Wrenley & Wrenley
[2023] FedCFamC1F 979
•14 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wrenley & Wrenley [2023] FedCFamC1F 979
File number: HBC 966 of 2021 Judgment of: MCGUIRE J Date of judgment: 14 December 2023 Catchwords: FAMILY LAW – PARENTING – best interests of the children – with whom the children should live and spend time – where there are allegations by the father of the children being alienated from him by the mother – where there are allegations that the children are at unacceptable risk in the unsupervised care of the father – orders that children live with the mother – orders that the younger children spend unsupervised time with the father – order for relationship therapy for oldest child and the father Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CC(2) and (3), 61DA
Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34
Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
G & C [2006] FamCA 994
Isles & Nelissen (2021) 65 Fam LR 1, [2021] FedCFamC 1 295
Isles & Nelissen (2022) 65 Fam LR 288, [2021] FedCFamC1F 295
Mazorski & Albright (2007) 37 Fam LR 518, [2007] FamCA 520
McCall & Clark (2009) FLC 93-405, [2009] FamCAFC 92
Division: Division 1 First Instance Number of paragraphs: 213 Date of last submissions: 9 November 2023 Date of hearing: 23, 24, 25, 26 and 27 October 2023 and 8 November 2023 Place: Launceston Counsel for the Applicant: Mr Williams Solicitor for the Applicant: Glynn Williams Legal Counsel for the Respondent: Mr Trezise Solicitor for the Respondent: McVeity Dean Counsel for the Independent Children’s Lawyer: Mr Verney Solicitor for the Independent Children’s Lawyer: Matthew Verney Barrister ORDERS
HBC 966 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WRENLEY
Applicant
AND: MS WRENLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
14 DECEMBER 2023
THE COURT ORDERS THAT:
1.All previous parenting Orders be and are hereby discharged.
2.The mother, Ms Wrenley (“the mother”), have sole parental responsibility for the children W born 2010, X born 2013, Y born 2014, and Z born 2019 (“collectively the children”) subject to:
(a)the mother notifying the father in writing or email of any decision that she intends to make regarding the children’s education;
(b)the mother notifying the father in writing or email of any medical decision that she intends to make regarding the children; and
(c)the mother doing all things necessary to ensure that all medical records that pertain to the children note both parents as persons with whom the medical care provider may provide information to regarding the children’s health.
3.These Orders permit the father to attend any school event and/or to have access to the children’s school principal and teachers such is normally available to parents save and except that the father not attend discrete parent/teacher meetings at the same time as the mother.
4.The Independent Children’s Lawyer provide a copy of these Orders to the principal of any school currently attended by any of the children and thereafter each of the parents have leave to provide copies of these Orders to the principals of any schools subsequently attended by the children or any of them.
5.The children live with the mother.
6.The children Y, X and Z spend time with the father Mr Wrenley (“the father’) as follows:
(a)For a period of four (4) consecutive Saturdays between 9.00am and 5.00pm;
(b)Thereafter for two (2) consecutive weeks from Friday at the conclusion of school until Saturday at 5.00pm.
(c)Thereafter and commencing on the second weekend after the end of the time-with pursuant to order 6(b) above, each alternate weekend from Friday at the conclusion of school until Monday at the commencement of school or 9.00am if not a school day.
(d)During all term school holidays in each year but commencing first term holidays in 2024 from the first Friday at the conclusion of school until the second Saturday at 12 noon.
(e)During each Summer school holidays commencing 2024/2025 for periods of three (3) weeks commencing on the Friday of or immediately after the conclusion of the school year in 2024 and in each alternate year thereafter and commencing on 2 January in 2026 and each alternate year thereafter.
7.Weekend time for the children with the father will be suspended during school holidays but not the summer school holidays commencing 2023/2004.
8.All changeovers that do not take place at the children’s schools shall occur at a public venue to be nominated forthwith by the Independent Children’s Lawyer.
9.There be no time-with order regarding the child W born 2010 spending time with the father, but she is to be invited and encouraged to attend time with the father during the spend time arrangements outlined for the children in these Orders and for these purposes the Independent Children’s Lawyer is to meet with W as soon as practicable after the making of these Orders to explain this Order and the Orders generally to W.
10.Forthwith upon the making of these orders the Independent Children’s Lawyer is to nominate a suitably qualified relationships counsellor for W specifically to provide therapeutic counselling in respect of W’s relationship with her father and such counselling to continue at the discretion of the therapist and for these purposes the father be responsible for the costs of the therapy and where it is anticipated that such therapy will directly involve the father, whether together or separate from W, at the discretion of the counsellor and for these purposes the Independent Children’s Lawyer have leave to provide a copy of these Orders and Reasons to any such therapist/counsellor and that the therapist be authorised by these Orders to provide a report, either oral or written, to the Independent Children’s Lawyer at times throughout the Independent Children’s Lawyer’s appointment.
11.Each of the parents, their servants, and their agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating each other and/or any member of their respective families in the presence of and/or hearing of the children or any of them and from knowingly allowing anybody else to do so; and
(b)discussing these family law proceedings in the presence of and/or hearing of the children or any of them and from knowingly permitting anybody else to do so save in accordance with these Orders.
12.The appointment of the Independent Children’s Lawyer continue for a period of twelve (12) months from the date of these Orders.
13.Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
14.All extant applications, save as to costs, be and are hereby dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym of Wrenley & Wrenley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIRE J:
APPLICATIONS
Mr Wrenley (“the father”) is the applicant in parenting proceedings in respect of four children namely W born 2010 (aged 13 years), X born 2013 (aged 10 years), Y born 2014 (aged nine years) and Z born 2019 (aged four years).
In circumstances where the children have habitually lived with Ms Wrenley (“the mother”) since the parties’ separation in February 2021, the father now seeks orders whereby he have sole parental responsibility for the children and that they live with him. In respect of the children’s time with the mother his case outline[1] discloses the following:
3.THAT the Mother, for the purposes of any order spending time with the children, engage with and be examined by such health practitioners as the court sees fit for the objective of undergoing assessment for therapy or treatment for conditions such as mental or emotional instability resulting in behaviour adverse to the children’s welfare and in part to do with her recognition and support of the children’s relationship with the Father.
4.THAT the children spend time with the Mother as the court sees fit, commencing with supervision by the [O Contact Centre], graduating to unsupervised time on the basis that an examining health practitioner has been able to form the view that the Mother does not present any risk to the children and reliably can control her behaviours and will not seek to alienate the children from their Father.
[1] Filed 19 October 2023.
Although the father was equivocal when cross-examined as to these proposals, my understanding is that he intends there to be some hiatus in the children’s time with their mother pending psychiatric, or similar, assessment of the mother such that satisfies him that the children should move to spend supervised time with her.
The mother proposes that she has sole parental responsibility for the four children and that they continue to live with her. She argues that the children spend no time with their father by reason of him presenting as an unacceptable risk of psychological, and potentially physical harm, arising from past and potential future family violence perpetrated by the father; and/or due to the father’s significant family violence acts allegedly perpetrated upon the mother. The impact upon the mother’s mental health will be so significant, she argues that her parenting capacity will be negatively impacted to such an extent that, on balance, it is not in the children’s interests to have any relationship with the father.
BACKGROUND FACTS
The father is 58 years of age. He has re-partnered with Ms B who gave an affidavit in these proceedings. The father volunteers on Mondays and Fridays. Ms B is also employed or volunteers at the same service. The father otherwise receives a Centrelink benefit where he claims he is not required to seek employment, although he says he does seek employment in a limited basis within local government.
The father continues to reside in the former matrimonial home being a residence owned by his mother, Ms C, at Town D on farming acreage. The farm land is leased or contracted leaving the father to attend to maintenance duties only, but where he says he retains livestock.
Ms B lives in Town E being some distance from Town D. She apparently owns a residence and perhaps another in the City F area. She is the carer for her own elderly mother.
There is no evidence that the father is otherwise than in good health.
The mother lives in Town G being a suburb of City F. She is 37 years of age. She is engaged in home duties. There is no evidence that she has re-partnered in either a dependant or supportive relationship.
The mother concedes that she has suffered mental health issues since her teenage years. She cites a dysfunctional family upbringing where she appears to have left home by 16 years of age. She concedes life-threatening attempts and self-harm as a teenager.
The mother has been variously employed in administration and in the business. She currently receives Centrelink benefits. She has partially completed tertiary studies.
The parties commenced a relationship in 2008 when both were residing at the same address in City J and again in a home owned by the father’s mother. The mother became pregnant.
The parties moved from City J to Town D in 2010. The mother says that there were some separations in the relationship. She says that she moved back to City J with the children in 2015 and moved again to the City F area in 2017 with final separation occurring on 10 February 2021.
The mother says that during her time living in City J (2015-2017), she would travel with the children to City F during school holidays and long weekends.
The mother says between separation in February 2021 and June 2021 the father was disinterested in formal contact with the children including the mother’s proposal for “co‑parenting”. She says that she enlisted the assistance of the paternal grandmother to facilitate the children spending time with the father. Further, she says that on 16 June 2021 she formally proposed that the father spend alternate weekends with children supervised by the paternal grandmother but did not receive a response. It seems that the children commenced spending consistent time with the father at least by September 2021. Supervised time has continued pursuant to the interim orders made by a senior judicial registrar in December 2021.
The child W has refused to spend time with the father for some 18 months. Each of the children appear to suffer some diagnoses including autism and ADHD. They are, however variously described as being of high IQ and “gifted”.
The parties agree that the interim orders of December 2021 provided for a relatively quick move to the children spending unsupervised weekend and holiday time with the father. They agree that the father has not taken up the unsupervised time. They disagree as to why this is so.
THE APPLICANT FATHER’S CASE
The father says was the primary carer of the children prior to the parties’ separation. He argues that the mother has alienated the children from him most evident in the refusal of W to spend time with him.
The father argues that the mother suffers a number of mental illnesses such that impact on her ability to care for the children and her ability to facilitate and encourage a relationship for the children with him.
The father says that he has support in his parenting of the children notably from his mother, sister and his partner, Ms B. He says he has the benefit of Ms B’s home in Town E and adjacent to the children’s potential schools and seemingly would intend the children living at that location, although his evidence was equivocal as to whether or not he would take up primary residence there.
The father says that any negative views of him held by the children can be addressed by sympathetic parenting with the assistance of professionals. Similarly, whilst he expects some long-term impact (but not short-term impact) on the children by reason of the change of primary parent, he has the support, maturity, skills and empathy to assimilate the children into his care.
The father says that he will maintain a relationship for the children with the mother, but in circumstances where the mother’s mental illnesses are to be addressed by professional intervention and assessment, initially such time should be supervised.
THE MOTHER’S CASE
The mother says that she has been the primary carer of the children both during the relationship and since separation. She says that the father was an inconsistent and disinterested parent delegating major responsibility to her.
The mother says that her parenting of the children was made more arduous by reason of the father’s family violence inflicted on her being violence of a physical, emotional, and coercive/control type. She argues that the father’s behaviour has negatively impacted her mental health and that his further contact with the children will similarly impact negatively on her parenting.
She says that the children are settled, happy and thriving in her care and where she is acknowledging of her diagnosis, she is compliant with medication and hence there being no impact on her parenting capacity.
The mother says that the father is manipulative of the children and notably by making negative comments to W during supervised visits such that W now refuses to have any contact with him. The mother also alleges a form of family violence perpetrated by the father on the children during the relationship highlighted by his anger and what might be termed unreasonable control of W in making her as a young child, responsible for the household during a period of the mother’s hospital confinement with the youngest child Z.
The mother says that the children were exposed to the father’s family violence and also his bizarre parenting styles in respect of the children themselves and where the children now recall the father’s “anger”.
In short, the mother argues that the father continues to present as an unacceptable risk to the children psychologically and potentially physically.
ISSUES
Whilst there are a plethora of issues for the Court’s determination towards the best interests of these children, the primary issues presented in the parties’ proposals are:
(1)whether the children should live primarily with the mother or the father?
(2)whether either of the parents should have sole parental responsibility for the children or, in particular, whether the presumption of equal shared parental responsibility at s 61DA of the Family Law Act 1975 (Cth) (“the Act”) is rebutted or does not apply?
(3)whether the children should spend time with the non-primary parent and, if so, whether such time be supervised and/or whether conditions and restraints should be placed on such time?
(4)whether the mother has set out on a course of alienation of the children from the father?
(5)the mother’s acknowledged and diagnosed mental health conditions and whether they impact on her to such a degree that she is unable to be the major caregiver for the children;
(6)whether the father’s previous family violence of a physical, emotional and coercive type as alleged by the mother, and its potential continuance, is such that the mother’s capacity to care for the children is impacted to a degree that there should be no contact between the children and the father should the children live primarily with the mother; and
(7)the weight to be afforded the views and preferences of the children in respect of their living and parenting arrangements?
THE RELEVANT LAW
Part VII of the Act provides a legislative pathway to be followed when the Court is to determine the parenting and living arrangements for children. Pursuant to s 60CA it is the best interests of the children that are the paramount consideration for the Court.
In determining those best interests the Court is to reference the probative evidence and the proposals of the parties to the numerous factors set out at s 60CC(2) and (3) of the Act against a background of s 60B which provides the objects and principles of the legislation as follows:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CC(2) provides what is often referred to as the “twin pillars” or “primary considerations” and which are frequently in direct conflict in the balancing exercise of attributing weight towards the consideration of the best interests of the children and indeed as is the case here. Those considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The father here argues that the mother’s course of alienation of the children from him serves to deny the children a meaningful relationship with him. To the contrary, the mother argues that the father’s propensity for family violence of various types evidences his lack of parental capacity, responsibility and insight and presents as a risk to the children.
Although, the above provisions are noted as “primary” considerations, neither is of itself determinative of the best interests of the children[2] where the process for the Court is one of weighing and balancing the evidence referenced to all of the s 60CC factors where under subsection (3) the Court is also to consider factors such as the children’s views and the weight to be afforded those views; the nature of the relationship between the children and the parents; the capacity of each of the parents to attend the children’s physical, intellectual and emotional needs; and the impact of any changes on the children of either parent’s proposals and other factors.
[2] Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96.
The Act at s 61DA provides a presumption that it be in children’s best interests for their parents to exercise equal shared parental responsibility for them. “Parental responsibility” is normally understood to be the obligations of parents to make important and long-term decisions for children in matters such as education, medical procedure, religion and the like as opposed to the more common and mundane decisions habitually made for children on a day-to-day basis.
The presumption of equal shared parental responsibility does not apply if the Court is satisfied on the evidence that there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child), has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or other person’s family) or family violence.[3] Alternatively, the presumption of equal shared parental responsibility can be rebutted by evidence satisfying the Court on the balance of probabilities that it is not in the children’s best interests for the parents to exercise equal shared parental responsibility.
[3] See section 61DA(2)(a) and (b) of the Act.
In the matter now before me, each of the parents argues for an order for sole parental responsibility in them presumably on the basis of the presumption not applying in the case of the mother where she argues family violence and not being applicable in the children’s best interests on the case mounted by the father.
Subject to anticipated amendments to the Act, the law remains that should the presumption of equal shared parental responsibility apply and not be rebutted or should the Court make an order for equal shared parental responsibility of children then the Court is to enter into a statutory and intellectual course of consideration whereby it first considers whether it be both in the children’s best interests and reasonably practicable for the children to live in equal time arrangement between the parents. If the answer to either of those questions is in the negative then the Court is to move to consider whether it be both in the children’s best interests and reasonably practicable for the children to live in an arrangement of “substantial and significant time” with each of their parents. The Act defines “substantial and significant time” as time for the children with the parent on both weekends and weekdays and where the time the child spends with the parent allows the parent and the child to be involved in the child’s daily routine and events and occasions of special significance to the child or the parent.
In this matter, neither parent argues for either equal time or “substantial and significant” time in the other parent, where at best, on the father’s case he argues for limited and initially supervised time with the mother and where the mother argues that the children spend no time with the father. It should be noted and emphasised, however, that it is not the task of this Court to simply choose between the options or proposals put by each of the parties but where the obligation of the Court is ultimately to make orders which are on balance in the children’s best interests.
In its consideration and determination the Court is obliged to make findings of fact. It does so on a standard proof of “on the balance of probabilities” consistent with s 140 of the Evidence Act 1995 (Cth) stemming from the well-known decision of the High Court in Briginshaw & Briginshaw.[4]
THE EVIDENCE
[4] (1938) 60 CLR 336, [1938] HCA 34.
The father
The father provided an affidavit affirmed 18 October 2023. The father presented in the witness box as extremely articulate, confident, urbane and polished in his manner.
Despite his demeanour, the father was not a good witness. Firstly, his affidavit provides a narrative replete with negativity and criticism of the mother. Cross-examination quickly, however, exposed that affidavit to be selective in its content and notably omitting any commendable or positive, traits of, or behaviour on the part of the mother. Crucially as to the father’s credit, the narrative is misleading in the circumstances of the children in the period following separation on 10 February 2021 where a prima facie reading of that affidavit would indicate that the children were retained by the mother at separation, without his consent and contrary to the father’s intent, and where any reasonable critic might conclude that the mother did not offer contact or communication between the father and children until the father commenced proceedings until months later in mid-2021. The truth and the whole truth says otherwise. The father relied on evidence from his sister, Ms H, and his mother Ms C. Their affidavits similarly offer a chronological narrative absent what has now shown to be, firstly, positive initiatives by the mother to maintain a relationship for the children with the father and paternal grandmother and, secondly, the fact that following separation the father did, in fact, retain possession of the children upon separation but where he voluntarily, on my findings, relinquished the children into the care of the mother. Suffice to say that these lacunae from the father’s affidavit do his evidence generally no credit and I am not satisfied or persuaded by his attempts to explain or justify such omissions from his affidavit material. I prefer that he chose to compose an affidavit emphasising the criticisms of the mother deliberately omitting any factors that might be read to her credit. I make similar observations in respect of the affidavits of his witnesses, his mother and his sister.
Similarly, the father was a poor witness in court when subjected to cross-examination. His transparent aim was to shore up his own case and his own asserted attributes whilst being completely negative and, at times, unfairly demeaning of the mother in his criticism of her. Further, when challenged in cross-examination his consistent tendency was, at all times, to deflect blame to the mother.
The expert psychiatrist, Dr K, insightfully describes the father as having “an air of grandiosity not matched by his achievements”. I can only defer to the eloquence of Dr K as concurring with my own observations of the father in court.
Whilst being at times overly keen in his responses in cross examination, such rejoinders were often demonstrative in the father’s lack of parenting experience and insight. Notably, when asked as to whether the children might react negatively by being placed in his care, as he seeks in his orders, where they have at 13, 10, 9 and 4 years, lived solely with their mother since at least February 2021 and where contact with their father has been limited to two hours supervised time per fortnight at a Contact Centre, his response was to suggest that the children would suffer no immediate stresses or negative impact but might do so over a longer period of time (perhaps with the exception of the eldest child, W) shows, in my view, a lack of insight into the dependency of and nature of children’s relationships with their parents.
I generally found the father’s evidence to demonstrate a naïveté in the responsibilities and requirements of parenting and to the emotional needs of children. His evidence and manner in the witness box was, on my viewing, entitled and empowered and manifested in his condescending and demeaning attitude towards the mother.
Despite my observations above, I detected in the father a number of positive traits where potentially he could be a positive parent and role model for his children. He is cosmopolitan in his experience. He is worldly, articulate and a man with interests and understandings that would ground an important relationship with his children. He also brings an extended family (perhaps blindly) supportive of him and the where the personal traits and experiences of his mother and his sister might also ultimately benefit his children.
The mother
The mother provided a comprehensive affidavit accompanied by voluble annexures and affirmed 11 October 2023.
Generally, the theme of the mother’s affidavit is that she personally has a fear of the father and that she has a fear that the father will “harm the children” if they have unsupervised time with him and will do so “to get back at” the mother. The mother’s stated “fears” extended at times to a trepidation that the father might physically harm the children or even kill them with the only rational being to “get back” at the mother and presumably for her leaving the relationship.
The mother’s narrative of history is more comprehensive than that of the father. Highlighted in that history are the mother’s demeanour and initiatives following separation in February 2021 where she sets out that the children were, in fact, left in the possession of the father around that time but where he voluntarily returned them to her. Again, this relevant information does not appear in the father’s affidavit. Significantly, however, the mother’s unchallenged evidence is that she made offers to the father for “co-parenting” but without response.
The veracity of the mother’s theme of fear and family violence is at the very crux of her case. As I understand her evidence, she says that she was referred by a Child Protection Officer in about mid-2021 to family violence counselling. She had not until that time understood herself or perhaps the children to be the victims of “family violence”. She did not actually meet with this Child Protection Officer but spoke with him over the telephone and enjoyed a text conversation. The Child Protection Officer did not give evidence. His qualifications and experience to “refer” a person for family violence counselling are unknown. In any event, the mother attended a family violence counsellor and then came to understand her historical circumstances to be such that she then saw both herself and the children as “victims of family violence”. The family violence counsellor did not give evidence. The qualifications and experience of the family violence counsellor are unknown.
The “family violence” allegedly suffered by the mother and the children is of the psychological/emotional/coercive/control type. She instances perhaps one episode of situational physical violence by the father in the form of a push.
Significantly, the father denies being the perpetrator of family violence and indeed the tenor of his evidence at times was that it was the mother herself who was perhaps the more dominant, assertive and even controlling or coercive member of the family unit.
On reflection and consideration, I do not find the mother to be a good witness or always a witness of the truth, or at least the whole truth. Her responses in cross-examination were often contradictory and melodramatic. For instance, she volunteered that any orders for unsupervised time for the children might result in her “killing herself” due to a decline in her mental health as she felt that she would be “not protecting her children”. As mentioned above, similar comments were made to her counsellor Dr L but where Dr L, when tested in cross-examination, was more positive in respect of the mother’s responses and ability to cope.
When she first entered the witness box, initial impressions of the mother were of a nervous, anxious, timid and perhaps vulnerable woman. However, as her evidence progressed, I detected an assertive, calculating and strategic personality more in line with that painted of her by the father. Contrary to her manifest body language, the mother was strong, emphatic, and insistent in her responses. She was not prepared to make admissions against interest. I generally agree with the submissions of counsel for the father that the mother has been keen to seek out persons and community facilities to support her case and is a person savvy in the various facilities available through government and community organisations. I noted a sense of “creating a case” where the mother at a point in time determined that the children would not have a relationship with the father and then set out to find the evidence to support that viewpoint. Certainly she was unable to adequately explain the incongruity between her altruism towards the father in the months following separation where she was offering him “shared parenting” to her now adamant position of no relationship of any type for the children with the father.
The mother disclosed her determined position by confidently stating at one stage that should the Court make orders contrary to her position then she would immediately (and apparently without further evidence) take the matter to the Child Protection Authorities in the hope that they would act to remove the children from the care of the father. In this respect, the mother conceded that she had held discussions with her sister-in-law who, to the knowledge of this Court, had previously acted in just that way. On another occasion she suggested her response to such orders would be to admit herself to a psychiatric unit. On yet another occasion her response was that she would hand primary care of the children to the father with some bizarre rationale of this somehow protecting the children.
Generally, therefore, I observe the mother coming to this trial with a sense of calculated intent where I viewed her to be a much more assertive, determined and confident personality than she hopes to display in her case of anxiety and “fear” of the father.
WITNESSES
Ms B
Ms B is the partner of the father. She provided an affidavit affirmed 17 October 2023. Ms B gave evidence and was cross-examined.
Ms B presented as a sophisticated and worldly woman of 60 years. She has had a successful professional career.
Unsurprisingly, Ms B, who has now been in a relationship with the father for near 12 months, was supportive of his case for the care of the four children although somewhat partisan and perhaps naïve in that support. She has no personal experience in the parenting of children. She was keen and ambitious to take over the role of a female figure in the household with the father and the children, but her evidence suffered somewhat when challenged as to how she would deal with the likely impact on the children of a change of residence and separation from their mother together with the various diagnoses that the children suffer. In this sense she shared something of the naivety shown by the father himself.
Ms B was in many ways an impressive witness and would undoubtedly provide considerable physical and emotional support for the father in re-establishing his relationship with his children, albeit where I suspect that the reality would pose considerable difficulties for Ms B not yet anticipated by her or properly considered.
Ms H
Ms H is the father’s sister. She provided an affidavit affirmed 18 October 2023. She attended court and was cross-examined.
Ms H’s evidence was entirely negative of the mother. The affidavit comprised of a narrative prepared in part from the mother’s own teenage diaries retrieved from the former matrimonial home by Ms H and the father. The contents of the diaries were utilised for the preparation of Ms H’s affidavit. When asked why she did not simply return the diaries and thereby according some dignity to the mother, her responses were patently unsatisfactory and it is my view that the diaries were utilised opportunistically for the purposes of mostly irrelevant criticism of the of the mother.
The content of Ms H’s affidavit is substantially hearsay, unsubstantiated opinion, and irrelevant and clearly authored in an attempt to selectively attack the mother.
Ms H’s evidence under cross-examination in the witness box was similarly partisan, not objective, and irrelevant.
Of some concern to this Court are the candid admissions of Ms H and Ms B that they had access to, and indeed were keen to give their lay opinions, in respect of the single expert report of Dr N. This is despite that Report being released under a prohibition order which unambiguously restricts the dissemination of the Report and provides in a notation the ramifications of breach of s 121 of the Act. Given the concessions by each witness as to the involvement of the father in the disseminating of this material, these matters will be dealt with separately to these Orders and Reasons where the Court may feel obliged to refer the matter to the appropriate authorities for consideration.
Ms C
Ms C is the paternal grandmother. She is a worldly and experienced lady of some 82 years and clearly the dominant family matriarch. She gave her evidence in court under some difficulties with her hearing. She had provided an affidavit[5] and was cross-examined.
[5] Filed 18 October 2023.
Whilst Ms C’s affidavit is strikingly similar to that of her son, Ms B, and Ms H in its clear intent to demean and criticise the mother and where a reading of Ms C’s affidavit shows direct and implied criticism of the mother at almost every paragraph, there is strikingly and notably no mention of her own son in either criticism or accolade. Where it is clear that the father’s family have cooperated, if not colluded, in the preparation of the affidavit material, this speaks volumes as to the understanding of the father and his supporters of the nature of family law proceedings where it seems that they consider it necessary to mount a case based entirely upon the personal and parenting criticisms of the mother but with no attempt to include even the most minor of positive traits of this mother.
To her credit, Ms C in cross-examination was more objective, forthcoming, and able to speak to some positives of the mother.
Sadly, despite the tenor of her evidence, Ms C herself, like the father and Ms B, offers considerable potential benefits to her grandchildren by way of her experience and worldliness.
Dr L
Dr L is a clinical psychologist and the mother’s therapist. She provided an affidavit in support of the mother sworn 11 October 2023. She attended court by Microsoft Teams and was cross-examined.
Dr L’s affidavit discloses at [2] that the mother was referred to her by a general practitioner in late 2021 “for assistance with social skills and emotional regulation… been diagnosed with Autism Spectrum Disorder (ASD)”…
Dr L continues to consult with the mother.
Despite the terms of the referral set out above, the tenor and content of Dr L’s affidavit is entirely focused on the mother’s alleged family violence experiences during her relationship with the father and her asserted fears of him.
Dr L concedes in cross-examination that, consistent with her practice and that of therapists generally, she did not challenge the history given to her by the mother. She accepts that she did not receive corroborative material in respect of the mother’s history. She did not, of course, interview the father in respect of the mother’s version of history.
Dr L helpfully provides her curriculum vitae. While she is undoubtedly experienced in her field, she has no experience in family law matters and, in particular, says that only in 2023, whilst providing therapy to the mother, has she undertaken any relevant continuing education in the matters relevant to this Court where, in particular, she has some received training this year in “intimate partner violence” and “interparental coercive control and child family outcomes”. She has received no training from any of the facilities offered by the Family Courts.
At [11] of her affidavit Dr L reports the mother as saying that she is “overwhelmed by the prospect of [the father] receiving unsupervised time with the children and she fears that he will harm the children to “get back” at her”. Dr L says that she believes the mother to be “genuine” in those “fears”.
Further, and in conclusion at [14] Dr L offers:
I am concerned that if [the father] were to have unsupervised time with the children it would effect [the mother] mentally, as she would live in constant fear that he would harm the children. It is my opinion that, over time, this would diminish her parenting capacity to the extent that she may be unable to meet the emotional needs of the children. Having said this, I do not believe [the mother] will ever reach a point where she cannot meet the basic needs of the children as she was able to during the relationship despite the events and behaviour which she has reported to me.
On consideration, I placed little weight on the evidence of Dr L. She provides therapy to the mother rather than a forensic assessment. She accepts the mother’s version of history without challenge or corroboration. She has not interviewed the father.
To her credit, however, when cross-examined the indication from Dr L is that, despite the comments at [14], the mother would, with therapeutic assistance, be able to cope and parent the children, albeit with some difficulty, should the children have contact on an unsupervised basis with their father. Dr L believes that she herself could render such assistance and therapy to the mother.
Dr K
Dr K is a psychiatrist well experienced in providing reports, evidence and assistance to these Courts over many years. Dr K provided a comprehensive report of 9 May 2022 after interviewing the parties and also having the collateral benefit of interviewing the older children. He provided a supplementary report of 18 October 2022 after the provision to him of further materials.
As is my general experience with Dr K, I found his evidence to be informed, learned, objective, and case specific.
Relevantly, Dr K harboured some concerns in respect of the mother’s interview. He offered that “the mother had been economical with the truth in initially giving her medical history”.
Dr K was of the view that the eldest child W’s “views at times spontaneously reflected the mother’s point of view”. However, Dr K, perhaps showing his lengthy experience in family law matters, also opined that there was a level of mutual denigration between these parents “not at any unusual level in respect of the cases that I have been involved in”.
When asked about the levels of support that are currently provide to the mother, Dr K further opined that the mother “seems to have a greater dependency on the supports than 18 months ago but this may have been induced by the actual supports themselves”. By “supports” Dr K was meaning the government and community services prevalent and available to those seeking them out.
Dr K noted the mother’s diagnoses of ADHD and Autism Spectrum Disorder and either a Personality Disorder or a Complex Post-Traumatic reaction. Although, noting the mother’s compliance with medication, he did not observe features referable to ADHD at interview. He accepts a history consistent with minimal autism but opined that “impaired socialisation in her case is more likely to be due to situational factors in early life and the condition was not evident in her mental state at interview.”
Dr K concluded in respect of the mother’s diagnoses:[6]
Essentially her presentation was that of a normal stressed woman. Any residual features of Attention Deficit Hyperactivity Disorder were possibly controlled by her medication. An Autism Spectrum Disorder was not evident at interview. Her history was broadly consistent with a Complex Post Traumatic Reaction.
[6] At page 8 of Dr K's Report dated 18 October 2022.
With the benefit of additional material, Dr K noted also a history of self-harm from 2001 but without suicidal intent.
Dr K was of the view that the mother’s condition does not pose any specific risk to the children, but with the caveat that the children may witness or become aware of any self-harming behaviour of the mother.
Generally, Dr K was of the view that both parents have the capacity and ability to safely parent the children but thought the ability of each of the parents to continuously parent the children solely was problematic.
In respect of the father, Dr K’s observations were consistent with my own where he says at page 9:
He was voluble and fluent, very much “on message” about the Mother’s condition and behaviour, but leaping from subject to related subject. He answered questions by way of clarification immediately and appropriately. Speech was emphatic and fairly rapid but clear and grammatical and without obscenities. Emotional tone was at times indignant but generally normal with heightened animation.
A reading of Dr K’s report also suggests, consistent with my observations, a propensity in the father to deflect blame to the mother even for his personal issues such as “before he met [the mother]” he said “I was a melancholic, not a depressive”.[7]
[7] At page 13 of Dr K’s report dated 18 October 2022.
Dr K concludes in respect of the father’s psychiatric assessment:[8]
The Father displays some salient personality characteristics but does not have a sufficient cluster of them to justify a diagnosis of a specific personality disorder, and such a diagnosis should never be made without corroborative information covering at least the individual’s adult life.
[8] At page 26 of Dr K’s report dated 9 May 2022.
More generally, Dr K describes the father, again in accord with my own observations, thus:[9]
The Father displayed some salient personality characteristics including a mild grandiosity apparently disproportionate to actual individual achievement…
[9] At page 27 of Dr K’s report dated 9 May 2022.
I gleaned from the evidence of Dr K generally that he is of the view that each of the parents have the capacity to contribute to the care of children, although perhaps each relying mutually on some support from the other and/or external supports. He noted the mother’s diagnoses whilst perhaps not necessarily agreeing with each of them but noted her compliance with the medication and hence addressing potential issues of her capacity raised by the father.
Dr N – the Court Expert
Dr N is a clinical psychologist who frequently provides assessments and reports for the court as a single expert. In this matter she provided a comprehensive report of 16 December 2022 after interviewing the parties and the children.
Dr N attended court and was cross-examined extensively following which she maintained her recommendations that the children live primarily with the mother, but spend time with the father graduated towards unsupervised overnight and weekend time.
As to the salient points that have transpired from the evidence of the parties prior to her giving evidence, Dr N was of the view that the mother would be able to “cope” with proper and directed therapeutic assistance should the Court order that the children spend time with the father. The caveat to Dr N’s recommendations and opinion, however, is that W should not be subjected by court order to spend time with the father. Dr N was equivocal as to the benefit of therapy for W and tended towards W perhaps coming to an understanding of a licence that she be able to spend time with the father should she see the younger children transiting successfully to the father and enjoying the time with him.
Where the father argues that the children have been subjected to a course of “alienation” by the mother against him, and despite her use of that word “alienation” in the text of her report, Dr N agreed under cross-examination that a more appropriate term may have been “denigration”. Specifically, she noted the views of the younger children that they were desirous of spending time with their father as evidence contrary to the father’s assertions that the children have been alienated. Further, she agreed that W’s views of the father might be more suggestive of the child’s alignment with the mother where it is clear from the mother’s own evidence that she prefers a parenting style of complete “honesty” with the children where she is prepared to convey to the children her own negative views of the father and her understanding of his previous treatment of the children. As such, Dr N is not of the view that the children or any of them have been alienated from the father in the clinical sense of the notion of alienation.
Dr N agreed with counsel for the mother that the mother feels “persecuted” by the father and his family. Dr N agreed with counsel for the ICL that such views would be aggravated and reinforced by the tenor of the affidavits of the father and his supporters which were almost entirely critical, accusing, demeaning and negative of the mother. Dr N agreed that the mother is highly likely to be “overwhelmed” by the position taken by the father and his supporters including their undignified use of the mother’s teenage diaries.
Dr N is of the view that the mother holds a subjectively honest view in her revelations to this Court that she feels that the children would be at risk of harm if they were to be placed in the care of the father with a general theme of the father being motivated to “get back at the mother”. Whilst I was generally greatly assisted by the report and evidence in court from Dr N who I found to be learned, professional and informed in her evidence, the Court has had the advantage of seeing and hearing the parties themselves cross-examined extensively over a number of days where Dr N had only limited direct interviews with each of the parties. In this sense, Dr N was informed of aspects of the mother’s evidence that have proven problematic to the Court’s consideration of the veracity of that evidence. Dr N nevertheless maintained a view of the mother consistent with that put by the mother herself of a timid, vulnerable person having been subjected to various types of family violence and legitimately fearful of the father’s potential harm to the children. The caveat to this opinion, however is that Dr N shares the opinion of Dr L that professional and targeted therapy will enable the mother to cope with any situation that has the children spending unsupervised time with the father.
Dr N noted traits in the father similar to those seen by Dr K and observed by me in court. She described the father as forceful and opinionated and recognised a likely power imbalance between the parties from how they presented to her on the day of the assessment.
Dr N maintained her view of a likelihood of at least coercive/controlling violence by the father during the relationship and perhaps of an emotional or psychological type. She agreed that he either tended towards diminishing his role in such violence or lacked insight into its impact on the mother and the children. Dr N’s views, in this sense, were reinforced by statements made by the children themselves but incongruently where the same children were desirous of having a relationship with the father.
SECTION 60CC FACTORS
Section 60CC(2)(a) the benefit to the children of having a meaningful relationship with both of the children’s parents; and
Where the Act emphasises, at s 60B, almost with the force of presumption, that it be to children’s benefit to have a relationship with both of their parents regardless of whether their parents are married, never been married, or separated, but always subject to the children’s best interest, neither parent in this matter mounts a case with any force towards this consideration and despite it being a primary consideration for the Court. Indeed, the mother’s position goes only so far as ongoing supervised time for the children with the father. The father’s position, should the children live with him, is for a moratorium of some six months in the children’s time with the mother’s so as to allow them to settle into his care and then a regime of time.
The conclusions of each of the Court Experts, Dr K and Dr N, is generally towards the children enjoying a relationship with each of their parents. The Act itself at s 60B offers a prima facie presumption that children have a right in having a relationship with each of their parents, but at all times subject to findings of fact contrary to the childrens best interests.
The evidence suggests children have a highly bonded, attached and supportive relationship with their mother. An issue for the Court is whether there is some mutuality in the mother’s dependency upon the children?
The mother concedes in her evidence that she imbues the children in the issues before these Courts and her own views which she justifies by saying “I will not lie to my children”. This, however, gives some justification to the case of the father and supported by Dr N, that the mother’s involvement of the children in these proceedings can be seen as a form of “alienation” of the children by the mother or at the very least, an unnecessary and self-interested denigration of the father to the children. As mentioned above, I do not view this mother as being naïve in the process of family law. Rather, I expect that she has made enquiries of relatives and acquaintances and comes to this Court well versed in the matters which assist the Court’s determination of children’s best interests.
Should the mother have deliberately imbued the children in the proceedings then such is obviously contrary to the children’s best interests where their immaturity does not allow them, even at the age of W, to fully understand and appreciate the complexities and the intricacies of family law disputes between parents.
Contrary to their relationship with their mother, the children’s relationship with their father is not so close or dependent. Very much of his own choice, the father has elected not to spend time with the children over and above the two hours supervised time each fortnight. Orders from December 2021 permitted time to expand to each second weekend and periods during school holidays. As this has not occurred, the children have not experienced their father in his own environment. They have not understood him to undertake the responsibilities of parenting. It is completely understandable, however, that their understanding of their mother has grown accordingly and disproportionately and distinctly from their understanding of their father.
Dr N had the advantage of interviewing the children and observing them with each of their parents. She opined a negative impact on the children of separation from their mother given that close bond and attachment.
Importantly, Dr N also opines that the children do not appear to be experiencing any adverse consequences as a result of their limited contact with their father. That is, the children, X and Y, have been able to maintain a relationship with their father through limited supervised time at a contact centre and Z has established a relationship with him. This must be seen as a positive comment on the father’s parenting capacity.
Dr N’s report and that of Dr K disclose that the children, X and Y at least, retained positive memories of their father’s involvement in their early childhood and are desirous of perhaps spending more time with him.
Similarly, the maintenance of and establishment of these relationships for X, Y and Z argues against the father’s assertions of “alienation”. Sadly, however, the relationship between the oldest child, W, and the father has completely broken down and W’s relationship with her father is currently non-existent. W refuses to attend the Contact Centre. She speaks negatively of the father and in support of her mother. That similarity is noted by both court experts and while it may be explicable by rationale such as loyalty to a parent, it may also be explained by a conscious effort by this mother to thwart relationships between the children and the father. Where the mother candidly says that she does not shield the children from her own views of the father, it is probable that W has established a loyalty to her mother in circumstances where she, as the oldest child, understands the toxic dispute between the parents. Nevertheless, and as pointed out by the father’s counsel in final submissions, counselling notes for W as recent as August of this year suggest that she is able to point to good traits in the father. Again, this argues against the father’s assertion of a deliberate and successful course of alienation by the mother of the children against him.
Whilst the emphasis of the father’s case is on this consideration at s 60CC(2)(a), this consideration is not of itself determinative of the best interests of the children and despite being a “primary consideration”. Rather, the Court is to consider and reference the probative evidence to each of the factors set out in s 60CC(2) and (3) where none is more determinative than any other.[10]
[10] Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96.
Fundamentally, therefore, the children’s relationship with their father will not develop into a meaningful and successful one unless they are permitted to spend more time with him and allow them to understand the father’s own parenting style and for him to demonstrate his capacity to discharge the responsibilities of parenting.
Importantly, the determination for this Court is a prospective one. As such, whilst the evidence of past and current circumstances are probative of the ultimate decision of the Court, the Court looks to make orders which will work in the children’s best interests moving forward. Similarly, the process has been well established by Superior Courts as “qualitative” rather than simply dividing the quantity of the children’s time between the parents that most interests the Courts.[11]
[11] McCall & Clark (2009) FLC 93-405, [2009] FamCAFC 92, Mazorski & Albright (2007) 37 Fam LR 518, [2007] FamCA 520, C & G [2006] FamCA 994.
Consequently, the task of the Court is to determine orders that might allow the children to maintain and flourish their relationships with each of the parents whilst, of course, attending generally to their best interests and including their protection from violence or abuse where necessary. Further, whilst this is a primary consideration, it is one where there must be an anticipated benefit for the children in maintaining a relationship with a parent.
Section 60CC(2)(b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Whereas the father emphasises subsection (2)(a), the mother’s case here is firmly based on issues of family violence. She says she is personally fearful of the father but perhaps more relevantly, that the father poses a risk to the children of emotional, psychological and physical harm (where she sees, the father’s motivation being to “get back at” her by harming the children). She argues that the risk is unacceptable. This again is a prospective exercise for the Court’s consideration and where findings of risk are prospective and therefore do not sit comfortably with the usual evidentiary standard of “on the balance of probabilities”. Rather, the Court is to consider the notion of “possibility” rather than “probability”.[12]
[12] Isles & Nelissen (2022) FLC, (2022) 65 Fam LR 288.
Where the mother says that she herself is a victim of family violence, there are some evidentiary inconsistencies in the mother’s evidence to be considered but where also, and despite these inconsistencies, Dr N is of the view that the mother holds a “genuine” belief that she has been a victim of family violence and that her children similarly are at risk.
The mother argues that there was violence primarily of a coercive and controlling type, but where there were some few instances of physical interaction between the parties that might be termed situational without diminishing the importance and potential impact of any incidents of family violence. Put simply, when the parties separated on or about 11 February 2021, the mother says that she did not then understand that she was a victim of family violence. Indeed, she was extraordinarily proactive and altruistic in attempting to encourage the children’s relationship with the father and offering him, for instance, regimes of “co-parenting”. She was similarly accommodating of members of the father’s family.
The mother says, however, that she had limited communication through telephone and/or SMS only with an officer of the Department of Child Safety who recommended that she seek out “family violence counselling”. The Child Safety Officer was not called to give evidence.
The mother attended family violence counselling. Similarly, the counsellor was not called to give evidence. Nevertheless, it appears that the counsellor educated the mother to come to an understanding that she was a victim of family violence. This realisation can be seen as providing the bases for the mother’s case strategy in this matter where she says she remains “fearful” of the father herself and that she fears his propensity for anger will place the children at risk. Her factual basis for these conclusions seems to be, firstly, the father’s treatment of W during a period of the mother’s hospitalisation after the birth of the youngest child where she says that the father had W assume the role of homemaker and carer for the children. She cites more generally the father’s demeanour and propensity for control and coercion within the family unit. Specifically, she challenges the father’s bona fides in bringing this parenting application which she says is motivated only by his desire to “hurt” her and where he has no actual desire to assume primary care of the children.
Whilst the mother’s realisation in the early or middle months of 2021 that she is a victim of family violence now clearly grounds her case, there was correspondence between the parties on 26 February 2022, being some 12 months after separation and many months after the mother’s family violence advice, which does not sit comfortably with the mother’s asserted beliefs and allegations. That correspondence shows the mother altruistically, and in some great detail, offering time for the children with the father which cannot on any reading be seen as being motivated out of duress, threat from the father, or fear of him. She is the initiator of the communications. When presented with this inconsistency in cross-examination, the mother’s responses were generic, deflecting and unpersuasive.
Superficially it is likely that there was a power imbalance during the relationship. The children’s statements to Dr N are corroborative of the father’s demeanour in the household. I have had the advantage of seeing and hearing the father give his evidence in this Court where such evidence was consistently demeaning of the mother personally and as a parent. The evidence of the father’s mother and sister are similarly demeaning and entirely critical of the mother.
Nevertheless, and whereas I might have observed the father to be grandiose, self-righteous, and entitled in giving his evidence to this Court, the mother did not necessarily present with a demeanour consistent with that pleaded in her affidavit material or as she entered the witness box. She, as her evidence progressed, did not present as the “shrinking violet” portrayed. To the contrary, she presented as confident, considered and informed in her responses against vigorous and intrusive cross-examination.
In her trial affidavits and case summary the mother argued a case that her parenting capacity would be impacted negatively should the father have unsupervised time with the children. Indeed, the mother herself maintained such an argument throughout the trial with various revelations including:
(i)that she might harm or kill herself if the children were to have unsupervised time with the father;
(ii)that should the Court make orders for unsupervised time for the children with the father then she would immediately react by urging the Department of Child Safety/Child Protection to take out orders in the State Courts;
(iii)that should the Court order unsupervised time for the children with the father then she would “give the children to the father full-time” presumably, on the pretext that she could not be held responsible for (her belief) that he would harm the children; and
(iv)that should the Court order unsupervised time for the children with the father then she anticipated that she would need to be admitted (or admit herself) into a psychiatric institution to obtain inpatient therapy to deal with her fears that the children would be harmed by the father.
Importantly, and quite properly in my view, counsel for the mother did not vigorously pursue this argument in final submissions conceding that there was no evidence adduced of an expert nature to give corroboration to the mother’s assertions and, indeed, that the psychological evidence before the Court being that of the Court Expert, Dr N, and also of the mother’s own psychological therapist, Dr L, was that the mother could be rendered therapeutic assistance which would allow her to cope in the event that the children spend unsupervised time with the father.
It should be noted, and where the mother made the serious revelations as to her possible responses should the Court order unsupervised time, that the mother’s counsel, Mr Trezise, in his submissions acted entirely appropriately in submitting that his primary responsibility was to the Court and even over and above that to his client and where he could not properly submit that the Court place any credence on the mother’s various revelations. Nevertheless, Mr Trezise informed that on obtaining instructions from the mother prior to his submissions, she maintained her most recent position being that she would anticipate admitting herself to a psychiatric institution for in-house therapy should the Court order any unsupervised time for the children with the father.
It should be understood at the outset that this Court abhors family violence which is a demonstrated and manifest curse on modern society. The Act itself emphasises the weight to be placed on matters of family violence where in subsection (2A) the Court is mandated to give “greater weight” to this consideration than the other primary consideration of “benefit to the children of a relationship with both parents”. Indeed, these Courts on a daily basis are required to listen to and take into account the extremes of family violence that exist in the community and, more particularly, the destructive physical and psychological impact on children who are often themselves the objects of such violence when exposed to violence between their parents or other adults. It is proper to say that children are not equipped to themselves deal with the emotional impact of such behaviour and exposure. It follows, therefore, that it is fundamental task of this Court to protect children from actual or exposure to violence.
Nevertheless, the nature of a trial is that a party making an assertion of fact carries an onus to prove that fact on the balance of probabilities. They do so by giving and/or adducing evidence corroborative of their claims where such evidence is tested as to its veracity.
The violence and abuse of children comes in a plethora of forms. In this case, the father asserts that the mother has entered into a course of alienating the children from him. Such, if proven, would undoubtedly fit easily into the definition of “child abuse”.
Whilst Dr K insightfully reminds the Court that, in reality, there is rarely a contested parenting case before these Courts where the children are not in some senses imbued by their parents in support of one side or the other and where some mutual denigration between parents is not evident, it remains nevertheless the responsibility of parents to quarantine their children from the adult dispute.
Essentially, the issue of the mother’s allegations against the father of family violence is a matter of credit between the parties. The mother elicits some corroboration from the children themselves in their comments to the Court Expert. Given the nature of the allegations being of emotional and psychological violence, there are understandably neither police nor doctors’ reports for assistance and corroboration. The mother does not bring to court the “referring” child protection officer. She does not bring to court the family counsellor who assisted the mother in learning that she was herself a “victim”. The mother’s evidence generally is disputed by the father. As mentioned above, the credibility of the evidence of each of the parties and my impressions of each of them generally as witnesses were problematic.
Section 60CC(3)(a) any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views;
The oldest child W has an entrenched view contrary to spending time with the father or having any relationship with him. She is 13 years of age. Dr N describes her as being articulate and intelligent.
The father asserts that W is the victim of a course of alienation against him by the mother. As mentioned above, the demeanours of the younger three children when seen by Dr N suggest otherwise. Nevertheless, it is clear that W is heavily aligned to her mother. Dr N described W as clearly motivated to portray her father in the most negative light possible. This is unsurprising given the mother’s own candid evidence that she willingly exposes the children to her own negative and critical views of their father.
W’s comments and language in respect of her father was entirely pejorative. W is of the understanding that she has a “choice” as to whether or not she would have a relationship with her father.
Unsurprisingly, W was entirely positive in respect of her mother. In cross-examination, Dr N conceded that the term “alienation” was perhaps too strong in respect of W’s situation and preferred that the child had been subjected to a course of “denigration”.
Whereas Dr N was of the view that there should be no order compelling W to spend time with the father, she did not agree that “the horse has bolted” and left open the possibility of some form of therapy for W and the father in an attempt to restore their relationship.
Dr K, who was engaged to provide psychiatric assessments of the parties, also thought it of assistance to interview the children and did so. W was similarly entrenched in her negativity of the father but where Dr K noted W presenting with “acquired voice, eye contact intermittent, she was subdued but not anxious”.
Dr K also interviewed the younger children Y and X. Interestingly, and in respect of their various diagnoses, he reports at page 24 of his first report of 9 May 2022:
The Children did not appear anxious in a novel situation and none of them showed evident features of Autistic Spectrum Disorder or Asperger’s Disorder, unless it was in their directness of matter-of-fact expression. They did not display features typical of Attention Hyperactivity Disorder. The interviews were conducted in the mid-afternoon when any specific medication for that condition that was taken in the morning would still be working
Dr N interviewed all three of the younger children. Each of Y and X offered that they would do like to spend more time with their father, but where each was reticent in respect of their father and clearly indicating some influence from their mother where again the mother was quite open in informing the Court that she conveyed her own personal views to the children.
None of the three older children gave indications other than a preference to remain living with their mother.
Section 60CC(3)(b) the nature of the relationship of the children with:
(i) each of the children’s parents; and
(ii) other persons (including any grandparent or other relative of the children);
The children understand their mother to be the primary parent. They are happy in her care. She is on all accounts a devoted parent. She attends to their education and extracurricular activities. They seek her for support and are dependent upon her.
The children’s understanding of their father since separation has entirely been of time supervised for two hours per fortnight. They have not seen their father exercise the responsibilities of parenthood. They have an understanding that he, for some reason, needs to be supervised when they are with him. The mother reinforces these views.
Nevertheless, and somewhat surprisingly, the father has been able to maintain a positive relationship with Y and X and, more surprisingly, to establish a relationship with Z. The children have a recollection of their father being angry and violent of disposition, but again reinforced by their mother candidly telling them of their father’s violent disposition. Whilst they are desirous of more time with their father, they appear to seek the security of the Contact Centre. Again, the mother offers no influence otherwise where her own position is vehemently opposed to all time-with or, at least, at any time-with other than supervised.
The circumstances here are ripe for the children to take alignments and, as evidenced by W, inevitably with their mother.
A conundrum for the Court here is that the father’s time with the children since separation is not exposed outside of the Contact Centre. This is despite the mother unconditionally and unambiguously offering the father time immediately after separation. She repeated her altruistic offers some 12 months later in February 2022. Further, interim orders made by a Senior Judicial Registrar in December 2021 gave the children time with the father staged on a relatively quick basis to each second weekend and half of school holidays unconditionally. The father has not accepted the offers made by the mother. The father has not taken up the time available to him by reason of the interim orders of December 2021. He explains this odd position by reason of he anticipating false and malicious allegations by the mother should he not have the security of the Contact Centre. Where supervision is often seen as a necessary but far from perfect tool utilised to maintain a tenuous relationship between children and a parent which might otherwise cease, the father’s position is difficult to understand. Certainly, it has created a situation where the nature of his relationship with the children is highlighted by short supervised periods at the Contact Centre. His capacity to parent the children, where such is challenged by the mother, is effectively unknown.
I note, however, that in the months prior to this trial in August 2023 the father’s solicitors wrote to the mother’s solicitors seeking that the staged orders from December 2021 be put into effect. The mother’s blanket rejection does her no credit given the interim orders but sits consistent with her position argued at this trial.
Section 60CC(3)(c) the extent to which each of the children’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the children; and
(ii) to spend time with the children; and
(iii) to communicate with the children; and
Section 60CC(3)(ca)the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children;
The father is habitually unemployed in respect of remunerative employment. His child support obligations consequently would remain at the statutory minimum. It falls, therefore, on the mother to primarily attend to the financial support of the children, albeit with the assistance of the various government and community facilities.
I have dealt above with the father’s refusal to accept the mother’s initial offers of time with the children. Similarly, in this sense of “rights” as understood in the Act, he has not taken up the children’s “right” to spend time with him extending to each second weekend and half school holidays as offered by the interim orders of December 2021. Where the mother argues the father’s bona fides in that he does not, in fact, want the responsibility for caring for the children but prosecutes his application only out of spite for the mother then this rather odd position taken by the father gives some credence to the mother’s argument.
Section 60CC(3) the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the children), with whom he or she has been living;
The father’s evidence in respect of this issue is again difficult to comprehend and perhaps reflects a certain naïveté in his insight and appreciation of the needs of children. His evidence in the witness box was striking where he opined that the children would suffer no negative impact by being removed from their mother with a moratorium on them seeing her for some six months. He thought, however, that as time went by the children might “miss their mother a little”. Put simply, the father’s views are contrary to the almost unanimous position taken by experts who frequently assist these Courts. The facts are that these four young children are very much embroiled in their parents’ dispute. They have lived with and are most probably aligned with their mother. They are imbued with their mother’s negative views of their father. They have seen their father in only sanitised circumstances and for short periods of time. The parents present in the witness box as having different parenting styles and philosophies. To proffer that there might be no negative impact on the children being removed from their mother’s care and denied contact with her shows either an extraordinary lack of sophisticated understanding on the part of the father or an effort in ingenuity by him.
Section 60CC(3)(e) the practical difficulty and expense of children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis;
Where both parties reside in Region M of Tasmania, this is not a relevant consideration other than the Court limiting the exposure of the children to entrenched and toxic parental dispute in the event of there needing to be changeovers between the parents.
Section 60CC(3) the capacity of:
(i) each of the children’s parents; and
(ii) any other person (including any grandparent or other relative of the children);
to provide for the needs of the children, including emotional and intellectual needs;
The mother is a committed and capable parent. She provides physically for the children and with limited actual and financial support from the father. The evidence suggests that the children are achieving, academically and socially, with each of them apparently suffering a diagnosis of “gifted” as well as various diagnoses of autism, ADHD and/or other conditions.
The task for the mother is undoubtedly onerous. Sadly, she does not enjoy any relationship with members of her own family and hence does not benefit from that common support network.
The mother presents, however, as adept, knowledgeable, and keen in the many government and social support facilities available. She significantly utilises the facilities of National Disability Insurance Scheme (NDIS). She understands medical, social and government bodies. She obtains counselling for the children. She is anticipatory in obtaining diagnoses for the children.
The issue for the Court in respect of the mother’s capacity is as to her insight into the need for the children, prima facie, to have a relationship with each of their parents. Final submissions of counsel for the father urge the Court to be wary of the mother’s motives in seeking the broad spectrum of support available to her in considering whether she does so in order to obtain corroboration or is “evidence chasing” for her case where she has pre-determined the result that she wants. A prime example is of the evidence she adduces her from her own psychologist Dr L, who deposes to a brief to “assist with social skills and emotional regulation given that [the mother] had recently, in 2020, been diagnosed with Autism Spectrum Disorder (ASD),” but where Dr L’s affidavit might be read as an exercise in regurgitation of mother’s criticisms of the father and the mother’s claims of family violence as for instance in Dr L’s opinion in her concluding paragraph such being apparently outside her brief but where she offers:[13]
I am concerned that if [the father] were to have unsupervised time with the children it would effect [the mother] mentally, as she would live in constant fear that he would harm the children. It is my opinion that, over time, this would diminish her parenting capacity to the extent that she may be unable to meet the emotional needs of the children…
[13] At paragraph 14, page 5 of Dr L’s affidavit filed 16 October 2023.
In summary, counsel for the father and the ICL, urge caution upon the Court in considering the mother’s capacity and her utilisation of the various facilities available to her in the context of the mother herself being a “strategist”.
The father’s capacity is unknown and untested by reason of his own decision not to take up time with the children available to him under the interim orders of December 2021. He has not seen the children unsupervised since separation. He has not been in a position to exercise responsibility for the care of the children.
Other concerns relate also to the father’s insight into the needs of the children. His evidence in court was almost entirely critical of the mother where even apparent admissions by him were deflected somehow to the blame of the mother. His affidavit material is entirely negative and critical of the mother. The affidavits of his own mother and sister are disturbing in their attacks of the mother of their grandchildren and nieces/nephew. Again, the use by the father’s sister of the mother’s teenage diaries in affidavits shows a complete lack of understanding of the nature of family law proceedings; of the dignity of privacy of an individual; and a disturbing intent towards attack on the mother. It follows that the supports available to the father should he achieve primary care of the children are questionable in areas of insight and objectivity.
Section 60CC(3) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant;
The father’s case seems based on a belief of superiority consistent with the mother’s assertions of a power imbalance in her relationship with the father. I borrow again Dr K’s eloquence in his summation of the father as “having a sense of grandiosity not matched by his achievements”. The father appears to have lived and continues to live an indulged life financed by his mother. He concedes no significant work history despite being blessed with a fine education and innate intelligence and sophistication. Generally, he presented in the witness box with an element of pomposity and glibness thinly veiling an obvious immaturity and no demonstrated history of accepting and discharging responsibility.
The mother’s background is entirely different. She comes from the suburbs of City F. She is, for very good reason, estranged from all of her family members. Nevertheless, she has, against the odds, considerably achieved. She is partway through a tertiary degree. She is in many ways an excellent mother. She has attained equity in a residential property. She is independent of thought. She is prepared to take on responsibilities. She is intelligent and informed. As such, the criticism levelled at her by the father, the paternal grandmother and the paternal aunt, are either simply ingenuous or sadly misguided.
The children are still young. W is just 13 years of age. The evidence suggests that she considers herself to be a mature and responsible person within the mother’s household. She is, therefore, easily aligned with the mother’s position. The mother does not hide her own feelings of the father from the children. They are vulnerable and easily influenced they carry a diagnoses of autism or similar. Similarly, the father stands accused of using his limited Contact Centre time with the children to influence W against the mother. If this be the case then W’s reaction, rejection of him, and alignment with the mother is even more understandable.
Each of these children carry a number of diagnoses such that would increase their reliance upon adults and in their responses to various adult behaviours. The children each suffer autism and/or ADHD or are awaiting potential diagnoses for the same.
Section 60CC(3)(h) if the children are Aboriginal children or Torres Strait Islander children:
(i) the children’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in these proceedings.
Section 60CC(3) the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents;
Whereas the mother has accepted responsibility for the care and support of the children, it is open for the Court to find that the father eschewed such responsibilities.
The attitude by each of the parents to the other in these proceedings has been entirely negative and critical and, in the father’s case is supported in emphasis by his mother and his sister.
Section 60CC(3)(j) any family violence involving the children or a member of the children’s family; and
Section 60CC(3)(k) if a family violence order applies, or has applied, to the children or a member of the children’s family-any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
The mother obtained a form of Family Violence Order against the father in the period following separation. The father argues that this was tactical and strategic on the part of the mother, and he relies on this fact to ground his claim that any unsupervised time for him with the children in the interim would likely have resulted in false and malicious allegations by the mother.
The mother claims that the Family Violence Order is necessary for her protection and that of the children in circumstances where she has consistently argued various forms of family violence perpetrated by the father and his potential to repeat such behaviour.
Issues of family violence in this matter have been dealt with more generally above. Suffice to say that whilst the Court must consider all allegations of family violence and where any instance of family violence is abhorrent, a focus must also be placed on the current and future circumstances of the parties where they have separated and have removed the opportunities for situational family violence often accompanying a relationship breakdown.
The Court is acutely aware of the impact of family violence, both historical and potential, on the nature of children’s relationships with their parents including exposure to family violence. The Family Report makes it abundantly clear that these children have indeed been exposed to family violence. It is highly likely that their views, preferences and alignments have been formed accordingly.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children;
The Courts are not so naïve as to think the making of orders after a trial will magically cause all parents and children to move on the with their lives and relationships and leaving behind them the problems of the past. Residual animosities are often entrenched well into the future. Children establish views and preferences influenced by adults. The task for the Court, in my view, it is to give an independent assessment of the evidence which is then weighed and balanced in order to formulate orders which, on balance, but not with any ambition of being optimal, will best serve the interests of the children and also the parents. The primary focus at all times is on the children. It is then incumbent upon the parents, hopefully educated by the proceedings and the trial process, to positively move forward and parent their children cooperatively and communicatively.
There are elements of this case, however, that cause a consideration for the Court as to immediate ramifications of the orders it makes. Specifically, the mother assertively has directly challenged the Court in any orders that she anticipates will be other than those sought by her. Specifically, she has predicted her response to orders that provide the children with any form of unsupervised contact with the father. She has variously stated that she will do herself harm/kill herself. She has said that she will immediately take the matter to the State Child Protection Authorities seeking an order of a Magistrates Court which, in my view, is arguably contemptuous and anticipatory of an abuse of the process of this Court. She has stated under her affirmation that any such order would result in her admitting herself to a psychiatric institution and to obtain inpatient therapy for an indeterminate period of time which, of course, would leave that the children without the care of the mother should the Court have determined that she remain the primary parent. Finally, she has claimed that she would respond by voluntarily placing the children into the sole care of the father apparently on a rationale that she herself would not then be responsible for the harm that she believes would inevitably come to the children at the hands of the father.
The statements made by the mother placed the father’s counsel in an invidious position where he has an ultimate responsibility to the Court over and above that to his client. Mr Trezise of counsel acted entirely properly in my view by submitting to the Court, firstly, that his client maintains her position in respect of the above responses but where Mr Trezise submits that the Court, on balance, should “call the mother’s bluff” in that a consideration of the entirety of her evidence should leave the Court to conclude on the balance of probabilities that she would not carry out any of these “threats”.
This evidence from the mother withstood the cross-examination by the Independent Children’s Lawyer who in his submissions is also perplexed by these ultimatums presented by the mother to the Court. Again, I did not view or understand the mother’s revelations to be made out of some hysterical and spontaneous response. Rather, she presented, as throughout her evidence, as calm, considered and direct in these responses. Whilst I can easily see these responses as a direct challenge to the Court, my role remains that of formulating orders which, on balance, attend to the children’s best interest. For instance, if I was to determine that the children’s best interests were served by living with the mother rather than the father or, more particularly, that the father’s parenting capacity was compromised for the reasons set out above then my consideration of the mother’s revelations become more complicated.
I am not of the view that I can simply dismiss her revelations and “call her bluff” as I might do if such were made in the heat of the moment, hysterical and spontaneous. I must consider the possibility of the mother carrying through with her threats as the result of any or all of them would prima facie be to place the children at risk and where such a risk might easily be found to be unacceptable given the ages of the children and the nature of their relationships with each of the parents.
Alternatively, I might consider this evidence to be of such importance and probity to be almost determinative of the children’s best interests, but where the Court must always be alert to its task of receiving, weighing and balancing all of the evidence.
I harbour a concern that the mother feels that her revelations can be made so as to influence my ultimate determination. If so, then she is sadly mistaken. In a matter of Isles & Nelissen[14] at first instance, at paragraphs 288 to 304, I felt it proper that I address in my Reasons a situation uncannily similar to the above where the mother in that case having entered into consent orders to provide the father, an alleged paedophile, with time-with orders leading to unsupervised time then immediately, and avoiding the trial process, urged the State Child Protection Authorities to bring an application in the State Court. Indeed, in that matter, the evidence exposed that the mother and members of the Department of Child Safety had colluded prior to the mother entering into consent orders prior to taking evidence on the first day of the trial. In the matter now before me, this mother conceded in the witness box that she has a personal historical relationship with the mother in Isles & Nelissen (supra) and was aware of the response taken by the mother in that case. This gives me concern that this mother is being “strategic” in what can only be understood as direct challenges by her to the authority of the Court.
[14] (2021) 65 Fam LR 1, [2021] FedCFamC 1 295.
Given the relevance and importance of the mother’s revelations to the Court, I put to each of counsel for the ICL, the father and the mother for their comment a proposal, obviously not considered in their initial case summaries, that I might make interim orders if ultimately supportive of any orders that have the children living in the primary care of the mother, but spending unsupervised time with the father. Counsel for the mother, again properly as an officer of the Court, and counsel for the ICL were equivocal in their positions but not actively opposed to such a consideration. Obviously, such a matter was not properly the issue for submissions by counsel for the father where he maintains a position, in any event, that the children should be placed into his primary care with a six month moratorium on the children spending time with the mother. Indeed, counsel for the father emphasised the mother’s revelations and challenges to the Courts authority as evidence supporting orders that the Court should place the children into the care of the father by reason of the risks posed by the mother on her own evidence. There is some merit to this argument although, as always, the Court’s ultimate determination is made on a weighing and balancing of a myriad of considerations.
FINDINGS AND CONCLUSION
I find that the father gave evidence consistent with his personality. He did not attempt to veil or structure his responses in any attempt to please the Court. Rather, he was at all times assertive and confident albeit with an unusual air of grandiosity. He was reluctant to make admissions against interest, but keen at all times to deflect blame to the mother or add gratuitous emphasis to his negative and critical views of the mother.
The father’s evidence in court exposed a degree of naiveté as to the needs of young children and particularly their emotional needs where his assertion that the children would suffer no separation anxiety or negative impact by being removed from their mother being demonstrative of such naiveté.
Unlike the father, the mother did not give evidence in a forthright manner. Whilst she too was confident, assertive and steadfast in responses in cross-examination, I find the mother to be a contrived strategist. The mother’s affidavit material and her initial entrance into the witness box was superficially that of a timid, frightened and vulnerable female perhaps manifesting the ramifications of family violence as she alleged. However, as her evidence progressed, and while she attempted to maintain such a persona, it became clear to the Court that this mother was astute, and adept in respect of social and government systems, and well aware of the Court process and willing to avail herself of any advantages accordingly. As suggested by the ICL in final submissions, I find that the mother might best be described as a “strategist”. She is intelligent, articulate and, in my view, a person who is Machiavellian in her attitude. Prominent in assisting me towards these conclusions was the mother’s direct challenge to the authority of the Court. These challenges were not made out of any frenzied or spontaneous frustrations but rather were deliberate, considered and formulated.
Whilst on the evidence as a whole I expect that the father’s personality is such that he attempted to be a dominant adult figure in the family unit, the mother does not impress me as the “shrinking violet” that she portrays. I find generally that the mother is a person familiar with the web of social, community and government supports available and one prepared to use them to her advantage. The mother’s evidence as to her realisation only during mid-2021 that she was a “victim of family violence” and that she forthwith developed a fear of the father for both herself and the children such that she seeks orders that the children have no relationship with him lacks credibility when seen against other objective evidence. For example, sometime after developing these “fears”, on 26 February 2022, the mother, without any apparent duress or inducement, wrote a lengthy email to the father suggesting in the strongest terms that he spend time with the children. The mother was unable to give any satisfactory explanation in her evidence as to such an apparent contradiction.
More generally in her evidence the mother was prepared to pay lip service to facilitating and encouraging the children’s relationships with their father, but at all times adding a postscript negative of the father. For instance, she says that she has encouraged the children to spend time with the father variously over the course of these proceedings and since separation, but in the same breath concedes that she candidly informs these young children of her own personal views as to the father. She attempts to justify this by saying “I will not lie to my children”. The mother now says she would “like” her children to have a relationship with their father whilst in the same breath making revelations such as “he will kill the children”.
Overall, I find the mother’s evidence to be contrived and strategic and, at times, melodramatic. I note specifically that Dr N agreed with a proposition put to her by the mother’s counsel that the mother was “genuine” in her fears of the father. With respect to Dr N, I had the distinct advantage of seeing and hearing the mother cross-examined over some two days and I do not share Dr N’s conclusion.
I find that the children are attached, bonded and dependent upon their mother. Whilst I do not accept the father’s assertions that the children have been “alienated” from him by the mother, a view now shared by Dr N, I easily find that the mother has denigrated the father directly to the children and has imbued the children with her own negative personal views of the father. Nevertheless, the positive statements made by the younger children towards continuing a relationship with their father would suggest a process other than alienation. The position taken by W, however, denotes an unhealthy alignment with the mother and inevitably, at least in part, as a result of the mother’s denigration of the father to W. Consequently, and whilst this mother is undoubtedly a committed and capable one, her culpability lay in her self-interested motives in the attempting to deny the children a relationship with their father.
The children’s relationship with their father is problematic. Due to choices made by him with dubious rationale, the children have experienced their father since separation only in the confines of a Contact Centre for limited hours. As such, they have not understood their father to accept and discharge the responsibilities of parenthood which they experience with their mother. These understandings of their father are undoubtedly reinforced by their mother’s open and critical comments of him. Consequently, and as reported by the Court Expert, the children’s relationships with their father are more superficial where they might enjoy his company on a visit but had no recent experience of him, and probably limited recollection, as a parent.
I find that W is consistent and entrenched in her views of her father which mimic those of her mother. She is refusing of any relationship with him. Dr N says that W’s views are entrenched. Undoubtedly those views are supported by the mother although, the mother may say otherwise. Whilst making generic statements as to the desirability of children having a relationship with both parents, the mother’s evidence was steadfast that W should not have a relationship with the father.
On consideration, and where W was able to make some positive comments in respect of the father at a recent counselling session, I am of the view that some therapy for child and father of a relationship type might resurrect that relationship and dependent upon the ultimate orders that I make. Specifically, the counselling should not be of the family violence focus currently afforded W by her mother’s initiative.
The younger children are desirous of a relationship with their father. They hesitate at any time extending from the Contact Centre. Put simply, they have become familiar and comfortable with visiting their father for short periods fortnightly at the Contact Centre. They are imbued with their mother’s view of their father.
I remain unconvinced as to the father’s rationale for not initially accepting the mother’s invitations for apparent open and substantial time with the children and later not taking up the benefit of interim orders made in December 2021 which would have seen him having the children each second weekend and for half of school holidays. His rationale of not being exposed to the mother’s false allegations is unconvincing given his blanket refusal of the mother’s altruistic invitation given in the weeks following separation and well before any of the mother’s allegations of family violence appeared to have been developed. In this sense, the father is very much the author of his own difficulties in respect of the children’s now reluctance to see him outside of the Contact Centre.
As indicated above, I do not find that the children have been alienated by the mother from the father and as asserted by him and where he essentially grounds his argument before this Court for primary care of the children on that allegation. Again, the desires of the younger children to maintain a relationship with him are contra indicative of alienation. I do accept, however, and on her own evidence, that the mother has entered into a process of open denigration of the father and imbued the children with her own negative opinions of him.
Similarly, I do not accept on the balance of probabilities the mother’s major contention that the father’s motivation for bringing the application to this Court was to bring emotional harm on the mother herself. Whilst the father’s application for the children to live primarily with him may in many ways be naïve and ambitious, he has arguable grounds and most prominently being the mother’s actual denial of the children having any relationship with him other than within the confines of strict supervision and where she herself in her Response sought orders for no relationship whatsoever. The mother’s own evidence and demeanour in the witness box was not supportive of the contention she makes as to the father’s motivation. Rather, I considered her frequent revelations during her evidence as to this being the father’s motivation to be melodramatic and baseless.
Dr N is of the view that the mother is genuinely fearful of the father and more particularly, that he will harm the children if they spend unsupervised time with him As mentioned above, I do not to necessarily accept Dr N’s conclusion as to genuineness where, of course, Dr N is an expert and experienced practitioner, but where I have had the benefit of seeing and hearing the mother cross-examined.
Whilst any incidents of family violence in the relationship appear to be infrequent and situational, the thrust of the mother’s allegations reference emotional/coercive/control family violence. Having seen and heard the father give his evidence, I expect his air of grandiosity is such that he considered himself the dominant personality in the household. Nevertheless, having had the same advantages of hearing the mother give her evidence, I doubt that she is of such timid personality that she would easily succumb to the father’s dominance. I expect, however, there were collisions of these both strong personalities within the relationship. I accept that the children honestly report the father’s yelling and screaming.
I generally accept Dr N’s observations of the mother in her report under the heading “Self-Concept” as follows and where those observations accord with my own:
The self-concept of [the mother] appears to involve a generally stable and positive self-evaluation. She is normally a confident and optimistic person who approaches life with a clear sense of purpose and distinct convictions. These characteristics are valuable in that they allow her to be resilient and adaptive in the face of most stressors. She describes being reasonably self-satisfied, with a well-articulated sense of who she is and what her goals are.
I remain dubious as to the methodology utilised in “diagnosing” the mother as a victim of family violence. In an evidentiary sense, a suggestion over a telephone or SMS message by a Child Protection Officer, who the mother never meets personally, that she should seek family violence counselling is not of itself probative or valuable evidence. The mother’s consequent meeting with a “family violence counsellor” may or may not have been objective in its verification of the mother’s history given towards the conclusions reached. Again, the mother’s own behaviour post separation and post the advice of the family-violence counsellor is inconsistent with her claims of being a victim and fearful of the father. Having said this, however, I do accept that there was argument and tension in the relationship and the household and I generally accept the mother’s evidence as to the instances of physical violence and of the impact on the family of the father’s sense of being the dominant personality.
I also accept, Dr N’s opinion that the children have been exposed to what were undoubtedly tensions between the adults within the family unit and the manifestations of the father’s dominant personality.
I generally find the mother to be a most capable parent of these four young children. She is herself intelligent and savvy in matters of the world. She possesses a degree of independence of thought. She is ambitious for herself and her children. She is an active participant in her children’s education and extracurricular activities. That the children are apparently succeeding is a testament to this mother’s parenting where the onerous task of being a single parent is compounded by the various diagnoses carried by these young children.
In my view, the mother’s parenting capacity is impeached only in her inability to separate her own residual animosity towards the father from an objective understanding of the needs for these young children to have a relationship with each of their parents. These views are entrenched, and the mother is either incapable or unwilling to consider any evidence contrary to her views or any possible parenting regimes other than asserted by her. It may be, of course, that the mother’s own diagnosis of Autism Spectrum Disorder contributes to her inability to give broader perspective and to move from her entrenched opinions.
The father’s capacity to care for the children is unknown and untested. He has chosen not to give the Court the benefit of seeing him take responsibility for the care of the children on weekends and school holidays by reason of the interim court orders from as long ago as December 2021. He did not take up the mother’s altruistic invitations for him to spend time with the children made immediately post separation or a year later in February 2022. I conclude that he too is dogged, selfish and not child-focussed in these responses.
That the father himself presents as a 58-year-old man indulged by his family and devoid of a history of accepting or discharging personal responsibilities. Again, his statement to the effect that he did not believe the children would suffer any form of anxiety or negative impact by reason of separation from their mother is naïve in the extreme.
The evidence, however, suggests that the father can be an affable and positive influence for these young children with much to offer them. He is in many ways cosmopolitan and superficially sophisticated. The children enjoy his company. He is ably supported by his partner, Ms B, who herself is untested in the role as parent but also is worldly and sophisticated.
A relationship for the children with their father would extend to the maternal grandmother and aunt. Strangely, their own intelligence and worldliness sits contrary to the contents of their affidavits which comprised an unnecessarily and undignified attack on the mother.
The nature of the children’s relationships with each of their parents differ dramatically. They visit their father. They live with their mother. She is seen as a source of support and dependency. Their father is a person with whom to enjoy a short visit. Put simply the relationship between children and father will not flourish or develop unless the children come to understand their father as a responsible parent and this will not happen within the limited confines of supervision.
The attitude of each of these parents to the responsibilities of parenting is highlighted in this matter. Firstly, that the mother is prepared to directly challenge the integrity of this Court says much about her. She is well researched and savvy in the services available to her and confident in the challenges that she presented in the face of the Court. I am prepared to attribute some responsibility to the mother’s diagnosis of autism, but I am also of the view that she herself makes her revelations with a calculated intent to force the hand of this Court where, if I am correct, such an attitude is entirely inappropriate and misjudged. As such, I viewed this mother as presenting as entitled and empowered in her “possession” of the children and unwilling to delegate that role to a judge of a family court charged with independently assessing the best interests of her children. She has undoubtedly placed her counsel and legal advisers in an invidious position where their ultimate responsibility is to the Court. I find that the mother is contrived and calculating in making these statements which can only be understood as threats. I must, therefore, doubt her ability to comply with any court orders that do not sit with her own expectations. Given my findings it would be remiss of me to simply “call her bluff” as her counsel urges. The threats that she has made are serious and each would, if carried out, impact directly and dramatically on the children. I must consider the children’s best interests accordingly as to whether those interests are served by the mother continuing as their primary parent.
I do note, however, firstly that the mother’s suffers a diagnosis of autism with a tendency towards entrenchment in viewing the world as “black-and-white”. Secondly, I note that her challenges to this Court, whilst clearly informed and contrived, have varied from taking the matter to the State Courts via Child Protection, to doing herself harm, to voluntarily handing over the children to the father, and finally to admitting herself as an inpatient of a mental health institution. Given these variations, I am not persuaded that the mother has determined to carry out any of these threats and prefer, consistent with much of her evidence in the witness box, that she makes the threats with an air of melodrama. Nevertheless, where she does not retreat from these threats/challenges, I must take them seriously in consideration of the children’s best interests and consider alternatives such as making interim orders which, of course, would leave me charged with attending to the children’s best interests and able to keep carriage of a file where there remain unknowns as to the mother’s reactions to any orders I might make.
The father’s attitude to the responsibilities of parenting is also perplexing. His demeanour in the witness box was grandiose and self-centred. His own evidence and that adduced by him was unreasonably and unnecessarily critical of the mother. This sits uncomfortably with a man of innate intelligence and sophistication. Undoubtably, he has therefore fuelled some of the mother’s allegations against him and particularly as to his motives. I have mentioned above the incredulity that I have in respect of the father not taking up the advantages and benefits of the interim orders available to him.
CONCLUSIONS
I have come to the view that the children should live primarily with the mother. With the exception of her blatant challenges to the authority of this Court, she is a good mother. She has succeeded without assistance from the father. The children are successful and perhaps more so given their diagnoses. She is loving and devoted to her children. Her fault lay with her inability to distinguish between her own residual antagonism towards the father and to the best interests of her children. That she has blatantly and deliberately imbued the children with her own negative opinions does her no credit and does the children great harm.
It follows, in my view, that the mother should have sole parental responsibility for the children given that they live primarily with her. The presumption at s 61DA is rebutted if only by the intense antagonism, lack of respect, and toxicity between these two parents. I glean no improvement on the horizon. Each are entrenched in their views of the other. Each is fixed in their sense of entitlement and empowerment in wanting possession of the children. It is inevitable that these two parents will not be able to communicate and cooperate in respect of important decisions for their children but rather would bring their own the self-interests to the table. Should the mother have sole parental responsibility for the children then she should be required to give proper notice of such decisions to the father where such decisions would normally manifest in matters of education and medical procedure noting again the various diagnoses carried by these children. It would be proper, therefore, that that the father be given access to school principals and teachers and to relevant medical practitioners. He should also be able to attend school events normally open to parents.
I am of the view that the three younger children should have a relationship of contact with the father. I am not persuaded that the time-with should continue to be supervised. Whilst I accept that any order for other than supervised time will likely aggravate this entitled mother, she has also indicated that she understands her obligation to comply with my orders (leaving aside her voiced potential challenges). Each of Dr N and Dr L are positive in respect of the mother’s ability to cope with continued therapeutic assistance which can be provided by Dr L and I will order accordingly.
I am of the view that time should move immediately to being unsupervised albeit on a graduated basis. That time should move relatively quickly to an ultimate regime of time each second weekend and for half of the school holidays. Any order for “equal time” or “substantial and significant time”, would, in my view, lead to conflict between the parents themselves if only through their inability to respectfully cooperate and the like. Essentially, therefore, I intend to make orders which will share the children’s quality time outside of their school commitments between the parents and hence protect the children from exposure to further conflict between these parents.
I will make an injunctive order in respect of the parents not denigrating the other.
I will order that W attend a counsellor/therapist directed only to reestablishing a relationship with her father. In circumstances of the father’s limited financial support of the family, I am of the view that he should meet the costs of W’s counselling/therapy which would, of course, anticipate a direct involvement by the father himself at the discretion of the therapist.
I certify that the preceding two hundred and thirteen (213) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 14 December 2023
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