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These proceedings started as a contest about preservation of the children’s safety from sexual abuse by the father but finished as a contest about something completely different. The principal issue to emerge from the evidence was the ability of the children to maintain their filial relationships with the father if they remained living with the mother.Introduction

The father contended the mother’s conduct exerted so much pressure upon the children they were induced to reject him and resist any interaction with him. The eldest child had already completely rejected the father and the youngest child was showing similar signs, although the cause of that rejection was the subject of contentious debate.

The mother contended she supported the children’s relationships with the father and their individual rejection of him, or their resistance to interaction with him, was due to their own adverse experiences with him and was unrelated to her conduct.

The evidence comfortably supported the father’s case and contradicted the mother’s. The real problem was how to remedy the situation.

Short history

The parties separated during 2007, but remained living in the same household until November 2007, when the father vacated the home and moved into rental accommodation. From that point in time the children have always lived with the mother.

For more than the next three years the children only regularly spent time with the father on Sundays. They intermittently spent additional time with him at his request, but only on condition it occurred at the mother’s home or under her supervision. The mother implied in her evidence that the father only ever sought to spend time with the children for several hours each Sunday, but in reality it was the only time she would allow. She would not permit the children to spend time with the father overnight, nor otherwise outside her control. Nonetheless, that situation was consensual, because the father acquiesced to the mother’s terms for several years.

In April 2011 the eldest child complained to the mother about the father’s treatment of her which led the mother to infer the child may have been sexually abused by the father. As a consequence, the mother severed all of the children’s interaction with the father.

The father objected and consulted a solicitor, but no proceedings were commenced at that time. A mediation conference was arranged for December 2011, but no agreement was reached. The father commenced these proceedings in April 2012.

Despite the commencement of proceedings, the mother stoutly refused to allow the children any interaction with the father. Her Response filed in June 2012 proposed the father’s elimination from the children’s lives on both an interim and permanent basis. That situation prevailed until 15 November 2012, when the Court made interim orders with the parties’ consent providing for the children to live with the mother and for the two youngest children to spend time with the father each Sunday under the supervision of the father’s partner. Because of the strained relationship between the eldest child and the father, the orders provided for them to participate in counselling and for them to spend time together at the eldest child’s discretion.

Those orders were implemented unexceptionally for about six months until May 2013 when the proceedings were transferred by the Federal Circuit Court to this Court.

The father’s partner continued to supervise the visits of the two youngest children with the father until September 2013, but she ceased that role because of her recent separation from the father and her move away.

The mother refused to allow the children to continue spending time with the father in the absence of the supervisor designated by the Court orders made in November 2012. The children did not therefore spend any time with the father until fresh orders were made on 4 December 2013, again with the parties’ consent, appointing the paternal grandmother as supervisor in substitution for the father’s former partner.

Those amended orders were only successfully implemented on a couple of occasions, after which the mother stopped the two youngest children from spending time with the father, allegedly due to the youngest child’s anxiety.

The proceedings were fixed for final hearing before the Court in March 2014, but were not reached because of lack of priority and were instead adjourned until May 2014.

Since March 2014 the middle child has resumed spending time with the father, but the youngest child has not.

Proposal of father

The father pressed for the orders set out within his Further Amended Application filed on 19 December 2013.

His proposal differentiated the eldest child from the two youngest children.

In respect of the eldest child, he proposed that she live with the mother and spend time with him as and when she desired. He proposed that the parties have equal shared parental responsibility for that child.

His proposal in respect of the two youngest children was an alternative one.

Principally, he proposed that the two youngest children live with him and spend substantial amounts of time with the mother, but that he have sole parental responsibility for them.

Alternatively, he proposed that the two youngest children remain living with the mother and spend substantial amounts of time with him, but in that situation he proposed the parties have equal shared parental responsibility for them.

Proposal of mother

The mother’s proposal for the eldest child was identical to the father’s.

However, the mother’s proposal has recently changed markedly in respect of the two youngest children.

In November 2013, when she discussed the matter with the Family Consultant, the mother was quite unclear about the orders she proposed concerning the expenditure of time by the two youngest children with the father. She implied they should make up their own minds once they were aged 15 years, or even older in respect of the youngest child, and that they should be supervised when with the father until then.

In March 2014, when a Case Outline was filed by her lawyers just in advance of the first trial date, the mother’s proposal was for the two youngest children to spend substantial amounts of time with the father under a rapidly expanding regime, culminating in alternate weekends and portions of school holidays. She proposed supervision be imposed on those visits for only the first three months.

In May 2014, when the trial finally began, the mother’s counsel informed the Court she had insufficient instructions to formulate the mother’s final proposal. Eventually, a handwritten summary of the mother’s proposal was tendered as an exhibit, but it was far from comprehensive.

The mother’s final proposal was for the middle child to spend substantial amounts of time with the father after two shorter introductory visits. The substantial time incorporated alternate weekends (Saturday mornings until Sunday afternoons) and half of school holiday periods.

The mother proposed that the youngest child spend time with the father in accordance with the recommendations of his current psychologist, but that by six months hence, that child spend the same amount of time with the father as the middle child regardless.

Although not divulged in the exhibit, the mother proposed that she and the father have equal shared parental responsibility for the two youngest children.

Proposal of independent children’s lawyer

The Independent Children’s Lawyer did not reveal his parenting proposal until the commencement of final submissions, when a minute of proposed orders was tendered.

His proposal in respect of the eldest child was exactly the same as the parties’ proposal for her.

In respect of the two youngest children, the Independent Children’s Lawyer proposed that they continue to live with the mother, but commence to spend substantial amounts of time with the father after two short introductory visits.

That proposal was, however, the subject of a self-executing default mechanism. In the event of any non-compliance with the orders requiring the two youngest children to spend time with the father over the next 12 months, the orders require immediate reversal of the children’s residence so that they then live with the father instead. In that event, there would be an embargo upon the children’s interaction with the mother for three months, before they begin spending substantial amounts of time with her.

Irrespective of whether the two youngest children lived with the mother or with the father, the Independent Children’s Lawyer proposed that the parties have equal shared parental responsibility for them.

The evidence

The father relied upon:

His two affidavits filed on 3 February 2014 and 2 May 2014; and

The affidavit of the paternal grandmother filed on 31 January 2014.

The mother relied upon:

Her affidavit filed on 31 January 2014; and

The affidavit of the maternal grandmother filed on 4 February 2014.

The parties and the Independent Children Lawyer also relied upon the three Family Reports dated 25 August 2012, 1 November 2012, and 10 November 2013. The Family Consultant was cross-examined. She was challenged about, but firmly rejected, the suggestion of her loss of objectivity and her bias against the mother. The evidence of the Family Consultant was credible and is generally accepted as reliable since she logically explained and defended her opinions.

Legal principles

Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

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 with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (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 major long-term issues (s 65DAE).

However, 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 best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.

In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, 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 the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

Best interests of children – primary considerations

Section 60CC(2)(a)

The children undoubtedly all have meaningful relationships with the mother, from which they each derive much benefit. The integrity of those relationships must be preserved. It was not suggested otherwise.

Conversely, there was considerable debate about the nature of the children’s relationships with the father and the benefit they individually derive from those relationships.

Initially, it is important to note the mother’s acknowledgement of the existence of meaningful relationships between the children and the father. It was contended on the mother’s behalf in a Case Outline filed for her:

[The children] do not appear to have a close parent-child relationship [with the father], but do have a meaningful relationship (sic)

The scope of the parties’ dispute was therefore confined to the extent of the benefit each child derives from his or her filial relationship with the father.

As individuals, the children each have different relationships with the father and so it is desirable to deal with them individually. That is particularly so since both parties and the Independent Children’s Lawyer proposed orders which differentiated the eldest child from the two youngest children.

The eldest child has not spent any time or communicated with the father since April 2011. Although the interim orders made in November 2012 enabled her to spend time with the father at her election, she has never chosen to do so. The counselling in which she and the father participated pursuant to interim orders was conducted individually rather than jointly and did not achieve their reconciliation. There is no basis to conclude the eldest child currently derives any benefit from her dormant filial relationship with the father. It is to be hoped their relationship can be revived in time, but that is unlikely to occur in the short to mid-term. It was uncontentious that any future interaction between the eldest child and the father should be at the discretion of the eldest child.

The two youngest children retain much closer relationships with the father than the eldest child.

In July 2011, by which time the children had been deprived of any contact with the father for several months, the youngest child escaped from the mother’s home in an attempt to walk to the father’s house along busy arterial roads. At that time the youngest child was only seven years of age. His determination to re-establish contact with the father by striking out on his own is a measure of the strength of the bond between them.

When the two youngest children were re-introduced to the father under the observation of the Family Consultant in August 2012 they had not seen the father for the preceding 16 months and were understandably quite apprehensive. The father re-assured them he was not angry with them, but rather loved and missed them, by which they were evidently relieved. They responded by clinging to his neck for several minutes crying and then sat chatting easily to him with wide smiles.

The two youngest children resumed their regular interaction with the father pursuant to the interim orders made in November 2012, which arrangement continued until September 2013. When the children saw the father again in the company of the Family Consultant in early November 2013 they had not seen him for about the preceding two months. On that occasion the meeting between them was much cooler. They sat apart and their conversation was stilted. The father did not eagerly engage with the children, who were polite to him but not effusive.

The children began supervised visits with the father again from December 2013, but only a couple of visits occurred before the arrangements broke down. The mother contended the youngest child was very anxious about spending time with the father and so she did not allow either of the two youngest children to spend time with him. Significantly, aside from a nightmare about the family suffered by the youngest child in January 2014, the evidence is silent about the occurrence of any frank incident that might logically account for why the youngest child’s anxiety regarding the father developed so swiftly in the short period after September 2013.

The middle child’s supervised visits with the father resumed in March 2014, but the youngest child’s did not. The youngest child continues to attend a psychologist for therapy in relation to his anxiety. The father is aware of the youngest child’s apparent resistance to spend time with him and has not forced the mother’s compliance with the existing interim orders.

The youngest child’s anxiety is troublesome because it adds a layer of complexity to his existing problems. He was diagnosed as falling at some ill-defined point along the autism spectrum and he is described as having “severe receptive, expressive, and articulation language disorder”, for which he consults with a speech pathologist and an occupational therapist. Until he began consulting with a psychologist over his anxiety in early 2014 he was not under the regular care of any paediatrician, psychiatrist, or psychologist.

Even though the youngest child’s relationship with the father began deteriorating in the months following the cessation of their regular visits in September 2013, the evidence does not warrant findings that their relationship has deteriorated to the point that it is unsalvageable or that the child derives no benefit from it. Efforts should be made to rejuvenate their relationship and restore it to the healthy filial relationship it once was.

As for the middle child, I accept the evidence of both the father and paternal grandmother that she continues to enjoy her visits with the father. She clearly derives benefit from her relationship with him, which is a fact of considerable significance in the face of overt and covert pressure within the mother’s household for her to reject the father. Her older sibling defiantly rejects the father, her younger sibling exhibits a burgeoning resistance to him, and whether rightly or wrongly, all of the children clearly perceive the mother dislikes them maintaining their relationships with him. It would have been easier for the middle child to capitulate to that pressure and abandon the father, but she has not. Efforts should be made to insulate her relationship with the father from such corrosive elements. Foolishly, the mother airily dismissed the suggestion that the middle child was under any pressure at all.

If the mother’s statements to both the Family Consultant and in evidence are to be accepted as truthful, she actually desires for the children to have and derive benefit from meaningful relationships with the father. The mother made clear to the Family Consultant in November 2013 that she wanted the two youngest children to have relationships with the father. When giving evidence during the hearing the mother sternly rejected any suggestion she was unsupportive of the children’s relationships with the father. She made statements to the following effect:

Quite the opposite

I would love there to be unsupervised time

I wish more than anything that the children could have relationships with [the father]

Regrettably, the mother’s conduct did not match her sentiments and such incongruence is the subject of further discussion as an additional consideration under s 60CC(3) of the Act. Nevertheless, on the face of the evidence, both parties agreed it was vitally important for the two youngest children to retain their meaningful relationships with the father.

Section 60CC(2)(b)

These proceedings were instituted for no reason other than the mother’s decision to terminate the children’s interaction with the father following her inference of the father’s possible sexual abuse of the eldest child in April 2011. That event changed the complexion of the consensual family relationships which had been in place for several years since November 2007.

The issue of sexual abuse was therefore pre-eminent in the proceedings – at least until the first day of final hearing in May 2014, when it ceased to be so.

The mother filed her one and only Response in the proceedings in June 2012. At that time she proposed the permanent elimination of the father from the children’s lives, ostensibly because she regarded him as a sexual danger to the children.

Before transferring the proceedings to this Court nearly a year later in May 2013, the Federal Circuit Court noted:

The matter is a complex matter…the mother maintains her position that the eldest child has been sexually abused by the father and is seeking orders that the father have contact with the children for identification purposes only.

When the matter was fixed for final hearing before this Court in December 2013 it was noted:

The mother informs the Court that she is not seeking a positive factual finding that the father sexually abused the eldest child but rather that he poses an unacceptable risk of sexual abuse to the children…

At the commencement of the final hearing in May 2014 the mother’s counsel announced she no longer sought any positive findings about either the father’s past sexual abuse of the eldest child or his presentation of any unacceptable risk of sexual abuse to any of the children. The mother’s concessions were not merely forensic sophistry, but were rather said to reflect her genuine change of opinion. During the hearing it was asserted on her behalf, and she later confirmed during cross-examination, that she now positively believes the father did not sexually abuse the eldest child and does not believe he constitutes a risk of sexual abuse to any of the children.

In light of the available evidence, those concessions were properly, albeit belatedly, made. As would be obvious, the mother’s concessions completely re-cast the nature of the litigation and now render it entirely unnecessary to discuss the evidence that related to the incident between the eldest child and the father in April 2011.

Neither party made any other allegation of “abuse”, “family violence”, or “neglect” from which the children are in need of protection in order to preserve their physical or psychological health.

Best interests of children – additional considerations

With the disappearance of the sexual abuse allegation as an issue in the proceedings, the issue that instead rose to prominence was the mother’s capacity to recognise and accommodate the children’s emotional need to maintain their formerly strong and meaningful relationships with the father.

It can be frankly acknowledged the mother has born principal responsibility for the children’s care and has done a fine job catering to their physical, medical, and educational needs. The target of the father’s grievance was her asserted incapacity to provide for their emotional needs.

Up until April 2011, each of the children had happy and loving relationships with the father. The rupture of their relationships with the father at that time resulted from the mother’s allegation that he sexually abused the eldest child, even though that allegation was never actually made by the eldest child. It was never alleged by the eldest child she was touched directly on the genitals by the father, either deliberately or accidentally. Nonetheless, during these proceedings the mother baldly asserted sexual abuse of that nature had occurred or was liable to occur until literally the last days of the litigation, when she instead described the father’s tickling of the eldest child’s inner thighs as “just being silly. It was a silly game”. It was quite incredible the family was submitted, at the mother’s behest, to more than three years of conflict and animosity over an incident she was finally prepared to admit was nothing more than silliness.

Since it is now recognised the father’s conduct towards the eldest child was not sexually abusive and, at worst, only a clumsy transgression of age-appropriate boundaries for an adolescent daughter, the question arises as to why the eldest child’s relationship with the father completely collapsed. The more recent phenomenon of the differential deterioration of the two youngest children’s relationships with the father only heightened the intrigue.

The Family Consultant opined at the time of her first involvement with the family in August 2012 that:

…whilst ever the mother was able to control the father’s limited time with the children she was able to treat the father in a kind and inclusive manner but as soon as he tried to control his own time frames with the children the mother became immediately threatened and withdrew the children from him. She then began to regard the father as a risk to the children.

…the children have become aligned with the mother to reject the father over the last sixteen months but as indicated in the research children of [the two youngest children’s] age are usually unable to directly reject the parent when they are away from the mother’s gaze. [The eldest child] is of an age however where research indicates young people can become entrenched in the rejection of one parent particularly if they feel psychologically stressed by having love and affection for that parent living within the aligning parent’s household.

The Family Consultant’s opinion did not change. During cross-examination she said that, if anything, her views about the mother’s alignment of the children against the father had only “firmed up”.

The Family Consultant’s opinion corroborated the father’s belief the mother’s conduct tended to eliminate him from, or marginalise him in, the children’s lives. There was an abundance of evidence to inferentially vindicate the Family Consultant’s opinion and the father’s belief, both of which I accept as correct.

Under the mother’s stewardship, the children’s relationships with the father have been in decline for some years. The father has increasingly become less important in their collective lives.

That trend is most obvious from the manner in which the children address the father and the mother’s husband. It should be remembered the parties ceased to live in the same family home in November 2007. By early 2008 the mother was in a relationship with, and pregnant to, her current husband, Mr K.

For some years the children have referred to Mr K as “Dad” and to the father by his first name “…”. When asked about the probity of that practice, the mother replied “he [the father] wasn’t a Dad”. That answer, and the vicious manner in which it was expressed, demonstrated the mother was motivated to substitute her husband for the father in the children’s lives because of her perception he was better equipped than the father to fulfil the paternal role in their lives.

The two youngest children explained they ceased to call the father by the name “Dad” as a response to him calling the mother a “control freak”, suggesting they thought the father forfeited the privilege of being called “Dad” due to misconduct. The father may well have referred to the mother in such derogatory terms in the children’s presence, but it is difficult to imagine children their age would have voluntarily responded in the manner they did to punish the father. It is much more likely they responded to the mother’s express or implied invitation to refer to the father differently, because the mother saw no problem with it. The children also now call the paternal grandmother by her first name “…” instead of the term of endearment “Nanny”.

The mother told the Family Consultant the children began calling the father by his first name instead of “Dad” in about January 2011. However, in cross-examination she said that practice did not start until April 2011, after the incident between the father and eldest child, because the children “didn’t want to be related to [the father] after he did what he did”. The mother’s explanation is informative on two levels. Firstly, it is now uncontroversial the event in April 2011 was inconsequential, so it is an unsatisfactory explanation for any change of attitude by the children towards the father. Secondly, the two youngest children must have been told the father committed some act of serious impropriety if they then evinced to the mother an attitude of no longer wanting to even have any paternal biological connection to the father.

The mother was impelled to admit in cross-examination that “Dad” and “Mum” are very special words reserved to mark special relationships between a child and his or her parents. She was also forced to concede she would be irritated if the children addressed her by her first name instead of the name “Mum”. Nevertheless, she remained unrepentant about the manner in which the children address her husband and the father.

The youngest child’s school records reveal the mother informed his school in January 2012 she would like him to be known at school by the surname “[K]”. The mother also told the children she would change their surnames from “[Flacks]” to “[K]” once she and her husband were married in 2013. The children are all now often referred to by the surname “[K]” at school, and even the children now write their surnames as “[K]” on their school books. The mother said in cross-examination the children had actually defied her express instruction to only use the surname “[Flacks]”, but I do not accept the truth of that evidence. If it was truthful, she has lost control of the children.

When the mother was challenged by the Family Consultant about how the children’s surname forms part of their identity, implying a change of their surname was not necessarily in their best interests, the mother’s solution was to hold a “family meeting” with her husband and the children to decide whether their collective proposal to the Court should be the children’s retention of the surname “[Flacks]” or the change of their surname to “[K]”. It was illuminating how the mother did not see fit to include the father in that “family” discussion, notwithstanding that only he and she have parental responsibility for the children and neither of them has greater power than the other in the exercise of that responsibility.

The Family Consultant considered the mother was “engaging in aligning behaviours” by overtly encouraging or tacitly permitting the children to change their surnames and to change the names by which they refer to her husband, the father, and the paternal grandmother. She also said it was of “real concern” the mother sought to “completely rid the children of the father and their identity with him and replace him with her partner”. I accept those opinions and concerns as valid.

The mother had no appreciation of the children’s need and desire to retain meaningful relationships with the father. She told the Family Consultant in August 2012 of her belief the children “do not want a relationship with the father” and she perceived they would be unhappy with her if she agreed to them spending even only supervised time with the father. In fact, the mother’s perception was completely wrong. The children, particularly the two youngest, wanted to resume seeing the father, even though they expected their desire was contrary to the mother’s wish.

The two youngest children told the Family Consultant they knew the mother would be “sad” if they began spending time with the father again. When the mother was informed, in the children’s presence, of their genuine desire to see the father they were anxious about her reaction to such news. The mother asked the children why they had “lied” to her, clearly displaying her lack of insight about the children’s apprehension of her reaction. The children were forced to explain how her demeanour caused their apprehension and they did not want to make her “sad”. It was therefore necessary for the Family Consultant to graphically explain to the mother how children often feel pressured to align themselves with one parent and reject the other in situations of parental conflict, and more specifically, how the mother’s conduct may have caused the children’s alignment with her in the present case.

Given the mother confronted the children about why they “lied” to her, she must then have known with certainty the children were prepared to make false statements to her when they felt the need. She could not therefore justify any of her past or future conduct on the basis of her reliance upon the literal truth of statements made to her by the children.

Despite such education in August 2012, the mother was unable to subsequently change the children’s perceptions about her feelings. In November 2013 the two youngest children still reported to the Family Consultant that the mother would be “sad” and “a little upset” if orders were made for them to begin spending time with the father, and further, the mother would be “really happy” or would not “really care” if they never saw the father again. Either the mother made no effort at all to change her attitude or the effort she made was futile. Nor had she developed any insight about the children’s conflicted loyalties to the parties. The mother still professed to the Family Consultant in November 2013 that the children were against any resumption of their visits with the father. The Family Consultant said in cross-examination the mother’s attitude only became “more cemented” than it had been before.

The mother’s alignment of the children is also exemplified by her informing the children about the existence of the litigation between the parties and certain aspects of it. She told the eldest child she would consult a lawyer about the problem between her and the father and, once the litigation was commenced, she informed the children when she needed to attend Court in relation to the litigation. The two youngest children were also aware of the allegation implicating the father in the sexual abuse of the eldest child. Even though it is now conceded the father did not touch the eldest child on the genitals, the two youngest children were both led to believe by the mother that he actually did, which belief they demonstrated to the Family Consultant by manipulating their fingers in their “genital area”. Despite her denial, I accept the mother even falsely told a general practitioner in January 2014, in the youngest child’s presence when consulting the doctor over that child’s anxiety, the father had been charged with “molesting [his] sister”.

The mother caused the two youngest children to be apprehensive about their interaction with the father. She gave the middle child a mobile telephone and instructed her to use it when visiting the father to summon her for help if there were any “problems” and to ensure they were “safe”, which could only have caused the children to believe they had some reason to be fearful of the father.

The manner in which the children were aligned with the mother caused them to make “a litany of negative reports about the father”, which were both preposterous and inconsistent with their warm physical interaction with him. Their complaints against the father were as superficial as him allowing rain to enter the house through an open window and ruin the television and him permitting them to watch a television program that the mother did not. Their complaints were also as bizarre as the father repeatedly forcibly shaving the hair from their heads, which grossly exaggerated a criticism the mother admitted she made about the father to the children.

The mother’s apparent disinterest in supporting the children’s relationships with the father is also illustrated by her resistance to the interim orders that have been made during the course of these proceedings.

When the parties conferred with the Family Consultant in August 2012 an agreement was brokered between them that all three children would immediately resume spending time with the father on a gradually escalating basis, which would culminate in them visiting the father each alternate weekend (from Friday afternoon until Sunday afternoon), with such visits to be supervised for the first 12 months by either the father’s partner or either paternal grandparent.

The mother alleged in cross-examination she only agreed to those terms because the Family Consultant threatened her that the children would be removed from her care if she did not, but I reject the mother’s allegation as spurious. Such a scandalous allegation was not put to the Family Consultant in cross-examination, as it should have been if the allegation was to be pursued. Most likely, the mother did not provide such explosive instructions to her lawyers and she spontaneously raised the allegation for the first time in her own cross-examination when she realised her credibility was under threat.

Notwithstanding the agreement reached between the parties in August 2012, none of the children resumed spending any time with the father – either supervised or unsupervised. It was not until the proceedings returned to Court in November 2012 that the mother consented to interim parenting orders, but the orders did not correlate with the agreement struck between the parties three months earlier. There were three significant changes: only the two youngest children resumed visits with the father, the visits were confined to only a few hours each Sunday, and the visits were required to be supervised by only the father’s partner.

Even though the mother knew the father and the eldest child reconciled their differences when they were with the Family Consultant in August 2012 and the eldest child was then willing to resume her visits with the father, her visits did not resume. The mother said in cross-examination she used her “very best efforts” to persuade the eldest child to begin spending time with the father, but alas, her very best efforts were not sufficient persuasion.

In September 2013, when the father’s partner ceased her supervision of the two youngest children’s visits with the father, the mother refused to allow either of the paternal grandparents to substitute for her as supervisor, despite the past agreement about their suitability. In fact, in cross-examination, the mother said she originally suggested the paternal grandparents as alternate supervisors. The mother’s suggestion in cross-examination that she was unaware she could agree upon alternate supervisors when the father’s partner withdrew was fatuous.

As a consequence of the mother’s intransigence, the two youngest children were prevented from visiting the father for three more months until the interim orders were amended by the Court in December 2013 replacing the father’s former partner with the paternal grandmother as the designated supervisor.

When the problem of supervision was rectified by the amendment of the orders in December 2013 another problem arose. The youngest child experienced a nightmare about the parties in mid January 2014, which induced an anxious reaction in him. There is some inconsistency between the evidence of the mother and maternal grandmother about when the nightmare actually occurred and the severity of the youngest child’s reaction to it, but it is uncontroversial the youngest child has not visited the father since then. The mother took steps to engage a psychologist for the child and the child has since attended for therapy on six or seven occasions, but there is precious little evidence about the child’s diagnosis and prognosis.

Even though only the youngest child was afflicted by anxiety, the mother decided to terminate the visits of both the two youngest children to the father. The mother said in cross-examination she thought the Court orders required both children to visit the father together, but I do not accept that evidence. It was conceded by the mother in final submissions there was no reasonable explanation for her failure to allow at least the middle child to continue her visits with the father in accordance with the existing interim orders.

That situation endured until the proceedings returned to Court on 10 March 2014 in expectation of commencement of the final hearing. Regrettably the hearing did not enjoy priority and was adjourned until May 2014. I accept that the parties agreed at Court in March 2014 for the two youngest children to resume their supervised visits with the father on an interim basis. I reject the mother’s assertion to the father, weeks later, they only agreed to the resumption of the middle child’s visits with him. The mother’s assertion was starkly discrepant from the final orders she proposed immediately in advance of the expected hearing in March 2014. The mother instructed her lawyers to file a Case Outline document proposing final orders which provided for the immediate re-introduction of visits by both the two youngest children to the father. The youngest child’s participation in psychological therapy, which was then already in place, did not dissuade the mother from proposing such definitive unconditional orders.

It is therefore bemusing the mother told the father some weeks later that the re-introduction of the youngest child’s visits with the father should be determined or influenced by the advice of the child’s psychologist, which was the position she then adopted up to and during the final hearing in May 2014.

The mother reneged on the agreement she struck with the father at Court in March 2014 over the two youngest children. Only the middle child resumed visits to the father. The mother’s breach of that agreement was indefensible, given the final orders she had proposed immediately in advance of the expected final hearing in March 2014.

I accept the father’s submission to the effect that the mother’s conduct has thwarted the resumption of the children’s visits with the father. She has been repeatedly recalcitrant. The stark incongruence between the mother’s evidence, which suggested she desired the children to have meaningful relationships with the father, and her conduct, which implied she did not, rationally admits of only two explanations. Either:

Her evidence was disingenuous, because she is really opposed to any viable relationships between the children and the father, but realised her position as residential parent was under serious threat and she needed to appear empathetic and reasonable; or

Her evidence was honest, but she lacks the insight to understand her conduct over a prolonged period has inadvertently caused serious rupture of the children’s relationships with the father.

It is unnecessary to make any definitive determination about which is the more likely explanation. That is because, either way, the result for the children is the same if they remain living with the mother. If her evidence was disingenuous then, upon completion of these proceedings, she will revert to her campaign to align the children against the father. On the other hand, if her evidence was honest, she does not have the insight to correct her past behaviour and the children’ relationships with the father will continue on the path of destruction.

The mother’s prevarication about the manner in which the two youngest children’s relationships with the father should be restored instils no confidence about her unconditional commitment to the restoration. The Family Consultant said in cross-examination she had no confidence the mother could support the children’s relationships with the father on a long-term basis.

Of course, while the mother’s capacity to provide for the children’s emotional needs became an important issue, it was not the only issue under consideration.

The mother was asked by the Family Consultant what the father would need to do to prove his parenting competence and instil sufficient confidence in her about the children’s safety in his care. The mother’s answer was that he would need to “get up to speed on the [youngest child’s] disabilities and his associated needs”. That was the principal theme of her criticism of the father throughout the hearing and the issue upon which the father was cross-examined almost exclusively by the mother.

The mother’s other criticisms of the father to the Family Consultant – not taking sufficient care of the children, requiring the children to undertake his household chores, not containing his anger, and disrespecting her and the maternal family – were not features of either the evidence or submissions at the hearing. They can therefore be safely disregarded as significant concerns, particularly when the mother’s husband revealed the mother had never raised any concerns with him about the father’s historical care of the children. The mother’s assertion to the Family Consultant that she was informed by the eldest child’s counsellor that her parenting capacity was “very high” whereas the father’s parenting capacity was “at gutter level” was just gratuitous criticism rather than an honest observation consistent with the evidence.

On the whole, the evidence did reveal the mother had a superior capacity to ensure the children’s physical needs were met. She was the one who always ensured the children’s medical needs were met. At least in respect of the youngest child, that entailed considerable effort on her part because his diagnosis with autism, speech deficits, and learning deficits added to the parenting load.

However, the mother seemed to erroneously reason that because she had a superior capacity to provide for the children’s physical, medical and educational needs, the father had no capacity at all to do so. The mother deposed to her opinion the father was “irresponsible”, and she said in cross-examination “he [the father] is a better man when someone is assisting him”, implying he was an inadequate parent without another adult to guide him. As the father correctly submitted, while his parenting capacity in physical respects may not be as well developed as the mother’s, he probably does have the capacity to meet those particular needs of the children to a satisfactory standard.

True it is he is untested as a parent beyond short periods, but that is due to the mother’s insistence over the years that the children not stay overnight with him. The mother said in cross-examination she would have allowed the children to stay overnight with the father if only she had been satisfied he had sufficient bedding for them. If her evidence was truthful, then she really had no concern about the father’s capacity to care for the children for longer periods. Her opposition to the children spending unsupervised time with him after the incident in April 2011 only reflected her concern about the risk of sexual abuse, not the father’s ability to meet the children’s physical needs.

I accept the Family Consultant’s opinion that the mother’s tight control over the level of interaction between the children and the father reflected only her desire to control the children, not to protect them from any neglect or safety risk created by the father. The mother’s behaviour bears out that opinion. The mother required the middle child to keep a diary of her experiences with the father for her to read. The mother also required the father and his former partner to provide her with a schedule for every visit made by the two youngest children to the father setting out their travel plans, venues for activities, types of activities, and meal ingredients. The mother admitted she did so, but said she did not thereby intend to be “bossy”. Even if it was not her intention, it was the fact.

No aspect of the evidence reasonably imputed the father is unable to adequately care for the children’s physical needs. If there was any doubt about that on account of his current full-time casual employment and the adequacy of his housing, that doubt was eradicated by the evidence of the father and the paternal grandmother. The father said he would terminate his employment so he could care for the children full-time and his current housemate and her child would vacate their rented residence, making room for the children, or he would secure alternate accommodation for them in the same locality. The paternal grandmother said she would live, either full-time or part-time, with the father and children for as long as necessary to establish a settled household. Importantly, the father proposed that the two youngest children would retain their current school placements even if they moved to live with him, so that aspect of their lives would remain stable if their residence changed.

As for medical needs, the father did confer with the youngest child’s speech pathologist several times in 2009 and 2010, he was aware of the youngest child’s diagnosis with autism in January 2011, he recently corresponded with the youngest child’s psychologist, and he asked the mother to execute medical authorities in March 2014 so he could independently solicit medical information about the children. The father offered to attend an appointment with the youngest child’s psychologist together with the mother but the mother did not respond to his message. It seems obvious enough the father allowed the mother to take principal responsibility for the children’s medical needs because he was satisfied she was handling it competently, but that does not mean he was disinterested.

Significantly, the youngest child presently receives no medical care outside of his school, apart from his occasional attendance upon the psychologist engaged for him by the mother in January 2014. He receives speech pathology and occupational therapy at school and parents are not present.

The mother criticised the father for his delay in completing an autism educational course, as required by interim orders made in November 2012, but her criticism was hypocritical. The mother was ordered to participate in a post-separation parenting program to educate her, but she has neither commenced nor completed that course after the elapse of some 18 months. She enrolled some time after consulting with the Family Consultant in November 2013, but has still not started the course. The mother was also ordered to accept counselling to “assist her coming to terms with the father being part of the children’s lives”, but she reported to the Family Consultant the therapist she consulted advised her she did not require any therapy and so the order was unfulfilled.

The mother also criticised the father about his irregular payment of child support and the accrual of arrears, but the evidence bore a different complexion than that implied by the mother. The father was not challenged about his evidence of paying $300 per week in child support for the last six years. Although arrears of up to $5,000 recently accrued, that eventuated because of the discrepancy between the forward estimates of the father’s wage, used by the Child Support Agency to calculate child support payments, and the father’s actual fluctuating casual wages. The father worked harder and earned more than predicted. The arrears are now reduced to about $3,300 and the father makes additional payments of $100 per week to diminish the arrears. He has always maintained regular payments whilst employed.

While the mother probably has a superior capacity to provide for the children’s physical needs, the father probably has a superior capacity to provide for the children’s emotional needs, the most important need of which is to have loving relationships with both parents.

The only other consideration of particular significance pursuant to s 60CC(3) of the Act was the children’s views. The parties accepted the expressed view of the eldest child was determinative of the orders relating to her. However, the two youngest children are aligned with the mother because of events over the last three years, which is unsurprising because children’s views are invariably vulnerable to the influence of adults who have control of them (see RCB v Forrest & Ors (2012) 247 CLR 304 at 323-324).

Conclusions and orders

The parties agreed they should have equal shared parental responsibility for the eldest child. It follows that they agree the presumption of equal shared parental responsibility was not rendered inapplicable by the evidence (s 61DA(2)), or alternatively, that the child’s best interests require the allocation of equal shared parental responsibility notwithstanding. The Independent Children’s Lawyer agreed. I accept the efficacy of their agreement.

As is the case with the eldest child, the presumption of equal shared parental responsibility for the two youngest children was not rendered inapplicable by the evidence (s 61DA(2)). I similarly accept the submission of the mother and Independent Children’s Lawyer that the parties should have equal shared parental responsibility for them, regardless of with whom they live. The father’s proposal for him to have sole parental responsibility for the two youngest children if orders were made for them to live with him was oddly dissonant with his proposal for the parties to have equal shared parental responsibility for the two youngest children if they lived with the mother.

Given that equal shared parental responsibility for all three children is allocated to their parents, the Act mandates consideration of orders that provide for them each to live with their parents for “equal time”, or alternatively, to live with one parent predominantly and to spend “substantial and significant time” with the other (s 65DAA).

Dealing firstly with the eldest child, an arrangement under which she would live with each parent for equal time is not in her best interests because it is flatly contradictory to her wish. She even refuses to spend substantial and significant time with the father. She is now 15 years of age and her view carries substantial weight. The parties recognise as much and accept the inevitability of the child deciding if and when she pursues her relationship with the father. Orders are made consistently with the parties’ agreement for the eldest child to live with the mother and to spend time and communicate with the father according to her own desire.

The situation with the two youngest children is quite different. Either expressly or inferentially, they both currently wish to remain resident with the mother, but they have differential views about the continuity of their relationships with the father. However, they do not yet have the maturity to understand the implications of their decision about with whom they should live and the amount of time they should spend with the non-residential parent so their views should not be decisive or even heavily influential.

The only primary consideration of current relevance in these proceedings is the need for the two youngest children to derive benefit from their meaningful relationships with the father (s 60CC(2)(a)). The mother’s inability or unwillingness to ensure that outcome carries more weight in the determination of these proceedings than her superior capacity to provide for the children’s physical needs (s 60CC(3)).

It is preferable for the two youngest children to live with the father. He will probably satisfactorily care for their physical, medical, and educational needs and he will probably ensure the children retain and derive benefit from their valuable relationships with the mother. It is well recognised that, apart from situations of abuse, children benefit from the development of good filial relationships with both parents. The right to know and be cared for by both parents is a principle underlying the objects of Part VII of the Act (see U v U (2002) 211 CLR 238 at 285-286; M v M (1988) 166 CLR 69 at 76). If the two youngest children remain living with the mother their relationships with the father will likely be destroyed.

The proposal by the Independent Children’s Lawyer for the two youngest children to live with the mother, but to immediately move to live with the father if the mother breaches the orders, implicitly recognises that the father is capable of caring for the children on a full-time basis, even if it would only happen by reason of the mother’s default. The Independent Children’s Lawyer submitted both parents had deficiencies and the choice between them as to the preferable residential parent was “finely balanced”. Self-executing orders of the type proposed by the Independent Children’s Lawyer are fraught with the possibility of future arguments about whether any contravention was beyond the control of the mother and the need for amendment of the parenting orders to prevent an unwarranted automatic reversal of residence. The mother has already admitted she cannot always control the children. She could not convince the eldest child to resume her visits with the father and she could not stop the children from using the surname “[K]” instead of “[Flacks]”. She may not be able to stop the two youngest children from resisting future visits with the father. Orders of the sort proposed by the Independent Children’s Lawyer would greatly increase the risk of further litigation involving the children, which should be avoided if at all possible.

The mother was dismissive of the children’s best interests possibly warranting their residence with the father. It was a mistake for her to be so, as it only added to the evidence of her lack of insight. The mother’s final proposal for the two youngest children to spend alternate weekends and half of school holidays in the father’s unsupervised care manifests her acknowledgement the father is capable of caring for the children over much longer periods than she has allowed him in the past. Orders like those finally proposed by the mother stand no better chance of compliance than those previously made in November 2012 and December 2013, which failed, so it would probably be a mistake to make similar orders again.

During final submissions, the mother conceded that orders of the type proposed by the Independent Children’s Lawyer would send her a “very, very clear message” about the repercussions of her failure to comply with the orders. She would know her contravention would result in an automatic reversal of the two youngest children’s residence. But the mother has had “very, very clear messages” in the past, from both the Family Reports and the interim orders, of the importance of the children’s relationships with the father, which messages have passed unheeded. She did not or could not modify her conduct to avert the deterioration of the children’s relationships with the father.

The evidence adduced from the youngest child’s psychologist assumed the youngest child would remain living with the mother and suggested his interaction with the father should continue to be constricted for the foreseeable future. Little weight is reposed in the psychologist’s opinion that the youngest child’s “visitation [with the father] should be postponed until [the youngest child] has built appropriate coping skills to manage his anxiety”. There are several reasons for that conclusion.

Firstly, by that psychologist’s own admission, a “comprehensive assessment from a psycho-legal perspective” was not undertaken with the youngest child. The opinions expressed by the psychologist were confined to only short emails and did not purport to be anything other than superficial appraisals of the youngest child’s situation.

Secondly, even if that was not so and his observations were intended to be thorough and prescriptive, the facts and assumptions upon which his opinions were based were not proven and his reasoning was not exposed for independent analysis (see Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [91]-[101], [120]-[124], [128]-[130]). That flaw would ordinarily render the opinions inadmissible (see Dasreef at [42], [94], [98], [129]), but at the very least, greatly reduces the weight attributable to them.

Thirdly, because documents containing hearsay of the psychologist’s opinions were tendered in evidence, the father was denied the opportunity to test the evidence by cross-examining the psychologist directly. That too reduces the weight attributable to the evidence. The mother could have sought permission to adduce evidence directly from the psychologist within the confines of Rule 15.41 of the Family Law Rules, but she did not do so.

Fourthly, the comments offered by the psychologist about the progress of the youngest child’s therapy were offered from the perspective of a treating therapist, not a single expert witness. It is not clearly evident the psychologist was aware his comments would be adduced as evidence in litigation and so the usual safeguards about impartiality were not present.

Lastly, the psychologist professed no experience akin to that of the Family Consultant which would clothe his opinion with the cape of expertise about when and how the youngest child should resume his interaction with the father. Even if he did have such experience as to render his opinion expert, it is a decision at law as to how the youngest child’s relationship with the father is best restored and developed. The ultimate issue was for the Court to determine and the psychologist’s opinions were but one piece of evidence that influenced that decision.

The youngest child certainly does have cognitive and behavioural problems, but they should not be exaggerated. As the Family Consultant said in cross-examination, the autism spectrum is “a very wide spectrum” and there is no precision about where the child falls along the spectrum. Apart from obvious speech difficulties, the Family Consultant observed no other obvious autistic characteristics in him. On formal assessment in the past by a psychologist, the youngest child was reported by the mother to have “no major behavioural problems”, and was found to be “quite communicative” with intellectual functioning and verbal abilities in the lower average range. He seems to be coping satisfactorily at school.

In any event, the father said to the Family Consultant and in evidence he has not experienced much difficulty controlling the youngest child’s behaviour on visits with him, but of course that could only reflect the situation prior to the youngest child ceasing visits to the father in January 2014.

The youngest child will be emotionally disturbed in the short-term by his move to live with the father, but in all likelihood he will recover his emotional equilibrium. He was able to immediately recover the warmth of his relationship with the father in August 2012 after a hiatus of 16 months. Presently he has only been separated from the father for the last five months, so history suggests his emotional upheaval will not be prolonged. He will have the comfort of the middle child’s company. She is also performing well at school, where she will remain, so it is likely she will adapt to the change faster than the youngest child and be a familiar ally for him in the process of residential transition. The paternal grandmother will also stay with the family for a period to aid the children’s settlement.

The change of residence for the two youngest children was expressly recommended by the Family Consultant, if the Court found the mother was unable or unwilling to appreciate how her behaviour had aligned the children against the father. That is the finding on the evidence. When asked in cross-examination, the Family Consultant said she adhered to that recommendation. She did so in the knowledge of how emotionally disruptive the transition of residence will be in the short term.

In such circumstances the Family Consultant recommended during cross-examination that there be a short embargo on any interaction between the two youngest children and the mother, to enable them to settle in the father’s care. She recommended a period of “a couple of weeks”. She also recommended resumption of the children’s interaction with the mother at a contact centre. The reason for that was not explained, but by implication it would be to manage the mother’s behaviour with the children for a finite period while they adjust to the new residential arrangement, after which the need for supervision abates. Upon resumption of their supervised visits, the mother and the two youngest children will be more likely engaged in catching up with one another rather than fixated on the perceived inequity of the new residential arrangements. The orders generally conform to the Family Consultant’s advice.

The Family Consultant recommended that the mother submit to therapy to facilitate her understanding of the way in which she caused the children’s alignment against the father and to assist her adjust to orders that reverse the two youngest children’s residence. The first form of therapy is futile because the mother reported to the Family Consultant she tried it and was told it was unnecessary. The second form of therapy is a matter of choice for the mother. She should not be obliged. Therapy will probably only work if the patient recognises the need for it and is willing to accept it.

The change of residence for the two youngest children will mean they are separated from their older sibling, but whatever orders were made would differentiate them from their older sibling. Even if the orders were confined to the implementation of a regime under which the two youngest children spend substantial and significant time with the father, as the mother proposed, that regime would place them in quite different circumstances from the eldest child, who will most probably continue to voluntarily have no interaction of any sort with the father. The placement of the two youngest children in a different residence from the eldest child is not a step lightly taken. The Family Consultant said in cross-examination it was a step “of last resort”, but she took that into account when making her recommendations.

The orders provide for the children to be exchanged between the parties either at school or at a public restaurant. Those orders partially accord with the Independent Children’s Lawyer’s proposal, to which neither party objected.

The orders require the parties to inform one another about any serious medical condition by which any of the children are afflicted. That includes the mother’s notification of the father about medical complications for the eldest child. The Family Consultant recommended that be required, the mother agreed to it during cross-examination, and the Independent Children’s Lawyer proposed it.

No order is made enabling the father to procure information about the eldest child’s educational progress from her school because it is unnecessary. He has equal shared parental responsibility for that child and is entitled to such information. Leave is granted to the parties to provide a copy of these orders to the principals of the children’s schools so there can be no argument about it. Leave is also granted for the parties to provide copies of the orders to any therapist engaged, presently or in future, to provide therapy to the children.

The orders require the parties to ensure that the children address only them by the names “Mum” and “Dad” and that the children retain the surname “[Flacks]”. The mother said in cross-examination she agreed to the imposition of injunctions to that effect.

An order is made requiring the mother to complete a post-separation parenting program, which she has so far failed to do in compliance with interim orders made in November 2012.

The orders require the Family Consultant to explain to the children the orders and, if appropriate, the reasons for them. The children are familiar with her, having met her twice since August 2012 in the context of these proceedings. The Family Consultant said in cross-examination it is important for the children to know the mother abandoned all allegations of impropriety against the father and her acceptance he does not pose any risk of harm to them. The Family Consultant said she would undertake that task if she was paid for her services. Her reasonable fees should be paid by the father as the service is of greatest benefit to him and he can afford it.

The mother proposed the continuation of the youngest child’s therapy with his current psychologist. I decline to make those orders. The child was referred to that psychologist by the general practitioner engaged by the mother, whom she falsely told the father had been charged with sexual molestation of the child’s older sibling. The history subsequently given by the mother to the psychologist is unknown. He may falsely believe the father actually did sexually abuse the youngest child’s older sibling and he may be providing the youngest child with therapy for his anxiety about the father on the basis of that misconception. The parties have equal shared parental responsibility for the youngest child. They can decide together whether the youngest child continues to consult with his existing psychologist, and if not, what other therapist may provide him with therapy.

The Independent Children’s Lawyer proposed an injunction restraining the parties from “tickling” the children. No such order is made. Even if a sufficiently prescriptive and enforceable order could be fashioned, I decline to make such an order regulating physical intimacy between the parties and their children.

The Independent Children’s Lawyer also proposed an injunction restraining corporal punishment of the children. I decline to make the order. It was not an issue between the parties during the hearing and the orders should not suggest its elevation to a position of prominence it has never had.

The father sought an order for costs against the mother. That issue was not addressed in either the evidence or submissions so costs are reserved for 28 days in the event that either party or the Independent Children’s Lawyer wishes to press an application for costs.

I certify that the preceding one hundred and fifty five (155) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 23 June 2014.

Associate:

Date: 23 June 2014