orders vindicate her concerns, although she will be displeased with the findings about her lamentable behaviour.

3. The evidence made it impossible to reach any conclusion that the children should continue to interact with the father. The regime regulating interaction between the children and the father has been dramatically failing over the last 15 months and any attempt to re-formulate a similar regime would be bound to fail in the current emotional climate. Any orders attempting such a re-formulation would inevitably lead to the institution of further proceedings.

Section 60CC(3)(m)

1. No submission was made that any other fact or circumstance was relevant to the outcome of the proceedings.

Parental responsibility

1. The presumption of equal shared parental responsibility is rebutted on the evidence. The conflict between the parents is too entrenched to permit any semblance of a workable relationship between them.

2. As long ago as June 2008 the parties told Ms S that they were unable to agree even on the most basic medical intervention for the children.[46] Since then their relationship has only become more conflicted.

   [46] Family Report dated 12 June 2008, par 4.17

3. On the one occasion the mother did solicit the father’s views concerning an academic issue related to the eldest child, the father disagreed with the mother. Irrespective of who was correct, each party then belligerently acted to suit themselves. The mother unilaterally removed the child from his school against the father’s wishes and the father promptly returned the child to his former school against the mother’s wishes.

4. Parental responsibility for the children must be allocated solely to one parent. That parent should be the mother, since it is inevitable that the children must remain living with her.

Living arrangements

1. Since no order is made allocating equal shared parental responsibility to the parents, there is no need to consider residential options of the children living for equal time in the parties’ households, or the children living with one party and spending substantial and significant time with the other party. Although those options are still available, the evidence militates against either outcome. Neither party nor the Independent Children’s Lawyer proposed such an outcome.

2. For reasons given, the children should remain living with the mother.

3. The conclusion is also inescapable that the children should not be compelled to spend time with the father.

4. The father previously recognised the need to desist from pursuing his wish for interaction with the children. He understood that the pressure being exerted upon the children necessitated that decision by him in November 2009.[47]

   [47] Father’s affidavit filed 9 November 2010, pars 12, 28

5. Over the 12 months elapsed since then the pressure upon the children has only increased. If the father had the insight to realise in November 2009 that such an outcome was necessary for the sake of the children, it follows that he has the insight now, painful thought the realisation may be. If, as the father asserts in his affidavit, he has come to the sad conclusion that the mother will never accept that the children should be encouraged to enjoy their relationships with him and will continue to act to cut him from their lives,[48] then the father is capable of understanding the decision which is now forced upon the Court.

   [48] Father’s affidavit, filed 9 November 2010, par 43

6. It is important to record that the Court’s decision is not motivated by a wish to achieve a just result as between the parties, but rather to reach an outcome which serves the best interests of the children as the paramount consideration.

7. While Dr W was prepared to countenance an arrangement under which the children spend time with the father infrequently on supervised visits at a contact centre, in order to try and preserve their relationships in at least some rudimentary form, the father’s counsel submitted that the father was not prepared to commit to such an arrangement. It would therefore be pointless making orders to that effect.

8. I therefore accept the evidence of Ms S that both children need “closure”, which can only be achieved by finally concluding the litigation. As Ms S said in cross examination, the children can decide for themselves about the relationships they have with each of their parents when they have sufficient maturity to make such decisions. Presently, the children can no longer cope with the pressure of even the possibility of having to see the father. That pressure will remain whilst ever the Court leaves the litigation unfinished.

9. Both the father and Independent Children’s Lawyer proposed, albeit in different forms, that the proceedings not be finalised. The father sought to implement a radically different interim living arrangement for the children from that currently in place, with a review in 12 months. The Independent Children’s Lawyer proposed final orders for the eldest child, but only interim orders for the youngest child, with a review in about 15 months time. I reject both of those proposals.

10. The children’s anxiety will only settle knowing that the litigation is now at an end. Additionally, the consistent evidence of the professional witnesses was to the effect that the children should be treated uniformly. Both parties agreed with the experts on that point and so do I.

11. The Independent Children’s Lawyer and the mother[49] both proposed an order to the effect that the children only spend time with the father according to their wishes. I refuse to make an order framed in those terms because it will not relieve the pressure on the children. If the decision is left to them, the mother will likely maintain pressure upon the children to continue rejecting the father, and the children will perceive a continuing wish on the part of the father for them to change their minds and consent to see him. The children’s perception of themselves as the fulcrum in the parent’s conflict will remain.

    [49] Amended Application filed 27 October 2010, Order 3

12. Nor am I prepared to make an order in the form of an injunction precluding the children from spending time with the father. That would be inapposite if, in time to come, the children wish to see the father and seek him out. The father would then be in breach of such an order by agreeing to see them. So would the mother be in breach of such an order if she ultimately decided to relent and permit, or even encourage, the children to see the father.

13. For that reason, there is a notation to the orders recording the intentional absence of any order pertaining to time spent by the children with the father. The time spent by the children with the father will fall to be decided as an incident of the mother’s exercise of sole parental responsibility for the children, which control will end upon the children’s attainment of majority.

14. The children should not be required to communicate with the father, but may do so if they choose.

15. An order has been made that the father is able to communicate occasionally with the children in writing, should he wish to do so. The children should not feel threatened by any occasional communication they receive from the father, particularly in the knowledge that they are not obliged to reply. It is a mechanism by which the father can demonstrate that he still loves them and has not willingly abandoned them. If the father avails himself of that opportunity it will make the process of the children’s possible resumption of their relationships with him in the future slightly easier.

16. Although Ms S recommended against any communication between the children and the father, I do not accept her evidence on that point. She said that she would defer to the opinion of Dr T on the point. The Court does not have the benefit of Dr T’s opinion about communication of that sort, but the Court does have the benefit of Dr W’s opinion. Dr W considered that written communication would not be detrimental to the children, although that opinion was expressed in the context of an assumption that the communication occur intermittently and in such a manner that the children do not feel burdened by it. The order has been fashioned so that any communication would occur in as benign a manner as reasonably possible. It is an order that is consistent with the tenor of Dr W’s evidence.

17. During final submissions the mother abandoned her application for an order providing for communication between the father and the children.[50] Nevertheless, the fact that she proposed such an order at all necessarily means she is open-minded about that kind of communication.

    [50] Amended Application filed 27 October 2010, Order 4

18. An order is made requiring the parties to keep one another advised of their residential address so that the children are able to communicate with the father should they wish to, and so the father has the satisfaction of knowing where the children are living and being raised.

19. Since the children will not be spending time with the father, and may choose not to communicate with him, it is important for the father to be kept appraised of their progress. An order is therefore made requiring the mother to ensure that the father is able to obtain school photographs and information about the children’s academic attainments. Similarly, an order is made requiring the mother to inform the father about any serious medical complication for either child.

20. The evidence necessarily leads to a conclusion that the eldest child should be assisted by some form of therapy. The form and duration of the therapy should be dictated by the appointed therapist. There was no dispute that the therapist should be Dr T. He will be assisted by having the source material adduced in evidence in these proceedings, the orders made by the Court, and the reasons for those orders. The Independent Children’s Lawyer is required by the orders to furnish that material to Dr T.

21. The Independent Children’s Lawyer submitted that a copy of the orders should also be provided to the children’s schools, but did not articulate why. I see no need for that.  Accordingly, no order is made.

22. Both Dr W and Ms S thought that the therapy would be more likely beneficial for the eldest child if he knew that the therapist would not be required to report upon his progress to the Court. That consequence will follow from the conclusion of these proceedings by the making of final orders.

23. An order is made enjoining the mother not to denigrate the father in the presence of the children. She could not be heard to argue reasonably against such an embargo. The injunction is framed so as to also apply to the father in the event that the mother later permits the children to spend time with him.

24. An order is made requiring the Independent Children’s Lawyer and Family Consultant to jointly inform the children of the outcome of the proceedings so that their minds can be put at rest about the finalisation of the litigation.

25. For those reasons, I regard the orders set out at the commencement of these reasons as reflecting the children’s best interests.

I certify that the preceding one hundred and sixty-seven (167) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 7 December 2010.

Associate: 

Date:  7 December 2010