Gaylard & Cain (2012) FMCAfam 501

FEDERAL MAGISTRATES COURT OF AUSTRALIA
GAYLARD & CAIN [2012] FMCAfam 501
FAMILY LAW Parenting children alienated from father expert proposes strategy of tactical retreat relocation no order for time-limited communication orders for therapy letter from judge to the children. Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64B, 65DAA, 69ZN, 69ZQ McCall & Clark [2009] FamCAFC 92 MS GAYLARD Respondent: MR CAIN WOC 83 of 2011 Judgment of: Hearing dates: Date of Last Submission: Delivered at: Delivered on: REPRESENTATION Counsel for the Applicant: Counsel for the Respondent: Counsel for the Independent Childrens Lawyer: Mr MacPherson Mr Steward Mr Barry Altobelli FM 31 October 2 November 2011, 29 & 30 March 2012 and 24 April 2012 7 May 2012 Sydney 30 May 2012
Gaylard & Cain [2012] FMCAfam 501
Cover sheet and Orders: Page 1
THE COURT ORDERS: 1. That the Mother have sole parental responsibility for the children X born (omitted) 2001 and Y born (omitted) ("children"). That the children are to live with the Mother. That the children's names be changed to X and Y and the Mother is restrained from using any other form of the name for all purposes related to the children. That in the event that the Mother does not relocate to the area of (omitted) within 8 calendar months from the date of these Orders, the following is to occur: a) The Mother is to make contact with Relationships Australia at (omitted) to arrange an appointment for an assessment; The Mother is to provide to Relationships Australia (omitted) a copy of Expert Report prepared by Dr K. dated 22 October 2011 and any Judgements and Orders made in relation to these proceedings, including Schedule A being a letter from Dr K. dated 3 April 2012, and including Schedule B being a letter to the children; The Mother must attend any appointments at any reasonable location and time as nominated by Relationships Australia (omitted) and complete all necessary assessments; If assessed as suitable and Relationships Australia (omitted) nominates Counselling, mediation or a program to attend, which may include a child inclusive program or separate counselling for the children, the Mother must attend and undertake the appropriate program (as the provider directs) as soon as is reasonably practicable and if separate counselling is recommended for either of the children, the mother must ensure that the children attend their separate counselling appointments.
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b)
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d)
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In the event that Relationships Australia (omitted) assesses that the Mother and children should be referred to another agency or counselling
service, the Mother is to forthwith make an appointment to attend this agency or counselling service and then to engage with this agency or counselling service and to participate in any programme or counselling as recommended either for herself or the children. 6. In the event that the Mother attends upon an agency or counselling service other than Relationships Australia, the Mother is to provide to this agency or counselling service a copy of Expert Report prepared by Dr K. dated 22 October 2011 and any Judgements and Orders made in relation to these proceedings, including Schedule A being a letter from Dr K. dated 3 April 2012, and including Schedule B being a letter to the children; In the event that the Mother relocates to the area of (omitted) within 8 calendar months from the date of these Orders, the Mother is to do the following: a) The Mother is to make contact with Relationships Australia (omitted) to arrange an appointment for an assessment; The Mother is to provide to Relationships Australia (omitted) a copy of Expert Report prepared by Dr K. dated 22 October 2011 and any Judgements and Orders made in relation to these proceedings, including Schedule A being a letter from Dr K. dated 3 April 2012, and including Schedule B being a letter to the children; The Mother must attend any appointments at any reasonable location and time as nominated by Relationships Australia (omitted) and complete all necessary assessments; If assessed as suitable and Relationships Australia (omitted) nominates counselling, mediation or a program to attend, which may include a child inclusive program or separate counselling for the children, the Mother must attend and undertake the appropriate program (the provider directs) as soon as is reasonably practicable and if separate counselling is recommended for either of the children, the Mother must ensure that the children attend their separate counselling appointments.
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b)
c)
d)
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In the event that Relationships Australia (omitted) assesses that the Mother and children should be referred to another agency or counselling service, the Mother is to forthwith make an appointment to attend this agency or counselling service and then to engage with this agency or counselling service and to participate in any programme or counselling as recommended either for herself or the children. Any counsellor engaged with the Mother or the children at Relationships Australia (omitted) or (omitted) or any other agency or counselling service engaged with the Mother or children is granted permission to contact Dr K. and to be provided with any information or any recommendation as to the nature or purpose of any counselling or therapy required for the Mother or children arising out of these proceedings. That in the event that the Father has not already done so, the Father is to make contact with Relationships Australia at (omitted) for an assessment. If assessed as suitable and Relationships Australia (omitted) nominates counselling, mediation or a program to attend, which may include a child inclusive program or counselling involving the children, the Father must attend and undertake the appropriate program as the provider directs. The Father is at liberty to provide to Relationships Australia (omitted) or any other agency or counselling service he engages with, a copy of Expert Report prepared by Dr K. dated 22 October 2011 and any Judgements and Orders made in relation to these proceedings, including Schedule A being a letter from Dr K. dated 3 April 2012, and including Schedule B being a letter to the children. Any counsellor engaged with the Father at Relationships Australia (omitted) or any other agency or counselling service engaged with the Father is granted permission to contact Dr K. and to be provided with any information or any recommendation as to the nature or purpose of any counselling or therapy required for the Father arising out of these proceedings.
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The Mother is to keep the father advised of any medical emergencies regarding the children or any significant health issues. The Mother is to provide the father with copies of school reports for both children and to keep the father advised of any schools the children are attending from time to time. The Father is granted permission to contact by telephone or in writing the children's schools and to inquire as to their progress from time to time. The Father is at liberty to send the children letters, cards and gifts and the Mother is to ensure that the children are provided with these letters, cards and gifts. The Mother and Father are to keep each other advised of their telephone contact details and addresses. When X and Y each turn 14 years the mother and the father will do all things necessary to: a) cause a copy of the letter which comprises Schedule B to these reasons to be made available to the child who has turned 14 to read in the context set out below; and arrange for the said child to meet with the counsellor or therapist appointed pursuant to these orders and request the said person to read the letter with or to the said child; and support, and not in any way hinder, any request or attempt by the said child to communicate with the father; and provide to the counsellor or therapist at the relevant time contact details for the father and his family.
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b)
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Both parents are otherwise restrained from: a) discussing these proceedings, the breakdown of the parental relationship, the allegations of abuse, these reasons for judgment and orders or any part thereof, with the children, in the presence of the children or causing or permitting any third party to do so;
b)
denigrating each other in the presence of the children or allowing anyone else to do so.
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Should any further application be made relating to the children by either parent such application should first be listed before Federal Magistrate Altobelli subject to his availability, and subject to the right of either parent to request that Federal Magistrate Altobelli recuse himself from hearing the application.
IT IS NOTED that publication of this judgment under the pseudonym Gaylard & Cain is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY WOC 83 of 2011

MS GAYLARD
Applicant And
MR CAIN
Respondent
REASONS FOR JUDGMENT

Dear X and Y, After your mum and dad separated they could not agree about where you were to live. You were 10 and 6 at the time. As a judge it was my job to make this decision. I had a lot of help from the lawyer who was representing you, and each of your parents, as well as an expert child psychiatrist. Even with all of this help it was a hard, sad case to decide. This letter is to try to explain my decision to you, even though you probably wont read it for many years. The most important thing I want to tell you is that both your mum and dad love you very much. They loved you from the day you were born, love you now, and will love you for the rest of their lives. Just because your dad may not have been around for a while, it does not change that he loves you. At the time I had to decide the case your mum believed in her heart that your dad hurt you. My job is to look at all the information, and listen very carefully to what everybody says including the experts. I decided that you had not been hurt by your dad. Even after I told your mum what I decided, I think she still believed in her heart that your dad had hurt you. This just goes to show that sometimes words do not change a persons heart.
At the time of the case both of you were saying things, and doing things, that told me you did not like your dad, and did not want to spend time with him. I dont think you really meant this. I think maybe you were picking up the things that mum was worried about. I listened to what you were saying, but in the end the hard decision I had to make was not because of what you were saying or doing. I told you this was a hard, sad case to decide. I decided that even though your dad really wanted you to live with him, it was best that you lived with mum, even though this might mean moving away from where you lived at the time. I knew your mum would look after you really well. I decided not to make your mum let you see your dad, even though your dad wanted this very much. I thought it would make things harder for you if I had done this. By the time you read this letter I think you will be old enough to make up your own mind. I hope you will think about contacting your dad and getting to know him again. There are people called counsellors who can help you with how you feel about this, and help you to make it happen. Please remember that both your mum and dad love you very much, even if they love you in different ways.
Introduction
1. In some cases a just outcome is not one that is in the best interests of the children. I have no doubt that the father feels that the just outcome in this case is that the children come to live with him, away from the alienating influence of their mother. The law that I must apply to the facts of this case speaks loudly of childrens best interests, but says little about abstract notions of justice. In any event the orders I make in this case bear scant resemblance to any idealized notion of best interests and look pragmatically more like the least worst alternative. X is 11 years old and his sister Y 6. Their mother has indeed alienated them from their father. The once good and meaningful relationship they had with him no longer exists. It has been replaced by apathy and antipathy instilled in them by a mother who sees the father through a distorted lens. The evidence in this case leads me to conclude that the mothers perception of the father is based on illusion not reality, but she firmly believes that her view is correct, no matter what anyone else says. She believes her own story, even though this is built on quite inaccurate conclusions derived through wrongly interpreted observations. She is not being malicious or malevolent, she is quite simply shackled by a distorted frame of reality. She believes a lie to be true when it is not. She believes the father is a risk to the children when he is not. This case is about X and Y and how to unravel the multiple layers of a complexity that arise from the dilemma described above.
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Background 4. The childrens mother is the applicant. She is 38 years old, describes herself as being engaged in Home Duties, and presently lives in the (omitted) region of NSW. The father is the respondent. He is 41 years old, is a (occupation omitted), and also lives in the (omitted). They cohabited between 2001 and 2009. On either account of the parental relationship it was an unhappy one. By the time of closing submissions, the mothers proposal was to consent to the Independent Childrens Lawyers proposal. This proposal provides for her to have sole parental responsibility, the children live
5.
with her, their surnames be changed to Gaylard-Cain and, in effect, that she be allowed to relocate to the (omitted) region of NSW. The Independent Childrens Lawyer proposed that there be no contact between the children and their father except via letters, cards and gifts, and a number of orders in relation to counselling which I will discuss below. 6. The fathers proposal was that there be equal shared parental responsibility, the children live with him, and have contact with their mother each alternate weekend plus half the school holidays and on special occasions. Both parents, and the children, were skilfully represented by experienced counsel and lawyers who greatly assisted the court in what was a complex case and is a difficult decision. It is common ground that the father has not spent any meaningful time with the children since December 2010. Whilst a number of attempts were made to facilitate supervised contact after that date, none were successful. It is common ground that the children have expressed in strident terms a view not to spend time or communicate with their father. There is no dispute that Y, and then later X, have made disclosures to the effect that the father has sexually abused Y. It is clear beyond doubt that the mother believes these disclosures to be true, and believes that the father is a risk to the welfare of the children. Notwithstanding that, all closing submissions proceeded on the basis that there was no unacceptable risk of sexual abuse of these children by the father. Indeed all of the evidence before the court unequivocally points to that conclusion. Moreover all of the submissions were premised on the childrens relationship with the father having completely broken down and that they were, for all practical purposes, alienated from their father. Dr K was the Part 15 expert appointed in this case. I will discuss his evidence in detail below. In summary his view was that the children had been alienated from the father by the mother. Notwithstanding this he believes that on balance she has the better capacity to meet the needs of these children. In terms of seeking to restore the childrens relationship with the father, he urged a strategy of tactical retreat allowing the mother and children to relocate with some therapeutic support, and a longer term perspective about contact.
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Applicable law 10. In cases about children under Part VII of the Family Law Act the court must regard the best interests of the child as the paramount consideration: s.60CA. What this actually means in an individual case is informed by a number of statutory provisions which I will briefly discuss below. There are objects set out in s.60B that help to understand what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objects: s.60B(2). At the core of Part VII of the Family Law Act is a presumption of equal shared parental responsibility. Thus s.61DA creates a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. This presumption may be negated in certain circumstances (s.61DA(2)), or rebutted (s.61DA(4)). If the presumption applies, the court is required to consider certain time arrangements as between parents and children: s.65DAA. Thus the court is required to consider equal time, or substantial and significant time, but only if this would be in the best interests of the child, and is reasonably practicable: s.65DAA (1) and (2). Equal time means what it says, and substantial and significant time is explained in s.65DAA(3): Another important concept used in s.65DAA is that of reasonable practicality. That is explained in s.65DAA(5). The concept of best interests is explained in s.60CC. The primary considerations are set out in s.60CC(2) and include the benefit to the child of having a meaningful relationship with both parents, and protecting the child from harm arising from abuse, neglect or family violence. There are additional considerations set out in s.60CC(3). These include: the views of the child, the nature of the childs relationship with parents and other persons; the willingness and ability of the childs parents to facilitate and encourage a close and continuing relationship between the child and the other parent; the likely effect of change on the child; issues of practical difficulty and expense associated with contact; the parents capacity to provide for the childs needs; the maturity, sex, lifestyle and
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background of the child and parents; special considerations if the child is of Aboriginal or Torres Strait Islander culture; attitudes to the child and to the responsibilities of parenthood; and family violence or family violence order; issues of finality; and any other fact or circumstance that the court thinks relevant. Dr K 17. Dr K is a Consultant Child, Adolescent and Family Psychiatrist who was appointed as the Part 15 expert in this case. His report is dated 27 October 2011. He gave oral evidence on 30 March 2012, the final day of the hearing and then again on 24 April 2012 in circumstances that I will describe below. Dr K. concluded that there was, in his opinion, no unacceptable risk of sexual abuse by the father, even though Y had made numerous disclosures to various people as outlined at paragraph 194 of his report. Dr K. explains his conclusion in the following paragraphs (paras.195196). My impression is that both the mother and maternal grandmother became initially concerned then increasingly convinced that the father was sexually abusing Y during the year or two leading up to the marital separation. It is my impression that this concern grew out of their generally negative and mistrustful view of the father, of Ys recurrent masturbatory behaviour, of the fathers use of the word sexy in describing his daughters clothing, then of some rashes or irritations in Ys genital or anal areas. This was a genuine concern which developed over time and which the father reports having been challenged with a year prior to the separation, not consistent with a convenient separation-related fabrication. I note that these factors including the self-stimulatory behaviour are not necessarily indicative of abuse. More recent events suggest that both the mother and grandmother have a tendency to project their views strongly to the children and question the children in the context of those views in ways which elicit responses in line with those views, and that Y is sensitive to and tends to mirror maternal beliefs and attitudes. In this context, I feel that there is a significant likelihood that the maternal and grandmaternal concern about abuse consciously or unconsciously shaped Ys initial disclosures. The initial JIRT interview would support such a view.
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Dr K. believes that the therapy Y was receiving from a psychologist, Ms P, may have unwittingly contributed to an external guiding and shaping of Ys disclosure of abuse: para.198. Both Y and X attended therapy with Ms P., a psychologist providing counselling for the children. In evidence was Ms P.s file including a letter of 24 May 2011. In this regard Dr K. states: another authority figure was sending a clear message regarding the importance of elaborated disclosure: para.198. Ms P.s involvement was well-intentioned, but ultimately has added to the complexities of this case. Throughout 2011 both children repeated the belief that Y had been abused by her father. Dr K. describes this as a strong perpetuating factor in the process of alienation from and shift to total negativity towards the father: para.200. It cemented the childrens rejection of him. Dr K. concludes at para.203: It is my view that broader contextual factors have contributed to the beliefs about and disclosures of abuse and that that sexual abuse of Y by the father is unlikely to have occurred.
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Dr K. felt the children were not at risk of neglect by either parent. In his oral evidence, he considered whether the children are at risk of emotional or psychological abuse in their mothers care. The risk of emotional abuse of the children by the mother was first raised by JIRT. In short the concern is that the mothers belief that the children had been sexually abused by the father, in circumstances where the objective evidence suggested to the contrary, was emotionally abusive of the children. Dr K. accepted that there was a basis for this concern. Indeed the mothers evidence before me was unequivocal she believes the father abused the children and there is nothing anyone including this court can do to shift that belief. As I understand Dr K.s oral evidence, the risk is not so much that the mother would actively, or orally, perpetrate her belief to the children, but rather that it was such an integral part of her perspective that the children would absorb this, and hold it as their own. Nothwithstanding this risk of emotional abuse in the mothers home, Dr K. was resolute that the children were better off with her for example in the transcript p.27 lines 1-9:
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Now, does that cause you to change your view in any way about the mothers parenting capacity?---Not my global view. I suppose I would want to reinforce my view that in this area of assisting the kids to adapt to separation and to have a constructive belief about and response to the father, that the mother is has poor parenting capacity, is immature and is damaging her kids. But I formed the view that on balance, the kids would be better served living with the mother than the father. But theres no doubt that I would agree with the professional opinion of JIRT that in this area, the mother is not helping her kids and in fact is creating developmental damage. 24. In any event Dr K.s recommendations deal with mitigating this risk, and will be discussed below. It should be noted at this juncture that Dr K. in cross-examination, especially at pages 24-25 of the transcript, accepts the possibility that the mother fabricated the disclosures, and thus acted maliciously, but he does not accept this is likely. For example, p.25 lines 4-30: Putting all those things together, would you say that you simply cant rule out the fact that the mother may have just deliberately lied?---I agree that you cant rule out the fact that the mother deliberately lied. I suppose part of my job, in a sense, is pattern recognition, and if his Honour formed a similar view to myself that overall, the mother has some personality strengths and in a sense, in a day to day way, can be quite rich and positive and a good mother, in my experience, I suppose, I didnt detect the sort of malevolent personality pathology that is commonly seen in a parent who will manufacture from nothing an allegation for their own personal gain. But listening to your list then, the comment I would make is I think that all those things together make it more likely that the mother was developing a worry or a sense or a sort of uneasy feeling that abuse may be occurring, based on her judgment of the fathers character and perhaps, you know, some itchy wees, and that she may have amplified or sort of benefited her story by either making more concrete a partial disclosure or inventing a disclosure. And that would give rise to the observation that this actually could be a convenient separation related allegation?---Yes, I didnt form that view, partly because of both the history I got, but also that instant that the father confirmed of sort of being held to account a year or so earlier. Now look, I suppose this comes to that decision about where the kid should live, and if his Honour did find that the mother had been more malevolent, untruthful and calculating in
Gaylard & Cain [2012] FMCAfam 501 Cover sheet and Orders: Page 8
25.
her behaviour with regard to the separation, I suppose that is one piece of information that would lead him to sort of question her overall character strengths, and really, in a sense, I suppose if youre looking at residence between these two parties, then thats one of the things to look at. Ive expressed my view that on balance, the kids are better living with Mum, but this is one area where that could be questioned if his Honour found that the mother had been quite malevolent and untruthful in this area. 26. Dr K. interviewed the children of course, and observed their interaction with both parents. He was asked to comment on any views expressed by the children. He states at paras.209-211: Both children expressed a clear desire to live with mum and her side of the family, and not to see dad or his side of the family. This preference needs to be viewed in the context of the childrens overall alienation from the father. The children presented as extremely alienated from the father, viewing him with a global negativity which constructed an automatic negative response to any question about past, present or future engagement with him. In the case of X, this negativity resisted even a passionate appeal from the father in the room, whilst Ys stance softened a little when she was actually with her father, such that a glimpse of cooperative play occurred. Both children referred to their father on occasion as (omitted) or Mr Cain. This bad view of the father was matched with a good view of the mother, such that both children presented a very positive perspective of past, present and future life with her. This extended to Y, for example, ascribing the locking out of the house discipline which adult narrative would suggest was mostly the mothers strategy, primarily to the father. 27. On reviewing the history and the material before him, Dr K. concluded that the childrens negative stance in relation to their father had not always been present. At paragraph 13 he refers to the shifts over time suggest that the children have undergone a process of alienations and perspective shifts since separation, and they did not hold these globally negative views prior to separation. In relation to the childrens views Dr K. concludes at 216-218: It is my impression that the seeds of this good/bad mother/father perspective split were laid when the grandmother moved in as a
regular participant in family life. The mothers growing negative perspective then moved from her mind into a conversation between the two people spending most time with the children, and gradually became the dominant discourse in the home. I note also that both parents tended to undermine the others authority in disciplinary matters. Currently, the glue which holds this good/bad split together is the mothers, maternal grandmothers and childrens belief that the father touched Ys wee. If the court finds it likely that he has in fact done so, then the childrens alienation from the father is probably adaptive and appropriate. If the court finds (as is my view) that broader contextual factors have contributed to the beliefs about and disclosures of abuse and that that sexual abuse of Y is not probable, then these beliefs are serving to cement in a perspective which is disrupting the potential for a positive father-child relationship. It is important to note that it is not my impression that the children were coached or coerced. Rather, they have absorbed maternal perspective, and now hold it as their own. 28. Paragraph 218 above is a very important one. Dr K. was very skilfully cross-examined about this impression by Mr Stewart, counsel for the father, and not only maintained his view, but explained why. One example of this from the transcript of his cross-examination is found at p.34 lines 27-40: What moved the ambivalence but for the fact the last person she was with was the mother, doctor?---Yes. But, look I agree, but the picture was that one of absorption of attitude, rather than coaching, and even in the whole tone of the mother, during the mothers interviews with the children, when theres coaching, the parents are usually vigilant, on the edge of their seats, watching the kids, the kids are watching the parents. This mother had total confidence that her children disliked the father - a total belief that she was thoroughly accurate in saying that the children had no positive connection with the father and didnt like him. She didnt need to be vigilant. So, I would not have expected that the mother had sat out in the waiting room anxiously priming her daughter. I think she sat out there quite, I suppose, confident in the belief that the kids were sitting in there, speaking the truth, which was that they had no interest to see their father. So, I suppose that was the overall picture that I saw. I think, in terms of Ys inner state, that took an effort to maintain that line, whereas, sadly, I think X is well and truly in that way of thinking.
29.
As it turns out, I accept Dr K.s evidence not only in this regard, but generally. As the childrens views were not coached or coerced, but represent their own views albeit an absorbed maternal perspective, I must take them into account and afford them appropriate weight. Dr K. discussed the childrens relationships, parental capacity, and parental attitudes, all in one section of his report. It is important to reproduce paras.219-225 in full as they inform the courts ultimate conclusion: The children have a secure and supportive relationship with their mother, who has been their consistent carer and day-to-day provider since birth. The children present as comfortable in her presence. She appears to know them, and be empathically and intuitively responsive to their emotional needs. She has been committed to the childrens intellectual needs in terms of schooling and homework over time. She keeps house with care. The mothers day to day parenting capacity appears to have been enhanced by separation, in that she feels freer to run things her way, for example bedtime routines, and thus feels calmer, more productive and more at ease. She does not also carry the burden of unease about the inadequacies of and risk posed by the father. The mother prioritises the children over other goals and desires, and takes very seriously her role as a parent. Thus whilst it is my view that the mothers conclusion that the father has sexually abused Y is likely to have been inaccurate, the intensity of her angry and defensive response having come to this conclusion is evidence of her commitment to her role as mother. The childrens current alienated relationship with the father is discussed above. It is my view that over time the children have had a positive relationship with the father, have sought to engage with him when he has been home, and have enjoyed having fun with him for example playing ball or driving up to the shops to buy something. The father is committed to his role as father, and if called upon to meet their basic daily needs including intellectual needs, would do so. Whilst the mothers capacity is enhanced by solo parenting, the fathers capacity may be reduced by a solo role, as he does not have the backup of the mothers greater intuitive/ empathic capacity, or an ability to hand over to her if he is fed up or feeling in need of a break.
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The relationship with the father, however, has not had the same depth and significance as the relationship with the mother. This is in part because of the maternal role of home-maker and her greater day to day time spent with the children, but also because the father presents as generally less mature in character than the mother, less intuitive and empathic, and perhaps more impulsive and less predictable. The mothers description of the father at times initiating play then becoming irritated by the result and irritably calling a halt to it is in keeping with my impression of him. The children would probably have gone to the mother rather than the father in an emotionally vulnerable moment. In my view, whilst there were many positives in the childrens relationship with the father, the relative strength and quality of their relationship with the mother set the scene for the subsequent good/bad split which grew out of the separation. 31. The complexity of the childrens alienation from their father, and even of their past relationship with him, is evident in this passage from Dr K.s oral evidence (p.20 lines 16-32). Would that in your mind point to the possibility that even when the children told you they had no fun times with dad that they didnt even believe what they were telling you themselves?---Yes. Look, I suppose what - I think almost certainly that the childrens black and white view is, in part, an unconscious thing, where they actually have come to believe the line that they didnt enjoy being with dad, and, in part, a conscious adaptive process because, you know, theyre living with mum and grandma and, you know, theyre the people who are feeding them and keeping them alive. So I think it was a mixture of the two. Now, I formed the view that, sadly in a way, those elements of the fathers immaturity made it easier for the children to have a black and white view because there was a 10 per cent of the play where dad was a bit petulant or over it and so on, and that gave them some actual memory to connect to that would make them able to say, Play with Dad was never fun. So my impression is that there were real memories of dad being a bit petulant or difficult - and Im not saying this is out of the range of normal - that they could attach that dislike to and would help them believe that line. So instead of creating a false memory, they were keeping a real one but just crossing out a huge alternative real one. 32. Dr K. felt that the father was willing and able to facilitate and encourage the childrens relationship with their mother, but the reverse was not true because of the mothers beliefs in relation to the abuse allegations.
33.
Given that both parents proposals involve the prospect of significant change for the children, Dr K. was asked his opinion about the likely effect of change for the children. At pages 228-231 he states: It is my view that a separation from the mother would be extremely distressing and developmentally disrupting for the children. They would weather the storm of the loss of the current idealised good object and would come to see the good in the father, but they would lose the strong thread of attachment and mutual knowing which they have had from birth. I am saying here that whilst the mothers current split against the father is immature and damaging for the children, her overall capacity is good and impact for the children is positive. The loss of this would be great for the children. A separation from the father is already on the cards. With a secure connection with the mother the children would adapt to this loss without too much developmental damage, but this still is a significant loss in terms of the opportunities for experience of difference outlined in 1.1 above. The loss is not just of the father but of his extended family and of cultural and ethnic heritage. Also, there is a risk of negative effect in terms of the children cementing in a black and white view that their father was bad and abusive and (in Ys case) that she is damaged. Both children, but particularly X, are currently experiencing grief at the loss of the father, but are not able to consciously own or acknowledge that grief because of their conscious stance of devaluing of the father. The documented evidence suggests that X shared a seat in his fathers truck and success at soccer with his father, and that he will carry this loss for some time.
34.
He was of course challenged about this in cross-examination by counsel for the father, particularly in view of Dr K.s own opinions rejecting unacceptable risk of abuse. Despite all the factors in this case Dr K. was quite firm in his opinion that the childrens best interests were served by living with the mother in the context of the recommendations that he made. Dr K.s recommendations relevantly commence at para.242 and are premised on an acceptance by the court (as it does) that there is no unacceptable risk of abuse by the father. Whilst he postulates the ideal arrangement of living with the mother / substantial contact with the father, Dr K. rejects this due to the complications of the mothers firm
35.
belief about abuse, the maternal grandmothers alliance in this, the childrens alienation from the father and the involvement of the extended family. Dr K. then explicitly raises the justice theme that permeates this case, and concludes at paras.245-246: In my view, whilst a sense of justice would point to the children being placed with the father, and from that stance re-growing a connection with the mother, the central role of the mother-child relationship in the childrens lives and the mothers overall better capacity despite her current large blind spot regarding the father (explainable in terms of the maternal instinct to protect) would point to the children being placed with the mother. It would be in the mothers interests to get a chance to start again in a setting where her wellbeing is not disrupted by judgemental or resentful relatives or friends of the father, and where she has the support of her mother. Paradoxically, she is most likely to let go of her vigilant negative stance against the father if she is in a secure place. The reintroduction of the father into the childrens lives will have to happen slowly, so the distance between (omitted) and (omitted) will not be insurmountable, particularly if the mother is expected to do some travelling as a condition of the court allowing her relocation. 36. It is not surprising that this recommendation attracted much attention in cross-examination, particularly by counsel for the father. Dr K. acknowledged that, from the mothers perspective most of the inaccurate conclusions were accurate observations wrongly interpreted through a sort of distorted lens (transcript p.19, lines 17-18). However he formed and maintained the view that the mother overall is a good mother who loves her children, who is attentive and thoughtful (transcript p.20 lines 45-46). He acknowledged that she has a big deficit in the area of meeting the developmental needs of the children with regard to maintaining a relationship with the father (transcript p.21 lines 45-46) but otherwise had the ability to meet their other needs. Dr K. clearly felt that she had adequate parenting capacity, indeed a superior capacity to that of the father. The mother did not fall into the category of alienating parent whose personal vulnerabilities were so great that the children were in danger with her (transcript p.10, lines 831). The chance to start again that he envisaged at para.246 of the report would take the heat out of things (transcript p.36, line 9)
particularly in terms of her intellectual view of the father (transcript p.41, line 9). 37. Dr K. recommended sole parental responsibility for the mother (para.247) and that the father be able to communicate with the children by cards and letters by mail, but not email or telephone, as their immediacy can be experienced as intrusive (para.248). Dr K.s key recommendation is set out at para.249: The aim should be to gradually grow contact from there. I recommend the following principles: 249.1 The worst scenario is recurrent false start contact sessions where everyone gets worked up then the contact doesnt go ahead. This is bad for the children and their relationship with the father. 249.2 One expectation is infrequent contact, with a strong expectation that the children attend, for example once every 2 months. For example, a contact centre, where mum drops and leaves, then dad attends. 249.3 Another option is to cease all contact until the children express a willingness or wish, as interpreted by the mother 249.4 Contact should initially be supervised, half a day then building to a whole day. Supervision should continue for 2 years, until the fear of abuse has settled, and the mother feels confident that Y is older and more able to understand protective behaviours. The trade-off for the mother should be that she allow supervision by a relative or mutual friend. 249.5 Ideally, contact should build up then to unsupervised day until Y is 9, then unsupervised overnight and weekends, building up to monthly weekends and half of the holidays. 38. Dr K. acknowledged that the attempt to reinstate contact via the interim orders made after Day 3 of the proceedings was a clear example of the false start to which he referred at 249.1. The complete failure of these orders merely accentuated the need to avoid further false starts that could be so potentially damaging for the children.
39.
In relation to the 249.2 option of infrequent contact, he was clearly against this when he gave oral evidence, for two reasons. There could be no reasonable confidence in the mother that she would facilitate this. Moreover the stress on the children, and indeed the father arising out of failed contact, would be so great as to mitigate against making orders for frequent contact: transcript p.14 lines 17 p.15 line 27. This is a lengthy passage of oral evidence, indeed too long to reproduce, but of interest and significance was Dr K.s acknowledgement that in these sorts of cases contact centres just cannot assist, partly to avoid distress to the children, but partly also to avoid distress to the staff trying to enforce the contact. He warned against the brinkmanship involved in enforcing contact orders which runs the risk that you have created a massive amplification of distress for no benefit (p.14, lines 32-39). Paragraph 249.3 sets out what was clearly Dr K.s preferred recommendation to cease all contact until the children express a willingness or wish, as interpreted by the mother. Once that happened, paras.249.4 and 249.5 would apply. In his oral evidence Dr K. did emphasise that therapy should be available to the children and, indeed, to the mother. This is what Dr K. described as the tactical retreat options (p.15 line 24) in which the children do not see their father but are supported by therapy that is not directed towards specifically returning to contact but rather about the childrens head space and its about them being able to talk about any sort of grief or other emotions they experience aboutDad (p.15 lines 34-36). He also said: the goal of the therapist is to create a space where the children can reflect and, when the children are ready, that they experiment with contact. Its not the role of the therapist to judge whether they need it and enforce something that theyre not ready for (p.17 lines 1-4). He repeatedly emphasised the importance of not having a timetable for the resumption of contact because it would only re-set the timer of the childrens anger by extending it according to the timetable. Dr K. offered to provide, and then indeed did provide a letter explaining precisely what sort of therapy would be helpful for the parents and children to undergo after final orders have been made. This letter is reproduced in Schedule A to these reasons. This letter was made available to the parents and the Independent Childrens Lawyer with
40.
41.
opportunity to make submissions before I made final orders and delivered reasons. I am of the view that the letter is appropriate. 42. The courts sense of Dr K.s final recommendations as discussed above is that it was more in the category of the least of worst options rather than best interests. Moreover it is clear that he recognised it might not work, and the childrens views about their father might not change, even with no contact for many years. He described the likelihood of the childrens views changing as unpredictable (p.6, line 1), but he was nonetheless confident that one or other of them is likely, at some stage in their development, to think in the other direction, and that may be a quiet thoughtful reflection where they ring their dad when theyre 20 years old, or when they have their first child (transcript p.6, lines 59). He clearly warned the mother that there may be consequences of her alienating behaviour that she has not considered, especially of extreme reverses in alliances. Dr K. urged the father to adopt a 25 to 30 year perspective (p.9, lines 27-28) but warned him to behave reasonably, because what will alienate the children totally is if that sense of injustice drives him to behave unreasonably. (p.9, lines 27-28). Dr K. acknowledged that one major risk of the tactical retreat option was that by allowing the children to move away, it may allow the mother to justify to the children that their father really was dangerous and that is why the court allowed relocation and no contact. However Dr K also acknowledged the reality that when the kids get older, they can read whole judgments and things and they can make their own view (p.41 lines 23-24). In his experience most kids go and try and work it out for themselves at some stage, and I suppose part of the therapy that Im recommending is to keep some flame alive of a space where that sort of thinking can go on (p.41, lines 36-38). Indeed the court formed the impression that Dr K.s belief that the children could one day read these reasons for judgment permeated his whole evidence, and that is why he was so explicit in suggesting that the judgment say certain things. Thus, for example, he urged that the court make very clear that the courts view is that contact would be beneficial (p.15, lines 45-46); and that I do believe this father is competentto care for his children in a week during the holidaysbecause what that puts on paper is the fact there has not been a finding that the father is not capable of doing that (p.16 lines 13-16).
43.
44.
Dr K.s final recommendations are set out at paras.250-253 of his report: Both parents should refrain from denigrating the other. Parents should not raise the issue of the alleged sexual or other abuse, or discuss the veracity or otherwise of those allegations, eg the father should not be defending himself, and the mother should not be recycling the allegations. If the child/ren raise the experiences with the adults, the adults can respond sensitively and empathically to what has been raised. That each party be restrained from making critical or derogatory remarks about the other in the presence or hearing of the children. That the father be appropriately informed about educational and medical matters in the girls lives, for example receiving copies of school reports.
45.
I found Dr K. to be a most impressive witness whose report and oral evidence was extremely useful. Even though his evidence was meticulously tested in cross-examination, particularly by counsel for the father, and even though he made appropriate concessions, he did not resile from the recommendations he formulated. The court accepts Dr K.s evidence.
The mothers evidence 46. The mothers evidence consisted of her affidavit sworn 13 October 2011 and 16 March 2012. Her affidavits paint a rather sad picture of an unhappy relationship with the father almost from the outset. She depicts the father as a distant, detached, disinterested parent who was violent to her and the children, who perpetrated sexual abuse on Y, and who was clearly an ongoing risk to the children. Her depiction of the father contrasts to her depiction of herself as the quasi-heroic mother who carried the load of raising the family despite adversity, whilst protecting the children. She also sees herself as valiantly seeking to encourage the children to spend time with the father, notwithstanding what she perceives he has done to them. The mothers depiction of family life both before and after separation is genuinely believed by her, but does not accord with reality. In crossexamination Dr K. was asked to comment on the mother as an accurate
47.
historian when she was talking about the father to him. Dr K. answered as follows (p.19 lines 16-18): I formed the view that overall she believed her own story, and that most of the inaccurate conclusions were accurate observations wrongly interpreted through a sort of a distorted lens. 48. After observing the mother give oral evidence over the course of three non-consecutive days, I reach the same conclusion as Dr K.. She was, at times, an unimpressive witness, sometimes unresponsive, but often unconvincing in her glib replies. It was not possible for her to adopt a child-perspective, or child-focus, that was different to her very narrow, closely-held view. There was, in her mind, no role for the father in the childrens lives, either past or future. He has nothing to offer them except the risk of harm. Black and white thinking permeated many of the answers she gave. She accepted no responsibility either for past events, the current alienation of the children from their father, or as to her role in restoring this relationship in the future. She was disingenuous in ascribing to the children responsibility for making decisions about spending time with their father, or for wanting to relocate to (omitted). Her propensity to have adult conversations with the children during the course of these proceedings was disconcerting. Even if the mothers own counsel had not conceded that there was no unacceptable risk of abuse, the mothers own evidence in this regard would have led to that finding. Her evidence about the risk of abuse to the children was internally inconsistent, inconsistent with the other evidence, and her concerns about risk of abuse were manifestly inconsistent with her own actions. The nadir of the mothers evidence came when she described how she had consulted a psychic who foretold that Y would be sexually abused before the disclosures were made. One can only wonder how this may have contributed to what Dr K. so diplomatically describes as the mothers distorted lens. However, even a distorted lens sometimes provides accurate glimpses of reality. When one has regard to all the other evidence in this case it turns out that some of the mothers perceptions have some limited reality. Thus there probably was some conflict in the relationship that may have manifested itself in family violence at times, but the relationship was not a violent one as she depicts. The fathers involvement in parenting was circumscribed by his work commitments,
49.
it being obvious that in this relationship he was the breadwinner, and she was the homemaker and parent. It is probably the case that the father did get frustrated with the children at times, sometimes perhaps even in the context of activities he himself initiated. These are all observations made by Dr K. which are consistent with my own observations of the parents, and of the evidence. 50. Even though the mother often sees the world through a distorted lens, even the father conceded that, apart from her inability to foster the childrens relationship with him, she was a good and capable mother. That is consistent both with Dr K.s views and my own assessment. Apart from what Dr K. described as her blind spot for the father, she was providing for the childrens physical, emotional and intellectual needs adequately, and better than the father could in the circumstances. I reject the submission that the mother acted maliciously, or malevolently, in making the allegations she did against the father. She was confronted with repeated disclosures by Y. She responded defensively and protectively as a mother. With hindsight she should have realised well before the final hearing that the disclosures were not based on fact, given the overwhelming objective evidence pointing to this. Even now her insistence in believing these allegations is very difficult to understand unless one realises that the mother views the world through distorted lens. Nonetheless, it is hard to accept her counsels submissions that she acted reasonably. Turning to the future, the clear impression I formed of the mother is that, even if permitted to relocate to (omitted) on the basis of no or limited contact with the father, she will always have that distorted lens and that blind spot as regards the father. If Dr K. is correct, the passage of time, and the creation of distance, will reduce the intensity of this. I trust that will be so. Whilst I accept that the mother will abide by orders of the court I have concerns that her focus will be on form and not substance. A prescriptive approach to orders is required in this case. If she is to be made accountable for what she does or does not do, it will have to be through some external mechanism, and not via the mothers internal commitment.
51.
52.
The fathers evidence 53. The father relied on affidavits he swore on 16 March 2011, 3 May 2011, 7 June 2011, 17 August 2011, 14 October 2011 and 16 March 2012. Whilst his evidence paints a picture of a much happier family life, even in his case one forms the impression of a sad, unhappy relationship with the mother. His intense frustration, and sadness, at losing the close relationship he once had with his children, permeates his written evidence. His denials of any form of abuse are clear, consistent and credible. His depiction of happy family life is probably idealised. He glosses over the strains in his relationship with the mother and motherin-law, and the tensions as between the mother and his own extended family. The father gave oral evidence. For the most part I found him to be an honest witness. I formed the view, as I have indicated above, that he minimised the nature and extent of the conflict with the mother, and perhaps exaggerated his involvement in parenting the children. I formed the impression that sometimes his punishment of the children was inappropriate, and attributable to frustration on his part, both with the children and an unhappy relationship with their mother. My stronger impression of the father, however, was that even though he was adopting the courageous position of wanting the children to live with him, he knew in his heart this was not realistic. At least twice during crossexamination the father indicated a desire to let the children stay with their mother, provided he could have contact. Despite that, and even though offered several opportunities by me to amend his proposal for the children, in each case I was informed by his counsel that his proposal was the children live with him. One wonders whether this was the result of legal advice, or the fathers own preference. In questioning it seemed to me that, in reality, he had quite a good insight into the distress that the children would experience if I made the orders he was asking me to make. It was clear that he did not have the capacity to manage that distress either in the short or medium term. When his proposals were reality tested in cross-examination, they were found lacking in substance. He could not convincingly articulate how, for example, he would deal with two alienated children with whom he no longer had a relationship, and who did not want to be there with him.
54.
55.
His sense of optimism in being able to access and satisfactorily engage in expert therapeutic services for the children, the mother, and himself, ignore the history of failed attempts in this case. It was optimism asked to triumph over reality. The fathers intentions were good, but his capacity to implement them was flawed. His commitment to the children, despite their alienation and the adversity he has suffered, is truly admirable. One can well understand why he would not give up on them. However, my assessment, and that of Dr K., is that the emotional cost to them would be too high. The risk of running away, and the emotional consequences of this, viewed in isolation, is a risk far too real, and far too great to take. 56. There are no limitations, in my assessment, of the fathers capacity to parent these children for school holidays, or even weekends, if and when they are ready for this. In their current highly antagonistic frame of mind as regards the father he does not have the capacity to care for them.
The maternal grandmothers evidence 57. The maternal grandmothers affidavit was sworn on 14 October 2011. She has clearly had a substantial involvement in the childrens lives since at least 2008 when she moved from (omitted) to live across the road from the parents and children. Her views about family life and about the father are closely aligned with those of the mother. Y made disclosures to her as early as October 2009 but, as with the mother, she did not act on them. I formed a strong impression of the grandmother that she too, just like her daughter, viewed the world through distorted lens, and accordingly drew many inaccurate conclusions about events. She is deeply suspicious about the father, and can acknowledge nothing positive about him. In cross-examination it transpires that she too was somehow involved with a clairvoyant who predicted that Y would be abused. She showed no objectivity about the matters before the court. She was stridently aligned with the mother in all respects. I am satisfied that she, like her daughter, involved the children in discussions about adult issues. She will be an emotional support for the mother and children. She will assist the mother in providing for the childrens emotional and physical needs. She will be of no assistance to the mother facilitating and encouraging the childrens relationship with their father.
Other witnesses and evidence 58. Two other witnesses gave oral evidence, Ms C and Ms S. Both are professional contact supervisors engaged by (omitted) Service. Their reports about a number of unsuccessful contact visits in 2011 were in evidence. In the circumstances of this case, where I have made clear findings that the mother has alienated these children from their father, there is no need to discuss this evidence in detail. Suffice it to say that their reports are quite adverse to the mother. I do find, however, that wherever the evidence of these two witnesses conflicts with the evidence of the mother, I prefer their evidence over the mothers. I am satisfied that both were independent, reliable and truthful witnesses as to the facts they reveal. It is quite possible that some of the conclusions they drew in their evidence reflect their zealousness in facilitating contact, rather than a more objective appraisal of events. A supervisor of contact should not adopt a quasi-forensic role which is what happens when their reports contain impermissible conclusions based on subjective impressions. A supervisor of contact should simply record the facts, and allow the court to draw its own conclusions from the facts. When this does not happen the risk is that, retrospectively, one party will view the supervisors involvement as purely partisan rather than independent. That is the submission about these witnesses made by the mothers counsel. I do not accept, however, the submission that these supervisors made a bad situation worse or that part of the problem these children have is attributable to their supervision. That is utter nonsense. The submission reflects the distorted lens through which the mother views the world, and a complete inability to appreciate how her own actions and feelings have contributed to the alienation of the children from their father. This criticism of the supervisors by the mother is baseless. There were also a number of affidavits read in the fathers case where the deponents were not required for cross-examination. As it turns out, nothing turns on their evidence so there is no need for me to refer to this evidence.
59.
60.
Is there an unacceptable risk of abuse? 61. In closing submissions both the fathers counsel and the Independent Childrens Lawyers counsel submitted that there was no unacceptable risk of sexual abuse if the children were to spend time with the father. This submission is, I accept, consistent with the Part 15 experts report provided by Dr K.. In his closing submissions, counsel for the mother frankly conceded that there was no unacceptable risk of abuse in view of the evidence before the court. He emphasised, however, that this concession could not be construed as an acceptance that the mother acted inappropriately or unreasonably in the circumstances. Indeed it was the submission of counsel for the mother that she at all times acted reasonably, and as a protective mother. By contrast, the fathers counsels submission is that the mother acted malevolently. The difficulty with this submission is that it was never put to the mother in cross-examination that she acted with malice. It was, for example, never put to the mother that she influenced or coached the children to make disclosures. Whether the mother is undermining the childrens relationship with their father is a quite separate issue that must not be confused with whether the mother acted malevolently as regards the disclosure. A finding of malice against the mother, as regards the childrens disclosures, is simply not available on the evidence before the court. Whether or not the mothers reactions to these disclosures indicates a lack of willingness on her part to support and facilitate the childrens relationships with their father, is an issue I will discuss below. In the circumstances, a finding of no unacceptable risk of sexual abuse is inevitable. There is no need, therefore, to discuss the evidence about the disclosures, and the actions and inactions of the parents and maternal grandmother in response to the disclosures except to the extent that this evidence informs my findings about considerations under s.60CC of the Act. Moreover it was not a part of either the mothers or Independent Childrens Lawyers case that there was any other form of unacceptable risk of the children spending time with their father. Rather this issue was better understood by reference to other s.60CC considerations that I will discuss below. Henceforth in these reasons, therefore, there will be no further reference to unacceptable risk of abuse.
62.
63.
64.
It is part of the fathers case, however, that there is a risk of psychological or emotional abuse to Y, if she continues to be exposed to the belief by both the mother and maternal grandmother, that she was in fact abused by her father. This was put to Dr K. in cross-examination (transcript, pp.36 and 37). He accepted that this risk existed, but felt that his recommended strategy of tactical retreat and therapeutic support for the children would mitigate this risk. I accept Dr K.s evidence in this regard. The risk of the mother and maternal grandmother perpetuating the myth that Y has been abused by her father is real, but not unacceptable. I am satisfied that the tactical retreat strategy is the most that one can do in this case to manage that risk. As it turns out, there is no alternative in this case but to leave the children with the mother so to that extent this risk was never going to become an unacceptable one.
Meaningful relationship 65. It is common ground between all parties that there is currently no meaningful relationship between the children and the father. I did not understand there to be any dispute between the parties that the father did have such a meaningful relationship in the past. Even if this were disputed, the evidence points overwhelmingly to this conclusion (eg. the mothers own evidence about family holidays). The relevant exercise for the court, therefore, is to consider and weigh the evidence and determine how, if it is in the childrens best interests, orders can be formed to ensure the children have a meaningful relationships with both parents: McCall & Clark [2009] FamCAFC 92 para.118. Thus the preferred interpretation of s.60CC(2)(a) is the prospective approach, and the court must focus on the benefit to the children of a meaningful relationship with their father: McCall & Clark paras.119 and 122. Regrettably, this is a case where the evidence indicates, to use the words of the Full Court at para.122: there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the childs best interests.
66.
Views of the children 67. The children have expressed views in strident terms. They want to spend no time with their father, and want no communication with him.
As Dr K. acknowledged in his oral evidence, their views need to be understood in the context of their alienation from their father. He explained that one day their views might change. Whilst I accept that, at the present time, the children want nothing to do with their father, I do not decide this case because of these views. In the circumstances of this case, in view of the alienation that I find has occurred, there are factors that predicate no weight being given to these views. Nature of the childrens relationships 68. The evidence enables me to find that in the past the children enjoyed good relationships with their mother, father, maternal grandmother, and the fathers extended family. I accept the evidence that both parents gave me of very happy holidays with extended family and friends. At the moment, however, the childrens world of relationships has been drastically changed because of their alienation. Not only is their father no longer a part of their life, but his extended family is also excluded. This is a loss for the children. Dr K. acknowledges that, whether the children or the mother recognise this, the children will grieve the loss of their father, and probably, albeit to a lesser extent, the loss of his extended family. The overall circumstances of this case means that this loss will have to be accepted because there are no better alternatives than to let the mother and children relocate. The children do have a good relationship with their mother and grandmother. Whilst they both have a blind spot for the father, they are nonetheless adequate providers of care for the children.
Parental willingness to facilitate relationships 69. I have no doubt that if it were possible to place the children in the fathers care without great emotional risk to them, he would be both willing and able to facilitate and encourage the childrens relationship with the mother. The opposite is not true. The mother is neither willing nor able in this regard. She sees the world through distorted lens. She could see no positive role for the father in the childrens lives past, present or future. In a case where she is providing adequate parenting, and where the father is not up to the challenge of parenting these children in the circumstances they are in, even though this consideration so cogently points to the children being removed from her care, this is not in their best interests. In the circumstances all I can do is hope that
Dr K. is correct and that the creation of distance between the parents will help to reduce the intensity of the mothers unwillingness in this regard. Likely effect of change 70. In a case where there are only poor alternatives, the children will be exposed to inevitable change. The focus of this consideration is the likely effect of change on the children, particularly but not limited to separation from parents and other significant persons in their lives. On the fathers proposals the change for the children is manifold and intense. They would be removed from their primary carer, and placed in the care of a parent they want nothing to do with. This is physical and psychological change of monumental proportions. In order to cope with this they would need to be supported in this change by both parents, but neither are capable of doing this. The father could not explain to me a considered strategy for coping with this sort of change. I fear the mother would neither accept nor cope with such a decision. All the therapy in the world would not be enough, in my opinion, to support the children and their parents through this change. Of course the change for the children involved on the Independent Children Lawyers and mothers proposals are also great. There are changes in physical space, but also changes in emotional space. Dr K. believes, and I accept, that the mother would experience relocation in a positive way. It is what she wants. It takes her away from the father and his extended family. It gives her the opportunity to move on both physically and emotionally. The relocation also marks the end of the litigation. I accept it takes pressure off her, and therefore off the children. They already dont have a relationship with their father, and ironically relocation away from him may be a key factor that contributes to the eventual restoration of that relationship. In short I am more confident about the childrens ability to cope with the change they will experience on the mothers proposal than on the fathers. This is, however, a least of the worst alternatives perspective.
71.
72.
Practical difficulty and expense of contact 73. The fathers proposal presents the least practical difficulty and expense as regards contact and communication. Indeed if I made the order he
proposes I suspect the mother would remain in the (omitted). For the reasons I have already articulated, the fathers proposal is not in the best interests of the children. 74. On the mothers proposal, no issues of practical difficulty and expense arise because there will be no contact, and very limited communication. Regrettable as this is, it does represent the best of the worst alternatives in this case.
Parental capacity 75. In discussing the evidence of both the parents I made findings about aspects of their capacity to provide for the needs of the children. My own observations and findings are consistent with Dr K.s observations. Despite the mothers grossly distorted lens through which she views the father and the events that bring this matter to court, she is a more than adequate parent. Indeed that parenting capacity will most likely increase with relocation. Despite the fathers good intentions, optimism, and courageous position in this case I am far less satisfied about his capacity to parent these children on the facts of this case.
Maturity, lifestyle, cultural background 76. Whilst this is not a determinative consideration, I acknowledge that the mothers proposal will take the children away from exposure to their fathers (omitted) cultural heritage. They will retain the surname Cain as part of the hyphenated surname Gaylard-Cain that the parents agreed to. It is possible that in the future they will seek to rediscover their (omitted) heritage perhaps as part of restoring their relationship with the father.
Parental attitudes 77. There is much to criticise the mother about in relation to this consideration, though it ultimately makes no difference to the outcome. Nonetheless I regard that her conduct in relation to the disclosures became irresponsible once it became increasingly apparent by any objective standard that there had been no abuse. Surely by the date of release of Dr K.s report, in late October 2011 it should have become apparent to her that her concerns were ill-founded. It was immature and irresponsible of her to adopt a stance of belief in the allegations when all the evidence pointed towards a contrary conclusion. In this regard the
mother truly sees the world through distorted lens. The continued maintenance of a destructive subjective belief that has no objective basis goes beyond mere maternal over-protectiveness. It suggests a toxic hatred of the father that has no discernible basis and which is the zenith of irresponsible parenthood. This does not change, however, my final conclusion about what is in the best interests of the children. Family violence 78. The mother made a number of allegations against the father about family violence that I find have little substance. In any event even her case did not emphasise this as a relevant factor, except in the faintest of ways. If the mother was trying to establish that there was family violence to which the children were exposed and as a result of which they became estranged from the father, the evidence goes nowhere near establishing this. I accept it was an unhappy relationship in which there was conflict from time to time. It was not a violent relationship.
Order least likely to lead to further proceedings 79. If I make the orders proposed by the Independent Childrens Lawyer and the mother, the greatest risk is of an appeal by the father. There is nothing I can do to control that in circumstances where I believe that is what is best for the children in the sense that it is the least of the worst alternatives. If I make the orders proposed by the father there is, in my opinion, a great risk that this matter will need to be re-litigated as regards implementation and enforcement of the order. Dr K. referred to the risk of the children running away, especially given the close proximity of the mother. Even the father acknowledged this risk. His proposal is, regrettably, an invitation for further court involvement in these childrens lives.
80.
Parental responsibility 81. Having regard to the matters I discuss above it is not in the best interests of the children that the presumption of equal shared parental responsibility apply. I will make an order for sole parental responsibility.
A letter to the children from the judge? 82. The idea of a letter to the children from myself evolved during the writing of these reasons for judgment. On the one hand it was clear that I was contemplating orders that would probably mean these children would not see their father for many, many years, and possibly mean they would not see him ever again. On the other hand Dr K. was stating that in his expert opinion it was likely these children would, one day in the future, want to re-establish a relationship with their father, and make their own decisions. This might happen as early as the childrens adolescence, or during their adult years, or perhaps not at all. The role of the childrens mother in facilitating or obstructing this is something neither Dr K. nor I can predict or control. But what if the children were to receive a letter from me, written today and set out in these reasons, but not received by them until they were of a set age? Could that letter accelerate or act as a catalyst for repair or restoration of their relationship with their father? Perhaps the mere fact of the existence of the letter would give hope to the father? Perhaps the letter would make the mother more accountable and sensitive for what she might say and do, between now and the date the letter is read by the children? Perhaps the letter would be a more child-focussed way for the children understanding why a life-changing decision was made about them, particularly compared to reading (perhaps surreptitiously) these reasons for judgment? I think Dr K. was entirely correct in anticipating the likelihood that the children would, one day, make their own enquiries about what happened to their father and why. These children belong to the Facebook and Twitter generation of instantaneous communication and limitless access to, and uninhibited sharing of, information. This generation seems to horde information about other people and other things as much as they share information about themselves. I am not so nave as to believe that merely making orders restricting their access to information about these proceedings, and anonymysing my reasons, will prevent them from one day gaining access to these reasons. Indeed perhaps finding out exactly why orders were made about them in 2012 is the final and ultimate manifestation of their participation in these proceedings.
83.
84.
85.
In making the orders I have made I have denied these children the right to know and be cared for by both their parents (s.60B(2)(a)), denied them their right to spend time on a regular basis with their father (s.60B(2)(b)) as well as arguably denied them the right to enjoy their fathers (omitted) culture (s.60B(2)(e)). I believe I have done so for good reasons, and in the childrens own best interests. One wonders, however, whether my obligation under s.60CC(3)(a) to consider the views expressed by the children gains a new poignancy in a case where I am denying them such important rights? The orthodox view of s.60CC(3)(a) is that it relates to the views of the child as at the date of the hearing. This is potentially problematic, and perhaps unnecessarily restrictive, in a case where the expert evidence indicates that, one day, their views may well change. There is an obvious intrinsic difficulty in giving weight to a childs possible future views in reasons for judgment written today. But this problem merely exemplifies the dynamic and not static nature of decision making in relation to families families change and so must the rules that govern family life. A way must be found around the intrinsic difficulty of giving weight to a childs possible future views. A case like the present one challenges conventional thinking about childrens participation in proceedings because the expert evidence is so clear about the possibility of a change of views, and the probability of the children one day reading these reasons. If their right to be heard in proceedings relating to them is conceptualised into the perhaps more general right to participate in these proceedings, arguably the final act of participation will not occur until they have read and understood these reasons. It is no answer to say their lawyer, the Independent Childrens Lawyer, can explain it to them now, or in the near future, because they are so alienated it will make no difference, and be of no use to them. Even if that were not the case, the childrens developmental stages make participation, in the sense of understanding reasons, unlikely if not impossible. These are challenges in facilitating that final participation by children in decisions relating to them. Moreover traditional reasons for judgment are not usually written with the audience of the children in mind. The language and format of reasons are, more often than not, styled for an audience consisting of the parents, the lawyers involved in the case, and an appellate court. The
86.
87.
letter I propose to send to the children will, I hope, overcome some of these hurdles to their final participation in this case. 88. I caused the matter to be relisted on 24 April 2012. I explained to the parties, their lawyers, and to Dr K. what I was considering. Dr K. gave further evidence on this day. I then gave the parties time to file written submissions. Dr K. gave further evidence on 24 April 2012 both as to the concept of a letter to the children from the judge, and as to the possible content of such a letter. I was particularly interested to ascertain his views as to what age such a letter should be sent, if he considered it appropriate. The obvious issue here is that Y is 4 years younger than X. Dr K. described the concept as potentially a useful thing to do. Indeed he expressed that he had been thinking along similar lines that children as they individuate deserve in some way to get some objective perspective about why decisions have been made about them. He acknowledged the risks associated with the concept. For example he reflected that his strategy of tactical retreat in this case was an attempt to avoid reinforcing the childrens negativity against their father. There was a risk, therefore, that receiving a letter from the judge would result in reinforcing their negativity. However Dr K acknowledged that it would be several years in the future, and in any event it was hard to imagine that the childrens negativity could be worse than it already is. In relation to this risk, therefore, he said so I dont think thats a risk that would stop me acting. (transcript 24 April 2012, p.6 lines 29-30). Dr K. identified another risk that it will disrupt the childrens world view at a time when they are likely to be settled and secure and, at some level, have come to terms with the absence of their father. He explained that receiving such a letter would create unease and disruption that could be distressing to the children. However he felt that this could be minimised by placing boundaries around the receipt of the letter, especially through the involvement of the therapist who would in any event be involved with the children if his recommendations were adopted. In terms of the age of the children at which they should receive the letter, albeit in the context of therapy, Dr K. agreed with my suggestion that it
89.
90.
91.
92.
should be at a time when the childrens developmental stage involved individuation. He favoured 13 for Y and 17 for X. He did leave open the possibility of doing it separately, and in this regard he felt that X at 14 would be mature enough to not only deal with the letter, but understand the need not to discuss this with his younger sister. 93. In relation to the content of the letter he emphasised that judgments of the character of the mother and father should be avoided, and that these should be affirmations that both parents love the children and are doing the best they can. However the letter also needed to communicate that the father is not dangerous, whilst also explaining why no contact was ordered. The letter should point the way forward if the child wanted to take it further. In the fathers written submissions, which clearly favoured the concept of the letter, he made the following points: a) that the counsellor or therapist working with the children should be the one providing the letter to the children; that his contact details should be provided either in the letter or to the therapist; that the paternal familys contact details should also be provided, just in case the children felt more comfortable making contact with them; the father submitted that, on the evidence before the court, it was unlikely that the mother would in any way facilitate any reestablishment of the childrens relationship with the father; in terms of the content of the letter, he wished his love for the children to be re-affirmed, as well as assurances that he was no risk to them, and would always be available to them.
94.
b)
c)
d)
e)
95.
The mothers written submissions expressed negativity about the concept of the letter. The mother was concerned about the potential difficulties that receiving such a letter would have on the children, and the courts inability to predict the letters impact not just on them, but on their relationship with the mother. She submitted that the letter increased the risk of further proceedings to, for example, seek to
discharge the obligations for the children to receive the letter. The mothers written submissions also raised the issue of the impact on the mothers parenting of the children in circumstances when a letter would eventually be sent to them. The mother was concerned that the risks to the children were greater than the benefit to them of the letter. She also questioned whether it was a legitimate judicial role for a letter to be sent by a judge, and the absence of legislative warrant for doing so. In the alternative, the mother submitted that if such a letter was in fact sent, it should not be judgmental. 96. The Independent Childrens Lawyers submissions were generally favourable, but raised legitimate issues about the power to make such an order, how it should be framed, and the mechanics of implementation. The Independent Childrens Lawyer also favoured using the therapist to explain the letter to the children. The Independent Childrens Lawyer favoured the letter being given to the children sooner rather than later, because of the dangers of the passage of time. The court expresses its appreciation for the written submissions all of which are both thoughtful and thought provoking. A number of issues arise. I am quite satisfied that in writing this letter to the children in the circumstances of this case I am still acting judicially, and appropriately. The Independent Childrens Lawyers submissions referred me to the objects and principles set out in s.60B. This is a case where I have found that the mother has alienated the children against their father. The letter is an attempt to restore, at some future time, the fathers involvement in the childrens lives, and to reinstate their relationship, albeit in a context where the relationship is broken down. I am satisfied that the children will be exposed to no more risk of psychological harm than they already are as a result of the loss of the relationship with their father. As I have foreshadowed before, the letter is a means of facilitating the childrens participation in this case in the sense that its outcome is explained to them. From a procedural perspective I am satisfied that the letter is consistent with the principles set out in s.69ZN, and the general duties set out in s.69ZQ. I am also satisfied that the order I make is a parenting order as defined in s.64B, if for no other reason than it is an order under
97.
98.
paragraph (2)(e) any other aspect of the care, welfare or development of the child. 99. The issue of the age at which the letter should be made available to the children is problematic. To wait until X is 17 is a very long time indeed when measured in terms of father-absence. Dr K. felt that age 14 would be appropriate, and that X would be mature enough to not only deal with the letter itself, but understand the need not to discuss it with Y. In my opinion to wait for a longer period is lost opportunity to resume a relationship with the father. The presentation of the letter to the children will, therefore, take place at age 14. It will, however, be in the context of therapy for the children, as recommended by Dr K., and as will be defined in the orders. I fully accept that there are risks in so doing, but the therapy will mitigate these risks, and the potential benefit to be gained restoration of the childrens relationship with their father is a worthy aspiration. I accept the fathers submissions about provision of his, and his familys, contact details but I prefer not to do this in the letter. It will be better if this information is given to the therapist working with the children. I do not accept the mothers submissions. Her submissions sadly reflect the distorted lens through which she views the matters before the court. She can see all the risks involved in the letter, none of the potential advantages, and recognises none of her own culpability.
100.
101.
Conclusion
102. Having regard to the matters set out above I will make orders that reflect the proposal of the Independent Childrens Lawyer and the mother, modified only as regards the letter to the children when they turn 14 years of age.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Altobelli FM Date: 30 May 2012
SCHEDULE A
Dr K
MBBS(Hons) PhD FRANZCP
Cert. Adv. Trng. Child Adol. Psych.
Consultant Psychiatrist Child, Adolescent & Family Psychiatrist Provider No. (omitted)
Suite 10, first floor 2 (omitted) (omitted) (omitted) Ph: (omitted) Fax: (omitted)
______________________________________________________________________________________________________
3rd April 2012 Ms T Solicitor Independent Childrens Lawyer Legal Aid NSW (omitted) Dear Ms T, Re: WOC 83/2011 Gaylard & Cain As you are aware, at the request of the Court, I have in recent months prepared and submitted a Single Expert Report in respect of the above matter. Subsequently, I gave evidence to the court on Friday 30th March 2012. In the course of giving evidence to the court, I was asked to comment on what therapy might be useful for the parents and the children X and Y to undergo, after orders have been made. Subsequently, you requested that I briefly summarise these comments in writing. The following is such a summary: 1. The following advice is based on a scenario where: i. the court has determined that there is not an unacceptable risk of the children being exposed to sexual abuse when in the care of the father ii. the children are living with the mother and having no or infrequent contact with the father. 2. The mother and two children engage in therapy with the following characteristics: i. provided by a psychiatrist, psychologist or social worker skilled and experienced in providing therapy to parents and to children in a family context, and who has been informed of the nature of the therapy ordered by the court and expresses a willingness to provide such therapy
ii. involve appointments at a frequency as recommended by the therapist, with the family members required to attend each appointment as recommended by the therapist. iii. continue at least until Y is aged 14, though if the therapist feels that minimal intervention is required, appointments might be infrequent, with a maximum duration between appointments with each family member of six months. iv. The therapist should receive copies of my single expert report, this summary of recommended therapy, the orders, and if relevant the judgement. I would be happy for the therapist to ring me to discuss the planned therapy at its commencement. v. The goals of this therapy are: i. to assist the mother and the children to adapt to their new family circumstances and (if this occurs) their new beginning in a new town/ city. ii. to provide a neutral space where the children can each individually reflect on and explore their emotional responses to their past experiences with their father, their current experience of not living with or connecting with their father, and the possibilities regarding their future options with regard to connection with their father. iii. to provide a neutral space where the children are able to reflect on and explore their emotional responses to the intermittent contacts from the father which the court may allow, for example birthday and Christmas cards or gifts. If such intermittent contacts are allowed, it may be appropriate for the court to order that any cards or gifts are brought to the therapy for discussion, rather than allowing the children or mother to discard or destroy them without opportunity for reflection or discussion in the therapeutic context. iv. to provide a neutral space where any future desire of one or both of the children to increase contact with their father can be explored, and if it persists can be articulated by the therapist and put into action in accordance with the orders. v. whilst the paternal extended family are not subject to the orders, this neutral space is also one where each child can reflect on and explore their emotional responses to the disruption of relationship with members of the paternal extended family, and if relevant discuss options for reconnection with relevant members. vi. I note that a softening of the childrens stance towards the father and/or resumption of contact may not occur and these are not the goals of therapy. vii. to assist the mother (as much as is possible) to avoid projecting her own perspectives about the father onto the children, to support each childs independent reflection on their experiences with their father and their current experience of not having a relationship with a father, and to understand the psychological and developmental benefits to the children of such an approach. vi. It is my view that the children have had past positive and negative experiences with the father, and will be experiencing grief at the loss of relationship with him, and ambivalent thoughts and feelings towards him. vii. The attendees at each session and the structure of the session would be at the discretion of the therapist. In my view, the above goals are likely to be best met by the majority of time being spent with the children alone, with the mother joining briefly at the
beginning and end of sessions. Individual sessions with the mother are best held as separate sessions which only she attends, so that the children are not sitting in the waiting room contemplating what the mother and therapist are discussing. viii. The therapist would not initiate discussion of the allegations of sexual abuse. If the child raised such allegations, the therapist would use their professional judgement about how to proceed in the moment. I would recommend not seeking elaboration of the oftrepeated statements such as dad touched my/Ys wee wee, but not blocking such elaboration if it occurs. The child may at some stage in therapy make use of the neutral space to seek to come to terms with the fact that such allegations were made, with the possibility that such things may have occurred, or with actual recollections of events. 3. The father engage in therapy with the following characteristics: i. provided by a psychiatrist, psychologist or social worker skilled and experienced in providing therapy to adults and to parents, and who has been informed of the nature of the therapy ordered by the court and expresses a willingness to provide such therapy ii. involve appointments at a frequency as recommended by the therapist. iii. continue at least for two years from the date of orders, though if the therapist feels that minimal intervention is required, appointments might be infrequent, with a maximum duration between appointments with the father of six months. iv. The therapist should receive copies of my single expert report, this summary of recommended therapy, the orders, and if relevant the judgement. I would be happy for the therapist to ring me to discuss the planned therapy at its commencement. v. The goal of this therapy is: i. to assist the father to adapt to the loss inherent in the orders, and to reduce the risk of reactive depression or other disruption to wellbeing and function. ii. to assist the father to take a long-term view of the relationship with his children, and to persist with and make the most of the communication which is allowed, rather than to act in a way which may further disrupt relationship, for example to make coercive attempts at communication, or to cut off from communication altogether. iii. to provide a foundation of therapeutic relationship and perspective which can be re-awakened if one or both children seek greater communication with the father in future years Dr K
SCHEDULE B
FEDERAL MAGISTRATES COURT OF AUSTRALIA Chambers of Federal Magistrate Altobelli

Lionel Bowen Building 97-99 Goulburn Street Sydney NSW 2000 DX: 1015 Sydney Ph: 1300 352 000
Dear X and Y, After your mum and dad separated they could not agree about where you were to live. You were 10 and 6 at the time. As a judge it was my job to make this decision. I had a lot of help from the lawyer who was representing you, and each of your parents, as well as an expert child psychiatrist. Even with all of this help it was a hard, sad case to decide. This letter is to try to explain my decision to you, even though you probably wont read it for many years. The most important thing I want to tell you is that both your mum and dad love you very much. They loved you from the day you were born, love you now, and will love you for the rest of their lives. Just because your dad may not have been around for a while, it does not change that he loves you. At the time I had to decide the case your mum believed in her heart that your dad hurt you. My job is to look at all the information, and listen very carefully to what everybody says including the experts. I decided that you had not been hurt by your dad. Even after I told your mum what I decided, I think she still believed in her heart that your dad had hurt you. This just goes to show that sometimes words do not change a persons heart. At the time of the case both of you were saying things, and doing things, that told me you did not like your dad, and did not want to spend time with him. I dont think you really meant this. I think maybe you were picking up the things that mum was worried about. I listened to what you were saying, but in the end the hard decision I had to make was not because of what you were saying or doing.
I told you this was a hard, sad case to decide. I decided that even though your dad really wanted you to live with him, it was best that you lived with mum, even though this might mean moving away from where you lived at the time. I knew your mum would look after you really well. I decided not to make your mum let you see your dad, even though your dad wanted this very much. I thought it would make things harder for you if I had done this. By the time you read this letter I think you will be old enough to make up your own mind. I hope you will think about contacting your dad and getting to know him again. There are people called counsellors who can help you with how you feel about this, and help you to make it happen. Please remember that both your mum and dad love you very much, even if they love you in different ways. Yours faithfully,
Federal Magistrate Altobelli

Gaylard & Cain (2012) FMCAfam 501

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

GAYLARD & CAIN [2012] FMCAfam 501

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FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY WOC 83 of 2011

REASONS FOR JUDGMENT

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