Wolleman and Wolleman

FEDERAL CIRCUIT COURT OF AUSTRALIA

WOLLEMAN & WOLLEMAN

[2018] FCCA 1000

Catchwords:
FAMILY LAW – Parenting – children aged 10 & 7 currently living with their father – second round of proceedings – where the mother has a fixed belief that the father poses a risk of sexual harm to the 10 year old and that both children fear their father – where no other person who has contact with the children shares those beliefs – where the 10 year old is refusing to see the mother after the mother withheld both children from the father for two months in 2017 – where it is impossible to make orders which will restore the 10 year old’s relationship with her mother – order made for the 7 year to spend limited supervised time with the mother.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA

Applicant:

MR WOLLEMAN

Respondent:

MS WOLLEMAN

File Number:

NCC 3375 of 2014

Judgment of:

Judge Terry

Hearing dates:

7 & 8 March 2018

Date of Last Submission:

8 March 2018

Delivered at:

Newcastle

Delivered on:

21 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr Gray

Solicitors for the Applicant:

Rethink Law Pty Limited

The Respondent:

In person

Solicitor Advocate for the Independent Children’s Lawyer:

Ms O’Rourke

Solicitors for the Independent Children's Lawyer:

Legal Aid NSW

ORDERS

All previous parenting orders in relation to the children [X] born (omitted) 2007 and [Y] born (omitted) 2011 (“the children”) are discharged.
The children shall live with the father.
The father shall have sole parental responsibility for the children.
The mother shall spend time with [Y] as follows:
(a)Supervised by Big Brown House (“the supervisor”);
(b)For 2 hours in March, June, September and December of each year at times determined by the supervisor;
(c)[A] may accompany the mother on the supervised time;
(d)There is a risk to [Y] that the mother may talk to [Y] about her fears for the children in the father’s care and a session of supervised time is to be immediately terminated if the mother:
(i)Denigrates the father or the father’s family or friends; or
(ii)Raises with [Y] that the father has acted abusively or inappropriately with the children.
(e)Within 7 days of the date of these orders, the parties are to contact he supervisor (telephone (omitted)) to arrange the supervised time and, thereafter are to comply with the directions of the supervisor;
(f)The parties are to share equally the costs of the supervisor;
(g)The father is to provide the supervisor with a copy of these orders.
The mother may communicate with the children by sending letters, cards, photographs and/or gifts to the children for the children’s birthdays, for Christmas and on 2 other occasions in a calendar year at a contact postal address provided by the father.
If the children, or either of them, express a wish to send letters, cards, photographs and/or gifts to the mother, the father is to facilitate the children to do so at a contact postal address provided by the mother.
The mother is restrained from approaching or communicating with the children.
The father is to use his best endeavours to arrange for the children to spend time and communicate on a regular basis with their brother [A].
When the children, or either of them, are in the parties’ presence or hearing, the parties are restrained from denigrating the other party or the other party’s family or friends.
The father is to authorise and direct the children’s school(s) to send copies of the children’s school reports and school photographs to the mother (at the mother’s cost) at a contact postal address provided by the mother.
If the children or either of them have a medical issue which involves them being admitted to hospital, the father is to promptly notify the mother at a contact email address provided by the mother about the medical issue.
The parties are to keep each other informed of their current contact postal address and contact email address and the father is to keep the mother informed of his current mobile telephone number.
In the event that the mother elects to seek psychiatric therapy, she is granted leave to provide her psychiatrist with copies of these orders, the Reasons for Judgment, the Family Report of Regulation 7 Family Consultant Ms S dated 13 November 2015 and the Limited Issues Family Report of Family Consultant Ms K dated 5 September 2017.
MS WOLLEMAN and her servants and agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of [X] born (omitted) 2007 and [Y] born (omitted) 2011 from the Commonwealth of Australia.
[X] and [Y] be and are hereby restrained from leaving the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said child or children on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child or children’s names on the Watch List for a period of five years.
Upon expiration of the period referred to in Order 15 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names from the Watch List.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3375 of 2014

MR WOLLEMAN

Applicant

And

MS WOLLEMAN

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This matter concerns parenting arrangements for [X] ([X]) who is 10 and [Y] who is almost 7.
If the issue in the case was treated as being to determine where [X] and [Y] will be safe and comfortable, it would be an easy case to resolve. It only becomes a difficult case if one allows oneself to be side-tracked by concerns at best, or preconceptions at worst, about the appropriate age of parents and whether and to what extent children being connected with their ethnic heritage should be prioritised.
The father is Australian and is almost 68. The mother is (nationality omitted) and is almost 38.
The father moved to (country omitted) in 2002. The mother said that he was doing some work there. The father said that he was retired and living on a DVA pension.
The mother was working in (occupation omitted) in (country omitted). The parties met in 2006 and commenced a relationship. They married in (omitted) 2007 and [X] was born on (omitted) 2007.
In 2010 the parties relocated to Australia where [Y] was born on (omitted) 2011. In due course they moved to a property near (omitted), a small town in the (omitted), which had been purchased by the father’s adult son Mr G. The father built a house on the property.
The mother’s son [A] born on (omitted) 2002 accompanied the parties to Australia.
According to the father, the parties had a number of separations over the years and during most of those separations he cared for [A] and [X]. The mother referred to only one separation which occurred in 2013 and she said it was for about eight months. During that separation, by which time [Y] was born, the parties’ two children and [A] resided with the mother. The father said that this was because it coincided with a period when he was dealing with prostate cancer
The father was the more credible witness. There was frequently a complete disconnect between the mother’s evidence and the objective facts. This was particularly marked in respect of her repeated assertions that [X] and [Y] were afraid of the father, something which was contradicted by the evidence of both family report writers. It was also evident in evidence the mother gave that [X] wanted to remain with her instead of being with the father which is completely contrary to all the other evidence in the case.
There were many occasions when the mother’s evidence was not accurate and not correct and I prefer the father’s evidence generally although when it comes to critical incidents, I will have to consider the evidence about each of them separately and carefully
Against that background, I consider that the father’s evidence about the parties separations and what happened during the separations in regard to the care of the children, is likely to be the more reliable and particularly so because he was not challenged about it in cross-examination. He wasn’t challenged about it by the mother and I could overlook that but he also wasn’t challenged about it by the Independent Children’s Lawyer.
I consider it likely that his account of what happened prior to the final separation is more accurate but nothing really turns on it in terms of the overall outcome of the case.
The parties finally separated in June 2014 and there was no dispute about what happened then. [X], who was 6 ½, remained with the father and [Y], who was 3, went with the mother as did [A]. The father remained living on the house on Mr G’s property and the mother, [Y] and [A] moved to other accommodation.
After separation the parties made ad hoc arrangements for each of them to see the child who wasn’t living with them. Again I prefer the father’s evidence about that which I have no reason to doubt.

The first round of court proceedings

In December 2014 the mother filed an application seeking orders that she have sole parental responsibility for the children and that they live with her and spend time with the father each alternate weekend from Friday to Sunday.
The father cross-applied for orders that he have sole parental responsibility and that the children live with him and spend time with the mother on alternate weekends and for a midweek visit after school.
A family report was ordered. Interviews were conducted by Ms S, a Regulation 7 family consultant, in late 2015 and the report was released to the parties on 13 November 2015.
Ms S recommended that the father have sole parental responsibility for the children and that they live with him and that the mother maintain regular contact with the children.
Matters which appear to have influenced Ms S were her view that the mother had impaired insight into [X] witnessing the mother’s then partner Mr R assaulting the father, the mother’s discussion with [X] that she might be raped by the father unless she slept in her own bed, [X]’s reaction to the mother at the observation session and the mother’s favouring of [Y] over [X] during that session and the way the mother interacted with both children during the session contrasted with the father’s ability to respond appropriately to both children.
Another issue which influenced the family consultant was [X]’s clearly expressed wish to live with the father.
The matter did not settle after the report was released and often matters do not. Family report writers’ recommendations are just that: recommendations. Often people want to test them and sometimes they are not followed by the Court. In any event the matter did not settle and it was listed for trial in June 2016. However, on the first day of the trial the parties informed the Court that they had reached agreement and final orders were made with the consent of each party and the Independent Children’s Lawyer.
The orders provided for the parties to have equal shared parental responsibility and for [X] to live with the father and [Y] to live with the mother and for the children to spend each weekend together alternating between the parents. The orders also made provision for school holiday time.
In the affidavits the parties filed in the current proceedings, they both alleged that they agreed to these orders as a result of pressure by lawyers and fear (which was different from their separate perspectives) of a worse outcome.
I have no means of assessing the merit of those allegations.

Events after the 22 June 2016 orders were made

The orders did not work well for very long at all and the issues that reared their heads were exactly the same issues that had existed before the orders were made.
There were some disputes about the interpretation of the orders but the major issue that caused ongoing conflict, was the mother’s refusal to let go of the fact that the father may have sexually abused [X].
The mother raised this issue soon after the parties separated in 2014. She harped on about it prior to the consent orders being made and after the orders were made she persisted in making allegations about it and in taking [X] to doctors despite [X]’s discomfort about that.
At times during the trial, the mother seemed to imply that other people had raised these concerns with her rather than that they were her concerns. However the subpoena material clearly indicates that it was the mother who continually raised the issue.
A note from (omitted) Medical Practice dated 8 October 2016,[1] records that the mother told the doctor during a lengthy consultation that she was concerned about two issues. The first, was that [X]’s father slept with her two years ago after they separated. The second was that her father kissed her on the lips when they said goodbye at school in front of many people including her teacher but the teacher didn’t say anything, and later the father held her tight, front to front, when saying goodbye.
[1] Exhibit B
The notes then say:
But [X] firmly denies sexual assault by her father.
And go on to say:
No evidence of physical abuse, she appears healthy and she is able to communicate properly.
There is a letter from a Dr Z to Dr J of (omitted) Specialist Centre dated 1 November 2016 which says as follows:
Thank you for seeing [X], aged eight years, for assessment. As you are aware during our phone discussion today, [X]’s mother, Ms Wolleman, is concerned of sexual abuse.
The father wrote to the mother shortly after 1 November 2016 informing her that [X] was very distressed at being required to see a doctor and it appears that he briefly withhold [X] from the mother but time quickly resumed.
The issue did not go away though. On 10 March 2017 the father sent an email to the mother as follows:
Why is [X] not at school? [Y] tells me you’re taking [X] to a hospital - I would say, against her will. If so, you will regret that.
On 23 March 2017 the school counsellor reported in his or her notes that [X] has expressed worries to the counsellor that:
…mum would pick her up today and take her to the doctor.
The counsellor informed the father and the father again expressed concern to the mother about her taking [X] to doctors.
On 24 March 2017 the mother sent the father the following email:
While I absolutely deny the context and the alleged fear [X] has of me, and her crying about going to a doctor –which did not happen - I agree I will not discuss you touching her private parts with her. I will not seek medical treatment unless she has an illness.
On 5 April 2017 the mother went to see Ms O who was [X]’s counsellor at the time and spoke to her and to the manager of the practice (omitted). Their notes state that they met with the mother at the mother’s insistence. They set out the allegations the mother was making about the father and record that she expressed a fear that [X] would commit suicide.
The following day, 6 April 2017, the school counsellors’ notes say as follows:
[X] is okay with mum picking her up. Worried about doctor, but believes mum might not do it because mum made a promise to dad in a text.
On 10 April 2017, however, the mother collected both children from school and thereafter withheld them from the father. The children did not see the father or attend school for nearly two months.
When the mother was asked in cross-examination why she withheld the children, she said that she withheld [X] because of the sexual abuse issue and [Y] because he was frightened of his Dad.
The father promptly filed an application for a recovery order but it did not come before me until 7 June 2017. 2017 was a very difficult year for this registry because we were shorthanded in terms of judicial resources but it came before me on 7 June and I ordered that the mother deliver both children to the father forthwith. I also suspended the mother’s time with both children and reappointed the Independent Children’s Lawyer.
On 24 July 2017 the matter came back before me and I ordered the preparation of a limited issues family report, the issue being what orders should be made concerning the children spending time with the mother.
I was not able to make an order about the children spending time with the mother on 24 July 2017 because the father said that [X] would not go if I made that order and the mother said that she wanted to see both children and if she couldn’t see them both she wouldn’t see either of them. A limited issues family report was ordered seeking assistance about the time the children should spend with the mother but noting that it appeared to the Court that a further full family report would likely be required in the future.
The limited issues family report was prepared by in-house family consultant Ms K on 5 September 2017. Ms K noted that the children appeared happy and comfortable in the father’s care and went on to say:
I provided the mother with some feedback about this, given that she said they were frightened of him and she attributed their observed positive relationships with the father to be because they were trying to please him because they were so fearful of him.
The family consultant noted that there was no information to support the mother’s contention that [X] was at risk of sexual harm in the father’s care.
[X] refused to see her mother on the day of the interviews and expressed strong opposition to spending any time with her. [Y] agreed to see her but his presentation was a little bit concerning. The family consultant said as follows:
[[Y]] thought he might like to see his mother to say a quick hello. On entering the session with the mother he appeared to freeze. She hugged him, and he stood still, clearly not responding to the hug. The mother was clearly very happy to see him, and expressed this appropriately to [Y]. [Y]’s body language was such that he was clearly feeling uncomfortable. This was also evident to the mother, who later stated that [Y] had appeared to be very nervous, which she attributed to the father being in close proximity and [Y] being worried about how the father would react. Because of [Y]’s obvious discomfort I asked him if he would like to stay and play, or return to the father. He said he would prefer to return to the father and this occurred. The mother managed this appropriately.
So [X] flat out refused to see the mother and said that she didn’t want to see her in the future. [Y] agreed to see her but there was a little bit of concern about his reaction.
The family consultant recommended that the children live with the father. She recommended that a Chapter 15 expert report be prepared and that until a further comprehensive assessment could occur, [X] spend no time with the mother and [Y] either spend supervised time or no time with her.
Ultimately, I elected to list the matter for trial without obtaining a Chapter 15 expert report. Part of the reason for that was that the issues were exactly the same as they had been when the previous full family report was prepared and Ms K referred to that herself. She said as follows:
The issues in dispute between the parents appear to be very similar to those identified in the previous Family Report. Namely the mother reports a history of family violence and a persistent and firm belief that [X] is at risk of sexual harm in the care of the father and the father reports that the mother is emotionally unstable and is emotionally abusing the children by denigrating him to them, by pursuing her belief that [X] is being sexually harmed in his care and by retaining the children in her care.[2]
[2] Family Report paragraph 15

I was especially of the view that the matter should proceed to trial straight away as even after the release of the report, I was not able to organise any supervised time between the mother and the children because the mother - at least in the front of the Court - was still not willing to consent to it.
I understand from the mother’s affidavit that before the matter came on for trial, she approached the father’s solicitor asking if some supervised time could be organised. The father would not agree to that so by the time of the trial the mother has not spent time with the children since June 2017.

The evidence

The father relied on an amended application filed on 9 February 2018 and his affidavit filed on the same day.
The mother did not file any documents for the trial as she had been ordered to do. At the commencement of the hearing she in effect sought an adjournment. This was opposed by the father’s solicitor. The Independent Children’s Lawyer took no position.
The mother had had months to prepare for the trial and had been warned of the consequences of not being ready. She was represented in the earlier proceedings. She provided no explanation for why she did not have a lawyer at present. She was not spending any time with the children and there had been an incident at the school at the end of December 2017.
In my view the matter needed to be resolved sooner rather than later. I declined to adjourn the hearing and the mother represented herself.
The mother speaks good English. She did not require an interpreter and she made extensive use of her opportunity to cross-examine the father, indeed it was through this questioning rather than through any affidavits the mother filed that her position about the matter and the various issues including the family violence allegations became very plain. The mother has a very dramatic way of expressing herself.
I also read the affidavit the mother filed on 6 June 2017 after the father applied for a recovery order and the mother tendered a large number of documents.
The mother sought to rely on affidavits of Ms H and Mr B. I would not permit her to do that because they were not available for cross-examination. Other people the mother said she wanted to rely on were also were not available for cross-examination.
I would not have been assisted by this evidence anyway. It was either evidence from people who had accepted as true the things the mother had told them and who then expressed an opinion about what it all meant or from people who said that they had observed the mother interacting well with [Y] and [A] when she was on her own with them.
There is no doubt that there are occasions in public or at the school when the mother does have those satisfactory interactions. Evidence in respect of both of those kind of matters would not have assisted me.
The mother ultimately relied on her affidavit of 6 June 2017, the evidence which emerged from her cross-examination of the father and numerous documents that she tendered such as merit certificates and awards for the children.
Two family reports have been prepared in the matter: one by Ms S in 2015 and one by Ms K in 2017 and both family consultants were made available for cross-examination.

The parties proposals

The father’s proposal was that he should have sole parental responsibility for the children and that they live with him and spend no time with and have no communication with the mother.
The mother’s proposal as articulated at the commencement of the hearing, was that she should have sole parental responsibility and that the children should live 100 per cent with her and spend supervised time with the father at a contact centre. She said that she should be able to relocate with the children to somewhere closer to (omitted) or Sydney and that she did not want the father to know where she lived.
The proposal by the Independent Children’s Lawyer in closing submissions was that the children should live with the father, that he should have sole parental responsibility and that the children should spend supervised time with the mother on four occasions each year.
When pressed by The Independent Children’s Lawyer in cross-examination, the mother said that she would take advantage of an opportunity to spend supervised time with the children if that was the order made by the Court.

The children’s best interests

Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and s.60CC (2) and (3) contain the matters to which I must have regard in order to determine the children’s best interests.
I am going to start with the additional considerations in s. 60CC (3) and then go back to the primary considerations in s. 60CC (2).
The first of the additional considerations is the children’s views and the weight to be given to those views.
[X] has expressed a very clear view throughout the Court proceedings that she wants to live with the father.
Ms S said in the 2015 report that [X] said that she:
…wanted to live with her dad because he was fun, and played (omitted) with her.
Ms S went on to say by way of explanation as follows:
Mum never really talks. But she likes playing with [Y] and she misses him. She said she didn’t have any worries, except that she might have to live with mum, because she didn’t like it there much. She reported that this was because she gets into trouble and her mother yells at her.
In the interview with Ms K, [X]’s views about her mother had hardened. In 2015 she was not saying she did not want to see her mother. During the interviews in 2017, [X] talked about the recovery order which had been made in June and said her mother told her:
It was bad news when the judge made orders to return her to her father. But “I was really excited”. She said it had been really good since living with dad. And she talked about [Y] being happy there, as well. She said she didn’t want to spend any time with the mother because “She might keep me again. She might get me checked. She might get me a new counsellor. And she will try hard not to get me to see dad again, because she is selfish”.
Ms K said that:
[X] wanted the judge to know, “I just don’t want to go to mum, and neither does [Y]. And dad doesn’t want us to go either”.[3]
[3] 2017 report paragraph 38
[X]’s views about wanting to live with her father have been strong and consistent over several years, and I consider that I should place weight on them.
Her resistance to spending time with her mother is something that has emerged in recent times. She did not say that to the family consultant in 2015. By the time of the 2017 report, she had been withheld from her father with whom she was supposed to be living for two months and not sent to school, and had had repeatedly raised with her by the mother the suggestion that she needed to be checked up by a doctor because her father might be abusing her, and sadly her view was that she did not want to spend any time with her mother.
Ms K said that on the information available to her, [X]’s current expressed views were consistent with her own experience of the mother. She pointed out that [X] had in her opinion, been subjected to emotional harm by the mother and there was nothing to suggest at this stage that this would be likely to cease if she was again to spend time with the mother.[4]
[4] 2017 report paragr4pah 86
There is sound basis for Ms K’s opinion and [X]’s views deserve weight.
[Y] was not asked for a view during the first family report interviews; the family consultant obviously thought he was too young to have much of a discussion at that time.
Ms K spoke to [Y] in 2017. He told her that it was good living with Dad and that he felt sad when he was living with Mum “because she was hurting me and didn’t treat me like a parent is supposed to”. Ms K asked how a parent is supposed to treat him and he responded “Nice”.
[Y] said that he felt happy about not spending time with his mother but he did not have such a hardened attitude to her as [X]. He was willing to see her at the family report interviews and I will refer to this later on, but his relationship with the mother, if you have a look at what is in the different reports, has always been different to [X]’s.
It is quite possible that if I made an order for [Y] to spend supervised time with the mother, he would not resist doing so even though the father said that he did not want to see his mother.
I will take the children’s views into account but the children’s views do not determine the matter.
In relation to the children’s views, I also want to note this. On a few occasions during the hearing, the father said that he would do what the children wanted, but there is nothing in the evidence to suggest that the father has aligned the children or is making an effort to get them to reject the mother. The problems between [X] and the mother and the mother’s views about the father sexually harming [X] have existed since the proceedings began in 2014, and from the time the proceedings began right up until the mother retained the children for two months in 2017, the father always made sure that [X] spent time with their mother.
There were a couple of brief occasions in late 2016 and early 2017 when the father did not send [X] to spend time with the mother because of a concern about a doctor’s appointment but by and large he complied with the orders. It is only very recently and in the face of what I consider to be [X]’s own strongly held view that she does not want to see her mother that the father has been saying, “She doesn’t want to see her mother; I’m not going to make her.”
I must consider the nature of the children’s relationship with each of their parents and any other relevant person.
The children have not seen their mother since June 2017 apart from [Y] seeing her briefly at the interviews for the preparation of the limited issues report.
[X] did not want to see the mother in September 2017 and her relationship with the mother at the moment could only be described as in some ways non-existent and in other ways as very poor.
The mother maintains her fixed belief that the father may be sexually abusing [X]. She made that clear during closing submissions and in the face of that there is nothing to suggest that there is any likelihood that [X]’s relationship with the mother can be repaired.
[Y] related better than [X] to the mother at the 2015 interviews but she still overrode him sometimes. Nevertheless he was willing to see the mother at the 2017 interviews. He did not have a close interaction with her but he was at least willing to see her. There are prospects there that if the opportunity presented itself [Y] might be able to re-establish a relationship with his mother.
The children have a very good relationship with the father. The mother refuses to accept that but all of the independent evidence confirms that it is so.
It is crystal clear from the observations of the family consultant in the 2015 report. Ms S said as follows:
[Y] and [X] were chatty, appeared happy, smiling throughout the observation, were enthusiastic and both subject children demonstrated good eye contact with their father and vice versa. Mr Wolleman appeared to have a warm and loving relationship with their father. [5]
[5] 2015 Report paragraph 127. I have left in the typo but the meaning is clear enough.
It was also clear at the second family report interviews with Ms K and I am satisfied that the children have a good, close, loving and warm relationship with their father.
One of the things which will inform what I do at the end of the matter is that the children have a close sibling relationship.
Ms S said as follows in the first family report:
[Y] smiled when he was told he would be seeing his dad and asked whether he would also see [X]. He jumped up and down when he was told his sister would be present and stated, “[X] is fun, and she lives with my dad.” He indicated he wanted to see her more. He reported he and [X] played (omitted) and hide-and seek-together.[6]
[6] 2015 report paragraph 95
At the second family report interviews the children also got on very well. They were a team. They have a close sibling relationship.
Interestingly both parents told Ms S in 2015 that the children should be together. That was not what they ultimately agreed on when they signed consent orders but one of the agreements they reached at the interviews in 2015 was that the children should live together. [7]
[7] 2015 report paragraph 12
The children have another brother of course: [A], who is 16. He did not attend the observation session at the family report interviews in 2015 so I have no independent evidence about the children’s relationship with him. [X] said that she did not like a couple of the things he did; how significant that is I cannot judge. [A] did not attend the second family report interviews either. I cannot make any findings about the nature of [A]’s relationship with the children.
Given that the children through the mother are (nationality omitted) and [A] is (nationality omitted), it would be wonderful and ideal if the children could have a good and close relationship with [A]. It may be their only means, if they are not going to be seeing their mother (and that will be a determination I have to make) of keeping in touch with someone from their own culture in Australia.
I do not know what I am going to be able to do about that though. An interesting little snippet of information which emerged during the trial was that [A] is apparently working part-time for the father’s son, Mr G. That may provide an opportunity for the children to have contact with him but I do not know enough about that to really say.
The next primary consideration is the financial support of the children.
The mother has in the past paid various fees for school or activities. She tendered documents about that and it was important to her that that information was put forward, but at present the father is wholly financially supporting the children.
However the issue of child support and who is supporting the children is not something which helps me to determine the matter one way or the other.
I must consider the extent to which each party has taken or failed to take the opportunity to spend time with the children, to make decisions about them or to communicate with them.
The mother could have spent supervised time with [Y] from June 2017 if she had been willing to do so but she was not and by the time she finally changed her mind the father was not willing to agree to it.
The fact that the mother rejected that opportunity is relevant to the issue of her parenting capacity and her capacity to provide for the children’s emotional needs.
I must consider the likely effect of any change in the children’s circumstances.
That is a big issue in the case and I will consider it further in my conclusion of the judgment.
I must consider the practical difficulty and expense of the children spending time with a parent or communicating with a parent.
That is not a relevant issue at present because both parties are living in (omitted).
I must consider the capacity of each parent to provide for the needs of the children, including their emotional and educational needs.
I am going to deal with the mother’s capacity first because she makes allegations about the father and I will have to make some findings about those before I deal with the father’s capacity.
Ms S set out her concerns about the mother’s parenting capacity in her 2015 report. They are referred to in paragraph 102, 103, 104, 106, 107, 108, 111 and 115 and also in 117 and 118 and they are summarised in paragraph 124 as follows:
Unfortunately, throughout the observation Ms Wolleman was not child-focused. She was dismissive, and she ignored verbal and behavioural clues from the children. She was loud, intrusive and overall not attuned to her children’s needs. It was concerning that she seemed distant from [X], and there was a notable difference in her attention and engagement with [Y] while for the most part ignoring [X]. Of particular concern was [X] seeming to shut down after repeated unsuccessful attempts to engage and participate with the mother.
These were issues for the family consultant in 2015 and they no doubt partly informed her recommendation that the children should live with the father.
One of the problems in respect of the mother’s capacity to provide for the children’s needs is that the mother’s views about the children are at odds with the children’s reality, and she conveys to others that the children are in fear of the father and they accept that as the children’s reality.
After the mother withheld the children in April 2017, she consulted a psychologist, Mr W, and on 28 May 2017 he wrote a letter for the mother headed “To whom it may concern” which included the following:
This is to confirm that I have seen Mrs. Wolleman on six occasions now beginning on 15^th April 2017, and most recently on 28^th May 2017. She reported that she and her children are in fear of her estranged husband Mr Wolleman because of his physical and emotional abuse. She also reported that he has been stalking her, and that she is in the process of obtaining an AVO against him to prevent any further contact with her or the children.
The AVO is not currently in place, and the children are in fear that if they attend school, their father could turn up there and collect them. There are no court orders in place to prevent this from happening. Mr Wolleman has twice refused to attend mediation, and the matter will proceed to court for orders to be made, on a date to be advised.
In order to ensure the safety of the children, I have advised Mrs. Wolleman not to send the children to school until they can be assured that their father will not come there. I suggested that Mrs. Wolleman contact the school to arrange for work to be sent home until they return to school. She has now collected this material, and has begun work on it at home with the children.[8]
[8] Annexure “A” to the mother’s affidavit filed on 6 June 2017.
The problem is it is just not true that the children fear their father. Family consultants and a number of other people including people at the children’s school and [X]’s counsellor, see nothing of this and it doesn’t matter what other people say to the mother about it she just will not accept it.
The family consultant in 2017 tried to talk to the mother about the fact that what she perceived to be the case was not true but the mother would not accept it.
Another example of the mother insisting that something is true that nobody else accepts is true is her obsession that the father is sexually abusing [X] or that [X] is at risk of sexual harm from the father.
The mother began raising this in 2014. The father’s evidence in his affidavit was as follows:
On 27 October 2014, I took [X] to (omitted) for a (omitted) Lesson. We came home around 8:00pm and [X] spoke to Ms Wolleman on the phone. At one point during the conversation [X] needed to go to the toilet. The following conversation happened:
[X]: hang on a minute, I am busting to go to the   toilet
[X] passed the phone to me and I spoke with Ms Wolleman.
Ms Wolleman:    what the hell is wrong with [X], she is always going to the toilet. She should watch herself because she might get raped
Me:what the hell are you talking about?
Ms Wolleman:    maybe that’s what she needs as it might close her bladder! You are such a fucking idiot for letting her [[X]] go to (omitted). You are just like your son, a fucking idiot
On Saturday 13 December 2014, Ms Wolleman telephoned me and asked me to meet her with [X] at the Police Station at 10.30am so Ms Wolleman could have her for the day. Ms Wolleman told [X] over the phone as follows:
Ms Wolleman:        it’s not right you staying with you Dad because he is a man
On 24 December 2014, Ms Wolleman called to speak to [X]. [X] was watching cartoons on television and wasn’t particularly concentrating on the conversation with Ms Wolleman. I then overheard the following:
Ms Wolleman:        why aren’t you talking? If you don’t talk I will ring DOCS and make them take you away from your Dad. You are sleeping with your Dad.
[X]:no I don’t
Ms Wolleman:    but you told me you do sometimes and when I went to your Dad’s place [on the 21st November] I noticed dolls on your bed and I know you don’t sleep on it.[9]
[9] Paragraph’s 58, 60 and 61 of the father’s affidavit filed on 9 February 2018.

The mother did not challenge the accuracy of this and if it was just that, the mother had not challenged it I could let it pass as she is a self-represented litigant but the Independent Children’s Lawyer did not challenge it either. I accept the father’s evidence about the mother’s obsession with this issue from around the time the parties separated.
There is absolutely no doubt, because the family consultant recorded it in the first family report, that in November 2015 the mother told [X] that she was going to take her for a check up to see if her father had raped her. Those were the words the mother used to [X]. She confirmed to Ms S that she had said this to [X].
The best summary of what has followed from this obsession by the mother that [X] has been sexually harmed by the father or is at risk of sexual harm is contained in the second family report. The family consultant summarised in great detail everything in the subpoena records from 2016 onwards about the mother telling people she feared for [X]’s safety, insisting [X] was frightened of the father and insisting that [X] might be at risk of sexual harm from the father.
The doctors the mother took the child to see in 2016 did not share that concern. Dr Z saw [X] and the mother on 31 October 2016.[10] She said she had no intention of making a report to FACS given there was no evidence.
[10] Family Report paragraph 52
It goes on and on and on, page after page of examples of the mother insisting that things are happening and everybody else saying, “No, there is just no sign of this at all.”
The mother just will not listen to [X]. There is this report from 16 November 2016:
[X] told her counsellor the mother took her to doctors and then in front of the doctor the mother started to ask [X] is she being touched on her private parts by her father. [X] reported feeling embarrassed and didn’t say anything. She said the mother had told her she was going to be medically examined but she didn’t want to be.
The evidence the mother puts up as foundation for a belief that [X] is being sexually abused is so slight that it cannot support a finding that there is any reason to be concerned or suspicious.
This is what the mother said in her affidavit filed on 6 June 2017:
On one occasion during 2014 at approximately 11.00am I attended on the home of the father with [Y], as [[Y]] was to spend the day with the father. While I was in the home of the father, I walked into the bedroom of the boys and had a look around. I then walked into [X]’s room. I observed that there were clothes and toys on [X]’s bed.
During the time I was standing in [X]’s room the father came into [X]’s bedroom, the father became angry and agitated. I was scared of the father and I walked out of the bedroom.
Approximately fifteen minutes later I had a conversion with the father with words to the following effect:-
Mother: “Where does [X] normally sleep?”
Father:“She slept last night up in my bed, watching tv and she fell asleep.
Later the same day I telephoned the father’s mobile telephone to speak with [X]. I had a conversation with [X] with words to the following effect:-
Mother: Where do you normally sleep?
I observed [X] became upset and was crying.
Mother:You are old enough to sleep in your own bed. If you ask your friends in school where do they normally sleep, they will tell you they sleep in their own bedrooms because they are old enough.[11]
[11] Paragraphs 39 – 42 of the mother’s affidavit filed on 6 June 2017.
Nobody else is concerned about this. Ms O who has seen [X] over a very lengthy period is not concerned about it. The school is not concerned about it. No doctor the mother has taken the child to see is concerned about it. No family consultant who has interviewed [X] is concerned about it. But the mother just will not let this go. Right to the end of the trial maintained it.
When Ms K was being cross-examined by the mother she asked the mother a question in turn. She said: “Do you believe this is happening?” The mother said she did.
The mother raised the issue in closing submissions. She said that “She,” that is, [X], “stated to me her father had touched her,” and went on:
Now my daughter has disclosed her father has touched her, I will only allow the father to see my daughter under supervision.
Ms K talked about the extreme harm this had done and was doing to [X] and said that it was emotional abuse and had created a situation where [X] did not want to see her mother. She commented on the fact that the mother had no insight into how her own behaviour had impacted on [X] and her relationship with [X].
Ms K commented in cross-examination that the situation had got so bad that even a denial by [X] that nothing had happened was treated by the mother as a confirmation that something had happened.
There is no evidence that [X] is or has ever been at any risk of sexual harm from the father. The mother’s own evidence does not even remotely suggest that. None of the people who have had any contact with the child have the slightest concern about it. However there is no prospect at all of the mother letting this issue go because she raised it with me in closing submissions as something that I should find had happened and that should inform my decision about where [X] lived and the time she spent with her father.
Those two things alone, the mother’s refusal to accept that the children do not fear their father and her refusal to accept that [X] has not been sexually abused or put at risk of sexual harm by the father, suggest that the mother is incapable of providing for [X]’s emotional needs and both children’s emotional needs.
The other issue in relation to the mother’s conduct is that she withheld the children from the father and from school for two months. She blamed the father for the fact that the children did not attend school. She said that he should have agreed to take part in mediation; but there were orders in place and the mother was breaching them and there were no safety issues.
This is another example of the mother being incapable of providing for the children’s emotional needs.
The mother’s refusal to spend supervised time with [Y] which resulted in her not seeing him for eight months was also a totally non-child-focused decision.
The father suggested that the mother might have mental health issues. Other people who have had dealings with the mother in relation to her obsessions about the children fearing the father and the father sexually abusing [X] have made similar comments.
I cannot make a finding about why the mother is behaving the way she is and why she refuses to accept what other people are saying to her. This is where a Chapter 15 expert’s report might have assisted. A psychiatrist might have delved into why the mother was holding these beliefs, why she refused to listen to what other people were saying to her about things and whether she had a personality disorder. That might have assisted me to determine why these things were happening but putting a label on the mother it would not have assisted in terms of stopping them happening.
That is why I was of the view in the end that a Chapter 15 report would not have assisted me to resolve the matter. The mother’s fixed false beliefs that the children fear the father and that [X] is at risk of sexual harm from the father are facts. Putting a label on why the mother refuses to let go of those beliefs would have been a bit of icing on the cake. It would not have assisted me to resolve the matter.
The mother has some positive qualities as a parent. She is very interested in her children’s education in terms of them attending school. She is very proud of [A]’s sporting achievements. She handed me up numerous merit certificates and certificates in relation to [A]’s sporting achievements in particular and she enjoys going to school and barracking for her children when they take part in sporting events and school presentations.
I accept those things. I accept that the mother has some good qualities and has some things to offer her children. I will weigh that into the mix when I come to decide what I am going to do.
I then have to consider the father’s parenting capacity.
I am not satisfied that the children are at any risk of physical harm from the father for any reason. The mother made allegations about the father being violent to her and I will discuss those in due course but there is nothing to suggest that the children are at risk of physical harm from the father at present or at risk of exposure to family violence in the father’s care at present.
The father is doing a very good job caring for the children. They both say that he is fun. The school has seen him there frequently and does not raise any concerns about him.
The mother raised a concern about the father’s health. He has had recurring malaria since he returned from (country omitted) but there was no evidence that it was in any general or broad sense impairing his parenting capacity or was anything other than an occasional issue.
He has had prostate cancer but he does not have that at the moment.
He was diagnosed with post-traumatic stress disorder as a result of his (employment omitted) in (country omitted) but there was no evidence that this was having an impact on his day-to-day life.
I am satisfied that the father has a very good capacity to provide for the children’s needs including their emotional and intellectual needs.
I must consider the children’s maturity, sex and background.
The children are (nationality omitted) as well as Australian. That is a very important thing for them and the mother would like to take the children to (country omitted) to see her family. She wants to take them back to her village which is not on the main island where the tourists go.
The father does not trust the mother to bring the children back. (country omitted) is not a Hague Convention country.
It will be highly regrettable for the children if they are not able to visit (country omitted) with their mother who is (nationality omitted). It will be a loss for them if they cannot do that. Even if at some point in the future the father decides to take them there it won’t be the same as if they went there with someone who shares their culture, but that is simply one matter that I am going to have to weigh in the mix in deciding what I am going to do with the matter.
I must have regard to the attitude of each party to the children and the responsibilities of parenthood.
The mother showed an extremely poor attitude in withholding the children in April 2017 and in not agreeing to see [Y] supervised in June but I have already covered those issues in other sections of the judgment.
I must consider the issue of family violence.
The Court takes allegations of family violence extremely seriously. Anyone who has ever read any of my judgments or seen me sitting in Court determining matters would have no hesitation in accepting that and I have to consider the mother’s allegations and decide what I am going to do with them.
The mother alleged that when [X] was eight months old the father hit her across the face with his hand resulting in bruising to her face and neck. She alleged that the father picked [A] up by the throat and carried him down the hallway and then into his bedroom and threw him in the bed. Both of these incidents were said to have taken place in (country omitted).
The mother alleged that there was an occasion when the father pushed her onto the lounge, pushed her hands behind her back, knelt on her neck and put his hands around her neck and held her tightly and she alleged that the father released her after she bit his thumb.
She alleged that in June 2014 when the parties were living in (omitted), there was an occasion when the father attempted to hit her and she ran off. She said the father caught up with her and pinned her to the ground and put both hands around her neck. She said that police were called. However, she said Mr G came along and told the police he had been there and nothing had happened and [A] also said nothing had happened. She said that Mr G lied to the police and [A] was too afraid to say anything.
What the mother failed to mention in her affidavit was that in June 2014, the police applied for an ADVO for the protection of the father, [X], [Y] and [A] from the mother after the father alleged the mother became angry with him and picked up a computer cord and swung it causing small bruises on his arm and threw clothes and items around the room.
At trial the mother denied that she had been violent on that occasion.
I have a situation where both parties are making allegations of family violence. The mother alleged that [X] and [A] were attacked on a couple of occasions. She alleged she was the victim of violence.
The mother’s evidence about family violence in court largely emerged via her cross-examining the father. She was very fired up and quite theatrical, dramatic and loud in giving that evidence. She alleged for example that five days after one incident she was still spitting blood.
I have to make a decision about whether I should accept the mother’s evidence about the violence or the father’s evidence about the violence come to that.
These matters are always difficult because so often in family violence cases it is a matter of he said, she said. Nobody else is there. I do not have Mr G giving evidence and [A] is too young to give evidence and I have the father giving one version of events denying violence and saying the mother was violent to him and the mother dramatically alleging various incidents of violence.
One of the problems is that the mother was a very unreliable witness. She insisted to me that the children feared their father and that is clearly not true. She insisted to me that there was evidence that [X] had been sexually abused and there is no evidence to support that. And then she insisted to me that the father had been violent to her and there is no corroboration of that and when I am faced with an unreliable witness the fact that there is no corroboration means that it is very difficult for me often to accept the evidence.
Evidence about family violence does not have to be corroborated before it is believed. Often there is no corroboration of allegations of family violence because it takes place behind closed doors and no one else is there and sometimes the Court accepts the evidence even though there is only one person saying something happened. However in this particular case, I have a wholly unreliable witness making these allegations and no extrinsic evidence to suggest that the allegations might be true.
During the 2015 interviews, Ms W did not suggest that there had ever been any family violence perpetrated by the father or indeed by the mother. He told the family consultant that the parties had loud arguments but he did not see any violence. There are also no external indicia that the father is a violent person. He does not have convictions for offences of violence. There are no COPS records about him being violent and threatening in the community. He presented in the witness box as a calm and peaceful person.
I cannot in the face of that set of circumstances simply accept the mother’s evidence that the father has been violent to her.
The father was a credible witness. I have no reason to believe that he made up the evidence about being struck by the computer cord but I am not minded to treat that as a particularly serious incident. Sometimes people swing something around and strike other people with it without actually intending to hit the other person. I believe that the father is being generally truthful about the incident but I don't know if it takes me anywhere.
An extremely concerning incident of family violence which happened in this family was that after separation, the father was seriously assaulted in the street in (omitted) by Mr R who was the mother’s partner at the time.
Mr R waited till the father was in his car, kept elbowing the window, went off, came back, went off and came back. He ended up punching the father in the head numerous times through the open window of the car while complaining that he didn’t like people who committed acts of domestic violence. [X] was sitting next to the father throughout this incident.
The father had a machete in the car. I accept the father’s explanation about why he had it; he lives in a remote rural area and he had the machete in case branches or trees came down across the road. He picked it up and he struck Mr R on the arm twice which caused Mr R to back off.
What people need to remember about that incident though is that Mr R started it. He was extremely violent to the father. No matter what the father did with the machete he was not the instigator of that incident and something which concerns me is that Mr R was fuelled up by things he had been told by the mother, things that I cannot accept are true.
Ms S expressed concern about whether the mother continued to bring Mr R into contact with the children after this. I am not going to attempt to make findings about that but Mr R was the mother’s partner when he viciously attacked the father.
The incident must have been extremely distressing to [X]; there was blood all over the front of the car and that may be another reason why she has some reservations about spending some time with the mother.
Mr R is no longer in a relationship with the mother and is no longer a person of concern.
I must have regard to any family violence orders.
An interim ADVO was made in June 2014 after the computer cord incident and a final ADVO was made in 2015 for the protection of the father and [X] from Mr R but the important thing is what happened which led to those orders being made and not the fact that the orders were made and I have already discussed those issues.
I must consider whether the Court should make the order least likely to lead to further proceedings.
Generally it should and an order for the mother to spend unsupervised time with these children given the history of this matter including [X]’s opposition to spending time with her and the mother’s fixed false beliefs about the children fearing the father and [X] being at risk of sexual harm from him will almost inevitably lead to further proceedings.
There are no other relevant matters.
I now have to return to the primary considerations which are the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Most children – in fact I would probably go so far as to say all children – benefit if they can have a relationship with both parents rather than just one and the orders sought by both parents in this case would severely limit the children’s relationship with the other parent. The father does not want the children to see the mother at all at the moment. The mother wants the father to see the children only supervised at a contact centre.
It is seriously open to question whether any order I make would result in [X] being able to have a meaningful relationship with her mother. The mother has a fixed false belief about [X] being at risk of harm. [X] has been exposed to so much since the parties separated: the Mr R incident, being taken to the doctor and then being withheld, that she has become completely resistant to spending any time with the mother. I doubt that any order I make can retrieve that situation.
[Y] potentially could have his relationship with the mother restored, potentially could have although I cannot be sure how good the relationship would be. There are some issues with the mother’s parenting style but there is a potential for [Y] to have his relationship with his mother restored if an order were made which facilitated her spending some time with him.
I must have regard to the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

There is no evidence that the children are exposed to any of those things in the father’s care.
There is a risk of [X] being subjected to psychological harm if she spends unsupervised time with the mother. Abuse is defined in the Family Law Act to include causing the child to suffer serious psychological harm, including but not limited to when the harm is caused by the child being subjected to or exposed to family violence.
The harm [X] is being subjected or exposed to is exposure to the mother’s fixed false belief that she is at risk of sexual harm from the father. That has the potential to cause her psychological harm and may already have done so and [X] would be at risk of abuse if she spent unsupervised time with the mother.
There is no risk otherwise of the children being subjected to or exposed to abuse, neglect or family violence as those terms are defined at present in the mother’s home. She has ended her relationship with Mr R.
The father raised a concern about some Facebook entries by a man he felt the mother might have been seeing recently. I cannot make any findings about what that is all about because it was not explored at trial. It did raise a concern in my mind when I read it however because Mr R was apparently spurred on to assault the father, not that I am suggesting the mother asked Mr R to assault the father but a seed was planted in Mr R’s head and he then acted out. However I cannot make any findings about any risk this other man might pose because the issue was not explored at trial.
Supervision would provide some protection for the children but whether it would be a complete answer for [X] is seriously open to question and I will come to that in my conclusion of the judgment.

Parental Responsibility

The presumption in s. 61DA of the Family Law Act does not apply if Mr R was a person living with the mother when the assault was committed. It seems likely that he was but just in case he was not and I have to approach it another way, the presumption in s. 61DA of the Family Law Act that the parties should have equal shared parental responsibility absent a party or someone living with a party has engaged in abuse of the children or family violence does not apply if the Court finds it would not be in the best interests of the children for it to apply.
I pause to add that on reflection given my findings about abuse the presumption in s. 61DA probably does not apply for that reason.
Even if the presumption does apply the Court can decline to apply it if it considers it would not be in the children’s best interests to apply it.
The parents are completely at odds with each other, they have been involved in litigation for years, they cannot effectively communicate and they are not in a position to cooperatively make decisions about their children because the mother does not see things from the children’s own reality and sees things which aren’t there. It would not be in the children’s best interests for me to make an order for equal shared parental responsibility and I am going to make an order that the father has sole parental responsibility for the children.

Conclusion

I then have to decide what to do in terms of parenting arrangements, remembering that the father’s proposal is for the children live with him and spend no time with the mother, the mother’s proposal is that the children live 100% with her and have some supervised time with the father and the Independent Children’s Lawyer’s proposal is that the children live with the father and spend time with the mother four times a year.
The starting point for deciding the case is this: [X] and [Y] are settled and happy in the father’s care. They are being well looked after.
I could not even remotely consider making an order that [X] live anywhere else than with the father. Her strong views about where she wants to live have been the same ever since the parties separated. The mother must have accepted that in 2014 when she left [X] with the father. It was what [X] said to Ms S in 2015 and it was what [X] said to Ms K in 2017. Even if there were no issues with the mother’s parenting I could not possibly consider making an order that [X] live anywhere else than with the father.
I then have a situation where these children have a very strong sibling relationship. The parents agreed in 2015 that they should not be separated. There would be no benefit to the children and in fact considerable detriment to them in separating them.
Those things taken together strongly point to the children remaining with the father and that is what I am going to order.
But there are other reasons why I should make that order. I have considerable concern about the mother’s parenting capacity and her capacity to provide for the children’s emotional needs. Her lack of capacity to provide for [X]’s needs is so severe that she is actually abusive of [X] due to her fixed false belief that [X] is at risk of sexual harm from the father.
The father is 68 but he is currently in good health. He has an adult son who lives near to him. If he has health problems in the future it could be an issue for the children but it is not currently an issue. Health problems are not a reason to consider the children living anywhere else than with the father.
I then have to consider what I am going to do about the children spending time with the mother.
It is always a tough call for the court to make to order that a parent not spend time with a child. It places a heavy burden on the court when it is even asked to consider doing that because children benefit in a broad general sense from having a relationship with both of their parents and that is particularly so in this case where I have children who are through the mother (nationality omitted).
It is only through the mother that the children will be able to maintain that connection in any meaningful way. It is only the mother who is will be able to take them back to her village. It is only the mother who understands that culture. For me to make an order that these children not spend any time with their mother is a huge call to make.
However I have no option but to make that order in relation to [X].
I cannot make the order the Independent Children's Lawyer proposed which would require the father to make [X] available to spend time with the mother, even supervised. It would be contrary to [X]’s strong wishes. There is a considerable risk that even in the face of supervision the mother might say something quickly to [X] which caused [X] to be fearful that the mother still had this fixed false belief that [X] was being exposed to sexual harm.
I am not prepared after all that [X] has been through to make an order which overrides her wishes and which compels the father to take her along to spend time with the mother, even supervised.
It is a highly regrettable outcome given the children’s heritage. I can only hope that something can be done to ensure that there is some connection between [A] and [X]. I don't know if it will be possible but [A] does work for the father’s son Mr G.
The situation in respect of [Y] is more difficult. [Y] has never had the same relationship with the mother as [X]. The mother also has a fixed false belief about [Y], namely that he is frightened of the father, and every bit of the evidence in the case suggests that is just the absolute reverse of the truth.
However the mother related better to [Y] than to [X] at the family report interviews in 2015 and he did not refuse to see her at the report interviews in 2017. [Y] probably would not resist going on the supervised time if the father said to him, “[Y], we’re going to go to the contact centre and see Mum.”
The difficulty is separating the children and having one arrangement in place for one child and one arrangement in place for the other. There is also a possibility too that [Y] might say, “Why do I have to go and see mum when [X] doesn’t have to go? She gets to decide.”
I am going to make an order that the father take [Y] to see the mother in the way the Independent Children's Lawyer proposed. It is far from satisfactory. Seeing his mother four times a year supervised is not going to add much to [Y]’s relationship with the mother. At best it will keep some sort of a connection going.
However given the cultural background issue, I consider it an order that is worth making so that [Y] at least can maintain a connection with his mother.
I acknowledge that there is a risk that it might break down for a variety of reasons. [X] may influence [Y] and he may decide he does not want to go but he is still little enough to be made to do things he doesn’t want to do.
I am very sad to have to arrive at this position but I cannot solve all the problems in this case. A Chapter 15 experts report might have put a label on why the mother has the attitude she does. There could be issues to do with her culture and background which are causing some of the problems. Ms S referred in her first report to the fact that (and I cannot be sure how much weight I can place on this because it came from the mother and I have some concerns about her reliability) but that in (country omitted) there was a lot of unfaithfulness which justified the mother having certain beliefs or concerns.
For all I know there are some cultural aspects which are impacting on the way the mother is viewing the situation. She could also have a personality disorder. People who have commented about that in the various reports could be right. However putting a label on what is happening, even understanding what is happening, is not going to stop it happening.
It is not going to change the mother’s beliefs. They are longstanding and have been in place for years. Nothing anybody says to the mother causes her to change her views.
I am concerned that the problems in this case might continue even after I make this decision. Mr R assaulted the father because he believed the mother’s claims about domestic violence. The subpoena material referred to by Ms K suggests the mother is passionate in her claims and while this alienates some people it causes others to want to leap in and help her and (omitted) is a very small community and the mother is still living there. The father has to drive past her house to get to his house.
There is a risk that there will be some further problems within this family but I cannot do anything about that by any further orders that I make.
I am going to make the order proposed by the Independent Children’s Lawyer which allows the mother to send the children letters, cards, photographs and gifts to the children and I am going to make the order that if the children want to respond to the mother or send her something the father is to facilitate that happening.

I certify that the preceding two hundred and twenty six (226) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 23 April 2018

[2018] FCCA 1000

21 March 2018

Key Legal Topics

Areas of Law

Family Law

Evidence

Statutory Interpretation

Legal Concepts

Procedural Fairness