Wyles and Batchelor - [2018] FamCA 369

FAMILY COURT OF AUSTRALIA

WYLES & BATCHELOR

[2018] FamCA 369

FAMILY LAW – CHILDREN – Best interests – Equal time – Substantial and significant time – Meaningful relationship – With whom a child lives and spends time – Where the mother accepts that the father does not present an unacceptable risk to the children – Where the father seeks that the children transition to live in his care full time – Where reunification therapy has been unsuccessful – Where the children hold deeply entrenched but erroneous views about the father and his conduct – Where the mother seeks a further attempt at reunification therapy.

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC, 60 CC(2), 60CC(2A), 60CC(3), 61DA, 65DAA

Cotton & Cotton (1983) FLC 91-330
Dennison & Wang [2010] FamCAFC 182
Gillard & Gillard [2015] FamCAFC 169
R v R (children’s wishes) (2002) FLC 93-108
Raby & Fisk [2013] FamCA 436
Wang & Dennison(No. 2) [2009] FamCA 1251

APPLICANT:

Mr Wyles

RESPONDENT:

Ms Batchelor

FILE NUMBER:

ADC

4458

2015

DATE DELIVERED:

25 May 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

16, 17, 18 and 19 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Pyke QC

SOLICITOR FOR THE APPLICANT:

Tolis & Co Lawyers

COUNSEL FOR THE RESPONDENT:

Mr McQuade

SOLICITOR FOR THE RESPONDENT:

Jordan & Fowler Barristers & Solicitors

Orders

That the mother and father do have equal shared parental responsibility for the children B born … 2007 and C born … 2011 (“the children”).
That the children live with the mother.
That the mother do all things necessary to ensure the children’s attendance with Ms D with a view to the children receiving counselling with the following focus:-
(a) That the father has not physically or sexually abused the children;
(b) That the children are not at risk from the father;
(c)That the children have not been subjected to or exposed to abuse including sexual abuse, neglect or family violence by the father;
(d)That the mother is not at risk of harm from the father;
(e)That the children are not at risk of harm from the paternal grandparents;
(f)That if the children or either of them would wish to see or communicate with the father THEN they are encouraged to raise that with the mother;
(g)The advantage to the children of receiving letters, cards and gifts from the father or the paternal grandparents; PROVIDED
That the counselling with Ms D is to be completed within ninety (90) days of these orders and to be structured as may be determined by Ms D as to content, and the number of sessions required but in any event not less than three (3).
That the mother pay the costs associated with the counselling with Ms D PROVIDED that she be permitted to obtain a Mental Health Care Plan for each of the children for that purpose if available.
That if Ms D is not able to or shall be unwilling to undertake the counselling THEN in the alternative and pursuant to s 65L of the Family Law Act 1975 (Cth), the Manager of Child Dispute Services for the Family Court of Australia shall nominate a family consultant to supervise compliance by the mother with the parenting orders made herein and to render to the parties such assistance as may be reasonably required to aid in the carrying out of the said orders.
That the mother do cause the children to reside permanently in the metropolitan area of Adelaide within 20 kilometres of the Adelaide CBD.
That the mother be restrained and an injunction granted restraining her from relocating the said children’s place of residence further than 20 kilometres from the Adelaide CBD without the written consent of the father.
That the mother, her servants and agents be restrained and an injunction granted restraining her from taking or attempting to send the children from the Commonwealth of Australia.
That the mother be restrained and an injunction granted restraining her from:-
(a)Denigrating the father in the presence of the children or allowing any other person to do so;
(b)Discussing issues in relation to or arising from the within proceedings other than to do with the proposed counselling;
(c)Taking the children to a psychiatrist, psychologist, counsellor or like professional without the written consent of the father;
(d)Taking the said children or allowing them to undergo any medical examination or therapeutic intervention by any medical practitioner, psychologist, social worker, counsellor or like professional which relates in any way to an allegation that the children have been abused by the father other than as provided for herein;
(e)Changing the said children’s enrolment and attendance from the E School to any other primary school.
(f)Enrolling the children at a high school located further than 20 kilometres from the Adelaide CBD without the written consent of the father.
That the father be permitted to liaise directly with the children’s schools to obtain information about their respective progress and development including but not limited to obtaining copies of their school reports, attending parent/teacher interviews separately to the mother and liaising with the children’s school teachers from time to time.
That the father be at liberty to communicate with, and obtain any information direct from, any general practitioner and/or paediatrician in relation to the said children’s physical health and welfare.
That the mother do all things and sign all documents as may be necessary to forthwith authorise and direct the said children’s general practitioners or other health professionals to communicate with the father.
That the mother do all reasonable things to ensure the father is kept informed in a timely manner, of any issues relating to the health, wellbeing, education or care of the children.
That the mother do facilitate any request of the children or either of them to send letters and/or cards or presents to the father for special occasions, or if they should wish to contact the father directly or make physical contact with him.
That the father be at liberty to communicate with the children by sending cards, letters or gifts to the children posted to the mother’s address, with the mother to supervise the children’s acceptance of any letters, cards or gifts and to ensure that the children do not deface, damage or destroy any letters, cards or gifts received.
That the mother forward an acknowledgement to the father that any letters, cards or gifts sent by him to the children have been received.
That each party keep the other advised as to a contact address for them.
That leave is given for a copy of this judgment to be given to Ms D.
That all proceedings be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4458 of 2015

Mr Wyles

Applicant

And

Ms Batchelor

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings between Mr Wyles (“the father”) and Ms Batchelor (“the mother”) relate to the future parenting arrangements for B born in 2007 (“B”) and C born in 2011 (“C”) (collectively “the children”).
The father filed an Amended Initiating Application on 16 June 2017 however he is now seeking the orders as set out in the document titled “Amended Case Outline Document of the Applicant Father” filed 13 April 2018, summarised as follows:-
·Sole parental responsibility for the children;
·For a three month period following the orders that the children live with him and spend no time with the mother;
·At the conclusion of three months, that the children spend gradually increasing time with the mother as follows:
oFor a period of three months the mother have supervised visits with the children at a contact service once per fortnight and at the conclusion of three months then;
oFor a period of three months the mother spend supervised time with the children on two days per fortnight as agreed between the parties and at the conclusion of three months then;
oFor a period of three months the mother spend time with the children each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday and at the conclusion of three months thereafter;
oFrom the conclusion of school Thursday to the commencement of school Monday each alternate week, with provision for sharing special occasions and holidays.
By her Further Amended Response filed 6 September 2017 the mother sought sole parental responsibility for the children, that the children live with her and spend no time with the father subject to any order the Court may make for re-unification.
The mother now seeks the orders as set out in the document titled “Amended Document filed Pursuant to [11] of the Orders of The Honourable Justice Berman of 7 April 2017” filed 22 February 2018, and seeks that the trial listing be adjourned to enable the parties to complete re-unification therapy with Ms D.

DOCUMENTS RELIED UPON

The father relied upon the following documents:-
(1)Amended Initiating Application filed 16 June 2017;
(2)Affidavit of the father filed 16 June 2017;
(3)Affidavit of Mr F Wyles (“the paternal grandfather”) filed 16 June 2017
(4)Affidavit of Mr G Wyles (“the paternal grandmother”) filed 16 June 2017;
(5)Affidavit of the paternal grandfather filed 28 March 2018;
(6)Affidavit of Ms H (“the husband’s partner”) filed 28 March 2018;
(7)Affidavit of the father filed 28 March 2018;
(8)Case Outline filed 13 April 2018.
The mother relies upon the following documents:-
(1)Further Amended Response filed 6 September 2017;
(2)Trial Affidavit filed 21 August 2017;
(3)Case Outline filed 8 September 2017;
(4)Amended Case Outline filed 22 February 2018.
The appointment of the Independent Children’s Lawyer (“ICL”) was discharged by orders made 27 February 2018 and as such the ICL took no part in the trial.

TRIAL HISTORY

The trial was listed to commence 11 September 2017.
On 11 September 2017 the matter was adjourned to enable the parties and the children to engage in reunification therapy directed at re-establishing the father’s relationship with the children. The orders made by consent on 11 September 2017 included a notation of the following acknowledgements made by the mother:-
A.That all available evidence in these proceedings, which includes the evidence made available to the State Courts in the criminal proceedings commenced against the Father with respect to [the children], which proceedings were withdrawn and the subject of a nolle prosequi respectively, do not ground a finding:
i.that the Father has either physically or sexually abused the children; or
ii.that the children are at risk of physical or psychological harm from being subjected to, or exposed to, abuse, including sexual abuse, neglect or family violence by the Father.
B.That the children would benefit from a meaningful relationship with the Father;
C.That it is in the best interests of the children and their relationship with the Father that they spend time with him subject to the reunification process referred to in paragraphs 3 – 8 herein (“the reunification process”).
The trial was relisted for a five day hearing commencing 16 April 2018. Each of the parties was represented by counsel during the trial. The mother’s position is that a further period of reunification therapy should be conducted prior to making final orders. The father’s position is that the children should live with him and spend no time with the mother for a period of up to three months, after which contact between the mother and the children would gradually increase. At the conclusion of the evidence and final submissions, judgment was reserved.

BACKGROUND

The father was born in 1978 and the mother in 1979. The parties met and commenced a relationship in 2005 and commenced cohabitation in October 2006. Following the birth of B in 2007 and C in 2011, the parties finally separated on 29 May 2015.
The mother contacted police on 24 July 2015 following disclosures made by each of the children. The children were each subject to interview – B was interviewed by police and C was separately interviewed by Child Protection Services (“CPS”) with police in attendance. The children were subject to forensic examination at the J Hospital as arranged by CPS.
The father was arrested on 26 October 2015 and charged with offences of sexual and physical abuse in respect of each of the children.
The proceedings were commenced by Initiating Application filed by the father on 27 November 2015. He sought final orders that the children live with him, spend no time with the mother for a period of three months and that time with the mother be gradually increased thereafter with provisions for special occasions and holidays.
By her Response filed 28 January 2016 the mother opposed the orders sought by the father and sought orders that she have sole parental responsibility, that the children live with her and spend time with the father as ordered by the court. Her Notice of Child Abuse, Family Violence or Risk of Family Violence filed contemporaneously relied on the charges of sexual and physical abuse and allegations that the father perpetrated family violence.
The charges relating to B were withdrawn on or about 4 May 2016. The remaining proceedings were two counts of unlawful sexual intercourse and two counts of aggravated indecent assault relating to C.
Those charges were subsequently withdrawn on 22 September 2016.
It is acknowledged that the father last saw the children on 17 June 2015 and last spoke to them by telephone on 5 July 2015.
In the orders made 11 September 2017 the parties agreed to continue to be bound by certain orders made on 28 October 2016 and 7 April 2017. The combined effect of those orders requires that the mother cause the children to reside permanently in the metropolitan area of Adelaide, that the parties take no steps from relocating the children’s principal residence further than 20 kilometres from the Adelaide CBD without their joint consent and that the mother promote the father’s relationship with the children and be restrained from engaging the children with any psychiatrist, psychologist, counsellor or like professional without the written consent of the father, or from involving the children with either physical or therapeutic intervention that in any way relates to an allegation that the children have been abused by the father.
The father continues his employment on a rotating roster. He has re-partnered with Ms H who holds a professional qualification and works at the same site as the father.

PROPOSALS OF THE PARTIES

The father seeks orders as set out in his Amended Outline of Case Document which provides that he have sole parental responsibility for the children, that they live with him and for a period of three months spend no time with the mother and thereafter that there be a resumption of the children’s time with her, initially supervised, for six months, unsupervised for a further three months and thereafter from the conclusion of school Thursday to the commencement of school on Monday of each alternate week and a sharing of special occasions and school holidays.
No alternative orders were sought by the father in the event that the Court considered his proposal was not in the children’s best interests, although counsel did submit that without altering the broad thrust of the father’s orders it would be in the Court’s discretion to alter the timetable if shortened periods were considered more appropriate.
The personal circumstances of the father are relevant to the practical implications of his proposal. Initially the father intends to utilise his accumulated leave to take three months off work to facilitate the re-establishment of his relationship with the children. Thereafter, his proposal relies upon the assistance of the paternal grandparents and his partner. The following extract form his trial affidavit summarises the mechanics of his proposal:-
113.Thereafter, my parents are willing and able to assist with the care of the children and would relish the opportunity to spend time with them and to care for them.
114.I say that my work roster accommodates me caring for the children on a regular and week about basis. Indeed, during my time off I am at home and am available to the children throughout the day and night. In the alternate weeks, my parents have offered their support and assistance in the care of the children.
Other than the initial period of three months, in the weeks that the father works in K Town, the paternal grandparents would care for the children other than those days that the father proposes the children spend time with the mother.
There is no suggestion by the father that he would seek to alter the children’s place of residence from Adelaide to K Town, or that they attend a school other than E School.
The mother proposes that the proceedings should be adjourned to enable the parties to complete reunification therapy and by reference to her Amended Outline of Case Document prepared on her behalf, she agrees to do all things as are reasonably required to ensure the children’s attendance on Ms D for the purpose of the provision of reunification counselling, with the focus being upon the re-establishment of their relationship with the father noting that the counselling is intended:-
·To create a healthy parent and child relationship with the father.
·To ameliorate any distress and/or anxiety occasioned by the said children’s separation from the father and the allegations of sexual abuse made during these proceedings and the criminal proceedings.
·To assist the children in accepting that neither they nor the mother are at risk of harm from the father.
·To assist the children in feeling safe in the father’s care.
·To assist the children in understanding that they are not at risk of being removed from the care of the mother by the father.
The orders sought by the mother in relation to the focus of the counselling are not dissimilar to the provisions of the orders made 11 September 2017, but with the notable omission of the order that required the mother to allow the children to spend time with the father as Ms D may recommend.

STATUS OF THE REUNIFICATION THERAPY

Pursuant to the orders, Ms D provided a report as to the progress of the reunification therapy dated 15 January 2018. Her report is Exhibit “2” in the proceedings.
Neither party considered that it was necessary to call Ms D to give evidence at first instance.
The father’s position was that the reunification therapy had failed and given his perception that the mother was not prepared to support the intervention, future sessions would be pointless.
The only evidence of Ms D’s involvement with the family is as contained in her report.
The parties met separately with Ms D in October 2017. Ms D met with the children on 25 October 2017 and then on one further occasion with each of the parents and the children. The father was asked to prepare a handwritten letter to the children together with photographs and presents from himself and the paternal grandparents, all of which would be given by Ms D to the children. It is reasonable to find that the correspondence, photographs and presents were considered to be appropriate. Ms D did not consider that any changes to the letter were required.

There is no suggestion that the father was either unreasonable, uncooperative or unresponsive to the suggestions or direction of Ms D.
Ms D recorded that the mother “presented as continuing to believe that [the father] sexually abused their children”.
The mother was apparently challenged by Ms D to reflect upon the inconsistent position of the parties entering into a therapeutic process if there were still unresolved allegations of sexual abuse. The mother appeared to present to Ms D as not yet accepting the basis of the consent order on 11 September 2017 namely, that the father did not present as a risk to the children and that they would be safe in his care.
The mother further alleged that the father had a history of drug addiction and drug dealing and she reported that the family consultant considered that the father was “borderline Asperger’s”.
In interview the children were disparaging of their father. Ms D records the following:-
They are very negative about their father and hold extreme views about him including that he drinks alcohol all day and that he does not want them in his life. They call him [Mr Wyles]. The children believe that their father “kicked us out” of their home (a phrase also used by [the mother]) and that they did not have a car because of him. They both denied that their father financially contributed for them and [B] reported that her mother had checked the child support on her phone a few months ago. I challenged their fear of the father coming to their school, which he lives close to, by reminding them that they have not seen him in two years so the likelihood of this happening now is very low.
Ms D was concerned that the children had any knowledge of the financial issues between the parties, with the clear implication that a view held by them that there had been an unfair property settlement could only have come from the mother.
Ms D presented the father’s letter and Christmas presents to the children. The children received them but B’s response was that she did not miss the father and he did not mean anything to her. She alleged that the father had never shown the children how to ride a bike and that in any event the bike that had been purchased by the father was too big for her. She did open the Christmas present but refused to take the letter or any of the cards, but did take money that had been included in birthday cards from the paternal grandparents.
C denied the father’s expression of his love for them and considered that “he doesn’t love us, the whole family doesn’t love us”. She commented that she hated the father and that he “just wants to do it again and again, I don’t want that to happen”.
Ms D was concerned as to the presentation of the parties and considered that there might be some advantage in each of them undergoing a psychological assessment.
The mother places significant reliance on the view expressed by Ms D that it was a positive sign that the children “were at least open to reading a letter from their father, looking at photos and accepting presents”.
In evidence, the mother confirmed the importance of the orders of 11 September 2017 that the children would benefit from a relationship with the father. She reiterated that the reunification process had her blessing, advised that she had spoken to the children after the consent orders and told them that they would engage in counselling to do with their father.
She was asked whether she used words that would convey to the children that the purpose of the counselling was to reconcile and reunite the children with the father.
While the mother considered that she was wholehearted in her support for the reconciliation process and that she conveyed that sentiment to Ms D, she was not able to satisfactorily explain why she told Ms D that she had “a different position to everyone else” in relation to the father and that she believed the allegation made by the children that they had been sexually abused by the father. She also agreed that she had told Ms D that the father had raped her on five or six occasions. She conceded that she had never made a report to the police that the father had raped her and at no point had the mother ever set out the particulars of alleged rape by him.
The mother was asked to consider the following extract from her Amended Outline of Case Document:-
·Following extensive consultation with her legal representatives the mother accepts that the evidence to be adduced at the trial (including the evidence that was adduced during the course of the criminal proceedings involving the father) will not be sufficient to sustain a finding either that:
(a)The father has perpetrated an act or acts of sexual abuse upon the children or either of them; or
(b)The children are at risk of acts of sexual abuse of the father.
·During the course of the proceedings and during the course of the police investigation and during the course of her involvement with the Child Protection Service the mother has reported honestly and accurately the information provided to her by the children in relation to this topic.
·The children participated in a lengthy process of therapy with the Child Protection Service following the reporting of the allegations to the police and the video interview of each of the children solely upon the advice and recommendation of the Child Protection Service.
·The mother now has concerns in relation to the appropriateness of such therapy prior to the clarification, (either during the course of the criminal proceedings or these proceedings or during the course of an investigation by the Child Protection Service), as to whether or not the incidents reported to her by the children had in fact occurred or whether in fact such therapy should not have been provided until such time as the officers of the Child Protection Service had obtained sufficient background information as would facilitate a proper understanding of the experiences the children were reporting.
·The mother accepts that the reports of the children to her and the subsequent reports to the police and to the Child Protection Service occurred in the context of a high level of disputation between her and the father and at a time when the children were experiencing (directly and indirectly) significant distress on account of that disputation.
Following an opportunity to consider that document, it was the mother’s evidence that she now had a better understanding of the gravamen of the orders of 11 September 2017.
The mother agreed that she has not told the children at any time that the father does not present a risk and that they should see him. It appeared that it was an apparent revelation to the mother that the consent orders were predicated on an assumption that the mother would proactively promote the benefit to the children of having a relationship with the father and in particular that he was not a risk to them.
I formed the view that far from the mother having a moment of enlightenment, the evidence supports a finding that the mother has no intention of supporting either a process of reconciliation or a preparedness to promote the benefit that would be enjoyed by the children of a relationship with the father.
The obvious implication is that there is no point to reconciliation therapy if the mother is not prepared to support the children’s relationship with the father.
The mother was asked to explain the information that the children expressed to Ms D regarding the financial arrangements between the parties and their subsequent property settlement.
The mother agreed that the financial issues raised by the children were erroneous. She could not adequately explain how the children gained this knowledge. The mother conceded that any information in respect of the father’s obligation to pay child support pursuant to an assessment was likely to have been obtained by their access to her mobile phone.
The mother’s presentation was unconvincing, with the more likely explanation that the children’s mistaken understanding of the financial arrangements between the parties was by direct discussion with the mother.
The mother acknowledged that the children had expressed the sentiment that they wished the father was dead. She agreed that she had never chastised the children on any occasion that they had made a negative remark about the father.
The mother acknowledged that since the consent orders she had not on any occasion spoken to the children in positive terms about their father and certainly had not told the children that they should not speak of their father in derogatory and demeaning terms. When asked when she was intending to implement a process of commending the father to the children her response was that it was something that needed to start but she was not sure when that would occur.
She agreed that she would have no difficulty in reprimanding the children if they spoke in a derogatory or offensive fashion about anyone else, and attempted to explain her lack of action by describing the children’s behaviour towards their father as a poor habit that had developed unchecked by her.
The mother was asked as to the fate of the presents provided by the father and the paternal grandparents given to the children via Ms D. The gifts consisted of colouring pencils and beach towels. The mother agreed that the children did not use the coloured pencils and to the best of her knowledge the beach towels were never used.
She acknowledged that she did not promote the presents to the children, nor did she see it as an opportunity to cast the father and the paternal grandparents in a favourable light.
The importance of the presents cannot overstated in circumstances where Ms D considered that the children’s acceptance of the presents was a positive step forward and provided a possible foundation for reconciliation.
I find that the mother did not promote the presents to the children in a positive light and has no intention of doing so.
The mother’s position is that it did not ever occur to her to use the presents in order to promote the father’s relationship with the children. I consider that explanation carries little weight.
It may be argued that while the father was under investigation it could not reasonably be expected that the mother would foster or promote a relationship between the father and the children but no such excuse was available following the consent orders of 11 September 2017.
The presentation of the children is made more perplexing when considered against the chronology of events, in particular that the children have not seen the father since June 2015. At that stage B was eight and C was four. Any current view expressed by the children, but in particular C, is not as a result of an actual experience, but rather as a reflection of the mother’s toxic view of the father.

BIRTHDAY GIFTS FOR B

In anticipation of B’s birthday, the paternal grandparents were asked by the father to purchase a book for her. The father added a birthday card to the purchased book and the paternal grandfather posted a gift bag containing the book, the card from the father, a card from the paternal grandparents, a bag of lollies and a gift card to a bookstore in the amount of $30 to the home of the maternal grandparents. The intention was that they provide the gifts to B.
On 22 February 2018 the paternal grandparents received a parcel post pack from B which contained the original gifts that had been provided. That post pack and its contents form Exhibit “3” in these proceedings.
The book had been defaced. Some pages were ripped out or defaced and others were overwritten with offensive remarks.
On the inside two pages of the front cover the following appears written in black pen:-
go off and die [Mr Wyles]!!
this is from a sick fuck.
to the daughter he molested!
for [B].
Pages 77, 328-329, 365, 398-399 and the two pages of the back cover each contain scribbles in black pen. On page 223 the words “Dick! head” appear and on page 275 the words “fuck you” appear written in black pen.
The gift voucher for $30 had also been defaced with scribbling and the following inscription:-
yeah
Your son molested me and my Sister!.
On the back of the card the words:-
Bitch!! Fuck you!!
The card from the paternal grandparents was defaced with the words:-
Fuck You DICKheads!!
The father’s card was also defaced with the words:-
fuck you!!
And the word “Dad” crossed out with the word “monster” inserted. A comment appears below “monster” which reads “You are not my Dad You are a monster!!”.
The following appears on the inside cover:-
Yeah sure of course you say that, you just trying to be nice so you can abuse me and my sister again. Seriosly what dad rubs their Penis against their ~~dought~~ daughters vaginas. You are sick and I don’t want anything to do with you so go off and do a favour for once and go fuck your-self and Leave my family alone and if you even think about touching me or my sister again you might wanna watch yourself
The gift bag contained a sales receipt from a hardware store. The receipt was for “multi purpose rope grunt 9MMX30 charcoal rope” which was purchased 20 February 2018. When asked to consider how this receipt came to be in the bag, the mother considered that B may have accidentally collected it and included it when placing the items back in the bag.
The mother was aware of the gift being sent to B. She was present when B opened the package but said nothing and left the room. The mother claimed that she was busy and was coming in and out of the room.
It is the mother’s evidence that she has no memory of what B said when she received the parcel. At some point she was aware that the child had started to deface the gifts and she admitted that she was present for some of the time.
It is her recollection that the child started to deface the books and the gifts while she was out of the room, but she did see B writing on the cards and inside the book at some later time.
The mother concedes that she knew what B was doing and recognises now that it was not appropriate. At the time she took no steps to either intervene or reprimand the child.
When asked to consider the words used by B, she agreed that the language was upsetting. She acknowledged that it indicated a problem, but when asked to consider that B intended her words to be read by the paternal grandparents, she was not disapproving of the child’s behaviour because it never occurred to her that it was a problem. The mother accepted that she would be quite distressed if the children had expressed the self-same sentence to her or any other member of her family.
The mother acknowledged that she was complicit in placing the defaced gifts into a parcel and addressing it to the paternal grandmother.
In returning the items to the paternal grandparents, the mother’s evidence was that she still did not consider the effect on the grandparents and the father of the child’s conduct.
When asked to consider her involvement she agreed that her conduct was inexplicable, but she still maintained that in some way it was necessary support for B.
There was no suggestion in the mother’s evidence that she was compelled to return the gifts or that she could not easily have disposed of them rather than return them.
The mother’s evidence was unconvincing and I find that her behaviour demonstrated a malicious intent. There is no aspect of the mother’s evidence which supports any finding that as and from 11 September 2017 she in any way promoted a relationship between the children and the father.
The mother conceded that the children were opposed to the reunification process and were upset about it. They told Ms D that they hated the father and in acknowledging that the children’s attitude towards their father is very bad Ms D still considered there may be a hope of reconciliation, although she did not know how it could be made to work.
The mother made the distressing admission that at the time of separation the children loved their father.

FAMILY CONSULTANT

On 9 December 2016 orders were made for the preparation of a family assessment report.
Following the joint instruction of the solicitors for the parties, Ms L (“the family consultant”) published a report on 1 February 2017 (“the first report”). Her recommendations were significantly influenced by the uncertainty of whether the father presented as an unacceptable risk to the children.
In circumstances where the mother concedes that the interview and investigation process undertaken by CPS may have had an adverse impact upon the children’s presentation and the extent to which they believed their father had engaged in sexual abuse, the following paragraph from the first report is significant:-
66.It is accepted that the father questioned the focus and quality of the counselling afforded to the children by CPS staff. Whilst this remains a matter for evidence before the Court, given the children’s currently established therapeutic alliance with their therapist at CPS and the likely benefit of a form of therapy continuing, and the Family Consultant’s understanding that the therapy would be focused on the children’s future emotional needs (i.e. not focused on recalling or entrenching a memory of alleged abuse but rather assisting the children to feel safe and secure and generally manage their emotions effectively) it would be recommended that the Court allow the children to re-commence in therapy with the CPS. …
She recommended that the children should be at liberty to spend time with their father, but subject to their wishes and that this was to be managed according to their age at any particular time. If the children sought reunification then this should be assisted by an appropriately qualified therapist.
The recommendations reflected the initial views of the family consultant and did not provide for any pathway that would result in the children spending time with the father other than by reference to their age appropriate request to do so.
In preparation for the trial, orders were made on 27 February 2018 for the family consultant to provide an update report which was published 17 March 2018 (“the second report”).
The family consultant had the advantage of the orders on 11 September 2017 which confirmed the mother’s acceptance that the father did not present as a risk and that there would be benefit to the children of a meaningful relationship being reinstated.
She also had the report of Ms D following the reunification counselling.
The mother reported to the family consultant that there had been no change in her position in respect of the children’s experience of alleged abuse. She acknowledged that while the abuse could not be legally proven, she nonetheless believed that the children’s account of abuse was factual.
The family consultant explored the reunification process with the mother.
Consistent with her evidence, she was not opposed to reunification being undertaken and considered that she had complied with Court orders.
The family consultant did not confront the mother with the provisions of the orders of 11 September 2017 that placed a positive obligation on her to promote that the father was not a risk to the children and a resumption of their relationship with him would be to their future benefit and advantage.
The mother considered that the children were entirely opposed to the reunification process and it was her observation of the children’s presentation that they were upset and distressed by being made to attend.
The following interaction is reported by the family consultant at [13] of the second report:-
… She stated that both children explained that they felt “almost guilted’ into writing a letter back to [the father], but managed to refuse in the end. She added that the children felt pressured to read the letters and open the presents and have continued to say they wanted him “out of their life completely.
If accurately reported by the family consultant, the mother’s description of the children’s alleged predicament strongly suggests that she is supportive of their view of the father and far from the mother’s stated position that the father does not present as a risk, the mother’s remarks lend weight to a finding that she is unlikely to support any process that has as its focus the restoration of the children’s relationship with their father.

The children were the subject of separate interview by the family consultant.
B presented as a “friendly, mature and emotionally sensitive child” who impressed the family consultant as being “bright and emotionally intelligent”.
She was clear in relating her experience of reunification and considered that she felt both “mad” and “disgusted” in Ms D attempting to restore a relationship with the father.
B considered that Ms D had ignored her and her sister’s opinion and view of the father and there was no circumstance where she considered that either she or C would be reconciled with him.
She also wanted nothing to do with the paternal grandparents even though she had no memory of them, nor did she make any allegation adverse to them.
C expressed a similar sentiment to the family consultant. She reported that “I didn’t like it” when Ms D “made me read the cards and open the presents [Mr Wyles] gave me”.
Her stated position was that she would feel sad if required to have contact with her father and happy if no contact occurred. She had no positive memory of her father and seemed to have a fixed view that in some way the father had acted inappropriately with her.
A consistent theme expressed by the children was their reference to the father as “[Mr Wyles]”.
The mother was challenged as to the circumstances in which the word “[Mr Wyles]” had become common parlance by the children when referring to their father. The mother was aware that they used his first name rather than calling him “dad” and conceded that she had taken no active steps to dissuade the children from referring to him in this manner.
The reference to the father as “[Mr Wyles]” cannot be considered as benign. It is intended by the children and supported by the mother to reinforce the removal of the father from the children’s lives.
The family consultant considered that future attempts at reunification therapy may well be appropriate notwithstanding that Ms D considered there should need to be some further assessment as to the parties mental health “including the father’s family background” and “whether he would meet criteria for Autism”.
It is difficult to understand the emphasis of the therapist and the further consideration by the family consultant of matters relating to the mental health of the parties. There is nothing to suggest that either party, but in particular the father, suffers from mental health issues and the most obvious consideration in respect of the decision to implement a further reunification process is the attitude of the children and whether the mother can be trusted to approach any future therapy with the intention to promote a supported relationship between the children and their father.
The family consultant placed significant weight on the apparent acceptance by the children of letters and gifts from their father. She considered that this was “a small but not insignificant shift forward”.
The family consultant summarises the uncertainty of any process of reunification being successful in the following manner:-
32.Regardless of if abuse occurred or not, given the children continued to genuinely believe it had, then no doubt the process of reunification was likely to[sic] a difficult one, and a lengthy one. Adding to the complexity of the potential success of the reunification is the mother’s needs as the primary carer of the children to be able to fully support this process (i.e. take on board the recommendations noted by [Ms D]). Also, the father’s needs to be able to genuinely promote the children’s relationship with their mother given her role as their primary caregiver and secure base.
The family consultant was critical of the father’s proposal that there be no contact with the mother until they remained settled in his primary care. She considered that such a proposal was of concern and demonstrated a lack of insight by the father.
The family consultant considered that there were likely to be advantages to pursuing the reunification process because:-
… on the balance of probabilities, it was the opinion of the Consultant that it was in the children’s long-term interests to create Orders which supported the recommencement of reunification.
The family consultant was cautious in her approach. Whilst supporting, albeit faintly, a second attempt at reunification, a third attempt was not warranted and would be considered detrimental to the children. She formed the view that whilst the first attempt at reunification had met without success, it did not appear to have had a “major negative effect on the children”.
In evidence the family consultant was asked whether she had communicated with either of the solicitors for the parties. Whilst she had no record of any conversation, she conceded that such an event could have occurred.
The mother had told Ms D that her lawyer reported to her a view that had been expressed by the family consultant that the father may be “Borderline Asperger’s”
The family consultant accepted that a conversation was likely to have occurred with the mother’s solicitor at a time after the preparation of the first report but before the second report.
She agreed that such a conversation was likely to have occurred and was inappropriate. The issue of whether the father may suffer from “Autism” became a relevant consideration for Ms D in her suggestion that the parties should obtain a psychological assessment and that the father’s apparent refusal to contemplate such an investigation was a potential barrier to the therapy continuing.
The family consultant agreed that without the mother’s support for the children resuming a relationship it was unlikely to occur. The level of the conflict between the parties was such that the environment created by the mother would render it unlikely that the children would be able to speak to the father or resume contact with him.
Unless the parties are genuinely supportive of the process of reunification it is doomed to a certain failure.
The family consultant accepted that the mother’s position, at least as presented to her, was that she believed the children had been abused and were at risk if reintroduced to the father.
The mother had not attempted to modify or reassess her own views and the demonstrably erroneous belief that the children held in order to support the reunification process.
She did agree that there may be significant concerns for the future development of the children if they continued to hold an erroneous belief about the father and that their best interests would be served if they saw their father to attempt to correct their mistaken view of him.
The family consultant was reminded of the terms of the order of 11 September 2017 and it appeared that she did not readily understand that the mother had resiled entirely from her previous position namely, that the father had sexually abused the children.
Whatever the children may genuinely believe, it is the mother’s position, by necessary implication, that they are wrong in their belief and that she necessarily accepts that she does not present as a risk.
The contents of Exhibit “3” were shown to the family consultant who agreed that the conduct of B and the mother was highly inappropriate and damaging. The mother’s action in remaining silent whilst B defaced the gifts from the father and paternal grandparents with offensive references could only be seen as a reinforcement of the poor view that the children have of their father.
There is nothing about the mother’s conduct in sending the defaced gifts back to the paternal grandparents that imbues her with credit.
The family consultant agreed that there were two options available to the Court, the first being that the children remain with the mother and spend no time with the father, with the second option being their transition to the father’s primary care. The family consultant considered that the effects of the children being taken from the mother would be devastating. Even the father conceded that the children would be devastated by their removal from the mother’s care, but considered that their distress could be managed by his family support.
If the children spend no time with the father and he does not present as a risk then their future development may be stunted by reason of the following:-
·The children may form the view that men cannot be trusted.
·They may well develop poor relationship capability.
·They may have an adverse sense of self-worth.
·They are at risk of adverse psychological wellbeing.
·They may have issues in relation to persons in authority.
·They may risk losing other important relationships not just the father but also the mother should they come to the realisation that their mother has engendered an unwarranted hatred for their father.
The family consultant considered that the children were at high risk of these consequences but that must be tempered by the likely dramatic effect of the father’s proposal on the children. She considered that this may represent a greater risk to the children than the potential consequence of living in the negative environment engendered by the mother.
The family consultant conceded that the mother had not demonstrated any preparedness to facilitate the children’s relationship with their father.

IS A SECOND ATTEMPT AT RECONCILIATION WARRANTED?

In general, it is usual for the recommendations of a family consultant to be given careful consideration. Whilst not binding on a Court, they should not be too readily dispensed with from the Court’s consideration. The difficulty is that the family consultant did not bring to account the purported commitment of the mother to implement the terms of the order of 11 September 2017. The Court is also concerned as to the likely impact of the view formed by the family consultant that the father may be “Borderline Asperger’s” and this having been conveyed to the mother’s solicitor, then to the mother and finally to Ms D.
I accept the evidence of the family consultant as to the potential detriment that may be experienced by the children in them holding an erroneous belief that they have been the subject of sexual abuse by their father. This is particularly egregious when the mother’s evidence is that at the time of separation the children loved their father. Their current antipathy towards him can only be based on an erroneous belief that he sexually abused C.
It would seem self-evident that the children would benefit from a relationship with their father. There is no evidence that such a relationship is likely to be supported by the mother and whilst she pays lip service to the prospect of a second attempt at reunification therapy, she frankly concedes that she has taken no steps to implement either the terms of the 11 September 2017 order or the matters raised in her solicitors Amended Outline of Case Document. The mother’s recalcitrant behaviour is even more difficult to rationalise given her concession that the children’s belief may have to some extent been engendered by a flawed counselling process undertaken by CPS.
Whatever the advantage might be in undertaking a second attempt at reunification, unless the Court can have confidence that the mother is prepared to support the process and necessarily the children resuming a relationship with the father, there is no real prospect of success.
The family consultant considers that the emotional fragility of the children is such that a third attempt might well be a step too far for their emotional wellbeing and in circumstances where the father does not support a further attempt, the children are vocal in their opposition and the mother’s apparent support is entirely disingenuous, little purpose would be served by the proceedings being adjourned to explore whether a successful outcome may result.
The evidence supports a finding that the litigation needs to be concluded. Continued litigation is likely to result in a further layer of distress and dysfunction to the children’s distorted presentation.

PRINCIPLES RELEVANT TO PARENTING CONSIDERATIONS

The children live with the mother and spend no time with the father.
At present there is no intention on the part of the mother to promote the children’s relationship with the father even though she seeks the Court’s acceptance of her support for a second attempt a reunification therapy.
Section 60CA of the Act requires that I have the best interests of the children as the paramount consideration. The best interests test is to be considered by application of the objects of s 60B(1) and the underlying principles of s 60B(2).
I am cognisant of the primary considerations and additional considerations in respect of the matters as set out in s 60CC(2) and (3).
I am mindful of the directions contained in s 60CC(2A) and whilst the children continue to hold a belief that they have been the subject of sexual abuse by the father, the mother asks that the Court proceed on the basis that there is no evidence which would support such a contention and her acceptance that the father has not either physically or sexually abused the children and that he does not present as a risk to them.
It is an important observation that there is no allegation that the father presents as a physical risk to the children.
I propose to adopt the following approach:-
(1)Give consideration to the proposals put forward by each of the parties as they are identified and presented to the Court.
(2)Have regard to the objects expressed in s 60B(1) and the underlying principles in s 60B(2).
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the children’s best interests.
(4)Have regard to the primary considerations under s 60CC(2) namely, the benefit of the children having a meaningful relationship with both of the child’s parents and the need to protect the children from physical or psychological harm.
(5)Have regard to the additional considerations under s 60CC(3).
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of delineation and comment.
Section 61DA requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having regard to whether the matters are set out in s 61DA (if relevant) would rebut the presumption.
The parties are not agreed as to equal shared parental responsibility. It is sought by the father and considered premature at this stage of the proceedings by the mother.

PARENTING CONSIDERATIONS

Meaningful relationship

The parties appear to agree that the children’s interests would be served by re-establishing a meaningful relationship with the father.
The father’s proposal seeks that the children live with him. The mother considers that a further attempt at reunification therapy should be undertaken in the hope that it is successful and the children resume a relationship with their father.
The family consultant broadly considers that the children’s interests would be served if a relationship could be re-established.
The children, but in particular B, speak strongly against any relationship with the father.
It is unfortunate that the Court was not assisted by submissions as to any alternative position that each of the parties may be prepared to promote if the Court does not consider the children being placed in the primary care of the father to be in their best interests, or if the mother’s application for an adjournment of the proceedings pending the outcome of the second attempt at reconciliation therapy is unsuccessful. Neither party sought to present evidence as to a psychological assessment of each other, nor was there evidence from Ms D beyond her report being Exhibit “2” in the proceedings.

Children’s wishes

The family consultant accepted that the children were estranged from the father and that in the absence of any justified and reasonable basis it is likely that these children are alienated. That has not been the subject of expert investigation. I have found that if the children believe that their father has perpetrated sexual abuse then such a belief is erroneous.
The potential detriment to the children is best evidenced by their unreasonable and unfounded dislike of the paternal grandparents, about whom no allegation exists other than their obvious connection to the father.
In R v R (children’s wishes) (2002) FLC 93-108 at [128] the Court concluded that the child’s wishes must be taken into account but that the Court is not bound by them. The Court considered at [177] that it could not be in the child’s best interests to deprive the child of contact with one parent in circumstances that the other parent may have engineered.
In Raby & Fisk [2013] FamCA 436 Cronin J was confronted with a father, his parents and sister who had all been excluded from the lives of three children. There were allegations of sexual abuse and family violence which were all found to be unsubstantiated. The various options including reunification therapy had failed to restore the relationship between the children and the father and the matter had reached a point where the family report writer considered that forcing the children into further therapeutic counselling would border on system abuse. Cronin J agreed and at [55] considered the views of the family report writer in the following terms:-
… In February 2010 in the final court orders to which they consented, the parties (unwittingly, involuntarily or otherwise) acknowledged that two out of three children were struggling and resistant to any relationship with their father. The therapeutic model was the road they began and it failed. The two children in that model became more entrenched as their youngest sibling continued to go down the contact centre handover route. [the child] could not have been unaware of the resistance and dislike for his father as expressed by his siblings. The two older children could not have been oblivious to the fact that, having resisted the therapy, there was little else to do but decline any involvement in their father’s life. Thus, the credibility of the parties would have made little difference because the children had come to such an entrenched position that the options for the Court were very limited.
His Honour considered that whilst the views of the children must be taken into account, the Court is not bound by them.
His Honour found at [92] that the Court should follow the children’s wishes notwithstanding that it would have an implication adverse to the children forming a relationship with their father.
In Gillard & Gillard [2015] FamCAFC 169 the Full Court held at [81]:-
… it is not and never has been the case that a judge in his Honour’s position is obliged to make orders consistent with a child’s stated views (Harrison & Woollard (1995) FLC 92-598; Maldera & Orbel (2014) FLC 93-602). It is well settled that a trial judge is obliged to consider the weight which should be given to any stated views. And that a range of factors may affect the weight given, beyond simply the age and level of maturity of the child. In other words, context is critical and thus, for example, a child who might be too afraid of a parent to express a view contrary to that held by the parent, is protected by the Court’s obligation to understand the rationale for a child’s view and to consider how giving effect to the view fits with the child’s best interests (R v R (Children’s wishes) (2002) FLC 93-108).
In considering the weight to be given to a child’s views, regard should be had to a child’s age, maturity, length of time that the views have been held by the child, the extent to which views have been the subject of mature reflection and whether the child’s views are a reflection of the poor regard of the father.
It is however important to consider the likely consequence if the Court ignores the child’s views.

Parent’s ability to communication with each other

The relationship between the parties is demonstrably poor. The mother however considers that she would comply with any order that involves future therapy for the children and/or the parties.
The apparent preparedness of the mother to promote the children’s relationship with their father would suggest that whatever may be the likely view that she holds of him is, there would appear to be no impediment to an appropriate exchange of information regarding the children and it would seek that she necessarily concedes he should resume an involvement with them. There seems to be no reason why the parties are not able to communicate other than in a civil and appropriate manner.
There may well be an advantage in the longer term to the children witnessing a greater degree of civility and cooperation than has been previously self-evident.

Relationship of the children with each of the parties

The children have a close relationship with the mother. The family consultant observed that they were strongly bonded to her and she clearly is able to provide for their needs. Both children express love for their mother and are clear that it is only in the mother’s care that they feel safe and protected.
The children have not seen their father for three years. It is reasonable to find that at present there is no relationship with their father other than one of mistrust and dislike, even if those views are without foundation.

Change in the children’s circumstances

The father seeks orders that would result in a dramatic change in the living arrangements for the children.
They have not seen or spoken to the father for at least three years. They know nothing of the father’s partner nor his current circumstances.
They have no recollection of the paternal grandparents or the father’s further extended family.
At the time of separation B was eight years of age and C four years of age.
Based upon the evidence of the family consultant, supplemented by the report of Ms D, the children have a distorted view of their father.
Whilst hopeful of a beneficial outcome, the father readily conceded to the family consultant that removing the children from their mother’s care would be “initially fucking terrible for them, horrendous”.
The family consultant considered that while there are real and potentially devastating consequences for the children of their retention of an erroneous belief that they have been the subject of sexual abuse by their father, the potentially catastrophic consequences to their emotional wellbeing if forced to live with the father pursuant to his proposal, is likely to be more harmful to them.
The children have been unrelenting in their opposition to a relationship with the father and the conduct of B in defacing the presents, gifts and card sent in good faith by the paternal grandparents is a good indication that she is clearly a troubled child.
Ms D could only base her recommendation of a further attempt at reconciliation on a glimmer of hope raised by the children’s apparent acceptance of gifts from the father and the paternal grandparents. She did not have the advantage of the evidence received by the Court that the coloured pencils and beach towels were deliberately ignored and specifically set aside.
The conduct of the mother and the children can be interpreted as evidence consistent with a total rejection of the father irrespective of how benign are his actions.
Whilst there may be some initial attraction to the first aspect of the father’s proposal namely, that the children remain in his care for a period of three months without contact to the mother, this is presumably predicated on the assumption that the relationship between the children and the father needs to be “reset” or “recalibrated” without her adverse influence.
The only evidence that the Court has as to the effect on the children of the father’s proposal is from the family consultant who is not supportive of the approach. No other evidence has been presented. It is difficult for the Court to determine, firstly, whether there is merit in the broad proposition in the particular circumstances of this case, nor is there evidence as to whether the period of three months as contemplated by the father is appropriate.
Beyond the initial period of three months, the father’s proposal relies upon his parents adopting a significant parenting role when the father is required by work commitments to remain out of Adelaide.
The paternal grandparents gave evidence and whilst principally directed to the circumstances surrounding the gifts provided by them to the children, I formed a favourable view of their preparedness to assist the father and their desire to resume a relationship with the children.
It is one of the regrettable aspects of the proceedings that the children’s relationship with the paternal grandparents has been severed in circumstances where there is no allegation that would support that outcome.
The further complexity arises from the children having spent no time with the father for three years. He last saw them in 2015. The children are at a very different stage of maturity and development. He has had nothing to do with their lives to date and whilst he may genuinely promote the view that whatever difficulties may be experienced by the children in their transition to his primary care, such is the level of his family support that those difficulties are manageable.
I do not doubt the father’s genuine presentation but his optimism is not supported by the evidence.

Orders least likely to lead to further litigation

The Court would have been assisted by evidence as to the psychological functioning of each of the children and in particular B. The family consultant considered that the litigation has had an adverse impact upon them.
I have found, based upon the concessions of the mother, that the father does not present as a risk to the children and that there is no evidence that:-
(1)The father has either physically or sexually abused the children; or
(2)That the children are at risk of physical or psychological harm from being subjected to, or exposed to, abuse, including sexual abuse, neglect or family violence by the father.
The very fact that the children hold a contrary view is evidence that they have been psychologically and emotionally affected and adversely impacted upon by the proceedings.
The father does not present a credible proposal for the children to be placed in his primary care. He does not put forward any alternative proposal. The mother is unlikely to support the children’s relationship with the father and whilst the removal of the children from their mother’s care has an initial attraction, in the absence of any evidence that the children’s view of their father is likely to be altered or at least ameliorated by a cessation of contact with their mother, the more likely effect will be the almost certain catastrophic impact upon them.
The family consultant was clear that a third reconciliation attempt was adverse to the children’s best interests. I have found that any further attempts at reconciliation counselling are unlikely to succeed where they are not supported by the father subject to the calculated strategy of the mother to undermine the reunification process.
It is hoped that in the future the children may become interested in their father and their extended paternal family. As they cognitively develop they may come to understand the folly of their conduct.
That realisation is unlikely to occur against the background of further litigation.

CONCLUSION

The Court has carefully considered the separate proposals of the parties.
There is little evidence that would support the thrust of the orders sought by the father. It is understandable that he would seek to implement a procedure that he consider would remove the children from the mother’s alienating behaviour. Whilst it may have some initial attraction, in the absence of evidence that would support such a dramatic approach it must be considered to be problematic having regard to the following evidence:-
·That the family consultant considers the potential for distress and emotional harm to the children to be greater if placed in the father’s primary care than the potential for future harm and developmental delay if the children maintain an erroneous belief that their father perpetrated sexual abuse;
·That the father considers that the removal of the children from their mother would be both “terrible” and “horrendous” ameliorated only by his reliance on untested and uncertain family support;
·That in the circumstances of this case significant weight must be given to the wishes of the children not because they are demonstrative of their mature reflection and clear understanding of the conflict between the parties, but rather as a consequence of the degree of demonstrated fervour in rejecting the father and the paternal grandparents;
·That the father’s proposal is not supported on the evidence presented;
·That even if initially successful, the father’s continued care of the children is dependent on the involvement of the paternal grandparents and his current partner. The father and the children have not had any contact or communication with each other for three years. It may be that each of them have no understanding or experience with their current presentation and circumstances.
The mother proposes that the parties and the children engage in a second attempt at reunification therapy. The evidence does not support that approach.
The opinion of the family consultant is that whilst a second attempt is cautiously supported, unless there is some reasonable success, any further attempt at reconciliation is likely to be emotionally harmful to the children.
To some degree the family consultant’s opinion is based upon a glimmer of optimism as expressed by Ms D. Whilst the Court would have been assisted by her attendance, it seems from her report that she fell into error in considering that an impediment to a successful outcome was the refusal by the father to undergo a psychological assessment.
Both Ms D and the family consultant placed little weight on the terms of the order of 11 September 2017 which dictated the focus of the reunification therapy.
Moreover, the evidence of the manner in which the mother treated the gifts that had been provided to the children during the therapy sessions removes any basis for optimism.
The evidence supports a finding that the mother is either incapable or unwilling to support the reunification process notwithstanding her proposal.
She readily conceded that at no stage and in particular as and from 11 September 2017, did she take any steps to reinforce to the children that it was important for them to have “a healthy parent child relationship with the father” and to reinforce with them that they are safe in the father’s care and neither they nor the mother are at risk of harm. The absence of any positive reinforcement by the mother is not a misunderstanding, miscommunication or explicable by a lack of diligence.
By reference to the mother’s evidence and in particular the extent to which she was complicit in B’s treatment of the gifts provided by the paternal grandparents, the mother can be seen as malicious in her approach to any suggestion that the children should resume a relationship with their father. The mother’s proposal is disingenuous and unless future therapy has the support of the mother, it has little or no chance of success. The family consultant confirmed that if the Court finds that the mother does not support reunification therapy then there is little hope.
In the absence of any alternative proposal by the parties the consequence is that the children are prevented from having a present relationship with their father.
In Cotton & Cotton (1983) FLC 91-330 Nygh J considered that while it was generally desirable for a child to maintain a meaningful relationship with both parents, there must be a possibility first of the existence of a meaningful relationship. His Honour said at 78,252:-
… that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. …
In Wang & Dennison (No. 2) [2009] FamCA 1251 Bennett J made final orders that the children live with the mother but declined to make any orders for the children to spend time with the father. This was based on the reluctance of both girls, aged 10 and 12, to re-establish a relationship with their father and his inability to see the children’s “need for peace”. Structured therapeutic counselling provided for in the earlier orders was deemed to be unsuccessful. Her Honour made interim orders, the success of which were later considered as part of the final hearing. The continuation of reunification therapy would place the children at an unacceptable level of emotional and physical risk. At [76] her Honour said:-
…[the father] has pursued with grim unrelenting determination the opportunity to have a meaningful relationship with [the children] but has not done so out of any bitterness or vindictiveness towards the mother. Nor has his campaign been based on selfishness. I find that he is solely motivated by a desire to provide his daughters with a warm and loving home environment which he believes, with some justification, it is beyond the capacity of the mother to provide.
And then at [77]:-
It is a sad fact in the family law jurisdiction that a determination which is most consistent with the best interests of children can appear to reward bad behaviour on the part on one parent and work in apparent injustice for the well motivated and best performing parent. The Court has regard to what is fair as between the parents but, ultimately, parental interests must be subordinated to what is in the best interests of the children, at least to the extent of any conflict. …
On appeal in Dennison & Wang [2010] FamCAFC 182 the Full Court considered at [142]:-
The “reality of the situation of the parents and the child” (MRR v GR (2010) 263 ALR 368 at 372) was clearly a significant part of the trial judge’s reasons for making no orders, as opposed to the desirability for a parent having a “meaningful relationship” with his children.
I am left in little doubt that the father genuinely considers that his children would benefit from a resumption of a relationship with him. It is entirely understandable that he would be dismayed at orders that appear to reward the calculated and malevolent conduct of the mother. Ultimately, I must be guided by the reality of the situation and make orders that best protect the children from further conflict or emotional abuse.
Other than in circumstances of the children’s relationship with their father, the evidence supports a finding that the mother is able to appropriately care for the children and provide for their physical needs. There are no issues arising in respect of their education and the family consultant made appropriate observations of the children’s interaction with the mother.
A consequence of the orders that are to be made is that the children may carry forward an erroneous belief that they were sexually abused by their father and that he presents as a risk to them.
It is reasonable that some effort be invested in attempting to either disabuse the children of that notion, or at lease providing them with an alternative view which may at some point in the future form the basis for them to reassess the extent to which their father should feature in their life.
The Court has no confidence that the mother is either Wyles or capable to undertake such an exercise and it seems that there is an opportunity for the children to re-attend upon Ms D, not for the purpose of any reunification process, but to disabuse the children of their distorted reality.
Thereafter, the orders will require the father to remove himself from the lives of the children other than by cards, presents and gifts in the hope that removed from the conflict the children may one day seek to re-establish the relationship with their father.
It is also important that whilst the father will have no physical contact with the children there is no good reason why the parties should not be required to reach consensus on major issues affecting the children’s welfare and development.
The apparent support by the mother for further reunification therapy suggests that she and the father should be able to communicate at the level required for this to occur.
Whilst the Court does not consider it appropriate that the children should spend equal time or significant and substantial time with the father following a consideration of s 65DAA, it is in the children’s best interests that the parties have equal shared parental responsibility to enable the children to understand that their father has not abandoned them and holds a hope that one day their relationship can be restored.
I make orders as appear at the commencement of these reasons.

I certify that the preceding two hundred and nineteen (219) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 25 May 2018.

Associate:

Date: 25 May 2018