WINTERS & MCGUIGAN

FAMILY COURT OF AUSTRALIA

WINTERS & MCGUIGAN

[2016] FamCA 421

FAMILY LAW – CHILDREN – With whom a child lives – Best interests of child – Where there are two children of the marriage – Where the father alleges the mother has deliberately set out to alienate him from the children – Where the Court orders the father has sole parental responsibility for a year and thereafter the parents have equal shared parental responsibility – Where the Court orders the children live with the father and spend time with the mother

Family Law Act 1975 (Cth) s 60CC
APPLICANT:	Ms Winters

RESPONDENT:

Mr McGuigan

INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel and Associates

FILE NUMBER:

SYC

2213

2013

DATE DELIVERED:

1 June 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

12, 13, 14 and 15 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Maurice

SOLICITOR FOR THE APPLICANT:

Doolan Callaghan Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Kearney SC

SOLICITOR FOR THE RESPONDENT:

Dettman Longworth Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Falloon

Brian Samuel and Associates

Orders

IT IS ORDERED

That the children D born … 2008 and C born … 2004, live with the father.
That until 31 May 2017, the father have sole parental responsibility for the children and the father shall ensure that the mother is advised of the children’s progress and of any significant decisions which are made by him in relation to their welfare including but not limited to school enrolment, medical treatment and religious instructions.
That, from 1 June 2017, the parents have equal shared parental responsibility for the children.
That for the purpose of giving effect to Order 1, the mother shall cause the children to be delivered to the consulting rooms of Mr E at a time and date nominated by Mr E and thereafter leave the children with Mr E.
That the father do all acts and things necessary to arrange for each of the children to continue to engage in therapy with Mr E at the Relation Space and to continue with such therapy for such time, and at such frequency as Mr E recommends, noting that nothing in this order prevents Mr E from inviting the mother to attend any therapy session and participate in the therapy.
That from the date of these orders until 31 May 2017 the mother is restrained from approaching, contacting or communicating with the children in any way, including but not limited to contact by telephone, SMS, email or through social media whether at their school, their home or at any activity or place attended by the children, except in accordance with Order 7.
That the mother be permitted to send birthday and Christmas cards and birthday and Christmas presents to the children.
That from 1 December 2016 the children spend time with the mother for two hours each week on Saturday or Sunday (or such other day as is agreed by the parties) in a supervised contact centre or with a professional supervisor for a further period of twelve months.
That from 1 December 2017 the children spend time with the mother each weekend on Saturday or Sunday, as agreed between the parents, commencing at 9 am and concluding at 8 pm.

10.That from 1 December 2018 the children spend time with the mother, during school terms, each alternate weekend from after school on Friday until the commencement of school on Monday and for one half of each school holiday period, in the absence of agreement the second half.
11.That until such time as the property settlement proceedings between the parties have been determined, the cost of the children’s attendance upon Mr E shall be paid from the National Australia Bank term deposit account 14-004-6115 in the joint names of the parties. Thereafter the father shall be responsible for the payment.
12.That the father be permitted to provide a copy of these reasons and the reports of Ms F to Mr E.
13.That the mother be permitted to provide a copy of these reasons and the reports of Ms F to any therapist she attends.
14.That a copy of these Orders be provided to the Principal of any school attended by the children.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2213 of 2013

Ms Winters

Applicant

And

Mr McGuignan

Respondent

REASONS FOR JUDGMENT

The proceedings before the Court relate to the parenting of two children, C (“C”) born in 2004 and therefore aged almost 12 years and D (“D”) born in 2008 and therefore aged eight years.
It is not in dispute that the children currently are not spending any time with their father or having any contact with him.
The mother has not re-partnered.
The father lives with Ms G. She has two children, H who is aged 13 years and J who is aged 11 years. H and J spend approximately equal time with their father, who lives reasonably nearby, and Ms G and the children’s father have a co-operative arrangement.
The applicant in the proceedings, Ms Winters (“the mother”), seeks orders which would have the effect that the children live with her; that she have sole parental responsibility for them; that they continue to attend upon a family therapist for the purpose of re-establishing their relationship with their father and that they spend such time with their father as is agreed.
The respondent to the proceedings, Mr McGuigan (“the father”), seeks orders which would have the effect that the children live with him; that he have sole parental responsibility for the children; that they continue to engage in family therapy and that they have no contact whatsoever with their mother for six months and thereafter limited contact dependent upon the outcome of therapy and, even then, that the contact be supervised.
Each of the mother and the father has filed a lengthy affidavit setting out extensively and in detail the grievances each has against the other as parent. In summary it is the mother’s case that the father was an absent and uninvolved father during the time of their co-habitation and has remained so after separation. It is her case that it is the father’s actions and the nature of his interaction with the children which has led to their current position that they do not wish to spend time with him.
The father alleges that the mother has systematically entered into a course of action to alienate the children from him and to ensure that they do not spend time with him.

THE EVIDENCE AT TRIAL

The mother relied upon an affidavit by herself sworn on 24 March 2016. The father relied upon an affidavit sworn by him on 18 March 2016 and an affidavit of his partner Ms G sworn on 22 March 2016.
The Court was assisted by reports from a single expert, Ms F, a clinical psychologist, who prepared two reports. The first report dated 20 January 2014 followed interviews which took place on 12 December 2013. The second report dated 30 November 2015, followed interviews in November 2015. In the course of preparation of her reports, Ms F spoke to the two treating psychologists who had seen the family and also to the children’s teachers and school Principal.
The Court was also assisted by an independent children’s lawyer (“ICL”).

THE REPORT OF MS F DATED 20 JANUARY 2014

Orders had been made by consent on 2 August 2013 which provided that the children spend time with their father on each alternate Monday until 7 pm and on each alternate Saturday and Sunday from 10 am to 4 pm each day.
Each of the parents gives conflicting evidence in relation to the children’s attitudes to their father, and spending time with him, between the date of separation and the date of the interviews for the preparation of the report. It seems to be common ground that until March of 2013 the children spent time with their father including overnight time and holiday time. It is also common ground that the children’s time with their father became more problematic after March 2013 although they continued to spend time with him.
Each parent, in their respective affidavits, has a different view about the nature of the children’s interaction with the father, and their interactions with each other, prior to the interviews with Ms F.
Ms F summarised the dispute:
[The parents’] accounts of their relationship, issues leading to their separation and difficulties in the relationship since separation are disparate and, as such, it is hard to assess their respective reliability. It appears that both parties involved in this matter have been somewhat defensive and likely misrepresented their experience to a degree, although this is not uncommon in acrimonious situations such as this. Furthermore, it appears that both parties minimised their role in their relationship difficulties during their marriage and since their separation, and preferred to focus on the other parties’ shortcomings.
Both the tenor of the affidavits sworn by each of the parents and the manner in which their evidence was given in the hearing before me, confirmed Ms F’s assessment.
Most of the evidence of the parents in relation to the events before the interviews, both events involving both of them and things which took place when only the children and one of the parents were present, is necessarily subjective. There is little corroborative evidence in the form of other witnesses to the events. So, the observations of Ms F about the state of the children’s relationship with their father when she saw them together in December 2013, as set in her report of 20 January 2014, form a convenient “snap shot” of the relationship at that time.
In the course of her interviews Ms F observed the children with their father. In the report she says
When the interview with [the mother] was finished, we walked out to the waiting room to take the children in for their observation and [D] was laying over [the father’s] lap and giggling. He was engaged with both the children.
Ms F then took the father and the children into the playroom and reports:
Both children wanted to interact with him and were warm and welcoming towards their father. Initially, [C] seemed a bit distant and somewhat oppositional but [she] became happier and chatty over time. She was heard to tell [the father] about her dance competition and she sought his attention and affection. Indeed, towards the end of the observation, [C] was competing keenly for his attention as the children took turns climbing up their father’s lap and being flipped over. She was slightly aggressive towards [D] by knocking her out of the way and saying ‘watch and learn child’. [D] was consistently interactive and affectionate with [the father]. She sat near him on the floor and followed him to the table and she sought to play and talk with him. [D] listened to [the father’s] rules when learning how to play dominoes and she was observed to try and annoy [C] by knocking them over.
In terms of adult behaviour patterns, [the father] was observed to be engaged and attentive to the children throughout their time together. He asked age appropriate questions but was not excessively intrusive.
Ms F observed that the father was affectionate and appropriate with the children and attentive and responsive to their needs.
At the end of the observation, Ms F left the children in the playroom with their father for another ten minutes. She reports:
Each time they were checked on, they all seemed content. They were observed to be drawing on the whiteboard and chatting and the children seemed relaxed and content. When [the father] was finished and it was time to say goodbye, the children gave [the father] a hug voluntarily.
Ms F concluded:
Overall, the observation indicated that the children were comfortable in their father’s presence and that they thoroughly enjoyed spending time with him. There was no indication that the children did not want to spend time with him, as indicated by [the mother]. Rather, the children were keen to engage with him, and were competitive for his attention and affection. They responded to his suggestions for games and they listened to his rules and behaved accordingly. [The father] and the children all seemed relaxed and were content to spend additional time together.
Ms F recommended that the children should live with their mother and spend four consecutive nights each fortnight (from Thursday after school until Monday at school) with the father as well as each Monday night in the alternate week. She further recommended that the parents should share parental responsibility for the children; that the children should sleep independently (they were at that time still sleeping with their mother); that both parents should complete a course such as “Parenting After Separation”; that the children should not be exposed to inappropriate remarks about the other parent or information in relation to the legal proceedings.
Ms F concluded with a recommendation “If [the mother] restricts the children from spending time with [the father], then a change of primary residence may need to be considered.”
In summary, Ms F stated:
Furthermore, during the current interview, both children spoke positively about their relationship with [the father] and said they looked forward to spending time with him. Neither [C] nor [D] indicated that they were scared of him, although they both suggested that they felt uncomfortable being away from their mother for the night, given that they typically co-sleep with her. During the observation, the children sought attention and affection from their father and there was no indication that they feared him or were uncomfortable in his presence. It seems, therefore, that the children have only become uncomfortable with overnight contact since March 2013 and that they have developed anxiety about separating from their mother, rather than any fear of spending time with their father.
Ms F’s concerns about the mother’s parenting were expressed in her January 2014 report. She said that it seemed likely that, after the mother discovered that the father was involved in another relationship she became upset, primarily because she believed there had been a chance of reconciliation. The children witnessed a dispute between their parents in March 2013 about them spending a night with their father and were distressed by the altercation. Ms F expressed the view that it seemed likely that the children continued to be exposed to their mother’s subsequent upset and anger as well as involvement in the parental disputes, despite her minimisation of this in her interviews with Ms F. Ms F stated her view that, given that the children are young and easily influenced, the mother having been their primary carer, it seemed likely that they felt protective towards her and have consequently aligned themselves with her. Accordingly, Ms F expressed the view that it was likely that the children have expressed discomfort about their torn loyalties to each of their parents and to appease, or perhaps please their mother they have told their mother that they are unwilling to spend time with their father.
Ms F stated:
Additionally since the children have spent limited time with their father and have continued to spend time maximal time with their mother, including co-sleeping, it seems that they have developed an unhealthy relationship with her, such that they feel anxious to leave her and worry about her when she is not present. While the children are not currently aligned against their father, they are currently aligned with their mother, who appears to have fostered a dependence on her that is unhealthy. Such a process of alignment with [the mother] may not necessarily have been intentional, yet it has nonetheless occurred and it is in the children’s best interest that this ceases. To this end, [the mother] would benefit from a more thorough understanding of the benefits to children having a positive relationship with both parents and the negative impact upon the children should they be deprived of that relationship.
Perhaps of most concern is that [the mother] appears to believe that there is little benefit to the children spending overnight time with their father and that she is not encouraging this to occur now or in the future. Because she has minimised the children’s relationship with [the father] in the past, and believes that they are reluctant to spend time with him, she seems comfortable in her opinion that they would not miss him and that there would be minimal gain for the children maintaining overnight contact with him. Regrettably, it seems that [the mother] is having difficulty separating her own feelings of loss and anger from the children’s feelings and that she is not prioritising the children’s emotional needs. Rather, she has fostered a dependence in the children that is unhealthy and not in their best interest.
Ms F recommended that if the mother were unable to support the children’s adjustment to separation from her, in a healthy manner or is unable to support a positive relationship with their father in the future, either week about parenting arrangements or a change to the current primary residence for the children may need to be considered.
Ms F canvassed with the mother whether she was prepared to consider counselling to assist rebuilding the children’s relationship with their father or address any dynamics in the relationship and the mother stated that she is “not really” open to counselling.
The report was released to the parties on 31 January 2014 and would have been available to both of them shortly thereafter.
Significantly, the concerns expressed by Ms F in that report about the effect of the dispute between the parents and the children’s involvement in that dispute were known to the mother from the time she received the report.
What then has changed since January 2014 to bring about the current state of affairs where the children do not wish to spend any time with their father?

EVENTS FROM FEBRUARY 2014

On 6 February 2014, orders were made by consent which provided for the children to spend each alternate weekend with the father from 10 am Saturday to 4 pm Sunday and each alternate Monday from 5 pm until 7 pm. Those orders also provided that the parents attend a post separation parenting course and that the mother attend upon a psychologist, Ms K, to address the matters of concern raised by Ms F in her report. The orders contained a provision that the mother use her best endeavours to ensure that the children sleep independently of her in another room.
The first report of Ms F recommended that the mother seek psychological intervention from a psychologist specialising in children and with experience in family law matters, specifically Ms K. The records produced by Ms K suggest that she first engaged with the mother on 26 February 2014. The mother told Ms K that the children were highly resistant to staying with the father and that she tells them that they must go and sleep over with their father “for her” because she will “get in trouble” if they don’t. The mother told Ms K that she feels as if her “whole motherhood” is being attacked. Ms K saw the mother again on 16 March 2014.
On 19 April 2014 Ms K prepared a report at the request of the solicitors for the mother. The report had been prepared before 29 April but because the fee had not been paid, it was not forwarded to the wife’s solicitors until May 2014.
In the report dated 19 April 2014, Ms K indicates her understanding that the report has been requested as part of a continuing court process in relation to parenting proceedings and she reports on the two sessions she has undertaken with the mother. Ms K records the reason for the mother’s referral as being the recommendations made by Ms F and the fact that Ms K had available a copy of Ms F’s report.

Ms K reported “[The mother] engaged willingly in therapy sessions and presented as keen to do what she could to assist her current situation in the context of Family Court litigation.” The report of Ms F, a copy of which was made available to Ms K, concluded “If [the mother] restricts the children from spending time with [the father], then a change of primary residence may need to be considered.”
Ms K reports:
Much of the first session was history taking as [the mother] detailed the last few years after the breakdown of her marriage to [the father] in 2010 including the pressing issue in her mind that the two children reportedly remain very resistant to spending any time with their father. On this matter, [the mother] has presented with very little insight as to why the two children may be resistant to spending time with their father, beyond the fact that they have ‘never had a close relationship’.
The mother reported that the children’s weeks are full with extra-curricular activities including numerous dance classes. Part of the therapy sessions with Ms K included a discussion of how this could be continued should the children spend more time with their father.
In the second session Ms K explored issues surrounding the mother’s role in encouraging a relationship between the children and their father. They discussed the processes by which children can become aligned to one parent and strategies for the mother to actively encourage a healthy separation of the children from her such as tone of voice, non-verbal body language, and active verbal encouragement. Ms K expressed the view:
It may be possible that her relationship and views regarding [the father] could be hindering her ability to facilitate healthy separation between herself and her children, thus encouraging a significant relationship between the children and their father. Her role in this process may or may not be conscious and is certainly something to be explored in future sessions. Her role as the primary parent and caregiver also places her at risk of over identifying with her children such that she is unable to separate her own thoughts and feelings from that of her children.
Ms K recommended that the mother would benefit from further sessions in order to continue to address some of the issues which had been raised in the first two sessions. Those issues included the importance of establishing a co-operative co-parenting relationship with the father and her role in maintaining any resistance the children may have to spending time with their father. Ms K recommended that further sessions should be aimed at exploring the mother’s attitude and thoughts on the benefit to the children of having a significant relationship with their father:
… as she currently demonstrates minimal insight into this beyond the urgency in gaining the children’s compliance in the context of a recent Family Report. This is particularly important given the contrast between [the mother’s] reports of the children’s significant resistance towards their father and the reported observations of the children in [Ms F’s] report. She may also benefit from working through her own loss following the breakdown of her marriage.
Ms K recommended in the report that the mother continue to explore these issues in the context of therapy and also that the children might benefit from establishing a therapeutic relationship with a psychologist. Ms K concluded:
There is evidence to show that children who resist spending time with one parent and are aligned with another, benefit from therapeutic intervention targeted at developing critical thinking, encouraging independence and general emotional support in the context of a hostile litigation process. Such involvement of children in therapy should be established with both parents’ consent and ongoing active involvement in the therapy process, or with a mandated Order from the Court.
On 29 April 2014, further orders were made by consent. These orders were expressed to be final orders and provided for time to be spent by the children with the father. Until 10 June 2014, the children were to spend each alternate weekend with the father from Friday afternoon until 4pm on Sunday and the alternate Monday after school until 7pm. From 11 June 2014 until 5 August 2014 the weekend time was extended until Monday morning. From 6 August 2014, the weekend time was extended to commence on Thursday after school and end on Monday morning. The orders provided for the children to spend half of the school holidays with each parent.
Included in the 29 April 2014 orders were provisions requiring the mother to continue her attendance on Ms K and for the mother to arrange for the children to attend upon another psychologist, Dr L, or such other therapist as is agreed “for the purpose of implementing these orders including any recommended therapy” and authorising a copy of Ms F’s report to be provided to the therapist.
On 2 June 2014, D was distressed at school. The mother stayed with her for half an hour then took her home. D’s teacher suggested that the girls speak to the school counsellor. The notes produced by the school suggest that the counsellor saw D and C on 12 June and reported there was no further need to see them.
It would seem that no steps were taken by the mother to comply with the order relating to her continued engagement in therapy in a timely way and Ms K reported to Ms F that she chased the mother to organise an appointment on 23 July 2014.
The mother gave evidence that it was Ms K who told her that it was no longer necessary for her to attend sessions unless she wanted to “vent” about the situation with the children. That does not appear to be in accordance with Ms K’s understanding.
In the course of the preparation of her second report, Ms F spoke to Ms K. Ms K told Ms F that her aim in therapy was to provide practical assistance for the mother in particular about how to react to the children and facilitate their contact with their father. Ms K spoke to the mother about the possibility that the children were providing inaccurate or different information to her and cautioned her about not “feeding into” what the children are reporting. Ms F reports:
[Ms K’s] impression of [the mother] was that she had limited insight about her role in the situation, and that she took on board some of [Ms K’s] suggestions but in a more ‘tick the box’ manner, such that [Ms K] formed the view [the mother] was essentially giving lip service to these issues. She also formed the view that [the mother] overly identified with the children’s feelings and had difficulty separating her own opinion from others.
After the first session or two, [Ms K] apparently suggested to [the mother] that the entire family engage in family therapy either with her or elsewhere but [the mother] apparently did not inform her that the children and family were seeing [Ms M]. Indeed, [Ms K] said that she would never have suggested that the family attend sessions with her, had she known that they were seeing another psychologist. She was of the view that [the mother] would benefit from longer term psychotherapy, essentially to deal with her own issues and grief about the relationship with [the father] ending, and her trouble separating her feelings from her children, but she formed a view that [the mother] did not trust her and that she would therefore not be the best therapist for [the mother].
Ms K’s impression that the mother was merely paying lip service to the role of the therapist was borne out by her answers in cross-examination when she told Senior Counsel for the father that it would be detrimental to the children if they did not have a continuing relationship with their father but was completely unable to explain why that might be so.
The orders of 29 April 2014 contained at order 3 the following provision
That the mother to arrange and have the children attend upon [Dr L] or such other therapist as is agreed upon for the purposes of implementing these orders including any recommended therapy and that for the purposes of such therapy the report of [Ms F] and the parties affidavits filed in the proceedings may be made available to the therapist.
Dr L was unable to undertake the therapy and Ms M was nominated. The first occasion when the children saw Ms M was 22 July 2014. On 22 July 2014, Ms M notes that the reason for the referral is that the children are reluctant to spend time with their father and need to comply with Court orders.
On 12 August 2014, C told Ms M that being at her father’s was hard because her mother wasn’t there. C said that usually when she goes to sleep her mother holds her hand whereas at her father’s place she would watch a movie and fall asleep and he would then carry her to bed. D told Ms M that she felt that her father yelled at her and doesn’t explain what is happening. Ms M suggested an experiment where D tries doing what her father asks without fussing and sees how he reacts. Ms M noted that overall the main thing both girls find difficult is adjusting to being at their father’s place and not having fun things to do. Ms M suggested that the girls construct a list of ideas for things to do when they are at their father’s home.
On 26 August 2014, the children told Ms M that the main problem for them at their father’s home is that they miss their mother.
On 7 October 2014, the children told Ms M that they had been on holidays with their father and had fun but that they had missed their mother and cried for her. Ms M gave the children some strategies of things to do to take away the feeling of missing their mother so much.
On 21 October 2014, the children were able to tell Ms M about highlights of the last fortnight with their father and talked about sad thoughts and missing their mother.
On 4 November 2014, C told Ms M that she was sad when she was at her father’s. D reported fun activities such as going to the park, making up dances with C and being praised by her father. D told Ms M that she still preferred to be at her mother’s home.
On 14 November 2014, the children were to be collected from school by the father. C asked a staff member if she could ring her mother because she did not want to go with her father. The staff member refused and C went with her father. The next day, the principal, Ms N, took C aside and congratulated her on her “problem solving”. In cross-examination, the mother agreed that Ms N’s actions were appropriate but said that she, herself, did not praise C for going with her father.
On 18 November 2014, C reported to Ms M that her father had taken her to her dance exams. D said that she had found the week with her father “not bad but not fun or exciting.” Ms M noted that the children find it less interesting at their father’s than at their mother’s home but seem okay with being there.
On 2 December 2014 Ms M noted that the children remained unhappy to go to their father.
On 15 December 2014, Ms M saw the children and their mother. D told Ms M that it is easier to talk to dad when mum is not there and that she worries about how mum feels. Under the heading good things about being with dad, Ms M noted that D told her that her father came to a dancing concert and smiled. The children of the father’s partner, H and J, were described as good things about being with dad and D said that H and C always talked together. D told Ms M that in the holidays she will catch up with cousins, O and P.
C told Ms M about the things she found difficult with her father. C said that her father doesn’t listen and cited as an example that she wanted to go to her cousin’s birthday party but her father had other plans. C said she gets on with H. Ms M noted that C said “Mum never encourages her to go and talk to dad at events. Some of her friends do … but C just refuses. This is not because mum being there makes it more uncomfortable but just doesn’t like him.”
C told Ms M that she wanted to sleep at her mother’s and only go to her father’s to visit.
On 19 January 2015, D told Ms M that she wished her mother wasn’t upset when they left to go to her father’s and she wished her mother and father could talk to each other. D said that when mum is watching and she is with dad, she will not speak.
C told Ms M that it takes about three days for her to adjust to the changeover to her father’s home. The first two days she doesn’t really speak but becomes more talkative after that. Ms M noted “Seeing mum sad does make it hard. Especially as misses Mum as well. Wishes also that Mum could talk to Dad.”
Two significant events appear to have affected the children’s time with, and relationship with, their father. The first is the change in the schedule of C’s dance lessons in January 2015 and the second is the dispute over the children’s participation in a trip to the United States of America to dance (“the USA trip”). Because both of these events had a significant impact on the children’s spending time with their father, it is necessary to consider each event and the actions of each of the parents.

MONDAY EVENING DANCE LESSONS FOR C

In January 2015 the mother informed the father that C’s dance lessons had been re-scheduled and that C now had a lesson Monday afternoon, that being the time she was to spend with her father pursuant to the Orders.
From January 2015 the children’s schedule of extra-curricular activities was:
Monday - D had no commitment
C had dance lessons from 8.00 am to 9.00 am and then from 3.15 pm until 8.15 pm.
Tuesday-D had dance lesson from 4.30 pm until 5.00 pm and swimming lesson from 5.30 pm until 6.00 pm.
C had dance lessons from 3.45 pm until 8.00 pm.
Wednesday - D had dance lessons from 3.45 pm until 4.45 pm
C had dance lessons from 3.30 pm until 4.00 pm, soccer training from 4.00 pm until 5.00 pm and another dance lesson from 6.00 pm until 6.45 pm.
Thursday -D had dance lessons from 3.45 pm until 6.00 pm
C had dance lessons from 3.45 pm until 6.00 pm and again from 8.15 pm until 9.00 pm.
Friday -D had dance lessons from 4.00 pm until 5.00 pm and soccer training from 5.00 pm until 6.00 pm.
C had soccer training from 8.00 am to 9.00 am and dance lessons from 4.00 pm until 5.00 pm.
Saturday -D had a soccer game in the morning and dance practice in the afternoon.
C had dance practice in the afternoon
Sunday - C had a soccer game in the morning.
The mother conceded in cross-examination that she controlled and determined what activities the children undertook and she decided whether they would attend. She conceded that she was aware that the dance lessons for C on Monday conflicted with the existing Orders but that she elected not to comply with those Orders. The mother said that she did not at any time consider that C should not have been permitted to attend dance lessons on Monday but rather should spend time with her father.
That decision on the part of the mother was in stark contrast to her evidence that she had read and understood the document entitled “Parenting orders – obligations, consequences and who can help” attached to the orders made 29 April 2014.
The mother also conceded that C was aware that she was required by the orders to spend Monday afternoons with her father and that she was aware that her mother had decided that she could attend the dance lesson rather than spend time with her father. The mother agreed with Senior Counsel for the father that this conveyed to C that the mother gave priority to the dance lessons over C’s spending time with her father.
On 2 February 2015 the father sent an email to the mother suggesting alternative times as follows:
·    Alternative Sunday afternoon dinners
·    Changing some dance classes
·    Maybe Thursday after their 6 pm finish I could pick up and now that the girls are a bit older I could drop them back to you at 8.30 pm after a dinner
·    Alternate Friday afternoon after dance and then drop back to you
·    I could pick the girls up from dance on the Monday night after dance for dinner and sleep over and drop them to school on the Tuesday.
The mother did not reply.
The mother made no attempt to make any arrangement with the father for him to spend time with the children in lieu of Monday evening. She conceded that the father had made suggestions which she had rejected on the basis that “he knows her (C’s) timetable”. The mother conceded that C was aware that the father wanted an alternate time and that the mother had not agreed. She conceded that the message which was thereby conveyed to C about the importance to be afforded to time with her father was “probably not positive”. The mother said that if there were another night when both children were free, then alternate arrangements could have been made but that, since they had commitments every night, this was not possible.
Notwithstanding that evidence, the mother said that she understood that it was important to maximise the time the children spent with their father and to ensure that other activities did not interfere with that time. That evidence suggested that Ms K’s impression of the mother, as conveyed to Ms F in the interviews for the second report, that the mother payed “lip service” to Ms K’s advice, should be accepted.
The mother’s oral evidence should also be contrasted with her statement deposed at Paragraph 201 of her trial affidavit that “I felt that I had done everything I could to facilitate [the father] having his time with the children under the Orders”. She had, in fact, on her own evidence, done nothing to facilitate the Monday night time for C with her father but rather had actively frustrated it.
On 10 February 2015, the mother told Ms M about an altercation which had taken place the previous week. She complained that the father was not flexible with changes in the children’s routine such as enrolling them in dancing lessons on his night and that the father checks C’s use of her mobile phone.
On 17 February 2015, Ms M wrote a letter to both the mother and the father trying to arrange ongoing appointments with the children. Ms M told the parents that she wanted the appointments to be monthly alternating between each of the parents. She specifically asked that they contact her to discuss suitable dates and times. No arrangements were made by the mother for ongoing appointments and the children did not see Ms M again until July 2015. The mother was unable to provide any explanation for her failure to comply with the orders of the court to which she had consented and which required the children to see Ms M.
In February 2015 the mother discovered that C had an Instagram account. Neither parent was aware that C was using Instagram. C told the father that her cousins had organised the account. The Instagram account had a number of photographs of C with D and various family members including H. The photographs were tendered. They show happy family occasions such as the father’s birthday, family dinners and beach outings. On one smiling photograph of C and H, C had written “Yay [H] might become my step-sister”. The mother asked that the Instagram account be deleted.
Until May 2015, D spent time with her father on Monday evenings without C. In May 2015, the mother booked D into a “Technical Training Clinic”, or soccer training, on Monday nights. She did not consult the father, or seek his agreement but presented him with a fait accompli.
Thereafter, neither of the girls spent time with their father on Monday evenings.

THE USA TRIP

In October 2014 the children were invited to participate in a dance tour of the USA which was to take place in the September/October school holidays of 2015.
On 12 October 2014 at 4.55 pm, the mother sent an email to the father which read:
Please read and consider the attached information. I think it is such a great experience for the girls to be part of. An incredible opportunity for them and the thrill of dancing at Disneyland and Universal Studios is something they would never forget.
I would like to propose that you come with us as part of a large group. You and I would be responsible for our own costs but go halves on the girls expenses.
There is an information night on at … this Tuesday 7pm. You are welcome to come along and listen and ask any questions you might have. The deposit for this trip is due on this night also.

12 October 2014 was a Sunday. At best the father was given two days’ notice of the mother’s proposal and the requirement for a commitment on his part. However, the father did not receive the email which was captured as spam. He did not attend the information night and the mother did not contact him further about the proposed trip until April 2015. She did, however, commit to the girls participating in the trip and paid the deposit. Both of these things were done without the father’s consent and without his knowledge. The children were present at the information night on Tuesday 14 October 2014 when the mother paid the deposit.
The orders of 29 April 2014 provided for the children to spend half of the September/October school holidays with the father.
In April 2015, the mother contacted the father and he asked her to resend the email. On 7 April 2015, the father sent an email to the mother saying:
There is a fair bit to try and work out with regards to this trip as it does impact on my time with the girls in the September School holidays. I also Agree that it would be a great experience for C and D.
I am happy to try and work something out, but we should firstly finalize the current school holidays we are in …
As far as any money is concerned I cannot afford to pay any further monies than what I already pay to you each week until we can finalize the settlement.
I infer that the father was there referring to the outstanding financial proceedings between the parties. The school holidays to which the father referred were the Easter 2015 holidays.
On 15 April 2015 the mother sent a text message to the father which read:
I have passport applications for the girls as both have expired. I will bring both forms to soccer on Saturday or Sunday as they both require your signature and passport number. Your passport number you can forward to me and I can add to the forms if you don’t have it with you on the weekend.
On 17 April 2015 the father sent an email to the mother about, inter alia, the USA trip which stated:
On the 7^th of April I sent you an email that you replied to. In that email I let you know that there is a lot to sort out before anything could go ahead.
[Text missing] … agreement between us for the time period because it is my time with the girls.
As I have tried to be flexible with you before and had no luck with you returning the favour, this will need to be the first thing that will need to be sorted out.
The second thing is, if it’s ok for you to take the girls overseas for holidays I would like an agreement that when I would like to take the girls overseas that the passports would be readily available. Some sort of agreement needs to be put in place before any USA tour.
Until some agreements are in place and the final settlement is done I won’t sign the documents with relations to C’s and D’s passports.
The children spent time with the father during the April 2015 school holidays. Without consulting the father, the mother enrolled C in dancing classes almost every day of the father’s holiday time.
On 14 May 2015 the solicitors for the wife wrote to the solicitors for the husband stating, inter alia, “Your client has agreed to the children participating in the dance tour”. The letter continued “your client is well aware … how much the children are looking forward to same”. The solicitors advised that unless the passport applications were signed an application would be made to the Court.
On 19 May 2015 the father’s solicitors wrote to the mother’s solicitors proposing that the parents agree on reciprocal travel orders which would allow each parent to travel overseas with the children.
The mother deposed at Paragraph 91 of her trial affidavit:
The children had been aware of the dance tour taking place in the holidays since October 2014 … They were very excited at the prospect of participating in it. Their friends at the dance school were all talking about it.
At Paragraph 93 of her trial affidavit the mother deposed that C was becoming increasingly anxious about the passports and that she was aware that there was a problem with her passport and that her spot on the trip could not be secured in the absence of a passport.
At Paragraph 94 the mother deposed that the children were aware that the father was going overseas on 15 June 2015 and that their passports might not be obtained in time for the USA trip. She deposed “… they were aware of the deadline with the bookings for the USA trip as they were present at dance and at meetings at dance when these things were discussed.”
The father and Ms G took the children to the Vivid festival. Ms G posted a photograph on Facebook showing a happy family group including the children, H and J and two other children at Vivid.
On Monday 8 June 2015 the father arrived at the mother’s house to collect the children. The mother deposed that C took the passport applications and a pen to the father, in his car, and asked him to sign them. The father told C that the passport applications were to be discussed between the parents. The father alleges that, in the course of the exchange, the mother said “See [C] he won’t sign them so you won’t be able to go on the dance tour” and he replied “Mum just needs to let me know when we will have our time together”. On 9 June 2015 the father’s solicitor wrote a letter to the wife’s solicitor setting out this version of the conversation. I was not directed to any response to that letter where the father’s version was disputed.
The mother’s version of the event is contained in her trial affidavit. She does not include the words alleged by the father to have been said. In cross-examination, she denied that she said those words. The father was not cross-examined about his version of the conversation. I accept the father’s version of the conversation.
C ran back into the home and D followed. The children did not leave with their father. The mother deposed that they were both distressed and that she was not prepared to physically force the children to go with their father.
That the passport applications were made available to C, then a ten year old, can only be a decision by the mother. The absolute inappropriateness of the mother’s allowing C to confront the father is demonstrated by the futility of the confrontation. The passport application certainly needed to be signed by the father but it needed to be signed in the contemporaneous presence of a suitable witness. The father’s signature, absent that of the witness, could not have had any effect. It is not clear what the mother hoped to achieve other than the confrontation that occurred in the presence of the children and the subsequent devastating effect on the children’s attitude towards their father.
The father requested make up time with the children on 10 June 2015. The mother refused citing the children’s extra-curricular activities.
On 11 June 2015, when the children were to be collected by the father from school, the mother did not send them to school. The father went to the mother’s home to collect them. They refused to go with him.
In cross-examination the mother conceded that she supported the children in their refusal to spend time with their father on 8 June 2015 and on 11 June 2015.
The children again refused to go with their father the following day, Friday 12 June 2015. The mother deposed that she was unable to persuade the children to attend school on Friday. The father sent a text to the mother saying that he would come to her home to collect the children on Friday afternoon. She decided that “it was best for the children that they not have the weekend visit with [the father] in all the circumstances”. The mother removed the children from the home and took them to their afternoon activities so they were not at home when the father arrived.
The children did not thereafter spend time with the father until 6 August 2015.
The father proposed that his brother collect the children from school on Monday 15 June 2015. The mother declined.
Also on 15 June 2015, the Facebook post by Ms G, put up that day, was brought to the mother’s attention. Ms G had written:
[The father] and I and our kids and friends enjoying Vivid. We miss [C] and [D] and we look forward to enjoying their company very very soon. We are all saddened that their mother has taken them away again from all of us. We feel sorry for [the mother], we pray that she gets professional help and pray the kids will recover from this major ordeal.
The father was aware of the post. The mother was understandably upset when she read the post and the comments made by other people in response to it. The post was removed from Facebook before the mother’s solicitors wrote to ask for it to be deleted. In cross-examination, Ms G agreed that the commentary was inappropriate and distressing to the mother.
On 18 June 2015 the father filed a contravention application.
The father’s solicitors advised that he would collect the children from school on Wednesday 24 June 2015. C was absent from school ill on 23 and 24 June.
On 25 June 2015 the mother deposed that C was too sick to go to school and D refused to go. D was seven years old. The mother coaxed D to school at 10.30 am and left. She returned to the school, at 11.30 am and took D home. The principal rang the mother and asked if she would bring the children to school that afternoon so their father could collect them. At 1.30 pm the mother telephoned the principal and said that the children would not be returning to school. She declined to make the children available to their father that afternoon.
Notes produced by the school indicate that staff were concerned about the girl’s psychological welfare.
On 1 July 2015, after settlement discussions at Court, the father took the passport applications and told the mother that he would return them to her on 5 July when he collected the children for his school holiday period. On that day the parties signed a document titled “Heads of Agreement” which recorded their agreement that the father would sign the passport applications; the mother would take the children overseas in the September/October school holidays in 2015; the father would take the children overseas in the September/October school holidays in 2016; that the parenting orders made 29 April 2014 continue in effect.
The father went to the mother’s home on 5 July but the mother was unable to persuade the children to go with him. She suggested that they meet at the beach at 1 pm. They met. The children refused to go with their father.
The family re-engaged with Ms M in July 2015.
On Monday 20 July 2015, notes produced by the school indicate that the mother telephoned the school to say she was having trouble getting C and D to school because the father was to collect them that afternoon. The mother told the school that the girls had seen the court appointed expert the previous Tuesday and that she had opined that (I assume) therapy was of no help or benefit to the girls. If that is what the mother told the school, then it was not true. That was not Ms M’s opinion.
The Principal offered to go to the mother’s home to speak to the girls. C complained that her father drinks and blows into a thing (the Principal assumed this was a breathalyser). Asked if she is happy with Dad, C said he is always on the phone. The Principal explained to C that rules have to be obeyed and that her mother could be in trouble. C started to cry and the mother cuddled her and told her “it’s alright”. The mother then spoke to the Principal alone. The Principal told the father that the children would not go with him and he left. The Principal then told the children that their father had gone and that he was very sad and disappointed not to have seen them. The Principal again spoke to the girls about the consequences for breaking rules.
On 21 July 2015 the Principal took advice from her departmental legal branch. The girls attended on Tuesday and Wednesday. On Wednesday the Principal spoke to C and encouraged her to come on Thursday when the father was to collect them.
On 23 July 2015 the girls attended school but did not bring their bags for the weekend with the father. The father came to collect them. The school rang the mother and she said that the girls were not going with the father. The mother waited outside D’s classroom. The father walked up to her and said this was his time with the girls. The notes produced by the school state that the mother took one girl under each arm and walked out of the school. The notes do not suggest that the girls were in any way upset or distressed.
On Friday 24 July 2015, a day when the children should have been in the care of the father pursuant to the orders, they did not attend school. The Principal made a report to the Child Wellbeing Unit. The Principal rang the mother who said that there was no way she could get the children to go to school if there was a chance of the father being there.
On 28 July 2015, Ms M saw both the parents together. The mother presented as upset and unable to talk normally. Ms M noted:
Went to get the girls to come in and see [the father] and the girls clung to mum seeing her shaky and upset. They refused to go in to see Dad. She was saying that everything will be okay. Verbalised to the girls to go in. I also encouraged them to see Dad but both refused.
Ms M reinforced to the girls that it was a display of poor manners not to see their father when he was waiting for them but they still refused to see him.
Ms M discussed with the mother the way her body language and mood impacts upon the children and the need to manage her feelings and present as being supportive of contact with the father. Ms M noted:
The discussion of consequences raised with regard to non-compliance in seeing father. eg [The father] mentioned the need to take more legal action and prevent the girls going on a dancing trip etc if there is not more cooperation and compliance. [The mother] was upset by this and walked out.
Ms M noted that the next session was to be for the mother only to reinforce how her manner and body language when the father is mentioned or present impacts upon the girls’ relationship with him. Ms M also noted that there needs to be active support of contact with the father which needs to include consequences for the children if there is non-compliance. Ms M suggested one consequence could be missing out on dancing lessons.
The mother resiled from the agreement embodied in the document dated 1 July 2015. On 28 July 2015 the father’s solicitors wrote to the mother withdrawing his consent for the USA trip.
On 29 July 2015 the mother’s brother came to the school and saw the Principal “to express his frustration and disgust at the way the school had handled the situation”. The notes state “also explained that if [the father] and his brother approached [the mother] again he would assault them”. The Principal explained that the orders should be followed and noted that the mother’s brother was upset. The father told the Principal that he intended to continue to come to the school on the days the orders specified that he should collect the children.
On 3 August 2015 the father telephoned the school and was told that the children were there. He attended to collect them. He waited outside D’s classroom. The notes produced by the school state:
When bell rang [D] ran straight out of classroom and ran to [the mother’s brother] who was behind classroom. [The father] followed [D] to where [the mother’s brother] was with his daughter … [C] appeared and wouldn’t go with dad. Refused, was very upset. I asked [all] to come to my office with [the two class teachers] … [The uncle] suggested a compromise – they all to walk to his house and drive [C] to dance then go to [his daughter’s] swimming lesson then to come back to [the uncle’s] house and either [the mother] would pick [them] up from [the uncle’s] or [the father] to drive [D] to [the mother’s] house. Both [C] and [D] agreed as well as [the father]. We all walked out of the office.
On 6 August 2015 the mother dropped the children at school and asked the Principal to call her and let her know what happened that afternoon. The father and H came to the school. The notes produced by the school record:
Girls were a little bit upset initially, both classroom teachers … spoke to each girl to see if they were okay. After a discussion both girls admitted they would miss mum but they were okay to go with dad. We all walked to the car and the girls went with their dad. I called [the mother] @ 4 pm to tell her they (illegible) [the father].
In her trial affidavit, the mother deposed:
I do not believe the girls happily went … the children told me that it took a long time for them to get in [the father’s] car and that they were highly distressed.
In cross-examination by Counsel for the ICL, the mother said that she believed the children’s version of the event and did not believe the Principal’s version. She said that she could not conceive the possibility that they went happily and the Principal must have lied about that.
The father dropped C at dancing and left with D.
The mother deposed that at around 4.15 pm she received a phone call from an unnamed person who told her that C had been dropped at dance crying hysterically. Further she deposed that at about 6 pm she was contacted by the dance school who told her that C was upset and wanted the mother to come and collect her. Rather than telling the caller that C was in the care of her father and that he should be contacted, the mother went to the dance class.
C told her mother that she and D had been upset when they were collected by their father. The mother deposed that C appeared to have been crying and her eyes were bloodshot. In cross-examination the mother said that C was not distressed when she saw her but was very clingy. The mother left when C’s next class began. At about 9–10 pm the mother received another phone call from a parent who told her that C was hysterical. The mother did not go to the dance class.
The father deposed that when he went to collect C at about 8.50 pm, she initially refused to go with him but after some discussion, she agreed that they would all go to stay at the home of the husband’s brother. He deposed that C talked about her dance class on the way and said goodnight to him before she went to bed.
The next morning (7 August) the father took C out for breakfast before dropping her at soccer training. He deposed that she talked and joked with him. He reminded her that he would collect her from school that afternoon.
The mother deposed that she attended the soccer training that morning. What the father did not know, and the mother did not disclose in her affidavit, was that she had a conversation with C. The mother in cross-examination agreed that she had not disclosed this conversation to the father, to the Court, to Ms M, to the school or to the police. The mother asked C if she was “OK”. She could not explain why she asked that question. The mother said in cross-examination that C was not upset or distressed, that she made no complaint about the father or the time she had spent with him or about going home with him that afternoon. The mother said C was happy. When asked if her questioning C caused C distress, the mother said this was possible.
The father arrived at the school to collect the children. D joined the father and they waited for C who did not appear. Teachers were unable to find her. The father’s brother, who had come to collect his children, took D home with him. The father called the mother’s brother who said C was not with him but that he would look for her. The school called the mother who came to the school. The police were called.
After a short time, the mother’s brother called the school to say he had found C and he brought C to the school. There is some confusion about where C was found. The mother’s brother told the school that he found her on the street nearby. The mother was told that C had been at the house of a friend.

The more likely explanation for the mother’s attitude is that she was playing a game of “brinkmanship” with the Court and with the father and she realised that she had lost the game.
The application for an adjournment was refused. The parties were told that judgement was reserved and would not be handed down before 1 June 2016.
If the mother wished to ensure that the children spent a week with their father commencing in two days’ time, no order was necessary. The existing orders provided for the children to spend half school holidays with him. If the mother now believes that she should not be present at changeovers, then no order is required to give effect to that understanding. It is to be recalled that both the father and the school had, for some time, asked the mother to absent herself at changeovers and she had refused. Ms M had suggested to the mother that she not go to sports during the father’s time with the children and she did not adopt that suggestion.
In the event that there was a significant change in circumstances, the parties and the ICL could apply to adduce further evidence.
No application was made to re-open the case or to present fresh evidence.

WHAT ARRANGEMENTS SHOULD BE MADE FOR THE CHILDREN’S FUTURE CARE?

The Family Law Act 1975 (Cth) prescribes two primary considerations for determining what is in a child’s best interests. It is not suggested here that there is a need to protect the children from the consequences of violence or abuse.
In this case, the primary consideration for the Court is the benefit to the children of having a meaningful relationship with both their parents.
The children’s stated wishes are clear. C told Ms F that she wanted to live primarily with her mother but spend two hours each fortnight with her father. If that is C’s wish, it is difficult to understand why it has not occurred, other than to speculate that C does not feel able to negotiate that arrangement with the mother.
D told Ms F that she does not ever want to see her father but this contrasts with Ms F’s observation of D interacting with the father.
In cross-examination Ms F said:
the relationship between [Ms Winters] and the children is too strong, that the children are finding it hard to find their own voice or their own opinions about their father within it, and so it’s likely that when they’re with their mother they’re going to continue to express negative views about their father because that’s what has worked for them in the past.
Because of Ms F’s evidence as to the children’s having been alienated from their father, the children’s wishes cannot be given great weight. They cannot, however, be ignored and are significant in the consideration of the effect on them of a change in their care arrangements.
The nature of the children’s relationship with significant adults is complex.
They have a close and loving relationship with their mother. However I accept the evidence of Ms F that this relationship is enmeshed to a degree which is psychologically unhealthy.
When Ms F assessed the children’s relationship with the father in December 2013, they were keen to spend time with him and competed for his attention and affection. Such was the disparity between Ms F’s observations of the children’s relationship with their father and the mother’s reports that they were reluctant to spend time with him, that Ms F concluded that the children felt the need to protect their mother by projecting a negative view of their father. At that time, Ms F was of the view that the children’s relationship with their father was such that they should spend five nights with him each fortnight and half of the school holidays.
When Ms F again assessed the relationship in October 2015, they had not spent any time with him since August 2015. Despite their negative remarks about him, they were not distressed or anxious in his presence. Indeed they appeared confident in their rejection of him and rudely ignored him when he attempted, appropriately, to engage with them.
The children have not spent a great deal of time with Ms G and H and J and have not seen them since at least mid-2015. Ms G deposed to a pleasant and happy relationship with the children since the beginning of 2014. Ms G observed that the children got on well with H and J. Certainly in the Instagram photographs in early 2015, C seemed pleased and excited about the idea that H would be her step-sister.
It may be that the presence of H, an older teenaged girl, in the father’s household will help C adjust to the changes. C had some affection for H when they were seeing each other regularly and was excited at the prospect that they would have a relationship.
There is no doubt that the placement of the children in the father’s household is untested. The father and Ms G have rented a home which provides a bedroom each for the children. Their evidence, which I accept, is that when the children were staying regularly with them overnight, the blended family worked happily.
Each of the parents has extended family living in the local area. The evidence suggests that the children have loving and appropriate relationships with their grandparents, aunts and uncles, and cousins.
Neither parent has failed to participate in making decisions in relation to the children. Rather, the issue in these proceedings is the extent to which the mother has made decisions in relation to the children which have excluded the father both from the decision-making process and from the children’s lives.
The effect of a change in the children’s circumstances requires careful consideration. There are risks for the children whether they remain in the care of their mother or move to live with their father.
I accept that these children would be distressed and angry if they do not live with their mother. They will grieve for her.
Ms F in her oral evidence considered the possibility that C would run away from the father which would create a risk for C but she considered that the risk could be managed by the father.
Ms F balanced the risk of the children grieving for their mother, which would be exacerbated if they are not allowed to have any contact with her for a time, against the risk that seeing her will destabilise their placement with their father. She suggested that it might be more distressing and destabilising for the children to see their mother and then be removed again.
Ms F in cross-examination said that the literature suggests that the time needed for the children to settle into a placement with their father will be between three and twelve months, most likely around six months. She had considered the particular difficulties surrounding the fact that C is starting high school in 2017 and verging on adolescence.
The risks for the children are ameliorated by therapy and the fact that, if they are removed from the enmeshed relationship with the mother, they will be able to develop autonomy and think critically for themselves.
However, I do not underestimate the seriousness of the risk and the distress to the children inherent in changing their care.
The alternate risk to the children, which has been explained by Ms F and fully set out in her report, is the risk that, by remaining in the mother’s care, they will have no relationship with their father and an enmeshed relationship with their mother with all of the adverse psychological consequences that Ms F describes in her reports.
At the present time, the children are not able to spend time with the extended paternal family. That would be possible if the children lived with their father. The father in his oral evidence said that he envisaged making arrangements with the mother’s brother for the children to spend time with the maternal extended family.
The capacity of each of the parents to provide for the children’s psychological and emotional needs is central to this decision.
The father’s capacity to provide a sufficient level of care to compensate for the children’s distress and grief on missing their mother is untested. He indicated in his oral evidence a willingness to take advice from professionals, particularly Mr E who is the current family therapist. In his cross-examination he gave considered evidence and appeared to have given thought to the difficulties which he and the children would encounter if they were in his care. Ms F said in cross-examination that the children have had a close relationship with the father and would benefit from learning how to repair that relationship. She did not find any significant deficits in the father’s parenting capacity. She said in oral evidence:
I found [the father] to not have any significant deficits in his parenting capacity. I don’t think that he would not be able to cope with that arrangement. I canvassed that with him ... how he would manage work, how he would manage the children. He does not appear to hold any anger or blame towards the children which would be one of the fundamental concerns that I would have, if he was able to manage his own emotions, but – and, you know, to prioritise the children. I didn’t see any evidence to suggest that he – that he would be angry or blame them or that there would be any long-term ramifications from – in terms of his bonding with the children. He’s quite a reasonable man. He has complied, or seemingly complied, so far with therapy and therapeutic suggestions. I – I have no reason to believe that he would – that he would not do that in the future, that he wouldn’t take the children to therapy, for example, or that he would prevent the children from having a long-term relationship with the mother. In fact, he – he had said to me in the interviews, you know, words to the effect of that he – he wants the children to have that. That’s not his goal. It – he just wants to be able to spend time with them and – and to also have a relationship with them.
In contrast to the father’s recently untested parenting abilities, the mother’s parenting has been tested and demonstrated to be wanting in the ways that Ms F has described in her two reports and in her oral evidence.
She has an opportunity over a period in excess of two years to address the serious concerns expressed by Ms F in her first report and has not done so.
The mother has made important decisions in relation to the children, decisions which had an impact on the father, without consulting the father. She committed the children to the USA trip, and told them about it, without obtaining his consent, knowing when she did so that the trip was to take place during a period when the children were to be with their father for school holidays. She extended the USA trip to spend time with the children in Hawaii without telling the father. She allowed C to take dancing classes on Monday evenings although she was aware that the consent orders provided for C to spend alternate Monday evenings with her father. Shortly thereafter, she enrolled D in soccer training on Monday evenings. In April 2015 she enrolled C in dance classes on the days when she was to be with her father for the school holidays.
The responsibilities of parenthood necessarily embrace the responsibility to ensure that children have a meaningful relationship with the other parent. The mother has failed to fulfil that responsibility. The mother told Ms F that she was acting in the children’s best interests by not forcing them to spend overnight time with their father. Ms F said that, regrettably, the mother appears to believe that there is little benefit to the children in spending time with their father and that she was unable to support a healthy separation from herself so as to support a positive relationship with their father.
The mother has exposed the children to her negative views of the father and has tacitly allowed them to decide that they will not spend time with him and that they will be rude and disrespectful to him. Ms F opines, and I accept, that the mother has actively facilitated the children’s rejection of their father.
In addition, the mother said that, when she agreed to allow C to go to dancing on Monday evenings, C was aware that she was required by the orders of the Court to spend alternate Mondays with her father. The mother appears to have given no thought, as she was urged to do by the school Principal, to her responsibility to teach the children respect for authority where it did not coincide with their or her wishes.
In weighing up all of the factors that influence this decision, I give the greatest weight to the need for the children to have a meaningful relationship with both of their parents.
The evidence of Ms F is clear that, unless there is a major change in the attitude of the mother towards the importance and nurturing of the children’s relationship with their father, they will not have a relationship with him. The evidence does not suggest that any change in the mother’s attitude is likely in the foreseeable future. The mother has had the opportunity to consider and reflect on Ms F’s recommendations since about February 2014. She has had therapy with Ms K, Ms M and not with Mr E. There has been no appreciable change in her attitude.
In cross-examination Ms F said:
the goal of … having no time with their mother and having an – an emersion experience with the father would be to repair the relationship with both and to have the parents re-establish appropriate roles and boundaries for the children and to improve their parenting with them such that they were both doing effective parenting and that the children would ultimately be more likely to have a balanced relationship with both parents. I mean, that would be the end goal, not to remove – the goal would not be to remove the mother from the children’s lives.
If the children live with their father, they have the possibility of a meaningful relationship with him and with their mother.
If the children remain with the mother, there is no likelihood of their having a relationship with their father in the foreseeable future.

HOW SHOULD THE CHANGEOVER BE MANAGED?

The father proposed that the changeover should be facilitated by Mr E. He gave evidence that he had discussed with Mr E the way in which changeover could be managed and that Mr E had suggested it take place in his rooms with his assistance.
The father’s proposal is appropriate and the Orders will reflect that proposal.

WHEN AND IN WHAT CIRCUMSTANCES SHOULD THE CHILDREN RECOMMENCE SEEING THE MOTHER?

Ms F recommended that a period of six month’s absence from the mother should be a sufficient period for the children to settle into the father’s household. However she acknowledged that the period might be as long as 12 months.
The father sought to place restrictions and conditions on the resumption of the children’s spending time with the mother after the expiration of that time. Specifically, he asked the Court to make an order that the mother engage in regular weekly or fortnightly therapy with Ms K or another suitably qualified therapist approved by the ICL for a period of 12 months and comply with the recommendations of the therapist. After six months of therapy or not less than 12 sessions, the therapist is to provide a report as to the mother’s attendance and engagement in therapy and any gains in her insight and understanding, as well as areas targeted for ongoing therapy, that report to be provided to the solicitors for the father. Conditional upon the mother’s attendance at therapy being satisfactory and provided that the therapist is of the opinion that “the Mother has made significant changes in her attitudes and improved her insight” after six months, the mother commence spending time with the children in a professionally supervised setting for a two hour period once each week. After six months of supervised time, (and 12 months of therapy) the father envisaged the children spending alternate weekends with the mother.
Nothing in the evidence of Ms F or the evidence of the mother suggests that the mother has any willingness to engage in therapy or that ordering her to do so would be productive of any change in her attitude or insight. The mother may choose to engage with a therapist and it is to be hoped, for the sake of the children’s future relationship with her, that she does. If the mother chooses to engage in therapy then she may also choose to allow her therapist to provide some feedback to the father. However, I do not propose to order her to do so.
The mother should be invited and encouraged to continue to engage in the process of the children’s therapy with Mr E and in accordance with Mr E’s recommendations.
A copy of these reasons should be provided to Mr E.
Because I have no confidence in the mother’s willingness or ability to moderate her attitudes or her behaviour, the process of re-introduction of her physical contact with the children will be slower than the father proposes. The Orders will provide that, after six months of no contact with the children, there will be a year of weekly supervised contact at a contact centre or with a professional supervisor. The purpose of the supervision is to ensure that the mother does not disrupt the process of the children’s settling in their father’s care. After one year from the date of these orders, the children will spend one day each weekend with the mother for a further year. After two years from the date of these orders, the time will be extended so that the children spend time with the mother each alternate weekend from after school Friday until school on Monday and for half of the school holiday periods. In the event that the parties agree, the times can be extended at any stage.

PARENTAL RESPONSIBILITY

It is impractical for the parents to have shared parental responsibility in the current circumstances of their lack of communication and when the mother is not seeing the children.
The father should have sole parental responsibility for the children for one year from the date of these orders until the mother commences seeing the children unsupervised. During that period, the orders will provide for him to keep her informed of the children’s progress and any decisions made in relation to their welfare. After the commencement of unsupervised time, the parents should have equal shared responsibility.

I certify that the preceding two hundred and sixty-eight (268) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 1 June 2016.

Associate:

Date: 1 June 2016

[2016] FamCA 421

1 June 2016

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Remedies

Injunction

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