YALLOP & YALLOP

FAMILY COURT OF AUSTRALIA

YALLOP & YALLOP

[2018] FamCA 640

FAMILY LAW – CHILDREN – Parental Responsibility – Where both parties sought sole parental responsibility for the children – Where the presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe both parties engaged in family violence – Where the parties agree they cannot share parental responsibility – Where the parties agree the primary residential carer should be vested with sole parental responsibility – Ordered the mother have sole parental responsibility for the children.

FAMILY LAW – CHILDREN – With whom a child lives – Where the mother initially proposed the children live with her and conditionally spend constricted time with the father – Where the mother amended her proposal during final submissions, instead proposing the children spend unconditional and substantial time with the father – Where the father proposed the children live with him and spend substantial time with the mother – Where the Independent Children’s Lawyer supported the father’s proposal – Where the mother alleged the father poses multiple risks of harm to the children, but conceded they could not be proven – Concluded the evidence failed to demonstrate the children are at an unacceptable risk of harm for any reason in the father’s care – Where the father alleged the mother has aligned the children against him – Where evidence of the mother’s alignment of the children was overwhelming and amounted to psychological abuse – Concluded the mother’s alignment has not yet irreparably damaged the children’s relationships with the father – Ordered the children live with the mother and spend substantial time with the father.

Family Law Act 1975 (Cth) ss 4, 4AB, 60CC, 61DA

APPLICANT:

Mr Yallop

RESPONDENT:

Ms Yallop

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Newcastle

FILE NUMBER:

NCC

2951

2016

DATE DELIVERED:

24 August 2018

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

30, 31 July & 1 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr A Bithrey

SOLICITOR FOR THE APPLICANT:

Powe & White Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr T Allen

SOLICITOR FOR THE RESPONDENT:	Gillard Family Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr T Bates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Newcastle

Orders

All former orders relating to the following children (“the children”) are discharged:
(a)V, born … 2005;
(b)W, born … 2007;
(c)X, born … 2009;
(d)Y, born … 2011; and
(e)Z, born … 2013.
As from Monday 27 August 2018, the mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the children.
As from Monday 27 August 2018, the children shall live with the mother.
The parties shall take all reasonable steps to ensure the children spend time with the father:
(a)From the pronouncement of these orders until 9.00 am on Monday 27 August 2018;
(b)During school terms, each alternate week from 5.00 pm on Wednesday until the commencement of school on Monday, commencing on Wednesday 5 September 2018 this term and on the first Wednesday of each new school term;
(c)For portions of the Autumn, Winter, and Spring school holidays, commencing at 5.00 pm on the last day of school term and concluding at 5.00 pm on the second Saturday thereafter;
(d)For portions of the Summer school holidays, being:
(i)From 5.00 pm on the last day of school term until 5.00 pm on 7 January in the 2018/2019 holidays and every alternate year thereafter; and
(ii)From 5.00 pm on 7 January until 5.00 pm on the last day before school resumes in the new school term in 2020 and every alternate year thereafter.
Orders 3 and 4 are suspended during the following periods:
(a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the children will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years.
(b)From 10.00 am on Sunday until the commencement of school on Monday on the Mother’s Day and Father’s Day weekends, during which periods the children shall spend time with the mother on the Mother’s Day weekend and with the father on the Father’s Day weekend.
For the purposes of implementing Orders 3, 4 and 5, the parties shall respectively ensure the children’s:
(a)Collection from school, whenever the children’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;
(b)Return to school, whenever the children’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise
(c)Collection from and return to the McDonalds Restaurant at Suburb B, NSW.
The parties shall take all reasonable steps to ensure the children communicate privately by telephone with:
(a)The father each Thursday at 6.00 pm when the children are living with the mother, for which purpose the father shall telephone the children on the telephone number provided to him by the mother and the mother shall ensure the children are able to receive the father’s calls on that number at that time.
(b)The mother each Thursday at 6.00 pm when the children are spending time with the father, for which purpose the mother shall telephone the children on the telephone number provided to her by the father and the father shall ensure the children are able to receive the mother’s calls on that number at that time.
(c)The parent with whom they are not then staying, on the children’s birthdays at 6.00 pm, for which purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent and the parent with whom the children are staying shall ensure the children are able to receive the other parent’s calls on that number at that time.
The mother is restrained from causing or permitting the children to consult with any therapist (including Ms C) from whom they have received counselling or any other form of psychological therapy since 31 March 2016.
The mother shall:
(a)Inform the father and keep him informed in writing of the name and contact details of any psychiatrist, psychologist, or other therapist to whom the children may be referred in future, not less than 48 hours prior to the children’s first consultation with that psychiatrist, psychologist or therapist; and
(b)Authorise any psychiatrist, psychologist, or other therapist to whom they may be referred to communicate with the father about the condition and treatment of the children.
Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.
Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.
Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and the mother shall authorise any treating health professionals to communicate with the father about the condition and treatment of the children.
The mother shall authorise and request the principal of any school attended by the children to provide to the father, at his expense, copies of all school reports and school photograph order forms relating to the children.
Each party shall forthwith inform the other and keep the other informed, in writing, of their respective current residential address, mobile telephone number, and email address.
The parties shall forthwith cause the children to be delivered to the Independent Children’s Lawyer and Family Consultant at the Newcastle registry of the Family Court of Australia to have explained to them the effect of these orders and, if deemed appropriate by the Independent Children’s Lawyer or the Family Consultant, the reasons for such orders.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon compliance with Order 15 or the expiration of any applicable appeal period, whichever is the latter.
Costs are reserved for 28 days.
Any and all other applications are 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 Yallop & Yallop 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).

AMILY COURT OF AUSTRALIA AT

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2951 OF 2016

Mr Yallop

Applicant

And

Ms Yallop

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These proceedings comprise a dispute between the applicant father and respondent mother over parenting orders for their five children under Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The antipathy between the parties caused them to conduct the litigation in such a way as to polarise the available parenting regimes. The only issue upon which they agreed was their inability to share parental responsibility for the children.
The father applied for the children’s residence to be reversed. He claimed he poses no risk of harm to the children and the mother is aligning the children to reject him, so the only way to avoid the loss of their valuable relationships with him is to shift them to live with him. The Independent Children’s Lawyer endorsed his proposal, which enjoyed the conditional support of the Family Consultant.
On the other hand, at least until deep into the trial, the mother claimed the father posed multiple risks of harm to the children and the only way to preserve their physical and emotional safety was to constrict the time they spend with him, including by the retention of professional supervision for some time. That remained her position until final submissions, when she revised her position and instead proposed that the children should unconditionally spend extensive amounts of unsupervised time with the father, which amended proposal was inconsistent with the case she conducted against him throughout the litigation and the trial.
The father and Independent Children’s Lawyer doubted the mother’s amended proposal reflected any genuine introspection by her, doubted the authenticity of her amended proposal, doubted she could honestly adhere to such orders in the face of her sworn evidence of her fear about the safety risks he posed to the children, and regarded her new proposal as an artifice which was designed to shore up her swiftly eroding position as the children’ primary carer.
Their doubts were reasonable and understandable because, in many respects, the mother’s evidence was quite unsatisfactory. The decision therefore boiled down to several issues: Will the mother cease aligning the children? Is she capable of promoting their relationships with the father? Even if capable, is she willing to do so? If the answer to those questions is “No”, will the emotional harm suffered by the children be worse by leaving them in the mother’s care or by removing them into the father’s primary care?

Short history

The parties began cohabitation in 2004, but they disagreed over when they married and separated. They married in either 2005 or 2006 and separated in either March 2016 (as the mother contended) or in June 2016 (as the father contended).
The children were born between 2005 and 2013 and, at the time of trial, ranged in age from thirteen to five years.
In October 2015, the mother’s niece (“Ms D”) began living with the family when she was 17 years of age. The father and Ms D now live together in an intimate relationship, which aggravates the mother, particularly since she suspects their relationship began before the parties separated.
In September 2016, only several months after their separation, the parties reached agreement over a parenting plan at mediation. They agreed the children would live with the mother and spend time with the father, which time amounted to each alternate weekend (Friday afternoon until Sunday afternoon) and a few hours each Wednesday evening.[1] The mother later failed to abide by the plan and so the father commenced these proceedings in early November 2016.
[1] Family Report, para 19; Mother’s affidavit, para 103
Later in November 2016, the parties agreed upon the children spending only supervised time with the father.[2] Interim orders were first made in January 2017 with the parties’ consent, providing for the children to live with the mother and to spend supervised time with the father. The father contended the orders provided for only supervised time because the Court “err[ed] on the side of caution” due to the nature of the allegations made against him by the mother.[3]
[2] Mother’s affidavit, para 109
[3] Family Report, para 50
The mother interrupted the supervised time spent by the children with the father because she objected to the lack of diligence of the professional supervisors who were successively engaged to implement the orders.[4] The second last appointed supervisor withdrew its services because of its dissatisfaction with the mother’s behaviour.[5] As a consequence, the interim orders were modified twice in April and August 2017 to change the supervisors and make other minor adjustments.
[4] Family Report, paras 13-14, 73-77
[5] Family Report, para 20
The proceedings were transferred to this Court by the Federal Circuit Court in December 2017 and then listed for trial.

Proposals

The father pressed for the orders set out in his Amended Initiating Application filed on 24 May 2018. He proposed that the children live with him instead of the mother and that he have sole parental responsibility for them. He proposed that the children spend substantial time with the mother (amounting to alternate weekends and parts of school holidays). He eschewed the Family Consultant’s idea that the children’s interaction with the mother should then be temporarily suspended to allow the effect of her alignment to subside.[6]
[6] Family Report, para 239
Until final submissions, the mother pressed for the orders set out in her Amended Response filed on 31 May 2018. She maintained her proposal that the children continue to live with her and that she have sole parental responsibility for them. Before amendment, her proposal for the children to spend unsupervised time with the father (graduating to alternate weekends and portions of school holidays) was contingent upon him completing educational courses related to post-separation parenting, sex addiction, illicit drug use, alcohol misuse, and domestic violence. Until such courses were completed, she proposed the children’s interaction with him should be confined to two hours per fortnight under professional supervision. Her proposal was silent about the availability of the educational courses, who would pay for them, and most importantly, how she would be satisfied the courses were beneficial by causing the father’s behaviour to change. If she merely wanted him to attend the courses and was content to then dispense with the need for professional supervision regardless of any derived benefit, then completion of the courses as pre-conditions to unsupervised time was artificial and of no utility.
The mother was last to make final submissions and, as she commenced them, she announced her application for amended orders. She abandoned her former proposals about the conditional and constrictive way in which the children would spend time with the father. Instead, she proposed the children should unconditionally and immediately spend substantial and significant time with the father, comprising each alternate weekend (Friday evening to Monday morning), each alternate Wednesday evening, and half of all school holidays. Neither the father nor Independent Children’s Lawyer objected to the belated amendment of the mother’s application on grounds of procedural unfairness or otherwise.
The Independent Children’s Lawyer was not prepared to formulate any preliminary proposal before the evidence was tested but, once the evidence was closed, she tendered a minute of proposed orders.[7] Her proposal matched the father’s. She proposed that the children live with him and he have sole parental responsibility for them. She proposed that the children spend substantial and significant time with the mother, subject to an initial embargo period of about two months to help the children settle into their new residence with the father, which coincided with the Family Consultant’s advice if the children’s residence was reversed.
[7] Exhibit ICL7

Evidence

The father relied upon:
(a)His affidavit filed on 27 June 2018;
(b)The affidavit of his partner, Ms D, filed on 27 June 2018; and
(c)The affidavit of Ms E filed on 27 June 2018.
The mother relied upon:
(a)Her affidavit filed on 27 June 2018; and
(b)The affidavit of the maternal grandmother filed on 27 June 2018.
The parties and the Independent Children’s Lawyer relied upon:
(a)The Memorandum prepared by the first Family Consultant on 11 April 2017; and
(b)The Family Report prepared by the second Family Consultant on 20 October 2017.

Legal principles

Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Children’s best interests

Section 60CC(2)(a)

The father accepts the children all have meaningful relationships with the mother from which they derive considerable benefit. His only concern was that the children are unable to derive the same level of benefit from their relationships with him whilst ever they live with her.
Whether the mother accepts it or not, the children do have meaningful relationships with the father from which they derive benefit. Unfortunately, because of the emotional environment in her household over the past two years, the importance of the children’s relationships with the father has waned and they require rejuvenation.
The mother’s evidence was brimming with contradictions about the quality of the children’s relationships with the father and her attitude towards them. In cross-examination, she grudgingly conceded the children all love the father, she professed to understand the importance of their filial relationships with him, and she alleged she “always” wanted them to have loving relationships with him, but she has not acted consistently with those sentiments. For example:
(a)She told the father, in the children’s presence:[8]
[8] Father’s affidavit, para 20
…they don’t want to see you so I am not going to make them.
The kids want nothing to do with you. I have to force the children to talk to you. They don’t love you anymore.
The kids hate you.
(b)She sent a text message to the father in March 2017 saying:[9]
Your not apart of our lives…The kids have a right to a meaningful relationship with you if they choose, they don’t at the moment, because of your actions [sic].
(c)She sent a text message to the father in April 2017 saying:[10]
Kids don’t want anything to do with you. Kids hate you.
(d)In cross-examination, she said she did not think the eldest child hates the father, but she does think he harbours some resentment towards him.
(e)In cross-examination, she conceded she told her counsellor the children “don’t want to go to the father”.
[9] Father’s affidavit, para 45
[10] Father’s affidavit, para 48
The mother’s alignment of the children will be discussed separately but, for the purposes of s 60CC(2)(a) of the Act, it is only important to note the mother’s vacillation about the quality of the children’s relationships with the father, given her ultimate application for the children to spend substantial and significant time with him. Her concession was blunt acceptance of the importance, value and significance of the children’s relationships with him and, even if the concession was contrived for forensic purpose, it must be given due weight.

Section 60CC(2)(b)

The mother’s allegations about the risks of harm posed to the children by the father and Ms D were both florid and imprecise. She told the Family Consultant the children were at unacceptable risk of sexual, moral, verbal, physical, and psychological harm in the care of both the father and Ms D.[11] She repeated those allegations in her affidavit and oral evidence during cross-examination.
[11] Family Report, paras 10, 18
Section 60CC(2)(b) of the Act is concerned with the need to protect the children from the risk of physical or psychological harm by reason of their subjection or exposure to “family violence”, “abuse”, and “neglect”. The mother’s evidence was replete with allegations against the father of family violence and abuse, but his alleged neglect of the children was not expressly incorporated within her complaints until her oral evidence in cross-examination.
Before embarking upon analysis of the evidence pertinent to s 60CC(2)(b), it is worth noting that almost all of the available evidence was confined to the contradictory evidence of the parties. Any corroboration the mother sought from statements made to her by the children about the father’s misconduct is of limited probative weight for two reasons. First, her credit was comprehensively impeached, so her assertions of statements made to her by the children may not be true. Second, even if the children did make the alleged statements to her, their alignment with her (which is yet to be discussed) pre-disposes them to make such statements to her which are untruthfully critical of the father. They probably know she gratefully receives their criticism of him.
The impeachment of the mother’s credit inevitably follows from multiple instances of her mendacity and unreliability. For example:
(a)In 2001, before the parties began their relationship, the mother was convicted of social welfare fraud. She defrauded Centrelink of $15,000, for which she was placed on a good behaviour bond.[12] Such conduct manifests her willingness to resort to deceit when it suits her. Her denial of such fraud in cross-examination must have been false because she admitted she pleaded guilty to the offence. She cannot admit the fraud in one court and deny it in another. Her denial of the fraud only served to compound her unreliability.
[12] Family Report, paras 7, 57
(b)The mother also made fraudulent claims about her qualifications, both to the Family Consultant in 2017 and to her former employer in 2009. She professed having tertiary qualifications from universities she did and still does not have.[13]
[13] Family Report, paras 7, 96
(c)The mother objected to the paternal grandmother accompanying the father to a supervised visit with the children and falsely told the contact centre staff the paternal grandmother was “on drug charges and pornography charges”. In fact, the paternal grandmother has no criminal record and there was no objective evidence adduced of her ever being charged.[14]
[14] Family Report, para 20
(d)In August 2017, the mother exerted pressure on the children’s counsellor to amend a letter the counsellor drafted at the mother’s request to instead state “the kids would not cope with another supervision service”.[15] Plainly, the mother intended to use the letter as evidence in these proceedings and she tried to influence the expert to alter her evidence to help thwart the children’s future interaction with the father. The significance of such subterfuge is obvious. Even if she did not understand the significance of asking a witness to alter her stated views to suit her own aims, her ignorance of such obvious impropriety is no less alarming than her knowledge of the impropriety.
(e)The mother told the Family Consultant the child welfare authority possessed proof the father began his sexual relationship with Ms D when she was only 14 years of age.[16] She also told the Family Consultant she had “naked pictures” of the father and Ms D when Ms D was only 14 years of age.[17] Even though a subpoena was issued to the child welfare authority and it produced records in response to the subpoena, no record was tendered by the mother to verify her statement to the Family Consultant. Nor were any photographs tendered depicting the father and Ms D naked when she was only 14 years of age. If such documents existed it is inconceivable the mother would not have tendered them. Her allegation about the father to the Family Consultant, which was probably intended to characterise him as a sexual predator of an adolescent girl, was false. Even if the falsehood was not deliberate, it was reckless.
(f)The mother insisted to the Family Consultant that Ms D began to live with the family when she was 15 years of age.[18] In fact, she ultimately admitted in evidence that Ms D began living with the family in October 2015,[19] when she was 17 years of age, just as the father maintained.
(g)In her affidavit, the mother deposed she actually saw the father and Ms D together naked in Ms D’s bed in March 2016, before the parties separated.[20] Astoundingly, she admitted she did nothing about their “inappropriate behaviour”, aside from allowing herself to be convinced by the father she was “going crazy” and there was nothing untoward about their relationship,[21] which evidence was completely implausible. The sexual relationship between the father and Ms D is currently the fulcrum of the parties’ acrimony. Had the mother known about any sexual relationship between them before the parties separated, they probably would have separated sooner and their acrimony over the children would have been evident from the time of separation. The father and Ms D both denied they were in bed naked together on that or any other occasion before their sexual relationship began at some point around the end of 2016, soon after Ms D moved to live with the father, by which time she was an adult. There was no credible evidence adduced to contradict them.
(h)The mother told the Family Consultant that Ms D’s allegations of her childhood sexual abuse by her own father (the mother’s brother) were false and Ms D has recanted the allegations.[22] She has not. She is still considering whether she wants to pursue the prosecution and the police and child welfare authority are supportive of her taking time to decide.[23] The mother’s report to the Family Consultant was therefore false, either deliberately or recklessly.
(i)The mother made many allegations in these proceedings about Ms D’s past mistreatment of the children, but her allegations were flatly contradicted by her conduct. In August 2016, she authorised Ms D to collect the youngest child from pre-school on his enrolment form.[24] Later in 2016, she sent Ms D a message telling her she was welcome to come back any time she decides to “exclude [the father] from [her] life”.[25] The mother admitted in cross-examination she sent the message. Of course, the contradiction between, on the one hand, endorsing Ms D as a competent temporary carer and inviting her back into her fold and, on the other hand, alleging she presents an unacceptable risk of harm to the children is entirely irreconcilable. Such approbation of Ms D is also difficult to reconcile with her evidence that she saw her naked in bed with the father months before in March 2016. In all probability, the mother was not concerned about the children’s safety in Ms D’s care.
(j)The father deposed the mother sent him a text message in October 2016 saying that, provided he gave her a statutory declaration confirming that “Ms D will not be around the kids whilst in [his] care”, she would be “happy” for the children to spend unsupervised time with him in accordance with the agreement they struck in September 2016.[26] The evidence is accepted as correct because the mother did not challenge its correctness and, during her cross-examination, she said she could not recall it. The evidence necessarily means the mother was unconcerned about the children’s safety in the father’s care, just as she was unconcerned about the children’s safety in Ms D’s care. It was only the relationship between them which motivated the mother to obstruct the father’s relationships with the children. The mother’s denials of that proposition in evidence were probably false.
(k)The mother denied, both to the Family Consultant and during cross-examination, that she told the children the father watched pornography. Her denials were most probably false, since the eldest child reported the exact opposite to the Family Consultant.[27] Given his age, it is hardly something the eldest child would have fabricated. The father admitted he watched pornography, but he did not tell the children about it or allow them to see it. They only knew about it because the mother told them. Her only motivation could have been to sap their affection for him.
(l)The mother told the Family Consultant that, at the contact centre, the father was taking photographs of the children and “uploading them onto a porn site”.[28] She said her friends had seen the photographs, but none was tendered. She said she reported the fact to the police some 12 months before, but no police record was tendered to verify it. It is inconceivable such photographs and records would not be tendered in evidence if they existed. Most probably, the mother’s report to the Family Consultant was deliberately false.
(m)In relation to her allegations of family violence against the father there were several instances of fabrication and incredible testimony, but such unreliability will be separately discussed in the context of those particular allegations.
[15] Family Report, para 21; Exhibits F8, F9
[16] Family Report, paras 3, 16, 105
[17] Family Report, para 68
[18] Family Report, para 66
[19] Mother’s affidavit, para 55
[20] Mother’s affidavit, para 60
[21] Mother’s affidavit, para 62
[22] Family Report, paras 67, 82
[23] Family Report, para 82
[24] Exhibit F2
[25] Family Report, para 83
[26] Father’s affidavit, para 29
[27] Family Report, paras 117, 153
[28] Family Report, para 75
Family violence
The mother told the Family Consultant the father perpetrated upon her “verbal, physical, sexual and psychological family violence” throughout their relationship.[29] She gave extensive evidence in her affidavit about the father’s criticism and verbal abuse,[30] destruction of property,[31] threats to kill,[32] sexual assault,[33] and physical abuse,[34] which caused her injuries.[35]
[29] Family Report, para 60
[30] Mother’s affidavit, paras 13-17, 33, 42
[31] Mother’s affidavit, paras 20, 38
[32] Mother’s affidavit, paras 45-46
[33] Mother’s affidavit, paras 39, 71
[34] Mother’s affidavit, paras 23, 28, 32, 36-38, 41-42
[35] Mother’s affidavit, paras 23-25, 28, 42, 71
There were several strikingly curious aspects to the mother’s evidence and her reports to the Family Consultant about past family violence: first, as to the nature of the alleged violence she suffered; second, as to the nature of her alleged injuries; and third, the unreliability of her reports about it to police officers.
The mother deposed she was punched by the father with a closed fist on occasions,[36] but she inconsistently denied to the Family Consultant she was ever punched by the father.[37] At least in that respect, her statements are irreconcilable. Either her evidence or her statement to the Family Consultant must have been false. She also told the Family Consultant the father “pushed her a million times”[38] and “rap[ed] her many times”,[39] which was most probably exaggeration.
[36] Mother’s affidavit, paras 23, 36, 37
[37] Family Report, para 117
[38] Family Report, para 116
[39] Family Report, para 117
The mother told the Family Consultant she suffered “at least twenty injuries”, which included a twisted wrist, a black eye, and anal bleeding.[40] She gave evidence her eyes were blackened and she was bruised on occasions, but also that she suffered “abnormal bleeding” when forced to participate in sexual activity.[41] Although the mother told the Family Consultant she consulted a doctor in relation to some of those injuries, she did not tender any medical records to verify the fact. The mother admitted she lied to her doctor about the cause of those injuries, so no contemporaneous medical record would corroborate her attribution of any injury to the father. However, given he denied he caused her any injuries at all, proof of her sustaining injuries of the type she alleged might have afforded her some degree of corroboration. Contemporaneous medical verification of her anal bleeding due to rectal injury could potentially have been compelling evidence of her rape. The mother suffered a miscarriage in 2010, which she attributed to her assault by the father in her affidavit,[42] but she conceded she denied she was the victim of any domestic violence when she completed a domestic violence screening questionnaire at the hospital at the time. In relation to that incident, either what she said in evidence at trial or what she said to the hospital staff at the time must have been a lie.
[40] Family Report, para 119
[41] Mother’s affidavit, paras 28, 71
[42] Mother’s affidavit, paras 23-26
The only corroboration of the mother’s injuries came from the maternal grandmother, who said she once saw the mother with a black eye and some bruising on other occasions.[43] The probative weight accorded to the maternal grandmother’s evidence is slight, not least because she unquestioningly approbates the mother and reprobates the father.[44] During her cross-examination, the maternal grandmother said she believed she witnessed the father try to murder the mother on an ocean cruise in March 2016, about which she did nothing. She said she still believes he is capable of murdering the mother, for which fear there was no objective basis at all. Her evidence was quite partial.
[43] Affidavit of maternal grandmother, para 58
[44] Family Report, paras 33, 99-112
The mother made no complaint to the police about the father’s alleged family violence until after the parties separated. Of itself, that is not so surprising, since victims of domestic abuse often do not proactively make contemporaneous complaints of abuse by their domestic partner for fear of worsening the situation. However, when the mother did make belated complaints, they were found wanting upon investigation by the police.
Police records inspected by the Family Consultant reveal the mother did not complain to police until August 2016, and only then for their “advice”. Her statement to the Family Consultant that she made earlier reports to the police, but did not then want the father prosecuted, was not verified by the records and was therefore probably untrue,[45] particularly since she later admitted to police in November 2016 that her past assaults by the father were “all unreported”.[46] By the time of her report to police in November 2016, the father had already commenced these proceedings and the inference she made the police complaints for tactical advantage in the litigation is strong.
[45] Family Report, para 119; Exhibit F3
[46] Family Report, para 120; Exhibits ICL1, ICL2
In November 2016, the mother reported her past physical and sexual assault by the father but, despite encouragement by the police, she refused to make any formal statement about it. The police concluded the mother was “attempting to engage in retaliatory behaviour due to the fact that the father has engaged in an intimate relationship with [Ms D]”.[47] The mother produced video footage to the police which she asserted corroborated the father’s misconduct in various respects, but the police viewed the video and found it did not verify the mother’s allegations. They then refused to seek an apprehended violence order against the father on her behalf as “the video evidence directly refutes the information provided by the [mother]”.[48]
[47] Family Report, para 120
[48] Family Report, para 121
The mother reported one or more other incidents to police between November 2016 and April 2017, but none was attributed by the police to the father.[49] The father denied responsibility for those incidents[50] and was not directly challenged in cross-examination about them.
[49] Family Report, paras 124-126
[50] Family Report, para 49
While the mother’s evidence was weak and unconvincing, it does not mean all of her evidence was completely false. The father denied most of the mother’s allegations but did admit he once pushed her onto a bed during an argument.[51] He said, and the mother admitted, both parties shouted at and verbally abused the other in anger during their occasional arguments prior to separation.[52] In all probability, both parties conducted themselves at times during the marriage in a manner which amounted to “family violence” (s 4AB). As for the father, the evidence was insufficiently strong to make any finding other than that it was occasional and consistent with the description of “low level conflict instigated family violence” used by the Family Consultant.[53] By the end of the trial, the mother did not seek any finding about family violence which was any more serious.
[51] Family Report, paras 25, 37
[52] Family Report, paras 25, 37, 116
[53] Family Report, paras 131-133

The parties’ past conflict was, of course, relevant to the question of whether the presumption of equal shared parental responsibility still applies (s 61DA(2)(b)), but the mother did not seek to use any finding about family violence to limit the time spent by the children with the father. She could not logically do so because, in September 2016, before these proceedings started, she agreed to a parenting plan under which the children would spend substantial unsupervised time with him.[54] The parenting plan was apparently prepared by the mother’s solicitors on her instructions. She must have been cognisant of the violence which she alleged occurred during their marriage at the time she struck that agreement and she would not have agreed to that regime if she believed the children were at tangible risk of harm through exposure to family violence committed by the father. In cross-examination she said she agreed to the parenting plan even though she did not believe it was reflective of the children’s best interests, but her evidence in that regard was probably false.
[54] Exhibit F1
Given the mild level of family violence, the historical context of its confinement to the parties’ cohabitation (which ended by June 2016 at latest), and the mother’s voluntary entry into the parenting plan (in September 2016) under which she did not require any supervision of the children with the father, the evidence did not establish there is any need to protect them against any risk of harm from their exposure to family violence committed by him. The mother’s counsel acknowledged the correctness of that finding in final submissions.
Child physical abuse
In final submissions the mother’s counsel conceded, on express instructions, the evidence did not permit any finding that the children are exposed to any material risk of harm by their subjection to physical abuse by the father or Ms D.
The mother had alleged it,[55] but the father and Ms D denied it.[56]
[55] Family Report, paras 31, 61, 62, 63, 64, 69
[56] Family Report, paras 38, 83
Both parties used an implement to administer corporal punishment to the children in the past.[57] An injunction will now be made to forbid it.
[57] Family Report, paras 142, 184, 210, 216
Child sexual abuse
In final submissions the mother’s counsel conceded, on express instructions, the evidence did not permit any finding that the children are exposed to any material risk of harm by their subjection to sexual abuse by the father.
The mother alleged the father might have sexually abused the eldest child and the fourth child, though her evidence of it was spuriously scant.[58] The father denied it[59] and the Family Consultant saw no sign of it.[60]
[58] Family Report, paras 31, 64
[59] Family Report, para 38
[60] Family Report, para 211
The mother also alleged the father (and presumably Ms D) posed a “moral risk” to the children and, furthermore, they exposed them to their sexual activity.[61] It is possible the eldest child and the third child each once saw them kissing,[62] but the eldest child’s alleged report to the mother he knew the father and Ms D were engaged in sexual relations while present in the family home with the children was probably false.[63]
[61] Family Report, para 31
[62] Family Report, para 145; Mother’s affidavit, para 66
[63] Mother’s affidavit, para 65
Neglect
The mother alleged in cross-examination the children might be neglected by the father and Ms D if they engage in sexual relations and fail to adequately supervise them. No more need be said about her histrionic fear, given her final concession that the evidence failed to demonstrate the children are at any material risk of harm for any reason in the father’s care.
Child psychological abuse (by the father)
The mother alleged the father and Ms D “verbally and psychologically abused” one or more of the children,[64] but the father and Ms D denied it.[65] Ms D admitted in cross-examination she occasionally referred to the children as “little shits”, but only in a comical sense, which fun was understood by the children. Otherwise, the issue was abandoned by the mother.
[64] Family Report, paras 31, 61, 69
[65] Family Report, paras 50, 83
Child psychological abuse (by the mother)
As already mentioned, s 60CC(2)(b) directs attention to the need to protect the children against (relevantly) psychological harm they may suffer from subjection to abuse, for which purpose “abuse” is defined (s 4(1)). The definition of abuse includes conduct which causes a child to suffer “serious psychological harm”, howsoever it arises. It is irrelevant whether the harm is caused deliberately or inadvertently.
For the father, the central tenet of the litigation was the mother’s alignment of the children against him. Despite her denial, the evidence of her alignment of the children was overwhelming and, as the Family Consultant remarked in cross-examination, it does not matter whether the alignment is direct (deliberate) or indirect (inadvertent) because the effects upon the children are identical.
The mother’s claim in cross-examination that she has never “defamed” the father to the children is rejected as false. The following evidence is accepted as true and correct:
(a)The mother involved the children in the parental conflict by telling them the father was contesting their residence with her, just as the eldest child reported to the Family Consultant.[66] She admitted she told the children she would be “devastated if [she] lost them”.[67] That must have caused them to feel as though they must side with her to avoid her devastation.
(b)The mother involved the children in the parental conflict by telling the father, in their presence, they do not like him and do not wish to spend time with him, which must have signalled to the children she was instructing them to reject the father.[68]
(c)The mother, by her words and conduct, reinforced in the children a belief the father “cheated” on her and chose his relationship with Ms D in preference to his relationships with them.[69] The mother said such things to the father in the children’s presence[70] and they have questioned him about cheating on her.[71]
(d)The mother told the children the father broke into their home, as the two eldest children separately reported to the Family Consultant.[72] She must have done so to induce fear about their safety and security.
(e)The mother told the children the father “looks at porn”, as the eldest child reported to the Family Consultant.[73]
(f)The mother told the children the father vomited because he was “so drunk”, as the eldest child reported to the Family Consultant.[74]
(g)The mother, by her words and conduct, reinforced in the children a belief the father is a liar.[75]
(h)The mother and maternal grandmother have often referred critically to the father in the children’s presence, calling him as a “dickhead”, disparaging his relationship with Ms D, and discussing the children’s supposed rejection of him.[76]
(i)The mother has openly said, in the presence of the children and other adults, she will not let the children “be a part” of the father’s ongoing relationship with Ms D.[77]
[66] Family Report, para 155
[67] Family Report, para 78
[68] Father’s affidavit, para 20
[69] Family Report, paras 151, 162, 182
[70] Father’s affidavit, paras 20(a), 20(d)
[71] Father’s affidavit, para 71(b)
[72] Family Report, paras 147, 160
[73] Family Report, para 153
[74] Family Report, para 154
[75] Family Report, paras 178, 189
[76] Affidavit of Ms E, para 9
[77] Affidavit of Ms E, para 11
The eldest child independently established secretive electronic contact with the father in April 2018,[78] but the father said in cross-examination their regular communication stopped suddenly on or about 2 July 2018. The contemporaneity of the mother’s service with his trial affidavit, in which he deposed to the ongoing communication, and the eldest child’s severance of the communication strongly implies the mother forced the eldest child to shut it down once she became aware of it.
[78] Father’s affidavit, paras 100-107
The mother said in cross-examination she had never caused the children to feel “caught in the middle” of the parental conflict, but she clearly has. Due to the children’s constant exposure to the denigration of the father by both her and members of the maternal family, they now believe their family is cleaved in two and comprises opposing teams. The children perceive they, the mother, and the maternal grandparents comprise one team and the father and Ms D comprise the other.[79] The schism is so pronounced that the second child feels the mother would regard him as a traitor even if he merely expressed his affection for the father and Ms D and his desire to spend some time with them.[80] The other children at least know the mother would be “cross” if they spent time with the father.[81] The Family Consultant opined that at least the four eldest children present as “aligned children”,[82] to which opinion she adhered.
[79] Family Report, paras 150, 165, 180, 189
[80] Family Report, paras 164, 166, 189
[81] Family Report, paras 183, 189
[82] Family Report, para 219
The Family Consultant said, and I accept, the children are under enormous psychological pressure to reject the father, which is induced by the expectation of the mother and maternal grandparents that they do so.[83] Such expectation is confounding for them because they love the father and wish to maintain their relationships with him. As the Family Consultant explained, the children may sustain psychological damage having to manage such stress by involuntarily submitting to the maternal family’s expectations. They may then feel they are to blame for the father’s elimination from their lives, which is damaging to their self-esteem and may cause psychological ill-health in the form of anxiety and depression. It may deleteriously affect their formation of adult relationships throughout the remainder of their lives.[84]
[83] Family Report, para 209
[84] Family Report, paras 214, 218, 229
The situation is so bad that, at least in respect of the second child, he now feels the need to parent the mother by managing her emotional state.[85] He said the mother “often talks to him about her feelings”, which the mother partially confirmed in cross-examination. She said “I do talk to my children about my feelings”, but she denied discussing feeling betrayed by the father. When a child feels responsible to regulate a parent’s emotions, as the second child does, the parent/child dynamic is completely reversed and the child’s emotional burden is compounded.
[85] Family Report, paras 162, 217
Although the children may bear some independent resentment about the father’s formation of a romantic relationship with Ms D,[86] their own resentment and the mother’s alignment can co-exist as causative factors in their estrangement from the father. The two factors are not mutually exclusive. Most probably, the deterioration of the children’s relationships with the father was principally caused by the mother’s alignment, but their alignment was easier for her to achieve because the children could fix upon the father’s relationship with Ms D as the reason to justify it.
[86] Family Report, para 223
The Family Consultant said, and I accept, if the mother has aligned the children against the father to satisfy her own emotional needs rather than to protect them from any risk of harm then her behaviour amounts to “significant psychological abuse”.[87] Although the terminology is slightly different, it is analogous to and sufficiently synonymous with the “serious psychological harm” necessary to constitute “abuse”.
[87] Family Report, paras 216, 218
The evidence does not permit any reasonable inference the mother was acting protectively of the children to avoid their exposure to risks of harm posed by the father, since there are no credible risks of harm posed by him. The more probable inference is she was driving a wedge between the children and the father (and Ms D) as reprisal for their betrayal of her. In those circumstances, she was probably subordinating the children’s best interests (in maintaining loving relationships with both parents) to her own interests (in exacting revenge for her humiliation at the father’s infidelity with her niece).
Given those conclusions, the children do need protection from the “abuse” to which they are subjected by the mother, in the form of her alignment of them against the father, which has caused and is liable to continue causing them serious psychological harm. The real question is what remedy will afford the children the protection they need? Will the immediate introduction of an expansive program of interaction with the father suffice (as the mother ultimately proposed) or is it necessary to take the more drastic step of reversing their residence (as the father proposed)?

Section 60CC(3)

Few, if any, of the additional considerations under s 60CC(3) of the Act were eventually addressed by the parties and Independent Children’s Lawyer as material, aside from the likely effect upon the children of the reversal of their residence (s 60CC(3)(d)). Nobody sought to minimise the emotional upheaval such a move would cause for the children. The dispute was about whether such upheaval was necessary. The mother contended it was not, whereas the father and Independent Children’s Lawyer both contended the short-term distress for the children caused by such a change was necessary to avert the long-term emotional damage they would likely sustain if they remain living with the mother. While the father proved the risk of the children’s psychological harm if they remain living with the mother, there were several features of the evidence which favoured the mother’s retention of the children’s residence.
Reversal of the children’s residence would, indeed, cause the children to suffer substantial distress. The mother has always been their primary carer. They have lived with her since the parties’ separation and, for the last 18 months, they have only seen the father for a couple of hours each fortnight under professional supervision, mainly in a contact centre. At this point, the alignment process has not irreparably damaged the children’s relationships with the father, though it seems a near thing for the eldest child.[88] He has professed a willingness to run away if ordered to live with the father,[89] though that may have been mere bravado.
[88] Family Report, paras 148, 220
[89] Family Report, para 155
The parties agreed it would be disadvantageous for the children if they are moved to live with the father, only for one or more of the older children run away back to the mother, because that would split the siblings. The split could not be solved without further litigation – either to restore the runaways to the father’s care or to revise the orders and return all children to the mother. The Family Consultant said in cross-examination that the “last thing” the siblings need is to be split up. The chance one or more of the older children might abscond back to the mother cannot be discounted because it would be relatively easy, since the parties live in relatively close proximity.[90]
[90] Family Report, para 6
The Family Consultant said in cross-examination the father and Ms D were “quite naïve” about the effect of their relationship on the maternal family and the complications involved in reversing the children’s residence, which seems a fair characterisation of the situation. The biological connection between the mother and Ms D within the maternal family and the age difference between the father and Ms D were facts he was content to ignore when he allowed their relationship to develop, but the existence of their relationship is a fact the maternal family must now accept.
The father works full-time and he will need to depend upon Ms D to help care for the children if they live primarily with him. No amount of flexibility in his work hours will avoid the need for his reliance upon Ms D. She is still very young, has very little experience as the carer of young children, and is battling to overcome her own emotional disturbance due to her adverse childhood experiences.[91] She is still medicated for depressive symptoms and is apparently in need of therapy, which she has not yet started. On any fair view of it, her resilience would be sorely tested and she would struggle to assimilate five children into the household she shares with the father. The father said he also expects some support from the paternal grandmother, but she still lives in Region F several hours drive away.
[91] Family Report, para 81
The father agreed in cross-examination that the children’s expenditure of substantial time with him might give them sufficient time and space to adequately repair their relationships, without the need for the children’s residence to be reversed. He agreed that if the restoration of his loving relationships with the children under a regime of regular, lengthy visits was feasible, he would be satisfied with that outcome and the reversal of the children’s residence would not then be necessary.

Conclusions and orders

The presumption the parties should share parental responsibility for the children does not apply. There are reasonable grounds to believe the parties both engaged in family violence in the past (s 61DA(2)(b)) and they agreed they could not share parental responsibility (s 61DA(4)). They do not even now communicate directly.[92] They agreed the party who is designated as the primary residential carer should be vested with sole parental responsibility for the children, consistently with the Family Consultant’s advice.[93]
[92] Family Report, para 134
[93] Family Report, para 231
The evidence favouring the children’s residence with one party over the other is in a state of near equipoise. It marginally favours retention of the children’s residence with the mother because of her belated admission of the need for the children to spend extensive time with the father and her sworn promise to faithfully implement orders to that effect.
The Family Consultant recommended that, if it is found the children are not at unacceptable risk of harm in the father’s care (as is found) and the mother is psychologically abusing the children by aligning them to reject the father (as is found), then the children should live with the father.[94] However, the Family Consultant correctly acknowledged in cross-examination such a difficult decision is rarely clear-cut. She said words to the effect “there are problems with leaving them [with the mother] and problems with moving them [to the father]”.
[94] Family Report, para 237
Nevertheless, the Family Consultant seemed inclined to adhere to her original recommendation, subject to the antecedent findings of fact. Her recommendation is not rejected without reason. Significantly, it was made in the Family Report and, although embraced in cross-examination at trial, such evidence was given before the mother instructed her counsel to profoundly amend her application and make substantial evidentiary concessions in final submissions about her inability to prove the father poses any risk of harm to the children. The Family Consultant was not privy to the way in which the mother’s case progressively dissolved to the point of capitulation. The ultimate state of the evidence does not foreclose optimism the mother will finally relent and allow the children to enjoy their relationships with the father. The evidence did not warrant the finding she will probably continue to relentlessly alienate the children from him, though it remains possible.
The mother asserted, both in evidence-in-chief[95] and during cross-examination, she would comply with any orders imposed by the Court, regardless of their nature. She said she would force the children to spend time with the father, despite her misgivings about him, even if the children raise objection. Her sworn evidence to that effect should only be summarily rejected very cautiously. Neither the father nor the Independent Children’s Lawyer contended her evidence to that effect should be rejected as a lie. Rather, they asserted she would be unable to make good on her honest promise because of her unshakable belief in the risks of harm he poses to the children and her inability to abstain from her aligning behaviour.
[95] Mother’s affidavit, para 186

As the mother correctly asserted, she has complied with all past orders made in these proceedings. Although the father was understandably frustrated by the way in which she obstructed the professional supervisors during 2017, she did not breach any order. Of course, there is still a significant difference between a residential parent’s grudging compliance with orders and the genuine promotion of the children’s relationships with the non-residential parent. Children soon know when the residential parent pays only lip service to the desirability of their maintenance of healthy relationships with the non-residential parent. In the circumstances of this case, it is reasonable for the father to entertain concern the mother’s promise to adhere to any orders will not solve the underlying impasse over the children’s emotional need to have and maintain loving relationships with him, but there will inevitably be consequences if it does not.
If the mother does not fulfil her sworn promise to implement the orders made by the Court or if she continues her aligning behaviour so as to induce the children to resist compliance with the orders, it is likely fresh litigation will ensue – either to prosecute her contravention of the orders, to revise the parenting orders, or for both purposes. It hardly need be said, but in those circumstances there would be little option but to reverse the children’s residence because the mother would then have failed the test by which she asked to be judged in these proceedings. Orders which make provision for the children to live with her and spend substantial time with the father represent the opportunity for which she pleaded – to demonstrate she can now be trusted to comply with orders indefinitely, even though the orders may not reflect her genuine feelings about what is best for the children. If she cannot abide the orders, then the evidence tips the other way. The evidence would favour the children living with the father. He can cater satisfactorily to all of their emotional, physical, and intellectual needs and, most importantly, he will be able to ensure the children are able to enjoy and derive benefit from their meaningful relationships with both parents.
The next question to be addressed is the nature of the regime under which the children spend time with the father.
The children hate the supervision of their time with the father[96] so it should be dispensed with immediately, as the mother eventually conceded.
[96] Family Report, paras 72, 78
If the children remain living with the mother, the Family Consultant recommended the children should spend substantial time in the father’s care, which she quantified at five nights per fortnight, half of school holiday periods, and on other special occasions.[97] The mother’s final proposal was for four nights per fortnight, but five is better. More time will help dilute the alignment process which has prevailed for the past two years and the Family Consultant’s recommendation is more reliable than the mother’s. Although the issue was not addressed in evidence or argument, the orders require the children to spend five consecutive nights with the father each fortnight in school terms. Consolidation rather than fragmentation of the time spent by the children with the father will more likely help the consolidation of their relationships with him.
[97] Family Report, para 233
The mother agreed the alternate weekend time should comprise Sundays, so the children’s attendance with her at church each Sunday must not be so important.[98]
[98] Family Report, para 188
The orders require the parties to exchange the children either via their school or at the McDonalds Restaurant at Suburb B, NSW. That was the mother’s proposal.[99] The father’s alternate proposal to exchange the children at the parties’ homes[100] is rejected due to their past family violence. In the absence of any cross-examination or submission on the topic, a public venue is a superior option.
[99] Amended Response filed 31/5/18, Order 7
[100] Amended Initiating Application filed 24/5/18, Order 6
The parties both proposed continuity of telephone communication, albeit of different frequency. The differences between their proposals were not the subject of any evidence or submission, which must mean the differences are not significant. The orders require the mother to give the children and father privacy during such communication, because she has not done so in the past.[101]
[101] Family Report, para 129; Father’s affidavit, para 71
An order is made restraining the mother from allowing the children to continue their current therapy because, as the Family Consultant suggested, it may be actually doing more harm than good by reinforcing their alignment with her.[102] The mother can exercise her exclusive parental responsibility by sending the children to some other therapist, but the orders require her to notify the father of any new therapist and to authorise the therapist’s consultation with the father about the children. That will ensure any new therapist is given a balanced history about the children so the need for their treatment cannot be misconstrued.
[102] Family Report, para 222
The mother sought a raft of other orders which were not the subject of any evidence or submission.[103] When broached in final submissions, her application for those orders was not withdrawn but it was conceded no submission could be made to support such orders being made.
[103] Amended Response filed 31/5/18, Orders 12-19
The mother said in cross-examination she would like injunctions made to restrain the father from allowing the children to have any contact with either Ms D or the paternal grandmother, though she did not make any formal application for such injunctions and that evidence was given before she profoundly changed her proposal about the way in which the children should spend time with the father. No such injunctions are made. There was no proper basis for them.
The orders require the children’s immediate production to the Independent Children’s Lawyer and Family Consultant for an unbiased explanation of the orders and, to the extent considered appropriate with their individual maturity, the reasons given for the orders. The Independent Children’s Lawyer and Family Consultant both agreed to participate in that process.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 24 August 2018.

Associate:

Date: 24 August 2018

[2018] FamCA 640

24 August 2018

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