Court made Final Orders:
- Giving Father Sole Parental Responsibility for 9 year & 7 year old children;
- Mother given limited time on a graduated basis:
- No time at all for 6 months except 2 hours on child’s birthday (or the nearest date the Contract Centre can facilitate) and 4 hours on Christmas Day supervised by the maternal grandfather;
- Then for the next 6 weeks, 2 hours each fortnight supervised at the Contract Centre;
- Then for the next 6 weeks, 4 hours each Sunday unsupervised;
- From then on, each alternate weekend from after school Friday until before school Monday and 1/2 of the school holidays;
- The Father to make all long term decisions (the big 5 area major long term issues), to actively seek the Mother’s imput on such issues and keep her imformed of such decisions;
- Requiring the Father, the Mother and the kids to attend Counselling (separate Counsellors) and follow the Counsellors’ reasonable recommendations;
- The Father to attend a ‘Turning ito Kids program and a ‘Keep Calm and Parent On’ program;
- The Children were in a room awaiting the decision. The final orders to be explained to the Children by the Independent Children’s Lawyer and the Family Consultant, and the handover of the children to the Father be facilitated today on the terms the Family Consultant determines having regard to the reactions of the children.
These 2016 final orders changed previous orders made in 2010 for the children to live with the Mother. Extensive litigation occured after the Mother repeatedly withheld the children from the Father and encouraged them away from a relationship with the Father, not facilitating them having a meaningful bond with the father or seeming to understand the importance of this.
The Mother was unable to separate her own needs from those of the children, an important requirement in parenting.
Mother appealed the 2016 final orders decision, the appeal having been decided in 2017 (appeal decision can be viewed here).
NOTE: This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.
Ralton & Ralton  FCCA 1832 (17 June 2016)
Last Updated: 25 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
|RALTON & RALTON|| FCCA 1832|
FAMILY LAW – Children – residence and contact – sole parental responsibility – bests interests of children – no matters of principle.
|File Number:||MLC 10904 of 2009|
|Judgment of:||Judge Riethmuller|
|Hearing dates:||11, 12, 13 April & 9, 12, 13, 27 May 2016|
|Date of Last Submission:||27 May 2016|
|Delivered on:||17 June 2016|
|Counsel for the Applicant:||Ms Paterson|
|Solicitors for the Applicant:||Perry Weston Lawyers|
|The Respondent appeared In Person|
|Counsel for the Independent Children’s Lawyer:||Mr McLeod|
|Solicitors for the Independent Children’s Lawyer:||Ebejer & Associates|
(1) All previous orders be discharged.
(2) The father have sole parental responsibility for X born (omitted) 2007 and Y born (omitted) 2009 (“the children”) PROVIDED ALWAYS THAT the father keep the mother informed of significant long term decisions that he makes in relation to the children and actively seeks the mother’s input on such issues.
(3) For the purpose of order 2 hereof:-
(a) before any such long term decisions are made in respect of the children:-
(i) the father shall advise the mother by email of his proposal relating to the children; and
(ii) if the mother wishes to comment on the father’s proposal (or if the mother has any proposal she wishes to make relating to the children on this issue) she shall, within seven (7) days after the date of the father’s email, advise the father by one email (to the email address from which the father sent his communication) of his views;
(iii) upon receipt of any comment or proposal by the mother, the father shall give consideration to the mother’s views;
(iv) after the father has considered the mother’s comments, he shall make a decision and advise the mother by email or SMS text message of the outcome immediately after making that decision; and
(v) if the mother does not respond by email as provided in order 4(a)(ii) hereof, the father shall be entitled to presume that the mother does not wish to be involved and he may decide the issue.
(4) The children live with the father.
(5) The father be permitted to forthwith enrol the children in (omitted) Primary School.
(6) The children attend school at (omitted) Primary School for the balance of 2016.
(7) The mother, her servants and/or agents be and are hereby restrained by injunction from contacting the children by any means otherwise than as provided for in these orders; from the date of these orders until 16 January 2017; and during this period of time the mother, her servants and/or agents be and are hereby restrained from attending the school which the children may attend, or from making any contact with the children by any means.
(8) The mother and father enrol at the Children’s Contact Centre nearest to the mother for supervised time.
(9) The mother spend time with the children as follows:
(a) For two hours, supervised, on Y’s birthday (or the closest date thereto as the Contact Centre can accommodate);
(b) For four hours on Christmas Day, provided such time is supervised by her father;
(c) Commencing 1 December 2016 until 15 January 2017, fortnightly for two hours, supervised at the Contact Centre at such times and dates nominated by the Contact Centre;
(d) Thereafter, each alternate Sunday for four hours, unsupervised, for a period of 6 visits.
(10) At the conclusion of time spent pursuant to paragraph 8(d), the mother spend time with the children as follows:
(a) Each alternate weekend from after school on Friday until the commencement of school on Monday; and
(b) Half of all school holidays.
(11) The Independent Children’s Lawyer have liberty to apply.
(12) The father and Ms G attend further counselling with Ms L at the Family Law Parenting Centre (contact (omitted)), and the father and Ms G follow all reasonable recommendations of Ms L.
(13) The father attends a Tuning into Kids Program (contact www.tuningintokids.org.au.or alternatively through an online version of the program at (omitted).
(14) The father attends the ‘Keep Calm and Parent On’ program offered by Lifeworks at their (omitted) location (contact (omitted)).
(15) The children attend further counselling with Ms S at such times and frequency as recommended by Ms S, and the father follow all reasonable recommendations of Ms S.
(16) The mother attend personal family counselling through the Family Mediation Centre (contact (omitted)), or Lifeworks (contact (omitted)), and the mother follow all reasonable recommendations of such counsellor.
(17) The mother be permitted to provide to her counsellor with a copy of the Family Report dated 31 March 2016 and the Reasons for Judgment.
(18) The father be permitted to provide a copy of the Family Report dated 31 March 2016 and the Reasons for Judgment to Ms L, Ms S and any children’s contact centre that assists the family.
(19) The father be permitted to provide a copy of these orders to (omitted) Primary School.
(20) The appointment of the Independent Children’s Lawyer be discharged 12 months from the date of these orders.
(21) These orders and the reasons for them be explained to the children by the Independent Children’s Lawyer and the Family Consultant, and that the handover of the children to the father be facilitated today on such terms as the Family Consultant determines having regard to the reactions of the children.
(22) Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
|FEDERAL CIRCUIT COURT
MLC 10904 of 2009
REASONS FOR JUDGMENT
(Delivered Orally & Revised)
- The issues before the Court in this matter concern the residence and spend time arrangements for the two children X born (omitted) 2007 and Y born (omitted) 2009 (“the children”). Unlike the more common form of family law cases, this case has presented in a way where effectively it is a case for residence either with the mother, or with the father.
- If the children reside with the mother, the case is put on the basis of extremely limited time between the children and the father, probably supervised at a contact centre. If the children are to reside with the father, it would be on the basis of the mother having no time for a period to allow the children to adjust, and then returning to the mother spending time with the children.
- Whilst these are the two substantive options that have been the basis for the litigation, I have nonetheless through the trial, and in considering judgment, turned my mind to whether there are other options somewhere between those two relatively extreme options available to the Court that may be in the children’s best interests.
- Turning then to the question of the significant factual disputes, they are relatively small in number and relate to allegations about the behaviour of the father – whether he has been violent in a physical sense, or violent or angry in his behaviour towards the mother or children, and in particular whether or not he has been violent towards X.
- It is not in dispute, that as time has passed X has become strongly resistant to spending time with the father, that he has run away from school on a number of occasions when the father is meant to have been picking him up from school, and that he has refused to attend school on occasions when he expects that the father would be picking him up.
- So severe have these problems become, that at the end of the hearing I suspended contact pending judgment, to prevent the continued attempts at handover with X running away. It seems that may have been wise, given that even today, when I ordered the children be placed in the child care room at the Court for the purpose of ensuring that they were in a safe location to be advised of the outcome of the proceedings by the family consultant and the Independent Children’s Lawyer (“ICL”), the mother says she was unable to have X come into the Court building. A recovery order had to be issued so that the police could assist, and with their assistance he is now in a room on the same level as the child care room and at least in a safe and contained environment.
- The child Y had been continuing to attend time with the father, until the most recent visit where she refused in a manner not dissimilar to X. It is against this background that the decision must be made.
- Turning to a brief chronology of events, the parties had a relatively brief relationship in 2005, or starting in 2005 and marrying in 2006 before separating soon thereafter. There is some uncertainty as to the date of final separation given that they attempted to reconcile on at least one or two occasions. The actual date of final separation is not particularly relevant to the proceedings. Certainly by late 2007 the parties had separated.
- In (omitted) 2007 X was born. In (omitted) 2009 Y was born. Obviously further attempts to reconcile or interactions had occurred in the intervening period. The path to a parenting arrangement that was workable does not appear to have been easily found by the parties, even at the earliest stages. By 2010 they were before the Court for a hearing, and a judgment was delivered providing for the children to live with the mother and spend time with the father.
- Even at that stage it is apparent from the trial judge’s comments that there were difficulties with respect to the mother and father’s views about parenting arrangements, and the disconnect between the mother’s preference for a large number of extracurricular activities for the children, and the father’s desire to be able to spend time with the children not hamstrung by a large number of activities.
- In August 2014 time with the father ceased, and in October 2014 when time stopped again, the father took video footage of the mother and children which then, not surprisingly, prompted a family violence application. A contravention application was then filed in late 2014.
- Time with the father appears to have resumed shortly before the filing of that application and then ceased after service of it. It was served around 3 December 2014 and an intervention order was sought on 5 December 2014. Time then ceased again, including over Christmas until around February 2015 where the matter came before the Court and a report pursuant to s.11F of the Family Law Act 1975 (“the Act”) was first prepared by the family consultant Ms P in this matter.
- Orders were made at that time to resume time; and in an effort to assist the parties to work through the difficulties they have with the co-parenting of these two children, further orders were made for them to engage with Ms L, together with a psychologist that works with Ms L, to work on their interpersonal relationships through counselling for the adults whilst also supporting the children with counselling by Ms S.
- Overnight time commenced again in June 2015. It seems, to the extent that any counselling had occurred it certainly hadn’t taught great skills for making the interactions easier. For example, the mother then sent the father an invoice for various activities which, on the history of the matter, clearly he wasn’t in favour of the children attending. Time ceased again in June or July 2015 and then following another s.11F report the matter came back before me in August 2015 and further orders were made for time to resume. Unfortunately no time occurred between X and his father on Father’s Day despite the orders that had been made in August.
- In September 2015 time ceased again and on this occasion X had made complaints to people at the school that his father had harmed him. Appropriately, given the allegations, the school had investigations carried out and X made a statement to the police. The police quite properly had the maternal grandfather attend as a support person, and the grandfather complied with all of the reasonable requests of the police when they were investigating that matter. The police did not lay any charges. The complaint also formed the basis of another intervention order application.
- In November 2015 orders were made for time to resume again. Time did not go smoothly, although I note that on one occasion when there was a dancing concert the father was not fixed on how time should proceed and allowed the child X to remain with the mother when he expressed in strong terms that that would be his preference.
- The matter came back before me in December. Further orders were made. There was no contact on Christmas Day 2015.
- This year the child X commenced running away, firstly on 29 January and then in February X ran away again and only Y spent time with the father.
- It seems clear, from an overview of the chronology, that despite significant efforts to have work done with the parties about their own attitudes to parenting and their relationships with the children, the situation in this case has not improved, but rather steadily worsened throughout the last year and a half.
- It is not surprising in these circumstances that the case ended up being litigated upon the basis that it did, which was in substance that the children would effectively live with one parent and have very little time with the other parent.
- Certainly by the time that the matter came before me in February 2016, and Ms L gave evidence, it was apparent that this was the way the case would unfold, and given that the mother was unrepresented, I made comments at that time that appear in the transcript that would have left her in no doubt about the way in which the litigation was progressing and the way in which the issues were starting to present themselves.
- I turn then to consider the various witnesses in this case.
The Mother’s Evidence
- The mother gave evidence and was cross-examined at length. She was a very focused and meticulous person. She has throughout the trial made numerous notes, just as was observed by the family consultant when seeing her for the purposes of the consultant interviews.
- It was apparent from the tenor of her evidence that she is absolutely fixed in her views, even down to the simplest things. For example, when the children did not want to go to see the father because she erroneously thought they would not come back to her on Mother’s Day that weekend (the orders had made provision for them to return for Mother’s Day), she at one point reached the statement of suggesting that in some way it was the father’s fault. He had, of course, just been expected to comply with the existing orders, but the suggestion that he should bear some blame for not having notified the mother of this, even though he would have been completely unaware of her mistake in that regard highlights the mother’s attitude. Indeed, it is representative of the nature of her evidence that all difficulties seem to have been caused by the fault, directly or indirectly, of the father in this case.
- The mother did not often directly answer questions, sometimes taking two or three questions to get to the specific answer, having the appearance of her desiring to put her particular position rather than simply listening to and answering questions.
- I bear in mind though that she has been unrepresented throughout the proceedings and that, whilst in some ways that can be an advantage because no one knows the case better than the litigant themselves, it can also be a significant disadvantage as one is on full display to the Court not through lawyers, both at the bar table and in the witness box.
- Parts of the mother’s evidence were particularly troubling. For example, it seemed clear that she could not even conceive of the possibility that the version she was receiving from X about the father may not be correct or could possibly not be correct, particularly in light of the evidence that had been given by Ms L and Ms S and Ms P.
- Whilst I understand that her primary case is that X’s versions to her and in his diary should be accepted as being absolutely correct, it seems to me that on any rational review of the evidence it must result in one having to at least consider the possibility of those things not being correct given the evidence of the professionals that had interviewed X.
- In some respects she also challenged the accuracy of the family report writer’s evidence. For example, about the recounting of the events that took place between her and X prior to going into the family report interviews and the observations that the report writer made in that regard.
- It appears that the mother was quite anxious about the running of the trial and the proceedings generally, although I bear in mind that that may well simply be reflective of the fact that she has been representing herself and it is a case that involves very significant issues for her, the father and the children.
- I was troubled by the extent to which she attached significance to some events which, even on the version given by X, it is difficult to see could be precisely as X outlined. For example, the complaint that he was forced to play in the cold sprinkler water. It seems apparent that this type of thing is the sort of thing that children in his age bracket do regularly, and whether in retrospect he found it not so positive an experience, it is difficult to see why significant weight would be attached to what would ordinarily be seen as a very minor incident. Similarly, some of the very minor incidents that are suggested between him and one of his half-siblings or step-siblings which have much of the air of the type of horseplay that boys of that age from time to time engage in.
- Whilst in a perfect world many of these things would not happen, one also has to bear in mind that in the real world much goes on and the weight to be attached needs to be kept in perspective.
- It also seems to me that the mother demonstrated some degree of a lack of insight into the family needs in the father’s household, particularly given that the father’s mother is very ill and that he has other children in his life. Despite this, the number of extracurricular activities remained high and the engagement of the children in school parties showed a considerable number of events during the father’s time. It showed a lack of appreciation that there needed to be some time and space in the father’s household for the father to be able to develop a relationship and have activities with the children, and also for the children to spend time with family.
- That, of course, can be juxtaposed against what can also be seen as a perhaps not so positive engagement by the father in children’s parties. Although, in light of the way in which the activities were presented to him and the way in which they impacted upon the potential for him to arrange family activities and time with the children, one can well understand the reluctance that he had towards taking the children to every party they were invited to.
- I note here that it seems that there are a very large number of parties that these children have been invited to. Certainly it is now common in primary school years for children to have parties almost every weekend, as every child in the grade tends to have a birthday party. The modern world is quite different to many years ago when it was a much more rare event. The corollary is that children often do miss those events because there are other activities among family and sometimes adjustments need to be made to identify those that are particularly close friends and those that are simply other class mates or students at the school that invite one to a party.
- The mother remains strongly fixated on questions of family violence. At best, on the case she puts, the only recent incident involving her was what is a relatively minor incident involving the father videoing her taking the children to parties on his contact weekend, which was clearly precipitated by the difficulties with respect to contact and related to the question of evidence gathering around that.
- Whilst not condoning it, in context it is quite different to what one would classically think of as a stalking complaint.
- Aside from that, any incidences involving the mother directly that are referred to are from many years ago yet they have remained a very significant part of the case from the mother’s perspective. It seems that they also feed into the mother’s presentation in Court as being quite anxious about any dealings with the father.
- I accept that the mother is a loving mother of the children and that she meets their day-to-day needs in terms of ensuring that they are properly cared for and attend school and the like. I have real reservations about her capacity to separate out her own needs from the children and her capacity to maintain perspective and objectivity when dealing with issues that cause the children concern or disquiet, which is a significant parenting skill when brining up children.
- I also note that despite the mother not engaging well with Ms L, she has sought out counselling although it is somewhat perplexing that the counselling that seems to be meeting her needs best at present is attending a Victims of Crime group, rather than a family counselling service.
- It seems to me to be likely that that type of group would simply be providing support of a general nature for the position of those who would generally be the victim of an event, and not likely to ever have contact or a relationship with their perpetrator in the future. This highlights the significant difference with family counselling where one must address how a relationship, even if it be an estranged one, is going to be managed into the future, both with ex-spouses and children, and which necessarily requires a difficult counselling relationship in terms of confronting how people behave, react, and interact with each other. This is because a complete termination of relationships is rarely available if the children’s best interests require them to continue to have relationships with both parents.
- Whilst the mother was clear and firm in her evidence, I struggle to have any significant confidence in the evidence that she gave.
- There were some witnesses that were on affidavit, her own mother, Ms E and her brother who were not required for cross-examination and the matters that they referred to were not significant in the scheme of the case.
Mr R’s Evidence
- The mother’s father, Mr R, gave evidence. He was obviously quite nervous about giving evidence. He presented as a very rigid and intense man when he gave evidence. However, it is clear from what has gone on in the case that he is very supportive of the mother but also quite compliant with direction from authority. For example, he complied with the police requests, particularly about confidentiality in the short term to enable their investigations to be properly carried out.
- He has attended with X on various occasions to encourage X to participate in counselling and, in fact, has gone into the counselling. Whilst it would certainly be better had that not been required, there is nothing in the evidence to indicate that he then proceeded to cause any frustration or difficulty with those processes. I do not get the impression that Ms P is causing or driving any of the issues underlying this case but perhaps in the most difficult position of being supportive for his daughter and deeply concerned about how things are unfolding.
- There was one incident with respect to a school fete where the children were to be with the father and the father was there with the children. The maternal grandfather and grandmother also attended at the fete. A point of dispute between the parties is whether or not the father placed his hand on the shoulder of the grandfather when suggesting to the grandfather that he should not be there. The father says he did not. The grandfather says that he did.
- Ultimately I do not see that as a significant issue in the case. It is not suggested that it was anything more than the type of interaction that is not uncommon at a place such as a fete or other busy venue. It is not suggested that it was done in a way that would be different to how one would talk about someone tapping someone on their shoulder. It may well be that one, or the other has a slightly faulty memory with respect to that particular detail.
- The significance of the issue is that in circumstances where there was such high conflict it was certainly appropriate that there be some discussion or introduction so that they both knew that they were there. It strikes me that in the circumstances of this case there was some lack of insight that the grandparents would be there at the fete when the father was there with the children, given how much difficulty had been occurring. However, once words were exchanged between them in what seems to me a polite fashion, the grandparents left. Ultimately I do not see that this incident really advances the case in any significant way, one way or the other.
The Father’s Evidence
- Turning to the father’s evidence, I note that he is a physically large man and therefore certainly some would find him imposing, and the mother certainly feels that way about him now. His presentation in the witness box however, was one of deep concern about the children. He was quite candid and open and very straightforward, certainly not sophisticated in presenting his position that he does want to have a relationship with his children, and a positive one. He was content for that to be on the basis of having them on weekends and school holidays, putting it as he did as being a “Disney dad”, and accepting that that was a realistic arrangement with the children primarily being cared for by the mother.
- He was also quite candid that he is in the position today of seeking residence of the children only because he has not been able to do anything to make the existing preferred arrangement function for the benefit of him and the children. He certainly participated well with Ms L (on her evidence) and has been responsive to suggestions with respect to steps he can take.
- He has been surprisingly compliant, if one were to take the view of him that is put forward by the mother on her case and her material, and surprisingly prepared to engage with professionals in the past and undertake courses. The incident at the dance concert also indicates that he has a capacity to separate out his obvious needs and desires to have time with the children, with what must by now be quite extreme frustrations from his perspective, about the behaviours that he has encountered with respect to time and the needs of the children.
- The father, when giving evidence, was obviously genuinely distressed about the events that have taken place. It seems to me that he has also continued to have a very genuine interest in the children, trying to find a way to have a relationship with them. He has persisted with what must be very expensive proceedings by the time one looks at the costs of the proceedings in 2010, and the various interlocutory processes and the costs of counselling and the like to date.
- I also note that he was clearly prepared to take advice to not pursue the contravention applications but move straight to a trial of the significant issues in the matter, which certainly tells against this being any form of vindictive approach by him. Rather, it demonstrates a clear desire to have the underlying issues resolved, rather than simply pursuing legal proceedings or desires for the court to punish somebody as a result of the events that have taken place.
- He has another child from a previous relationship. He appears to have a very good relationship with the mother of that child, who gave evidence. He sees the child regularly. The time regime is not a fixed or rigid one but flexible to meet the needs of himself, that child, and that child’s mother.
- He works, running a business, he has a new partner and a home and his new partner works as a (occupation omitted) at a (employer omitted). She has a child that lives with them and has regular time with that child’s father. The child in their household is of a very similar age to X.
- The father’s life has its own difficulties. As I indicated before, he has a mother who has a serious illness and, no doubt, that creates an emotional pressure upon him, but he seems to be managing that. It no doubt creates a stronger imperative in his mind, quite properly, for the grandmother to be able to interact with the children.
- I mentioned earlier the videoing that he took of the mother. It clearly was an inappropriate thing to do and no doubt it would not be done again. In the context, however, I do not see it as being indicative of the type of behaviour that people normally refer to when they speak of stalking. Rather, a lapse of judgment fuelled by extreme frustration with respect to the events that had been occurring, and the role that extra-curricular activities seemed to be playing in the frustration of time and the belief that prioritising was occurring of the extra-curricular activities over the time that the children could have, effectively, with him.
- I am also mindful that he could have done more in terms of preparing for the possibility that the children would live with him, as indicated by Ms P in her report. I bear that in mind, along with the fact that he is a man who works for himself. He’s not presenting himself as a particularly sophisticated witness. He has engaged, and has indicated a clear preparedness to continue to engage with professionals into the future. I am persuaded that he does not perhaps fully understand the difficulties that may present to him if the children were to go to live with him today, but I am convinced that he has quite a reasonable idea of those difficulties that are likely to flow if that occurs.
- On the whole, I found him to be a very presentable and believable witness.
Ms G’s Evidence
- Ms G, the father’s current partner, gave evidence. Her aspect in the witness box was relatively flat. I couldn’t help but have the impression that she was, to some extent, rundown by the events that have been happening in the case and, no doubt, the emotional draining that occurs when people are in partnerships with those involved in long-term family law proceedings. She appeared to me to present as a very straightforward person. She had clearly found dealing with X on occasion frustrating and, in the events as described, one can well understand why.
- It seems to me that she presented as a very capable and caring individual and would certainly be able to properly assist the father in caring for the children should they live with him.
- I generally accept her evidence. I reject the criticisms made of her about an incident with respect to X and food. It seems to me that, in the circumstances, X was behaving unreasonably, particularly for a nine year old, and that she was in the invidious position of being the partner of the father when there are difficult time with issues occurring. It seems to me that she made decisions that were well within the reasonable range to deal with the difficult situation that she was confronted with in that respect.
Ms K’s Evidence
- I saw the former partner of the father give evidence. She was also a very straightforward person in the witness box. She indicated she continues to have a good relationship with the father. They have good quality time arrangements, as she has a relationship with the father’s current family that is such that she even stops in for a cup of tea or a cup of coffee at changeovers from time to time. There doesn’t appear to be any difficulties between them or with respect to the time arrangements with respect to the child they have together.
- In cross-examination it was established that she had been to the Magistrates Court of Victoria with respect to a domestic violence application. However, it transpired that she was the respondent, not the applicant, because early on in the separation from the father she had been pursuing him. The parties have since gotten over those issues and now have a good relationship.
The School Principals Evidence
- The school principal gave evidence by telephone. There’s no challenge to what occurred at the school. Indeed, this is a very unfortunate example of a case where the court’s desire to try and find a changeover regime that would save the parties interacting with each other – and therefore, hopefully protect the children from the conflict between the parties and the emotional overlay that the parties can sometimes bring to changeovers – has been ineffective, leaving the school with considerable difficulties dealing with the children in their attempts to facilitate the changeover and reduce the conflict. Clearly what was contemplated by the orders was that the school shouldn’t be troubled at all by these matters and that it would simply be a different parent that is collecting the children at the relevant time or dropping them off.
Expert Witnesses Evidence
- There were four experts that provided evidence in these proceedings. The family consultant, Ms P who has seen the parties a number of times, Ms L, Ms S and Dr P.
Dr P’s Evidence
- The Associate Professor was not required for cross-examination, which I perceived to be somewhat to the disappointment of the mother. His evidence, however, was relatively limited. He gave a very brief report which focused heavily upon the concept of primary attachment and the potential issues of separating children from a parent that they had formed a primary attachment to in the first two to three years of their life, as well as giving evidence about the significant academic issues concerning alienation as a syndrome.
- It is difficult to accept that he is a contemporary expert with respect to the practical application of family counselling and family law issues, given that, for example, in his report he spoke of ‘sole custody’, a phrase that has not been used for a number of years, and appeared critical of the father for bringing an application in the form that he did (without dealing with any of the history or background that led to that). It seems to me that, in the context of this case, that was certainly a criticism that was unwarranted, given that the father’s open position is that had there been some way to have time in a functional system he wouldn’t be here seeking residence of the children.
- The comment that more intensive work with the family should be considered also appeared to overlook the fact that attempts were made to do that, with Ms L and Ms S. He did not address, in any way, the evidence that Ms L gave as to her opinion that the mother was not prepared to engage with anyone who did not align themselves with the mother’s views. He didn’t see the parties or the children. The article that he attached to his report appears to deal with issues concerning Aboriginal communities and Aboriginal families. Whilst it shows obvious capacities and depths of knowledge, it is difficult to see that the matters discussed there can easily be translated to a case of this type before me involving (nationality omitted) background Australians living in the suburbs in Melbourne.
- The issues that he raises with respect to the concept of alienation as a syndrome are well set out in the literature. However, to become focused upon the academic discussion of alienation and whether or not it is a syndrome – and it seems clear that it is not – becomes more of a distraction than anything in this individual case. What is necessary in this case is a careful analysis of the evidence of the parties, the circumstances confronting these two children in each of the households and the behaviours exhibited in order to ascertain what is going to be in their best interests.
- I certainly accept that the children expressing a desire not to see the father and that the child, X, is setting out in his diary complaints about the father is not, of itself, some abstract evidence of alienation. It would be logically wrong to approach the matter on that basis, as logically a child’s resistance to time could also be caused by the father’s conduct.
- The example that he gives, with respect to circumstances that may justify disrupting a primary attachment, seems to me to be far too extreme to be workable in real world cases. He suggests that one would only disrupt such an attachment in extreme circumstances, giving the example of a suicidal mother who wanted the child to die with her. Clearly, far less extreme circumstances would call for consideration of placing the children with the other parent, even if the parent they were currently with was the primary attachment parent. Having said that, I bear in mind that it is nonetheless a very significant factor for me to take into account the nature of the attachment of children to the primary carer for their lives to date and not an attachment or arrangement that I would lightly interfere with.
- On the whole, therefore, I did not find the evidence of Dr P of real assistance as the matters that were raised are matters that would ordinarily be considered and taken into account, in any event.
Ms L and Ms S’s Evidence
- I turn then to the evidence of Ms L and Ms S. Both gave evidence at length and were cross-examined at great length. I found that their presentation when giving evidence, particularly during cross-examination, was particularly patient and detailed and with a real desire to give meaningful answers with good explanations. Their evidence, as they gave it, certainly had a ring of truth about it with respect to their observations and, to the extent that they were giving expert evidence, it appeared to be logically founded upon the observations they made. Their evidence certainly appeared to me to be carefully considered and I accept their evidence.
Ms P’s Evidence
- Ms P gave evidence and was cross-examined at length. She was a very forthright and thoughtful witness. She has seen the family and spent time reviewing the material. It seemed to me that she was genuinely surprised when the mother challenged her evidence about X’s interaction with the mother prior to the family report interview. The way that she gave her evidence and the detail of it (when I reflect upon that compared to the evidence of the mother), leads me to accept Ms P’s evidence about the interactions between X and his mother, rather than the evidence of the mother.
- On the whole, I accept Ms P’s evidence as being truthful and accurate with respect to all of her observations and I accept the opinions that she provides and find that they are logically founded upon the observations that she has made.
Key Factual Issues
- I turn then to consider the key factual issues that have been articulated. They, in substance, relate to issues of violence and risk. The mother filed a Notice of Risk in this case. It sets out that X is expressing fears and not wanting to go to his father’s household. It sets out that he was forced under a cold sprinkler in March 2016, which is an incident I’ve dealt with above. It also relies upon X’s journal which, when one reads it, could easily lead one to have a view that if what is set out in that journal is correct, X is having an appalling time when he goes to his father’s household and is being treated appallingly. It is, in many respects, almost reminiscent to a modern day rendition of something like Cinderella’s story. If it is accurate, it would be a very strong factor against him having to see his father.
- The Notice of Risk also sets out an allegation that X was pushed at the back of his head near some bike racks by the father that he thought was intended to make him fall, that the father held his arm once when taking him to a car and took his phone off him once. Certainly with respect to the holding of his arm, given the way X has behaved, one would be inclined to think that it was actually an incident of responsible parenting, rather than any incident of violence or risk to the child.
- In evidence, the mother said that she thought the most significant matter, or one of the most significant matters that X has raised, was an allegation that the father had threatened to chop his fingers off. This wasn’t set out in the Notice of Risk. This incident, it seems from the father’s evidence, was an offhand comment intended to be humorous when the father was gently rebuking the children for taking biscuits from the biscuit tin and calling out to them, “If you keep getting into that tin, I’ll chop your fingers off.” One can easily see that that could be an offhand comment. Taken out of context, it sounds appalling and within context it could easily be a joke.
- The work Ms S did with X soon led to him not considering that to be a real threat. It is quite a bizarre threat to consider to be real, given that it is an exceedingly unlikely event and not an event that is heard of, even in cases of the most extreme domestic violence or family violence. It seems to me on the evidence as a whole that this was, as the father described it, a humorous comment. In the context of this case, it was unfortunate that it was made. In the context of ordinary family life, I’ve little doubt that comments of this ilk in this sort of circumstance are made from time to time. I do not draw an adverse inference against the father when one looks at this comment in context.
- Turning then to the assault claim, which is articulated in the Notice of Risk. The child X alleged that the father assaulted him, slapped him twice, and punched him to the back of the head. The child’s only nine years of age. As I indicated above, the father is a large man. He does work that involves (omitted). I have little doubt that he would also be a very strong man and that sort of an assault on the child would be significant and likely a seriously damaging event. The school, not surprisingly, took the disclosure of the child seriously, as they’re bound to do, and referred him to the police. The police likewise took a statement and properly inquired into it. The police did not press charges against the father.
- There is no evidence of any injury that would be commensurate with the allegations that were put six months later when the child attended at the family consultant. There was an incident outside the family consultant’s rooms where the child became apparently uncontrollably distressed about having to go in to see the family consultant and potentially see the father. So distressed was X that at best, he was flailing his arms around potentially injuring the mother, and at worst (on the evidence I accept), punching at his mother. He then went into the room with Ms P, calmed down and did not make any disclosure of this type at all to Ms P.
- Indeed, the disclosures that he did make are indicative of no family violence being perpetrated against him at all by the father and, indeed, are in terms that lead one to look seriously at the proposition that he did not wish to make false complaints against his father, or be in an environment where he was not surrounded by or with anyone from the mother’s side of the family.
- Ms P’s report in this regard, which I accepted, says.
57. However, X did feel scared when his father yelled, as he considered this signified that his father was angry and might hurt someone. X explained that his father had hurt him, a while ago, but he couldn’t remember the last time his father hurt him. He thought it might have occurred last year when his father ‘nudged’ him. The worst thing his father ever did was hit him with an open hand to the back of his head. X demonstrated his own hand hitting the back of his head and then smoothing over the top of his head several times. He explained that this had only occurred on one occasion and he thought his father might not have noticed that he did it. X reported that at the time his father was angry with him, and was yelling, as X had accidentally hit B in the face.
61. In relation to the planned observation, X initially said he did not wish to see his father. When the writer explained the purpose of the observation and negotiated a 15 minute rather than a 30 minute observation, X immediately agreed with this proposal. If children are extremely anxious about spending time with a parent, a ‘distress signal’ is agreed on so that if they wish to to stop the observation, they can do so without saying anything. But X showed no further distress about being observed with his father, and when it was suggested that he could select the activity they played, he appeared content to return directly to the playroom for the observation.
62. X’s presentation at interview was not in keeping with the high levels of distress he demonstrated that morning, or his insistence that his maternal grandfather accompany him in the playroom both that morning and after lunch. It is possible that X’s behaviour in those instances was to attend to or allay the concerns of the adults present. The professional literature proposes that there are two ways aligning parents encourage children to reject the other parent. One method is by rewarding children for their rejecting behaviour, the other method is by demonstrating displeasure or otherwise signalling that their affection may be withdrawn if a child enjoys time or fails to reject the other parent. This explanation for X’s behaviour is in keeping with Ms Ralton’s explanation that X co-sleeps with her after he has spent time with Mr Ralton more often than before. It is possible that he co-sleeps with his mother because he is anxious about his relationship with her, rather than being fearful about his father’s alleged violent behaviour.
- The father was cross-examined about this alleged assault and denied it emphatically. I have little doubt that it would have been most distressing for him to be told of the allegations. It was suggested to him that he was somewhat bullying towards the police and he certainly would have, I expect, been forthright. I do not see from the evidence that has been given, that he behaved in a way that would be outside a reasonable range from somebody taxed with such terrible allegations with respect to conduct towards their own child.
- When I view the evidence on this issue as a whole, including the diary entries, the evidence of the mother, Ms P’s evidence, and the father’s evidence, I am not persuaded that this occurred. In fact, I find, on the balance of probabilities, that the father did not assault the child, as I indicated when the hearing ended by making declarations.
- The claims with respect to the father yelling and swearing at the child are significant for the mother’s case. When one looks at the diary and takes the case put by the mother, one has the impression of horrific tirades and a very stressed and terrible environment in the household. The recounting to the family consultant by X, though, is in significantly different terms. As the family consultant sets out:
56. In relation to his father’s ‘yelling’, X said he had overheard his father yell and swear, occasionally the ‘f’ word, but more usually the two ‘sh’ words; ‘shit’ and ‘shut-up.’ X explained “I don’t like to hear” swearing, and clarified that when he overheard his father swearing it didn’t make him scared, but he believed his father “just shouldn’t do it.” X acknowledged that occasionally other children at school used bad language, but he claimed that they only whispered swear words.
- The father’s household may well include language such as ‘shit’ and ‘shut-up’ and words of the like and, given the father’s background, appearance and trade, I’ve little doubt that other more colourful words would be used by him from time to time. That, of itself, isn’t the end of the matter. Things must be contextualised. I’m persuaded that, when I look at the evidence as a whole, whilst it may not be Shakespearian sonnets that are whispered every day in the father’s household, but a more rough and tumble form of language, it’s certainly within the reasonable range of families in Australian society.
- This conclusion is also corroborated by the evidence of Ms S that X was not reporting negative experiences that were current at the time that she was seeing X, just historical accounts. I would also note that Ms S noted a change in X’s presentation following the meetings that she and Ms L had with the mother. She was of the view that negative things were not happening in the father’s household, based upon the presentation and reporting of X when he was seeing her, as she set out in her evidence.
- I have reflected significantly upon the diary of the child and the mother’s concerns about the child’s voice not being heard and the desire for the child’s distress and worry about the father’s household to be taken into account and acted upon. It simply cannot sit side by side with the evidence of the presentation of the child with Ms S and the family consultant. Both cannot be a reasonably accurate representation either of the factual circumstances, or of X’s underlying genuine beliefs in the matter. Indeed, similarly, his behaviour with his own mother before the family consultant interviews compound with it during those interviews and his lack of fear or difficulty with the father when the father attended at the interviews.
- It seems to me, that on the evidence, the behaviours of X must be seen as reactive to the circumstances in which he finds himself, whether the mother’s household or the father’s household or neutral environments. Clearly, he is recounting terrible experiences at his father’s when in his mother’s environment. He appears to fit in normally as a child would in the father’s household and when he sees the family consultant or Ms S is somewhat coy, but certainly not suggesting anything to indicate that he’s in fear of his father or at risk.
- I have already given reasons with respect to the “chop the fingers off” comment. It has been raised by the child with Ms S but it was not raised by the child with the family consultant. The threat, if it were perceived to be real, is incongruent with his presentation and if it were perceived to be a real one would have expected it to be articulated quite clearly, even by a nine year old.
- The variety of allegations that are made with respect to the other children that are, from time to time, in the father’s household largely seem to me to reflect the rough and tumble, particularly of boys of this age group playing. I accept that X is a more sensitive child than perhaps the average child and it may well be that the other boys are more rough and tumble than the average boy of that age. However, none of this seems to me to explain X’s presentation and abhorrence when talking to his mother and writing in his diary with respect to his father’s household.
- During the course of the evidence, a CD was tendered of the 000 call that X had made when he ran away from school calling the police. The mother was concerned that I listen to that phone call so that I could hear the voices and words that were spoken. It was not a task that I immediately warmed to: listening to tapes is often not a particularly exciting event for a trial judge. However, I am very pleased that I did take the time to listen, so I could hear the tone and interactions that were going on in the phone calls. It seems to me the most striking aspect of that phone call was the apparent calmness that X had when interacting with the operators at the 000 call centre. There was more than one phone call, and also the recording of the phone call between him and the police. It was certainly a very impressive display by the professionals dealing with X and their obvious concern but, balanced with them, the businesslike need to obtain information, and accurate information, and to properly assess the nature of the situation.
- His discussions with the operator and police were very polite and, it seemed to me, very calm. Certainly, if he interacted in another context in the manner in which he interacted with them, most parents would be proud of the way in which he was able to speak to adults and provide information and interact appropriately. As a result, the phone calls add to my concern of the incongruity between his diary and his mother’s experience of his presentation and his interactions with others.
- The mother made allegations about domestic violence of the father in the past. It was many years ago, aside from the videoing. The mother certainly feels subjectively threatened by the father. I am not persuaded that this is necessarily borne out by his conduct. He is certainly not easily persuaded to do things he does not wish to, and no doubt firmly stands his ground on his opinion. This, though, is not domestic violence, even if one wants somebody to accept a different point of view.
- It appears that the incidents raised by the mother were situational arguments, not unusual for couples that are separating. Even if I was to accept the mother’s evidence at its highest, with respect to these incidents, they show considerable anger and difficulty between the parties about separating and about children’s arrangements, but they seem to have ceased relatively soon after separation.
- During the most significant incident the police were called by the father. He was complaining that the mother was striking at him, not suggesting, of course, that he was at any real risk, which is apparent, given the small stature of the mother and the large stature of the father. Whilst I prefer the father’s evidence, even on the mother’s version I am not persuaded that these events, so far in the past and given the nature of them, provide a realistic explanation for the current behaviours that are seen by the child, nor a realistic foundation for the level of the distress that the mother expresses at times with respect to the father. I also note that it does seem to be the mother’s distress about concerns of the father that are largely driving her position, even though she says that this is X’s complaint, and that she is standing up for X’s position.
- I have considered carefully Ms L and Ms S’s evidence. There are a number of passages of their evidence in the transcript that clearly articulate or encapsulate the evidence that they are giving. With respect to the mother, I note the following:
Do you have any concerns for the mother’s ability to appropriately care for the children? Yes, I do.
Can you outline those concerns, please? My concerns relate to the – what I believe is X is not free from the spoken and unspoken views of the mother, and how she perceives the father, and how she perceives the father in terms of being unreasonable, dangerous, frightening, threatening and intimidating, and many of those words have been used by herself to me. I’m concerned about how X’s exposed to those views. I know that when X tells me, for example, that he has heard the mother on the phone to her father in discussing their views of Mr Ralton. I know about how he’s exposed to the non-verbal, as he discusses with me in interviews. He’s very aware that the mother’s very worried about him spending time with the father, and that it clearly doesn’t please her, because X makes comments like, “It’s very hard to keep Mum and Dad happy” so I’m very concerned about how the mother exposes both children, but especially X, to the conflict between the adults. This may be conflict to do with such simple matters as the time that the father is due to collect them, or whether the children go to a party instead of going to the father’s household, so quite a great degree of conflict. I’m very aware that the child’s exposed to the mother’s refusal to communicate and interact with the father. So, for example, X’s aware, as he has communicated with me, that when Dad rings that the mother will not answer the phone, that X must answer the phone. When the phone call’s finished, he must hang up the phone. And so one of the things that I spoke to the parents about, it’s very important that the mother picks up the phone, says, “Hello, Mr Ralton, how are you?” It supports communication. It provides permission to the children that it’s someone on the phone that she’s willing to talk to and, therefore, that they are absolutely permitted to speak to that person also. But this is not being provided to X. I’m very concerned that the mother presents to me as highly anxious, highly agitated. She seems to exaggerate her concerns about the father. Many of her concerns that she raised to me are very driven by past examples, and very past examples. It’s interesting that X himself can often focus on a very, very past example that doesn’t seem to validate his rejection of the father. And what I mean by that is, especially when we went through a process of reintroducing contact and reintroducing it in a way that was initially supervised by my office, so we provided a level of support and supervision to those meetings, and we observed him to be relaxed. He would initiate conversations. He would initiate affection. The father was highly responsive. In one of those meetings the father’s partner also attended, and that also was a very important relationship for both these children, and a highly supportive one. So when you have a period of which you identify current experiences, when you can say to X, “I could see you happy. I could see that you – this occurred for you. I could see this was your experience”, and then he went on to start time with the father in the father’s household, and we provided another level of support around his reporting. He could report back to myself or Ms S how that time went and, again, he talked quite a lot about a time the father took him to – it looked like a carnival or some sort of play activity. He got a new bike, I think, for Christmas and he spoke to me about that, and to Ms S. And so there’s lots of really current examples. So when you see that deteriorate and they rely on the past examples for rejecting a parent, we become very concerned about how he’s exposed to a narrative that doesn’t really allow him to see meaning in a relationship with the father. My concern also is – my question to the mother interviews was, “Is there any value for a relationship with their father?” and she’s very clear there is not. So my concern really is about how X can present with heightened levels of fear and anxiety that really seems to be more a transference from his mother rather than any reality of any experience with the father, and that – I’m concerned that he feels burdened to be loyal to his mother, even at the cost of a perfectly good relationship with his father. Those things are concerning in terms of how this child then feels it’s his duty and role to support his mother, rather than having the expectation to have his needs met by his parents.
Okay. Do you have concern for the mother’s ability to facilitate a relationship between the children and the father? Yes. I’ve seen no examples of the mother supporting a relationship. I have provided – it always concerns me when a parent’s not responding to advice from myself or other professionals involved. She will reject any feedback that doesn’t align with her views of the father being someone dangerous and not meaningful for the child, so I didn’t experience her in any way being able to be engaged with professionals unless those professionals were aligned with her view. So I just don’t have any examples of anything that she may have genuinely attempted to respond to advice and follow direction that would enable the child to have a relationship with his father.
And what would you say – well, now, let me rephrase that. From what you’ve seen of these children and the parents, is the mother able to manage the children and their behaviour? Well, I might speak about them separately.
Yes, please? I think Y as a personality is highly independent. I presume that the mum may have more reliance on X, not only as the oldest child but as a male child, that she may have parented in a way where that relationship has become more enmeshed. I believe, but I can’t confirm, for example, that – I think there was some concerns raised by the father around co-sleeping. They’re the sort of things that we start to worry about, the mother’s capacity to allow this child to develop normal developmental tasks at his age. You want a parent to be able to make the children resilient and equip them with all the things that they need to be able to maintain their own relationships in the world, so leave their primary attachment and explore the world that they’re in, and that means division of roles, which I don’t see here. There has been a lot of focus on X because I think that her relationship with X is different from her relationship with Y. I don’t think it’s just about the different personalities of the children. I think it says something about how the mother interprets her role with the children, and that she perceives that to be quite different. So I think, in terms of Y, we saw a very resilient, gregarious, outgoing child who actually has quite established skills to engage anyone who’s in the room with her. X certainly, I think, has developed some heightened levels of anxiety and fear, but the point of that is not to say that he doesn’t have it. I think that he certainly does. That was the purpose of the referral to Ms S. I think the point – the question is, you know, where has that been established from? The mother would say that has been established because of his time with the father. I guess it’s my view that that has been something that has developed because of his relationship with the mother.
Ms L, is it putting it too – well, no, I will go backwards. Sorry, I apologise. Are these children at risk in the mother’s care? I think the way in which I will answer that is say that I don’t consider X’s relationship with his current primary parent a healthy one. I like to talk about healthy and unhealthy relationships, and if it’s an unhealthy relationship then of course there’s risks. Those risks are hard to measure because they’re often very long term. You often see them, those symptoms, arise over a period of time. They’re not – they’re very hard to assess in a one-off meeting. These are things that you observe and understand over a period of time, and you see patterns, and you see relationships, and you understand the dynamics. And, for me, X’s relationship with his mother is one that doesn’t meet his needs. They’re not allowing him to develop in a way that we would want him to in order to explore the world and have successful relationships. And they’re certainly not going to develop with what I would call really good psychological health, and what that means is that the risks for him in terms of sustaining interpersonal relationships are limited. The risks for him to be unable to cope with natural – with the ups and downs of life means he won’t be equipped for that. The risks for him to be engaged in various networks, social, peer, teacher, work and so forth, these children are more likely to develop mental health concerns around depression and anxiety. Those children have the greatest difficulties in high school when the stressors are more apparent. So in terms of risk, the risk to him long term is his psychological health and his capacity to thrive. If his relationship is unhealthy because it’s enmeshed and dependent and it’s totally defined by the mother’s narrative and views, then this young person won’t develop the independence and develop his own identity and, therefore, won’t transition to adulthood successfully at all.
And one final thing, Ms L, on what you’re aware of this stage, bearing in mind it wasn’t your job to assess this. Would you support a change of residence? What I’m going to say to that is that I don’t believe there will be – that there is a likelihood of any change for X to have a relationship with his father as long as he lives with his mother.
- Similarly, with respect to Ms S:
So in your opinion, can you be sure that X’s level goes down quickly while in the care of his father, or could it continue to go up and down throughout the weekend period causing further stress to him? Look, in the – in the past when he’s articulated – you know, we do use a – a feeling scale, but he – and he is nervous when he first goes to his – you know, dad’s for visits, but he’s able to, through strategies and through just being there and being safe, he – he de-stresses. And, you know, I – as I said to you on 24 June, I believe a lot of X’s fears are the fears that you have about dad. And – and it’s coming from – from your view.
- The prospect of the mother being able to change her views, or at least modify behaviours to find a way to interact with the father and the children that may lead to less difficulties than are presently facing the parties seems poor. I note Ms L said:
… what do you think the prospects are of any intervention changing the mother’s behaviours? I think the prognosis is poor. And I believe that on the terms of saying that I think that the risks are that – that the mother is more likely to engage with professionals that support her view. Those professionals are nearly always don’t interview the other parent, nor observe the children with the other parent, so they have no capacity to make a truly independent comprehensive assessment. And so it’s very easy to recruit psychologists and school counsellors that support this view that is really being promoted by the – the – the parent’s view. So my concern is that – my experience of the mother, that she just did not have any capacity to be open to any alternative explanations for why this child is reporting to her the way in which he is reporting. She has no capacity to reality-test this child; no capacity in her narrative to support this child to have a relationship with a person that she, herself, absolutely promotes as being dangerous and intimidating and violent. So given her level of fear and anxiety towards the father – and that’s fear that I’ve seen her display – real panic. Real – this real catastrophisation of the situation. The way she documents and reports. It’s extremely intense and heightened. And so any capacity to then look at a more calming approach to the reporting: I just don’t see her capacity to do that. Certainly she hasn’t responded to any advice from me in relation – in relation to her thinking about her response to this child.
- The fact that the mother is now gaining support from a Victims of Crime group seems to me to fit with those observations.
- The observations of the father were in quite a different tenor. They were:
And from your observations of the father, would you expect that he would be compliant and supportive of any regime that was set up to facilitate this? Yes, I do. He’s been – he was very responsive to anything I asked him to do. I did observe him with the children, first meeting with the children after a period of time with no contact. I thought he handled it very well. He was – you know, it’s a requirement of that parent to really make that child feel like they’re not in trouble, “I’m not angry with you. I know all the things that you said. I – I – I’m okay with that. I know this is hard for you. I’m – “. He’s nurturing. He – he’s able to not engage with this child in discussion that’s inappropriate. He – he really wanted to give X a sense of some normality. At one stage he sort of turned around and he spoke to me after the first meeting and said, “What you saw is – that is exactly what it’s like when they’re with me.” He has been communicating well with me. Quite capable of engaging with professionals to support X, in my view. I’m not sure about things like what it means for X with school, soccer and all his other interests, because I understand that they are located geographically some way from dad. So I don’t know how that would go, in terms of some of the logistics.
- When Ms P gave evidence, she set out the details of the incident at the start of the interviews, as follows in her report:
30. Ms Ralton was accompanied to the family report assessments by the maternal grandparents. When approaching the family in reception, the writer noted that the maternal grandparents appeared very tense and only reluctantly made eye contact with the writer. As the writer greeted the family, X broke away and attempted to run down the stairs. Ms Ralton ran after him and blocked his way. X then attacked his mother physically by punching her in the face and chest and attempting to kick her. Ms Ralton was struck by at least one punch to the chest but it appeared that many of the other blows did not hit her. While X appeared highly distressed, he was able to communicate by screaming at his mother that he did not want to go into the playroom. As X has spent time without incident in the playroom on two previous occasions, this unusual and extreme behaviour is difficult to understand without recourse to the theories offered in the professional literature regarding the behaviour of children in association with parental alienation processes.
31. As X continued to flail at his mother, the writer considered calling security, but as the rate of his attempted blows was slowing, and the writer recalled the grandfather’s role in supporting X at other events, X was asked if he would feel supported by the maternal grandfather accompanying him into the playroom. X immediately agreed with this suggestion. He then rapidly calmed and was able to be taken into the playroom. During this incident the maternal grandparents sat passively in reception and offered Ms Ralton no assistance. It did not appear that they even turned their heads to observe how X and Ms Ralton were coping. Although Ms Ralton prevented X from running down the stairs, she offered him little verbal comfort or direction. Her efforts to protect herself from his blows were limited to holding her hands up in front of her face and chest, with her palms facing outwards. When the writer asked the grandfather if he was willing to provide assistance in the playroom, he readily consented. However the maternal grandparents’ lack of assistance or even presentation of alarm in response to X’s behaviour raised concern about their role in the children’s refusal to spend time with Mr Ralton.
- She noted the presentation of the mother being anxious and engaging in considerable note-taking, saying:
32. Ms Ralton presented as highly anxious at interview and took extensive notes. This note taking was quite intrusive as it appeared that she was attempting to record everything that was said. Whenever the writer posed a question or suggested a topic of discussion, Ms Ralton would scribble intently for a few moments before she answered. At one point when Ms Ralton had been making notes for a particularly long period the writer asked what she was recording, as very little had been discussed. Ms Ralton explained that she was concerned about the criticisms that were being raised about her parenting. The writer recapped the most recent topics of conversation and explained that these were requests for information and no criticisms of her parenting had been expressed. The writer explained that while Ms Ralton was welcome to take notes, as there was understanding and sympathy for her role as a self-represented litigant, it would be unhelpful to the interview process if she attempted to interpret the writer’s assessment process in the moment, and it was recommended that her note taking should be restricted to brief notes about what was actually discussed.
38. Sometimes the ordered narrative of a family report does not capture the difficult presentations of clients at interview. In addition to excessive note taking, Ms Ralton was highly defensive and utilised a manner of illustrating a point that the writer calls “kitchen sink” arguing. This involves the rapid provision of multiple examples, often only tangentially related to the topic of discussion, which are provided with the intention of deflecting responsibility and making it difficult to fully explore the main issues. In terms of the professional support Ms Ralton has sought for X’s anxiety it appears that he attended four sessions with Ms T at (omitted), as a result of a referral from X’s primary school, and five sessions with Ms S, as a result of Court orders. Given the repeated accounts of X’s distress over the three occasions the writer has met with the family, it would appear that Ms Ralton has not made a sustained effort to seek and maintain professional support for X, and that she has a limited understanding of how she might support him herself. At interview Ms Ralton repeatedly asked the writer; “Well, what should I do then?” Recommendations for parent education for assisting children with anxiety were provided in the Memorandum for the Child Inclusive Conference dated 11 August 2015.
- It seems odd that there was considerable note-taking by the mother at a session that was intended to be a family assessment as opposed to argument in the court room. I would draw absolutely no adverse inference against anyone taking detailed notes in the court room, but when attending to have an interaction for an assessment of the type contemplated with a family consultant, it does seem odd and, if anything, slightly controlling to be taking detailed notes during that process. Not only does it indicate a lack of preparedness to accept that an accurate representation is going to be made by the consultant when giving a report, it would also significantly impact any flow of information and the opportunity of the family consultant to get a fair assessment of the mother’s personality, attitudes and presentation.
- The note-taking is obviously significant to the mother; given that X expressed that the question of whether or not somebody is listening to him is something that they closely associate with the extent of notes being taken. Again, this seems odd for a child of that age, unless that was an opinion that they had learned from an adult and, clearly, the mother is the likely source of that. It is also contrary to common experience: often the most intense listening is done without note-taking, or sometimes with requests for pauses to allow a note to be taken, but usually for engaged empathetic interactions note-taking is a significant impediment.
- The mother was clear in her refusal to acknowledge the possibility of her own conduct or behaviours impacting upon X, the family consultant saying:
Overall at interview Ms Ralton claimed that the current situation is not the result of her behaviour or intentions, but due to her attempts to respond to X’s needs and in particular to his accounts of experiencing family violence from Mr Ralton. At the time of the interviews Ms Ralton had received advice from a number of sources that concerns were held that she may somehow, possibly inadvertently, be transmitting her fears about Mr Ralton to the children, and that this may have resulted in harm to the children’s relationships with him. She has been provided with information that limiting the children’s ability to have meaningful relationships with both parents poses a risk of harm to children. Her accounts at interview indicated that her clear response to this advice is to deny that this influence has occurred and to continue to seek reductions in the time the children spend with their father. In the event that it is found that there is no basis to Ms Ralton concerns that Mr Ralton is being physically abusive towards X, it is this consistent denial that potentially moves Ms Ralton from the ‘unconscious’ or unintentional category of alienating behaviour to the ‘conscious’ or intentional category.
- The pattern of the mother’s behaviours are set out in paragraph  of the report as follows:
The family report assessment found there were numerous indications that Ms Ralton has behaved in a manner that is recorded in the professional literature as associated with parental alienation. These indications include:
a. That the children express strong feelings of fear and unwillingness to spend time with Mr Ralton that is incommensurate with the explanations they provide for their feelings of fear,
b. That there is a consistent pattern of Ms Ralton seeking to limit the time and telephone contact the children have with Mr Ralton, or the information Mr Ralton has about the children’s medical needs or extracurricular activities, and that Ms Ralton has sought other legal measures such as obtaining intervention orders, or seeking letters from her general medical professional, to support her decisions to limit the time the children spend with their father
c. That the children’s rejection of Mr Ralton extends to other members of the paternal family, such as their half-brother A and their step-brother B,
d. That Ms Ralton has demonstrated a pattern of arranging activities for the children to attend during the time they spend with Mr Ralton, and then proposing that the children should ‘choose’ whether they spend time with their father. This option of choice has been largely demonstrated through the repeated presentation of X’s school work or pages from his diary where he reports not wanting to spend time with his father
e. That Ms Ralton demonstrates patterns of ‘service shopping’ where professional advice is only accepted when it is in line with her views such as the advice of her local medical practitioner or the counsellors at (omitted) while other professional advice is rejected such as the advice of Ms L or Ms S,
f. That there are indications of tacit rewards for the children’s rejecting behaviour towards Mr Ralton, for example permissive parenting practices regarding food, co-sleeping arrangements, and possibly attendance at extracurricular activities,
g. That there has been a pattern of increasing rejection of Mr Ralton,
h. That Ms Ralton describes her behaviour in terms of following the children’s wishes or being protective of the children
In addition, the professional literature proposes;
i. That children who are most vulnerable to alienation practices are generally between the ages of 8 and 15 years,
j. Developmental disorders or emotional difficulties increase a child’s vulnerability, as these children lack the resilience to withstand the pressures associated with high post-separation conflict between parents,
k. The personality features of ‘favoured’ parents include a tendency to be rigidly defended and moralistic, they perceive themselves to be flawless and virtuous and often externalise responsibility onto others, and they often have limited insight into themselves and their effect on others.
l. Favoured parents often have an enmeshed relationship with the aligned child
m. Aligned children are angrier than non-aligned children, and alienated children are more likely to demonstrate defiant or rigid behaviour, often refuse to attend school and are more likely to develop eating disorders
n. Favoured parents often falsely or without reasonable basis make allegations of abuse against the other parent, which feature delusional statements or gross distortions of events.
- Even if some of those were not fully available on the evidence, it nonetheless paints a significant picture on the evidence in this case. Ms P was cross-examined at great length, confirming her evidence and, during her cross-examination, she spent considerable time taking care to try and explain her answers carefully to the mother, who is representing herself.
- The question of whether or not the mother is consciously rewarding the child for the behaviours that have been seen was raised during the course of the trial. It does not seem to me that the mother is setting out to consciously reward the child in any simplistic fashion, such as buying gifts or toys or creating activities. It seems to me that, if anything, the child is reacting to the mother’s high level of distress and has identified that the mother’s distress is certainly eased or it gives him a role to play with the mother if he makes the statements that he does.
- It is, of course, concerning that even at a time when the child is so distressed, the mother is continuing to read the child’s diary that the child’s own counsellor is having him write in. It certainly seems to me to be clear that the child was likely to know that his mother was reading the diary and that, in that respect, it is difficult to place weight upon it as being something other than what the child would believe the mother is likely to see in the household. That is, her conduct converted the diary from a reflection process for the child to a document prepared for the mother to read.
- In summary, the case, is one where the mother is completely opposed to the children spending time with the father, although she would verbalise that as allowing the child to choose. In the context of the facts and circumstances of this case it is apparent that such a choice means there would not be time. It is clear that the mother’s reactions to the father and time are likely to cause the children to pick up on the mother’s distress. The mother is not only without the capacity to even contemplate that these may be the underlying features of the case, but quite intransigent in her resistance to this as even a hypothesis that one might need to consider, even if she does not accept it is the true hypothesis.
- It seems to me that this presents a number of difficulties for the children. It is certainly a very unhealthy environment for children to be developing in, where the mother has an intransigent and insightless view of an aspect of their lives so significant as the relationship with their other parent. There is the real likelihood that these behaviours would also occur with respect to other events in the children’s lives. I am persuaded on the evidence that if they stay with the mother, they will not have any real relationship with the father. Indeed, even if I were to order them to have supervised time only a few times a year, it seems to me to be most likely that they would refuse to go into the session with the father, as is demonstrated with the family consultant interviews and even today where, without knowing the result, the child X refused to even come into the court building until such time as the police were called.
- This is an outstanding example of a child who is in considerable distress. One must consider this to be reflective of parenting: that a nine year old child will not come into a court building to go into the day care room at the court.
- The mother has been the primary carer of the children to date and, certainly, on the more mundane aspects of parenting such as schooling, feeding the children, clothing them, ensuring their day-to-day needs are met, there does not seem to me to be any real question that she is very capable at those parts of parenting.
- The father has not been the primary carer. There has been considerable difficulty with contact. There is, therefore, the likelihood that he does not have a particularly strong relationship with them or a particularly deep relationship, not through fault of his own but through the way in which time has unfolded and the lack of significant time between the children with him. If the children are placed with him, there will be considerable difficulties that he will need to confront and considerable behaviours by the children that will be most frustrating and difficult to manage, both for him and his spouse. I accept that, intellectually, he understands this. Whether he emotionally understands the full depths that this might sink to before things were to improve if the children were with him, I am not absolutely certain.
- However, I am persuaded that he is absolutely genuine in his desire to make this work, and that he will engage with professionals to assist him and will take advice to do his best to make arrangements for the children to work, if he can.
- If the children were to go to the father’s household, there would be considerable grieving in the short term for the loss of the mother and, certainly, today will be a particularly difficult day for the children when they are told what is to occur.
- I am persuaded that the father will facilitate the children to have a relationship with the mother, to the extent that this can be made possible, without destroying the children’s relationship with him. His relationship with his other child appears positive and he continues to interact with the other child’s mother in a way that clearly facilitates both their relationship with the child.
- His open acknowledgment that if he were able to have contact on a reasonable basis with his children he would not be seeking to remove them from the mother tells strongly in favour of him being likely to facilitate time with the mother.
- I have borne in mind that, ultimately, the decision needs to be for the best interests of the children. If it were simply a decision on the basis of a change of care from one parent to another so that we simply change which parent is excluded, whilst that might have an appearance of abstract justice to it for a parent who has not been violent but falsely accused, it is hard to see that that would necessarily, on its own, be in the children’s best interests.
- However, there is a very real prospect that the movement of the children to the father’s household enables them to have a relationship build up that is sufficiently strong to withstand the mother’s anxiety. It places them in the position where they will be able to have a positive and loving relationship with both parents, not just one parent, which would be a significant improvement to their circumstances.
- If I make no order to change the care arrangements, it would do nothing to relieve their immediate distress about contact. To do that, I would have to effectively remove the father from their lives until they were far older. This is likely to have a significant damaging impact upon them in the long term.
- If I change their care arrangements, they will suffer significant distress today. I must also take into account that there are no guarantees that a change in care arrangement would result in the positive outcome of them ending up with a good relationship with both parents. A change in care arrangement could fail. There is a risk of that, and that must be carefully balanced in determining what an appropriate order should be today. There is, of course, also the potential benefits of a change in care arrangements if, in a year’s time, we see these two children having positive relationships with both of their parents and a feeling that they have the love and support of both parents to guide them and care for them through their lives.
- I turn, then, to formally consider the matters set out in s.60CC of the Act. I turn firstly to the secondary considerations. I have regard to the views expressed by the children in this case. This is not a case where one can simply ask for a recounting of what the children have actually said, and take that as necessary their views. Very different underlying views are apparent from what X says to the counsellors, and what is in his diary, and what he has recounted to his mother.
- Similarly, somewhat different views can be taken of Y’s attitudes. Ultimately, it seems to me that the most accurate expression of the underlying views of X and Y are those recounted by the counsellors. It seems to me, though, that they would, as at today, have a view that they would prefer to remain with their mother, who has been their primary carer, rather than a change in primary care to the father.
- I have regard to the nature of the relationship of the children to each parent. They clearly have a mother-child relationship with the mother that, in many respects, is positive. I have indicated above my concerns about the nature of the mother’s relationship with them with respect to their attitudes to their father, and that it seems to me to be likely that their attitudes to their father is reflective of what they see as their mother’s attitude and what they see as being the appropriate attitude to have to the father in light of their mother’s presentation.
- At present, they have a very limited relationship with the father. I would not categorise it as necessarily poor but, rather limited from the perspective that the information they have given to the family consultant. Their interactions with the father when it has been facilitated by professionals show signs of an underlying relationship that can well be developed. That certainly would not continue if they remain with their mother. The risk of fracturing the relationship with the mother, as the Associate Professor indicated, is a real risk, and that needs to be borne in mind, but it also seems to me that the relationship with the mother would ultimately be fostered in the father’s household.
- I have regard to the relationship of the children with other persons in their lives. A change of care arrangements would, at least for a period, significantly impact upon their relationships with the extended family members of the mother’s family. This would be a negative matter for them. It would also, though, allow them to build sibling relationships with the half-sibling that they have of the father’s and the step-sibling or de facto step-sibling that is in the household of the father. It would also allow them to more appropriately build their relationship with the father and their paternal grandmother.
- I have regard to the extent to which each parent has taken or failed to take an opportunity to participate in parenting decisions and, in this regard, I do have regard to the mother’s evidence that the father did not take an active interest in school choice early on although, given the nature of the interaction they had when the children were younger and his preparedness to accept that the mother was able to appropriately deal with such matters as things like school choice, it seems to me that it is not a significant factor against him that he was, at that stage, content to go with the decisions that the mother might make in that regard, given that she was the primary carer.
- The large numbers of activities and the impact of that upon time does seem to be a difficulty with the children’s relationship with the father. The father has been persistent in his desire to have time with the children and to facilitate that, and he has engaged with professionals in attempts to find a way through the difficulties that have presented themselves, without getting to the point that we currently are at of whether or not the children’s care arrangements should be changed. I am not persuaded that the mother has taken similar steps to facilitate a relationship and to look at whether or not her conduct and behaviour is impacting upon it. Certainly, the evidence of Ms L is very telling against the mother in this regard.
- The question of the extent to which either parent has failed to fulfil their obligations to maintain the child has not been raised as a significant issue in this case.
- I have outlined above the effect of changes to the children’s circumstances, particularly separation from others and the distress and so forth that I must take into account under s.60CC(3)(d)(ii).
- There is one issue of practical difficulty in this case. If the children change residence they will, on a practical level, have to change school. However, given the behaviours that X has been exhibiting with running away, it seems to me that if there is to be a change of residence, then a change of school is likely to be an important part of the changed arrangements to avoid X running away again, which is clearly a serious protective issue with respect to X. He is at significant risk as a nine year old running away from school.
- I have had regard to the maturity, sex, lifestyle and background of the parties, as is apparent from the findings and comments that I have made above, and there is nothing of particular significance that stands out in this regard.
- This case does not involve a child or family that is of Aboriginal or Torres Strait Islander background.
- With respect to the responsibilities of parenthood, it seems to me that the father has demonstrated considerable commitment to this in the way in which he has continued to attempt to pursue appropriate arrangements with the children, his engagement with professionals, and his decision not to pursue contravention applications but pursue a case about the substantive underlying issues.
- With respect to the mother, she has clearly been on notice that the presentation of X to her and in his diary is incongruent with the presentation to the experts. It has been articulated to her throughout the proceedings that this is a significant issue, and that there is a real possibility that her conduct or behaviour may lie at the core of much of this. She has heard the evidence from Ms L that she has not been prepared to engage with Ms L if her views were different to the mother’s. There is no evidence from the mother that she has been engaging with a counsellor to address this, or that she now presents differently to the way in which she presents with Ms L.
- In the context of this case, particularly facing the prospect that the children who have lived with her all of their lives, are to be removed from her care, I would have thought would lead the mother to consider the importance of attempting to engage with a counsellor on that issue and confronting whether or not a better option for the children was some change in views about those matters. That does not seem to have been undertaken in a meaningful way: although the mother has engaged in counselling, there is no evidence to suggest that there has been any real change from her presentation with Ms L.
- I have set out above the issues relating to family violence, and I expressly acknowledge that there are a number of family violence orders that have been made in this case and the details of them as set out in the evidence and affidavits.
- The decision in this case that would be most likely to lead to no further proceedings would be to place the children with the mother with no contact with the father. A decision placing the children with the father may not lead to further proceedings, but may well because the purpose of placing them with the father would be to facilitate a relationship with both parents. However, given the father’s attitude, it is likely that, if there are further proceedings, it would be only because of the mother’s presentation or engagement with the children not being appropriate.
- I turn, then, to consider the primary considerations. The question of the children having a meaningful relationship and the benefit of it with each parent is a primary consideration, and it is apparent, from what I have said, that there is only one choice in this case that would give the children the benefit of a meaningful relationship with both of their parents rather than only one parent.
- I also consider the need to protect the children from physical and psychological harm. I do not find that the children are at risk of physical or psychological harm in the father’s household. It seems to me that the children are at risk of longer-term psychological harm in the mother’s household, given the attitudes that they are displaying and developing with respect to the father and, more recently, the attitudes and behaviours X, as a nine year old, is displaying towards the mother, by throwing his arms and punching at her at the family consultant interview and even today refusing, despite her instruction as his primary carer and mother, to come into the court building, to the point where the police are involved. This indicates a level of parenting that does not indicate a real containment, or control, of the child with respect to the mother.
- The Act also admits of the court considering other matters such as the rights of the parents. In this case, that does not seem to me to be a significant issue, nor does the question of their right to freedom of movement or other variations thereof impact on this case.
- When I consider all of the matters as a whole, whilst it is a difficult decision, on balance I am ultimately persuaded that the best interests of these children would be served by a change in care arrangements for them to live with the father.
- I turn, then, to consider the question of equal shared parental responsibility. In this regard, it seems to me that the parties cannot interact on a reasonable level to discuss questions that will come up with respect to shared parental responsibility, and that a more appropriate course would be for the father to have sole parental responsibility, and orders to be made for him to consult in writing, by way of emails and texts with the mother, and have regard to her views on matters relating to parental responsibility.
- Given that I have concluded that it is in the children’s best interests that the father have sole parental responsibility, s.65DAA is not engaged. Even if I be wrong in that regard and s.65DAA were to be engaged, in the context of this case it seems to me that it is apparent on everybody’s case that, at this stage at least, equal time or substantial and significant time with each of the parents is simply not in the children’s best interests. Indeed, it would present a very real risk to X, given his behaviours in running away and, therefore, even if s.65DAA were engaged, it would not lead to different orders in this case.
- I then go on to consider the various details that might be needed in the orders. I accept that counselling is required for all concerned and various orders have been drafted to ensure that all engage with counselling and that Ms L and Ms S continue to have involvement with the family. I accept that continuing the children at the current school is not going to be workable, either on a practical level or because of the conduct that X has behaved in in running away. I will therefore order it, but only for this year, because one cannot predict the parents’ arrangements in future years, and there may well be a need to change school again in the future, which should be considered at the time.
- Given the difficulties that have confronted the parties in this case, I am persuaded that there is no need for the children to finish the term at their school, given that school holidays will soon be upon us and that, indeed, it may well be the best way of implementing the change that the father is able to take the children on a holiday for a period to completely break their routine on a day-to-day basis and have some one-on-one time with them over an extended period so as to improve the relationship he has with them.
- As to the future, because the underlying rationale for these orders is to attempt to ensure that the children can have a relationship with both parents, I need to turn my mind to what arrangements should be made for the mother to have time with the children.
- It seems to me that it will be necessary for there to be a period of time where the mother has no time with the children or contact, to give them any reasonable prospect of building and setting in place a proper relationship with the father sufficient to withstand the mother’s anxiety about the father. Various periods have been suggested. The period of six months is commonly suggested for this. Looking at the individual needs of the children in this case, I note that Y’s birthday occurs before Christmas. It would obviously be significant for a child of that age to see the mother for her birthday. It seems to me that in these circumstances a period of two hours of supervised time on Y’s birthday for both children would be appropriate, and I would so order.
- Similarly, Christmas is a very important time for all families and, therefore, I have in mind that the children resume some supervised time at the beginning of December, and that they have time at Christmas, on Christmas Day, provided that the maternal grandfather is present to supervise. I assume that he will be quite prepared to give an undertaking in the usual form to supervise that time, and that should be given before Christmas. Thereafter, a regime to move back to second weekends and half holidays should be put in place, and I have drafted the orders accordingly. I have drafted the orders to not dismiss the Independent Children’s Lawyer for a year from today, to enable her to continue in the background. I realise that is a significant imposition upon the Independent Children’s Lawyer but, in the context of this case, it seems to me to be important that she continues to be available to the parties and can certainly therefore bring the matter before the court, and I will give specific leave for the Independent Children’s Lawyer to have liberty to bring the matter back before the court. That does not necessarily stop the parties, but the Independent Children’s Lawyer has leave, and so can obtain an immediate listing. Ordinarily, I would expect that the Independent Children’s Lawyer would be contacted about bringing the matter back before the court, if that is to occur on the application of a party, so that she can contact the court to have it re-listed.
- I will order that the Independent Children’s Lawyer and Ms P tell the children the outcome of the case, and the reasons for it. With respect to how the handover occurs, and whether or not a farewell can occur, it seems to me that that is something that I had best leave with Ms P to assess as the family consultant, given the events that have taken place this morning and, therefore, I will simply make orders that they facilitate those arrangements and leave it to them to do that as best as is possible.
- I therefore make the orders that I have indicated.
I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 19 July 2016
The anonymised name for this judgment has been changed to Ralton & Ralton.
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