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November 15, 2015

Family Violence and Family Law – a recent case

Needham & Jamieson & Anor [2015] FCCA 2298 (21 October 2015)

Last Updated: 10 November 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEEDHAM & JAMIESON& ANOR

[2015] FCCA 2298

Catchwords:
FAMILY LAW – Parenting orders – toxic conflict between parents – allegations of family violence and alienation – consequences of findings – relocation to (omitted) – order in best interests of children.

Legislation:

Family Law Act 1975 , ss.4AB, 60B, 60CA, 65DAA, 61DA, 65DAA

MRR v GR [2010] HCA 4
Rice& Asplund [1979] FLC 90-725
Watson & Watson [2013] FamCAFC 25
Young v Jackman (1986) 7 NSWLR 97

Applicant:

MR NEEDHAM

First Respondent:

MS JAMIESON

Second Respondent:

MS K JAMIESON

File Number:

WOC 170 of 2012

Judgment of:

Judge Altobelli

Hearing dates:

27-29 April, 7 May 2015

Date of Last Submission:

8 July 2015

Delivered at:

Wollongong

Delivered on:

21 October 2015

REPRESENTATION

Counsel for the Applicant:

Mr Jackson

Counsel for the First and Second Respondents:

Mr Bolger

Solicitors for the First and Second Respondents:

Williamson Isabella Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Ford

Solicitors for the Independent Children’s Lawyer:

Verekers Lawyers

ORDERS

(1) That all previous parenting Orders be discharged.
(2) The Mother and Maternal Grandmother have equal shared parental responsibility for the Children X (born (omitted) 2005) and Y (born (omitted) 2007).
(3) The Children live with the Mother.
(4) The Mother be permitted to relocate with the Children to the (omitted) area.
(5) The Children have no contact or communication with the Father.

IT IS NOTED that publication of this judgment under the pseudonym Needham & Jamieson & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 170 of 2012

MR NEEDHAM

Applicant

And

MS JAMIESON

First Respondent

MS K JAMIESON

Second Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment explain the Orders made in relation to two boys, X born (omitted) 2005, 11 years old, and his younger brother Y born (omitted) 2007, 8 years old. The Court had to decide whether the children, or either of them, spent any time with their father, and if so on what basis. The dispute between the boys’ parents was exceptionally bitter. The hearing itself was the culmination of many years of seething conflict between the parents. There is no doubt in the Court’s mind that both boys have been aware of the parental conflict, have been overtly and subtly exposed to it, and have been affected by it.
Both the boys’ parents, and other significant adults in their lives, have acted at times in a most appalling manner. The zealous pursuit by the parents, and at a later stage by the Maternal Grandmother, to achieve the outcome that they each desire for this litigation has led each one of them to lose sight of the need to find an outcome that was in the best interests of the boys, and met their needs, in priority to the needs of each of the adults who are parties to this litigation. The harm to the children has already been done. There is nothing the Court can do to change that. In many respects these reasons for judgment represent an attempt to minimise the future risk for the boys, and even that may well be aspirational at best.

Background

The Applicant in this case is the Father. He is 54 years old, lives in the (omitted), and describes himself as a selfemployed (occupation omitted). The First Respondent is the children’s Mother. She is 33 years old, and also currently lives in the (omitted) region, together with the boys, at the home of the Maternal Grandmother. The Second Respondent is the Maternal Grandmother. She is 55 years old and currently lives in the (omitted), together with the Mother and the children.
The parents commenced cohabitation in (omitted) 2003, and separated in July 2007. It was a short, and on both accounts an unhappy relationship at times. The younger child, Y, was born shortly before separation.
The litigation between these parents appears to have commenced in 2012. In the present context, the early history of the case is not informative, and need not be set out here. The impression the Court has formed, however, is that the conflict between the parents became worse over time, rather than improved.
On 7 July 2014 final parenting Orders were made by consent. Looking back on these Orders, with all the wisdom that hindsight gives, it is perhaps surprising that these Orders were made by consent. Both parents represented themselves at the time, but a highly experienced Independent Children’s Lawyer, Mr Peter Williamson, was representing the children. The matter had been listed for final hearing on 10 and 11 July 2014.
Instead, the parents agreed that there should be an Order for equal shared parental responsibility, that the boys live with their mother, and spend time and communicate with their father each alternate weekend from 4:30pm on Friday until 6:00pm on Sunday, and each alternate Wednesday from 4:00pm until 7:00pm. A number of consequential orders were made. The final hearing date was vacated.
Let it be very clear to all parties in this case – at the time that the Court made the Orders on 7 July 2014, those Orders were considered to be in the best interests of the children and consistent with the evidence before the Court. The Consent Orders were broadly consistent with a Family Report that had been prepared by Dr A, a Regulation 7 Family Consultant, on 13 January 2014. The nature of the conflict between the parents was quite apparent to the Court. Nonetheless, the Court considered the Orders to be in the best interests of the boys, even though it was probably optimistic in its belief that the parents had sufficiently changed.
In any event, what is clear from the evidence is that within a few days of the Consent Orders, the Mother and the children had relocated from the (omitted) to (omitted), where the Maternal Grandmother was at that stage living. This made it impossible for the children to spend time with their father in accordance with the terms of the Consent Order. The Father brought a recovery application and the Order was made by the Court on 12 August 2014. Mr Peter Williamson was reappointed as the Independent Children’s Lawyer on behalf of the boys.
The matter was eventually listed for final hearing, once again, and a further Family Report was ordered. The final hearing took place for three days from 27 to 29 April, and then a fourth day on 10 May 2015. The parties were ordered to provide written submissions, and the last of these submissions came before the Court on 8 July 2015. The written submissions were comprehensive, and of most assistance to the Court in formulating Orders, and preparing these reasons for judgment.
By way of further background, the Mother has another son, Z, who is 16 years old, and lives with her. Between 2011 and 2014 the mother struggled with a serious illness known as Hodgkin’s lymphoma. There appears no contest about the fact that the Mother’s illness was lifethreatening. Indeed, the Second Respondent Maternal Grandmother openly conceded in evidence that one reason why she believed it appropriate for her to be joined to these proceedings is so that she could have a legal, as well as practical, role in caring for the children should their mother die. The impression formed from the evidence as at the final day of the hearing is that the Mother’s condition has improved, and is not necessarily lifethreatening, but she has not been entirely healed.
A number of events of significance took place in the period between 12 August 2014, when the children were ordered to be returned to the (omitted), and 25 December 2014, when an ugly incident occurred outside of (omitted) McDonald’s during changeover on Christmas Day. The events will be discussed in detail in these reasons for judgment.
It is common ground that the Father has not spent any time with the children since 25 December 2014. Indeed, he consented to an Order that his time and communication with the children be suspended, pending final order.
As well as the very difficult issues that are raised in this case pertaining to the Order that is in the best interests of the children, two other legal issues were raised as preliminary issues. Firstly, both the Father and Independent Children’s Lawyer raised the issue of the legal principles associated with the Full Court’s decision in Rice & Asplund [1979] FLC 90-725. In this regard the focus was placed on the final Consent Orders made 7 July 2014, and whether it would be in the best interests of the children to revisit that Order.
The second issue, again raised by the Father and the Independent Children’s Lawyer, is that the Mother was in contempt of Court by acting contrary to the Orders made 7 July 2014, and thus did not have the right to agitate for further Orders in the same cause of action, until her contempt is purged. Both of these interesting arguments will be discussed as a preliminary issue, but can be dealt with briefly, in any event.

The evidence before the Court

In the Father’s case, he relied on the following Affidavits:
- Affidavit of Mr Needham, sworn 17 April 2015;
- Affidavit of Ms J, sworn 27 January 2015; and
- Affidavit of Ms S, sworn 27 January 2015.
Oral evidence was given by the Father, his sister, and his mother. Each were cross-examined.
In the Mother’s case, she relied on the following Affidavits:
- Affidavit of Ms Jamieson, sworn 1 September 2014;
- Affidavit of Ms Jamieson, sworn 1 October 2014;
- Affidavit of Ms Jamieson, sworn 23 January 2015;
- Affidavit of Ms K Jamieson, sworn 29 August 2014;
- Affidavit of Ms K Jamieson, sworn 19 January 2015;
- Affidavit of Ms R, sworn 17 October 2014;
- Affidavit of Ms W, sworn 17 January 2015;
- Affidavit of Ms B, sworn 19 January 2015;
- Affidavit of Ms F, sworn 22 January 2015; and
- Affidavit of Ms C, sworn 21 January 2015.
Oral evidence was given by the Mother, Maternal Grandmother, Ms E, Ms R and Ms F. Any other deponents of Affidavits filed in the Mother’s case, were not required for crossexamination.
In the Maternal Grandmother’s case, she relied on the same Affidavits as the Mother. She was crossexamined.
In the Independent Children’s Lawyer’s case, reliance was placed on the three reports prepared by Dr A dated 10 December 2012, 13 January 2014, and 19 December 2014.
At the hearing, the Father was represented by Mr Jackson of Counsel, the Mother and Maternal Grandmother by Mr Bolger of Counsel, and the Independent Children’s Lawyer by Mr Ford of Counsel.

Outline of these Reasons for Judgment

After setting out a statement of the applicable law, the Court will deal with the preliminary issues adverted to above, and then consider the evidence of Dr A. Dr A’s evidence will be dealt with first, simply because hers is the only objective and independent expert evidence in this case. Her evidence is extensive (three reports), as was the cross-examination of Dr A. Even if the Court does not accept all of Dr A’s evidence, that does not detract in any way from the special characteristics that her evidence brings – independence, objectivity and expertise.
An incident occurred on Christmas Day 2014. It is a significant event and will receive specific consideration in these reasons.
The remaining evidence of the parents, maternal grandmother, and all the remaining witnesses will then be discussed by reference to the relevant considerations that are set out in s.60CC of the Family Law Act 1975 (hereafter referred to as ‘the Act’). This is a useful framework with which to arrange, and then assess, the relevant evidence.
In conclusion the Court will then have regard to the remaining provisions of the Act in assessing what Orders are in the best interests of the children.

The applicable law

In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it

(1) The objects of this Part are to ensure that the best interests of children are met by:

(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d) parents should agree about the future parenting of their children; and

(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

(a) to maintain a connection with that culture; and

(b) to have the support, opportunity and encouragement necessary:

(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

(ii) to develop a positive appreciation of that culture.

At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders

(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b) family violence.

(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

Equal time

(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Substantial and significant time

(2) If:

(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

the court must:

(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

(3) will be taken to spend substantial and significant time with a parent only if:

(a) the time the child spends with the parent includes both:

(i) days that fall on weekends and holidays; and

(ii) days that do not fall on weekends or holidays; and

(b) the time the child spends with the parent allows the parent to be involved in:

(i) the child’s daily routine; and

(ii) occasions and events that are of particular significance to the child; and

(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality

(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

(a) how far apart the parents live from each other; and

(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d) the impact that an arrangement of that kind would have on the child; and

(e) such other matters as the court considers relevant.

Because s.65DAA refers to the best interests of the child the Court must then go back to consider s. 65DAA which specifies how the Court must determine what is in a child’s best interests.
Determining child’s best interests

(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

(2) The primary considerations are:

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

Additional considerations

(3) Additional considerations are:

(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child);

(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child;

(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(j) any family violence involving the child or a member of the child’s family;

(k) if a family violence order applies, or has applied, to the child or a member of the child’s family–any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter;

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m) any other fact or circumstance that the court thinks is relevant.

In MRR v GR [2010] HCA 4, the High Court said
8. Sub-section (1) of s 65DAA is headed “Equal time” and provides:

“If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.” (emphasis added)

Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:

“(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”

Sub-section (3) explains what is meant by the phrase “substantial and significant time”.

9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.

A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

Preliminary issues

The written submissions made by Counsel on the Rice & Asplund issue were very helpful. However, apart from the submissions filed on behalf of the Mother and Second Respondent Maternal Grandmother, the Court believes that Counsel have missed an important point. That is, that the Maternal Grandmother is now a party to these proceedings – a matter which was not opposed. That development, in itself, is a change of circumstance that warrants reconsidering what Orders are in the best interests of the children.
Even if that were not the case, however, the dramatic events of 25 December 2014, which will be discussed in detail below, also marks a significant exacerbation of the existing conflict that pushes this case into the changed circumstance category. Indeed, it must be remembered that the events of 25 December 2014 were so significant that even the Father did not oppose an Order that his time and communication with the children be suspended. Indeed, that act in itself is probably enough to constitute a changed circumstance.
The second preliminary issue raised is whether the Mother, who did not cavil with the proposition that she disobeyed the Consent Orders made 7 July 2014, ought to be given the opportunity to agitate any Orders in relation to the children until she has purged her contempt. Counsel referred to authorities including Young v Jackman (1986) 7 NSWLR 97 and Watson & Watson [2013] FamCAFC 25. All of the authorities referred to by Counsel confirm that this is a matter for the Court’s discretion. The Court declines to exercise its discretion in a manner that would prevent the Mother from agitating issues pertaining to the boys, especially in circumstances where the Court has already decided that the principle in Rice & Asplund does not so prevent her.
The Court is concerned about a number of matters in this regard. Firstly, the principles cited in all of the case law referred to by Counsel could not possibly be interpreted in a way as to fetter this Court’s statutory jurisdiction under Part VII of the Act to make Orders in the best interests of the children. Secondly, the intervention of another party to these proceedings – the Maternal Grandmother – is an indicator that the cause of action is no longer the same one. Thirdly, the Mother’s actions in breaching the Orders of 7 July 2014, indeed blatantly so, have come under the close scrutiny of the Court during extensive crossexamination.
Her accountability for those actions will be the subject of judicial comment. Adverse findings may well be made. Those adverse findings may, or may not, inform the Orders that the Court ultimately makes in relation to the children. For all of those reasons the Court concludes that this interesting principle has no application to the facts of this case.
The focus remains on making Orders that are in the best interests of the children in the very difficult circumstances in which they presently find themselves.

The evidence of Dr A.

At the time of Dr A’s first Report dated 8 December 2012, the children were living with the Mother and Maternal Grandparents, and spending time with their father on Sundays and Friday afternoons. At the time, his application before the Court was for the children to live with each parent on an alternate week basis, whereas the Mother was proposing that the children live with her and spend time with the Father each alternate Sunday from 9:00am until 4:00pm, and on Father’s Day.
The Report records the Mother’s concerns at the time about safety issues associated with the Father’s house, and concerns she had about his parenting capacity. She was concerned, in particular, about the Father’s capacity to meet the children’s emotional needs, and alleged he did not behave in a child focused way. She asserted that he demonstrated little interest in the children’s lives, other than the time they spend with each other. She said that she had sought to encourage additional time between the Father and children but the Father declined.
The Maternal Grandmother was also interviewed. The information she provided seemed consistent with that which the Mother reported. It is interesting to note that at that time (the interviews were in December 2012) the Maternal Grandmother was already considering what was described as “a backup plan for the worst case scenario” (paragraph 33). That is, if the Mother were to die in the next five years. At the time of the interviews, the Mother was in chemotherapy.
The Father explained to the Family Consultant that, particularly having regard to the Mother’s illhealth, he wanted a greater involvement in the children’s lives. Whilst he was seeking equal time, he proffered as an alternative each alternate weekend from Friday to Monday. He expressed concerns about the Mother and Maternal Grandmother excluding him from decisionmaking about the children, as well as information about their lives. He was aware of the possibility that the Mother would die from her illness, and whilst he hoped that that would not occur as that would be devastating for the children, his proposal was that the children would come into his care.
The Father reported to Dr A his firm belief that both the Mother and Maternal Grandparents were “resolutely malevolent towards him: their motivation is to discredit him as the father and to exclude him from the children’s lives.” (paragraph 45) He was convinced in 2012 (indeed, as he continues to be convinced in 2015) that both the Mother and the Maternal Grandmother had a “master plan to destroy me, get the kids, remove my house and upset me so I would go around there angry, then they would call the police and get an AVO”. (paragraph 45) Indeed, the Court interposes, the theme which he articulates to Dr A in 2012 is a theme that permeates his written final submissions to the Court.
Dr A observed the children’s interaction with their mother and grandmother, describing the relationships to be comfortable and relaxed, warm and harmonious.
At paragraph 59 of her Report Dr A records her observations:
Mr Needham waited in the playroom while I fetched the children from the waiting area. Y ran immediately to greet him in a most affectionate manner with hugs and kisses. X was friendly, but not as demonstrative. Throughout the observed interaction there seemed to be a warm, relaxed relationship between the boys and their father.
Dr A’s evaluation commences at paragraph 62. At paragraph 63 she expressed this opinion:
While I found the mother’s accounts plausible and consistent with the interpretation that the father has behaved in ways that are more selfcentred than childfocused, and has sometimes made judgments about the children’s care which were not entirely wise, there is reason to doubt the account the mother and maternal grandmother gave of their benign and collaborative stance towards Mr Needham as a coparent.
Dr A then gave examples. At paragraph 64 she formed the view that the boys seem to love their father and want to spend more time with him. Despite this, the Father’s suggestion of substantially shared care was inappropriate. At paragraph 67, she expressed concern about the cooperation between the Father, Mother, and Maternal Grandparents, referring to it as:
… too poor to buffer the children against the acrimony between the adults or to effectively manage the children’s separation anxiety associated with their mother’s serious illness.
There was no question that, for the boys, their mother was their primary caregiver and their mother and maternal grandparents were their secure base in the world.
At paragraph 70, Dr A states:
Therefore, whilst it is important for X and Y to continue to see their father weekly, a progress to alternate weekend stays should only occur under professional guidance.
She refers to organisations who could provide this service. At paragraph 71, she made the observation that the mother and paternal grandparents:
… would need guidance about not intruding unnecessarily on the father’s time with his boys. Their motives appear to be childprotective, but misguided.
The Court interposes that much of what Dr A was prescient of things to come. Ultimately, she recommended that the boys continue to see their father for daytime weekend visits which it may be possible to extend to alternate weekends pending a favourable report on the father’s home conditions. She encouraged the Father to participate more in the children’s normal weekly routine, and the Mother to provide the Father with more information about the children. Finally, she suggested that the arrangements for the children to spend time with their father be reviewed in mid2013 in light of the Mother’s health status, and to see whether the parents had progressed in improving their parental teamwork.
Dr A’s second Report is dated 13 January 2014. It is described as an updated Family Report, and was based on interviews held on 10 January 2014. By the time of her interviews, the children’s time with their father had progressed to each Sunday daytime, as well as each Monday, Wednesday and Friday afternoons. The Father continued to press for alternate weekabout time, albeit in the longer term, but was proposing for the children to commence overnight time with him on weekends, with a progression to school holidays. The Mother’s proposal evolved to include two consecutive daytime visits with the Father over the weekend, but she remained opposed to overnight stays.
The parents had been participating in mediation, and that appears to have contributed to the changes in the parenting arrangements. The Mother continued to have concerns about the Father’s capacity, his lack of child focus, and disinterest in aspects of the children’s lives such as their progress at school. She was concerned about issues at changeover. Indeed, Dr A reported this at paragraph 14 as:
The acrimony, tension and unwanted intrusions into her home environment which she reported now happened four days each week.
When Dr A suggested that perhaps this could be avoided by changeovers at school, she reports that the mother:
… explained that the children (particularly X) objected to that plan and she considers school to be their “safe haven” which should not be violated.
The Court interposes that the Mother continued to have that belief by the time of the final hearing. The Maternal Grandmother continued to express concerns about the Father’s capacity to meet the children’s needs, including their physical needs. She referred to the Father as being insensitive, and having poor social judgment. She was concerned that the father “does not know how to bond empathically with his children.” (paragraph 16)
The Maternal Grandmother reported that Y had recently begun soiling himself before and after visits with his father. Ultimately, however, the Maternal Grandmother was reported as nonetheless considering that the children might derive benefit from an ongoing relationship with their father, a position she felt bound to support.
The Father reported in interview that he was simply asking for longer continuous blocks of time with his children, including overnights. He described the Mother and Maternal Grandmother’s parenting of the boys as “helicopter parents”, attempting to control every aspect of their interaction with them, interrogating them after visits, etc. Interposing here, it is clear that the Father maintained that view at the final hearing.
The Father repudiated any suggestions about safety issues in his home, or lack of parenting capacity on his part. He agreed that he had called the police to enforce Court Orders on occasions when the children were not supplied. At paragraph 21 Dr A records:

He has since decided this is futile. He thinks it is wiser to accept X’s refusals to come with him calmly, even though he contends that the mother should value the fatherchild relationship enough to encourage X to cease rival activities. (paragraph 21)

The Court interposes that if the Father did believe it was futile to call the police, that belief was not borne out by subsequent actions. Dr A raised with him the prospect of making changeover at school, so that the Mother was not always mediating the boys’ relationship with their father. He expressed a preference for this, but noted the Mother’s objection. At paragraph 22 he articulated the concern that the mother: “…is making every effort to alienate him from his children.”
He thought that the mother had been more successful with X than with Y, but he was clearly concerned about Y. Dr A made some important observations at paragraph 23:
Rather than consider his children passive victims of their mother’s machinations I asked Mr Needham to imagine why X and Y might be actively exercising choices in order to deal with the stress of moving between their parents at handovers. It would be distressing to X to leave his mother to visit his father knowing that she was unhappy about the arrangement. X worries about his mother and would also worry about her worrying about him. The children’s separation anxiety about leaving their mother would have been compounded by fearful, enforced separations caused by her illness and medical treatment.
The context of paragraph 23 has suggested this is what she told the Father at the time of the report interviews, but in any event paragraph 23 speaks for itself. Dr A was, in effect, inviting the father to try to consider the situation from the perspective of the children. The subsequent actions of the father, as demonstrated in the evidence, confirms that he has struggled to do so. In any event, as paragraph 24 indicates, Dr A encouraged the father to consider each alternate weekend in order to reduce the frequent handovers, with the consequent stress. She records that at first the father resisted the idea of reduced time and a two week gap between meetings, but eventually indicated a willingness to consider the merits of a plan which might result in less stress for his sons, even though it meant less time with him.
In terms of the observed interactions, Dr A noticed that Y immediately went up to greet and embrace his father, but X declined, indeed not approaching his father at all, and not responding to his father’s salutations.
In interview with X, he categorically rejected the suggestion of changeovers from school, referring to his father as “embarrassing”. At paragraph 28, X is reported to have said:
He looks feral and he acts feral. He wears the same old clothes and he doesn’t shower. I’d be embarrassed if he said some random thing to my teachers or friends.
Dr A observed that his complaints were vague in the sense of not giving any convincing, specific examples of antisocial or harmful behaviour. She noted that he referred to his father as “Mr Needham”. X explained that he decides whether or not he spends time with his father, and only after he hears about the planned activities. When he asks to go home early because he does enjoy the activity, X was reported as describing his father’s response as: “He acts like a big baby – crying because I want to go home early – and then he goes back to parent mode.” X expressed quite firmly the desire for his father not to attend school or sporting events.
In Y’s interview with Dr A she observed him to be stressed by the interview process. When he eventually relaxed he expressed the view that seeing dad “is okay the way it is” but overnights would not be fun, that it would best for both boys to go together to their father’s house, together with their stepbrother Z.
Dr A’s evaluation commences at paragraph 32 of her Report. She continued to believe that the Mother was the children’s main attachment relationship. She expressed concern that their attachment security to her had already been undermined by threats associated with her serious illness: “So care must be taken not to inflame their separation anxiety intolerably.”
Whilst Y seemed to be affectionately bonded with his father, X was reported to be “strongly aligned with his mother”. And thus it was unsurprising that he resisted separation from her, and devalued his father.
Dr A was concerned about the numerous face to face handovers between the parents, and noted that with visits four days each week, it meant 16 transitions a fortnight. Dr A could understand why X was reluctant to spend time with his father, and expressed the concern that Y might follow suit. She believed that Y’s reported incontinence issues were likely to be related to the stress of transitions, rather than to any suggestion that he is being maltreated in his father’s care.
Dr A expressed some scepticism about the Mother’s continued concerns in relation to the children’s safety in their father’s care. She pointed to the obvious inconsistency between the Mother’s stated concerns, but the Orders that she sought.
Dr A felt that the boys could tolerate a separation from their mother and home base from Friday after school until Monday before school each fortnight. At paragraph 36 she expresses some concerns about the Father:

Although there is no evidence Mr Needham has maltreated his children, there seems good reason to query whether he is normally nurturant. His parental sensitivity seems below par and the mother claims he does not exercise due diligence. He may not be sufficiently empathic to ensure the children’s emotional comfort during weekend visits – especially if they find separation from their mother anxiety provoking (as it seems X does even on short visits). Mr Needham has not attended any of the recommended parenting courses.

From paragraph 37 of her report, Dr A deals specifically with the Father’s assertion about alienation. She acknowledged that the Mother, “seems to have some unrealistic expectations about scrutinising the father’s parenting for quality assurance.”
None of the matters observed, whilst perhaps being suboptimal parenting practices, were necessarily lifethreatening, especially given the frequency with which the children spend time with him. She observed that there are many children in happily intact parents who, like X, consider their parents embarrassing, foolish or insensitive – then added:

Such discontented children are not normally emboldened or empowered to dismiss these bumblers from their young lives, and the State would not normally intervene to do so either. (Paragraph 37)

At paragraph 36 she states:

Although she may not be deliberately setting out to alienate Mr Needham from his sons, Ms Jamieson finds him noxious as a person and inadequate as a parent. X is strongly aligned with his mother and appears to have taken it on himself to act as a champion for his mother’s standards. That X has been triangulated into the parental conflict and usurps parental privileges is evinced by his violations of the generational boundary (such as calling his father by his first name rather than his family role name). In the long term role reversed position in the family hierarchy could hinder X’s psychological individuation from his mother, keeping him a spousified child into adolescence or even adulthood.

Just pausing here, whilst Dr A describes X as closely aligned to his mother, she does not appear to either rule in, or rule out alienation. Indeed, she raises concerns about the potential nature of X’s relationship with his mother.
The reality, Dr A believed, is that the frequent, emotionally terse handovers were actively contributing to X rejecting contact with his father. Y “is deemed unlikely to persist in attending visits if X permanently declines.” (Paragraph 39)
Dr A believed that the father-son bond stood a better chance of surviving “albeit if only as gossamer threads” if the visits are longer but less frequent, and there are no face to face handovers between the parents. The Court observes that Dr A was saying to these parents that the metaphorical writing was on the wall – that their high conflict was having an impact on the children and that face to face handovers had to be changed. It is clear that by the time of the second report the boys’ relationship with their father had grown more tenuous. Dr A’s conclusions and recommendations commence at paragraph 41.
At that paragraph she states:

These antagonistic parents have not managed to establish and defend boundaries around their respective spheres of influence as separated coparents. Frequent, tense handovers are stressful to the children and likely to become so aversive over time that realistic estrangement from the father will result.

Thus, at this point, Dr A introduces for the first time the concept of realistic estrangement, i.e. that the loss of the children’s relationship with their father was justified in their minds because of his actions, or omissions. It is a somewhat curious opinion to express when, earlier in her report, Dr A appeared not to either rule in, or rule out, the possibility of alienation.
She strongly recommended reducing the frequency of visits, but increasing their length. She suggested every second weekend from Friday after school until Saturday at 5:00pm, eventually increasing to an arrangement from Friday after school to Monday before school. She would not recommend midweek visits. Face to face handovers between the parents were to be minimised. She did not rule out the possibility of progressing from weekend visits to holiday stays but:
Mr Needham should proceed under the professional guidance. He needs assistance to minimise the risk of realistic estrangement from both his sons.
Final Orders were made on 7 July 2014. It is hard to escape the conclusion that the Final Orders were shaped by Dr A’s recommendations.
Dr A’s third and final report is dated 22 December 2014, and was based on interviews held on Friday, 19 December 2014 with both parents, the children, and the Maternal Grandmother. Dr A records that she was aware of the Consent Order entered into between the parents, and that shortly thereafter the Mother had relocated to (omitted) with the children to live with the Maternal Grandmother. In relation to the relocation, Dr A recorded the Father’s assertion that the move occurred in the face of his opposition, and the Mother’s assertion that the matter was fully discussed with the Father, but that he did not raise strong opposition.
Dr A was aware of the Orders made 20 August 2014 requiring the children to return to the (omitted) and for the children to spend time with their father on alternate weekends and half the school holiday period.
At the time of interview Dr A noted that the Father’s current proposal for the Court was for the children to live with him, to have no contact with their mother for three months, and thereafter to spend time with her each alternate weekend. The Mother’s proposal was for sole parental responsibility, for the children to live with her in (omitted), and that any further arrangements for the Father to spend time with the children be dependent on psychological assessment of his parenting capacity.
In interview, the Mother repeated all of her concerns about the Father as previously reported. She raised a number of new issues about his care for the children. She raised serious issues about how Y was coping with the situation. The Mother expressed concern about how the children are psychologically harmed by exposure to adult conflict at handovers:

… all of which she attributes to the father’s aggressive insistence on his legal rights in the face of his son’s patent distress at being forced to accompany him.

The Mother could not describe any benefit to either child from having contact with their father. Indeed, she emphasised the emotional harm that they would suffer in his care.
In relation to the Mother’s explanation for her relocation to (omitted), Dr A described this in paragraph 15 as being “thin and vague”. She observed that while:

… no clear imperative to move emerged from her explanation, Ms Jamieson denies that she “fled” the (omitted) against the father’s wishes as he claims. She asserts that they discussed it at length, and that he did not adamantly oppose her plan.

At paragraph 27, Dr A observes:

Ms Jamieson emerges from her self-reports as either disingenuous or foolishly naïve. The planned move was hastened by a distressing incident which she called as a “big scene” caused by the father at the grandparents’ house … while Ms Jamieson’s decision to relocate could plausibly be interpreted as an illconsidered act of desperation under conditions where she felt trapped and hounded by Mr Needham, I cannot be sure all her motivations were frankly disclosed.

In seeking to further understand the Mother’s contingency plans for contact and handovers she described the Mother’s thinking:

… about her son’s best interests is quite confused. She contends that exposure to parental conflict at handovers is psychologically abusive of the children, yet rejects the obvious remedy of handovers to and from school on the basis that the school is the boys’ “safe place”. (paragraph 16)

She did not appear to have carefully thought through how the concerns about changeover, and protecting the children from conflict, would be implemented if she were allowed to relocate to (omitted) on the basis that the children spend time with their father.
The Maternal Grandmother was interviewed. She too repeated all of her previously stated concerns about the Father. She made fresh complaints about the Father. By the time of the interviews, the Maternal Grandmother had joined the proceedings.
In interview with the Father, he expressed the belief that the Mother’s relocation to (omitted) was all about blocking his time with the children. He did indicate, however, that if the Mother remained in the (omitted) region, and facilitated his time with the boys, he would accept the current situation, otherwise he would insist on a change of residence, with no contact to the Mother for three months.
At paragraph 24, Dr A states:

He appeared to have no conception how intolerably anxiety provoking this maternal deprivation would be for two little boys who had passed through the valley of the shadow of death with their mother over the last few years. He minimised their likely adjustment difficulties, predicting they would quickly settle into the new residence and the separation from their mother.

He explained to Dr A that even if the Mother were allowed to relocate to (omitted) he would have to consider moving, rather than give up on his boys.
The Father agreed that handovers in person are unpleasant, but blamed the Mother and Maternal Grandmother for this. He agreed that he had shown X Court Orders. He continued to believe that it would be preferable to collect the children from school. He was trenchant in his belief that the Mother “is making every effort to alienate him from his children.”
Dr A’s impression of the father is set out at paragraph 27:
On this occasion Mr Needham seemed no more willing than he was in January 2014 to consider the merits of a plan which entails less stress for his sons if it means he gets less time with them. Overall, as on previous occasions, Mr Needham struck me as man entirely focused on his own entitlements and almost entirely lacking in accurate empathy for his sons. He did accurately predict that his children would treat him with hostility in the conjoint interview, which he attributed to the influence of the mother who would consider the boys had betrayed her if they showed any affection towards their father.
In observations neither child responded to their father’s greeting. Both boys expressed critical views in response to their father’s friendly overtures. Both told him they did not want to see him at Christmas. Both boys refused to give their father a farewell hug. The Father was observed to remain calm and express no anger. The Court interposes here – the obvious deterioration in the children’s relationship with their father, particularly that of Y, is recorded here.
X was quick to align himself with his mother’s goals, particularly as regards the move to (omitted). X said he would be quite happy never to see his father again. Both boys made complaints about spending time with their father, at the Paternal Grandmother’s home. X confirmed that the Father had shown him Court Orders and made him read them. X indicated that the Paternal Grandmother had blamed the Mother for all their problems. X continued to describe his father as “feral”.
At paragraph 32 Dr A states:
X expressed strong opposition to spending any part of Christmas Day with his father, saying it would ruin his Christmas. Y was less vehement, saying he would prefer to stay home and play with his Christmas presents than go to see Dad. When we were talking about neutral or pleasant topics (such as school, their friends and hopes for Christmas or their cool new haircuts) X was bright, cheery and animated. As soon as we resumed discussions regarding interactions with their father X started crying again. Silently. Big fat tears coursed down his cheeks as he sat motionless. He seemed locked in misery.
Paragraph 34 is another important paragraph:
X seemed very ready to express harshly critical views about his father. It is possible he had been primed. However, it is worth noting signs of his autonomy and his contingent responding. Alienated children (and children who have learnt lines prepared by a parent) often present with catch phrases of the parents ( like “fresh start” or “doesn’t behave like a father”) which echo the words of the parent with whom the child is aligned – as X did. In my experience, alienated children often seem to be on a mission to convey their message and may be hostile to the interview process and hard to engage on other topics. Alienated children also tend to favour righteous indignation over sorrow as the emotional key they sing in. They express disproportionate anger towards the rejected parent for specious or insufficient reasons. They show no compassion or remorse towards the rejected parent and no sorrow about the loss of connectedness.
At paragraph 35, Dr A continues:
None of this applied to X who was willing to engage with me and seemed flexibly emotionally responsive: in particular he responded with appreciative warmth or humour to comments which were either accurately empathic or playful. Although he seems to have resolutely hardened his heart towards his father, he can give valid reasons for his negative appraisals. I think it hurts X to feel so disillusioned about his father. He seems sad and disappointed that he cannot have the sort of relationship with his father he needs. His protectiveness towards his mother seems to be the governing variable of his emotional life.
Dr A’s evaluation commences from paragraph 38. Each of the relevant paragraphs will be reproduced, followed by some commentary.
Separating these anxious children from their mother would be cruel and unnecessary, and for the father even to suggest it is a serious failure in empathy. Ms Jamieson is the children’s primary attachment. The children’s assumptive world (= the taken-for-granted view that the universe is a safe, benevolent, predictable place) was shaken as a result of their mother’s serious illness and further undermined by exposure to ongoing hostility between their parents. Any further disruption to the attachment security with their mother would stress them intolerably. The father has never been their primary caregiver or their secure base in the world. If as a result of this litigation the children are to lose, even temporarily, a relationship with one parent it should be the non-preferred, less competent, nurturing parent – the father.
The Father eventually abandoned his proposal that the existing residential care arrangements be reversed. The Court accepts that, in effect, what Dr A is saying is that it is too late in the sense that merely proposing those Orders confirms Dr A’s concerns about his insight, or lack thereof. As it turns out, and having regard to all the evidence, the Court concludes that the Father’s action in proposing a reversal of the existing care arrangements was, in effect, punitive. He was clearly confident that he could establish to the Court’s satisfaction that the Mother was alienating the children against him. This is despite Dr A’s evidence on this point.
In the last sentence of paragraph 38 Dr A hints at a possible outcome in this case – that the children would lose their relationship with their father, as the non-preferred, less competent, less nurturant parent.
At the earlier assessments Y exhibited an affectionate bond with his father and was open to contact even after X had rejected contact. It was predicted that unless Mr Needham behaved with greater sensitivity Y would follow X’s example. I advised against face to face handovers which were stressful and unpleasant for the children and deemed likely to increase the risk of a permanent rupture of the father-son relationship. Both parents have continued to behave unwisely over handovers. According to the children, mother and grandmother the father has behaved coercively and insensitively at handovers. Due to a misguided sense of protectiveness the mother and maternal grandmother appear to have fanned the flames by trying to monitor the children’s reactions to handover instead of arranging for, or acquiescing to, handovers at school. The mother seems not to have realised that in some situations there are no good options – only bad options and worse options.
Dr A tragically predicted the possibility that Y would lose such relationship as he had with his father. Alas, this was demonstrated to be true by the time of the third report. The parents would not accept her advice against face to face handovers. This will need to be discussed in detail, during the course of these reasons. Little did Dr A know about the events that would take place just a few days after her report was released to the parents. The problems with the handovers reached an unfortunate climax on Christmas Day.
The Mother certainly does not escape criticism in this paragraph. Her closing words in many ways summarise the dilemma open to the Court – there are only bad options, and worse options.
As an outcome of previous assessments I queried aspects of the father’s parenting capacity noting that further investigations were required. Up to that time he had failed to follow recommendations for counselling and psycho-education. If the mother was convinced of his harmfulness to the children the most sensible course of action would have been for her to argue the case at Final Hearing instead of agreeing to unworkable Consent Orders. It is understandable that she may have found the ensuing situation distressing, but again she showed very poor judgement by moving to (omitted) without Court permission. Whether or not she is sincere in saying she assumed the father’s had acquiesced to her plan it is clear he did not explicitly agree to the relocation – and certainly not in writing.
The evidence confirms that the Father indeed did fail to follow up on Dr A’s recommendation to obtain professional assistance. Likewise, the Mother continued to send mixed messages about the dissonance between her stated concerns, but the Orders she proposed. To say that she showed “very poor judgment” by relocating to (omitted) is an understatement.
Paragraph 41 is an important paragraph. Here Dr A states:
Many women who have been in abusive relationships show confused thinking and make poor risk assessments for themselves and their children – choosing a course of action based on the desirability rather than the probability of outcomes. In other words their behaviour enacts the triumph of hope over experience. To that extent Ms Jamieson’s ill-advised behaviour is consistent with the relationship history she reports. Only a woman with diffuse identity and poor social judgement would have entered into then persisted with the relationship of marital injustice which she alleges she experienced with Mr Needham.
The problem with this paragraph is that the evidence the Mother led at the hearing did not establish to the Court’s satisfaction that she had been in an abusive relationship with the Father. It was clearly a relationship marked by high levels of conflict, mistrust, and nonexistent communication. It was in many respects a dysfunctional, toxic relationship, particularly after separation. To suggest, however, that is was an abusive relationship is inconsistent with the evidence before the Court.
Dr A’s findings are unequivocally consistent with the evidence before the Court. Neither parent is free from blame about the terrible situation they have placed their children.
At paragraph 43 of her report, Dr A addresses what is probably the main and most difficult issue before the Court. She states:
X and Y are being psychologically harmed by exposure to adult conflict. Neither parent has shown appropriate protectiveness in this regard. If the Court were to determine that the children should spend time with their father in the future then handovers should be to and from the school or to and from a Children’s Contact Centre – forever. It is toxic for the children to be in the presence of both their father and mother (or grandmother).
The Court agrees with Dr A’s assessment that it is now impossible for X to have a meaningful relationship with his father. The reasons for this are complex, but ultimately do not change this fact. The Court agrees that, based on all the evidence, there is still hope in relation to Y, but whether a relationship between Y and his father can be sustained depends as much on the Father, as on Y.
At paragraph 44 of the report Dr A deals with the Father’s contention about alienation. She states:
The father says this is a case of alienation. Many instances of a child rejecting a parent are hybrid cases which show features of both realistic estrangement and alienation. The same could be said of this case – but on balance it looks more like realistic estrangement. Mr Needham has not behaved strategically. His best chance for maintaining the bond with his sons after separation was to treat their mother with kindness. He has missed his chance now. The mother and grandmother express contempt for Mr Needham. The rift with X is beyond repair. Y is more strongly bonded with his brother, mother and grandmother than with his father. If they all show disdain for Mr Needham Y will follow suit.
In closing submissions it is possible that Counsel have missed the subtlety, and yet significance, of what Dr A said in the second sentence of this paragraph. Instead, they have focused on the third paragraph where she assesses that, on balance, “it looks more like realistic estrangement”. In many cases before the Court, and on balance even in the present case, the process of the child losing their relationship with the parent is not necessarily a linear one which progresses, for example, from affinity to alignment, and then to either realistic estrangement or alienation. Often, as in this case, the process is nonlinear, and far more complex.
Having regard to all the evidence, the Court will conclude that there are elements of both alienation, and realistic estrangement, that have operated at different times, and perhaps even contemporaneously, in the lives of both X and Y. Both parents contributed to this. It does not change the ultimate result – X has completely lost his relationship with his father, and Y is at grave risk of doing so. Indeed, to borrow Dr A’s metaphor, the relationship is gossamer thin.
At paragraph 45 Dr A categorically rejects the idea of equal shared parental responsibility. That is unequivocally the case.
At paragraphs 46 and 47 of her report, Dr A appears concerned about the risk of harm notifications relating to the Father. It is possible that her concerns here are fuelled by what she discusses at paragraph 37 of her report, and in particular her discussions with Ms H who herself made three notifications, but in each case relying on what the Mother has told her. This is not a particularly reliable basis to make notifications. Nonetheless, Dr A’s admonition is to seriously consider in the evidence risk of harm issues. The point she makes at paragraph 47 is that it is:

… unlikely that either child will sustain a meaningful longterm relationship with Mr Needham due to his restricted capacity for empathy, although Y might tolerate visits in the shortterm.

Dr A recommended that a judicial determination was required, that the Father’s time with the children be suspended until the final hearing, and that the children live with their mother who should share parental responsibility with the Maternal Grandmother.
Dr A makes this important recommendation at paragraph 52:
If the Court considers it to be in the children’s best interests to make the Orders least likely to lead to further litigation, then no contact with the father should ordered. Any Orders for spending time with the father are likely to prove unstable/ unsatisfactory.
Clearly, her prognosis for this family was not a positive one. However, at paragraph 53 she does contemplate the possibility of some time between Y and his father, if the mother is allowed to relocate to (omitted). She states:
If the mother is allowed to relocate to (omitted) and “spend time with” Orders are made then weekend contact through the school term should not be ordered. Instead Y should spend the entire school holiday break with his father on 2/3 term breaks plus ½ the summer holiday. All handovers should be managed by a Children’s Contact service. The parents must never be physically in the same place at the same time with the child. He should spend Christmas alternatively with whichever parent has him for the first half of the holidays. In accordance with the imperative to avoid face to face handovers no attempts should ever be made for these parents to hand a child over in person on Christmas Day (or any other time).
The alternate scenario is described at paragraph 54, i.e. where the Mother is not allowed to relocate to (omitted):
If the mother is not allowed to relocate to (omitted) and “spend time with” Orders are made, then Y should spend alternate weekends with his father with handovers to and from school. He should either spend 2/3 midyear breaks with his father with handovers to and from school OR spend half of each school holiday with his father with handovers at a Children’s Contact Centre at one end and to/from school at the other end of the week in question. Handovers for periods during the Christmas holidays should be at school at one end and a Contact Centre at the other.
Dr A concluded her report of 22 December 2014 by saying that no contact should be ordered between X and his father.
Dr A was extensively crossexamined. Each Counsel’s crossexamination of Dr A was comprehensive and searching, but especially that of Mr Jackson on behalf of the Father. Indeed, it is hard to imagine what else he could possibly have put to Dr A on behalf of the Father. He systematically sought to obtain Dr A’s acknowledgement that this was a case of alienation, rather than estrangement. Dr A steadfastly refused to be drawn into an “either/or” analysis of why X had lost his relationship with his father, and why Y was at peril of doing so.
Mr Jackson systematically put to Dr A the usual indicia of alienation. For example, she would not accept that merely because a child felt compelled to please a parent, that that was necessarily a trait of alienation. She explained that as an oversimplification. A child might want to please a parent for reasons that have nothing to do with alienation. Likewise, she emphasised, a child can become estranged from a parent without the other parent doing anything. Indeed, it is the actions of the estranged parent that is the operative factor, not the other parent.
Dr A accepted that alienation can be established as a result of a deliberate, sustained campaign by one parent against the other, but she said that more often than not a child loses a relationship with a parent for hybrid reasons, including the behaviour of the parent who had lost the relationship with the child. Dr A used words to the effect: “lack of empathy feeds alienation, but empathy starves alienation.” In this regard, there is no doubt that she was referring to the Father’s lack of empathy in this case.
When given the opportunity to explain how an alienated parent should react to what they perceive to be alienation, she explained the importance of abstaining from criticism, attacks on the other parent, unkindness. She emphasised the importance of focusing on the child’s welfare and not the welfare of the parent. She said such a parent should show empathy for the child, rather than irritation about the child’s reluctance to spend time, or criticism of the other parent’s actions.
Dr A confirmed in crossexamination that the highly problematic changeovers, and what she described as the high “dosage” of these, i.e. referring to the frequency of them, was a major contributing factor to X’s loss of relationship with his father.
Dr A was asked to accept, on a hypothetical basis, that if the Court found that the Father did have the capacity to care for the children, and if the Court found that the Mother’s concerns about him were unfounded, then this would be indicators of alienation. Dr A struggled with this line of questions, expressed as a hypothetical. She stated emphatically that the Court cannot assume that the Father had the requisite parenting capacity. She would not even accept the hypothetical situation that the Court would find that the Father had the parenting capacity in question.
However, she clearly did accept that the Mother had raised a litany of concerns about the Father’s parenting, many of which had not been previously expressed. She acknowledged that this marked a significant escalation of her concerns. She characterised this litany of complaints as being the mother’s “quibbles” about things. She emphasised that her assessment was unaffected by the Mother’s complaints, and that short of safety concerns about the children, she was, quite frankly, not interested in the Mother’s complaints. In short, it did not affect her assessment of the situation. She accepted, however, that the relentless negativity demonstrated by the Mother through this litany of quibbles would probably be picked up at least by X.
It was put to her that this litany of quibbles was again symptomatic of a relentless campaign by the Mother to portray the Father as all bad. She accepted this might be the case, but would not concede that that necessarily demonstrated alienation. It was put to her that these complaints might be entirely false. Dr A said this would not be an uncommon scenario. The Mother might be anxious based on a distortion of concerns, and there might even be an element of malicious lies in her concerns about the Father, but she kept coming back to the theme that the problems in the Father’s relationship with the boys related back to much earlier than when the complaints were made, and indeed perhaps to the period of the relationship itself.
Dr A conceded that there was widespread “delusional thinking” happening in the Mother’s mind. The most obvious example of this was her belief that somehow it was more beneficial for the boys not to have changeovers at school, notwithstanding the enormous problems experienced in the existing arrangement of changeover. Dr A thought the Mother was quite delusional in her belief that the Father could be the father she wanted him to be, rather than the father who he is. This was manifested, for example, by agreeing to Consent Orders that were clearly unworkable, given the history of the matter.
Mr Jackson took Dr A to the evidence before the Court that the Father’s time with the children on the weekend of 29 October 2014, and his time with the children during the September school holidays, proceeded satisfactorily. Indeed, Mr Jackson submitted that the unchallenged evidence is that this time was both happy, and uneventful for the children. As will be discussed below, there was an incident at the commencement of the Father’s time on the weekend of 29 August, but the only evidence about the boys’ time with their father for the rest of the weekend is consistent with it being a happy and uneventful time for them.
Dr A was asked to consider the implications of the evidence suggested that the children had a perfectly good time with their father, away from changeover. Dr A struggled to accept this because it was inconsistent with what the boys told her. Whilst she did not dispute that what was being put to her could be correct, her concern was that what X and Y told her was inconsistent with this. She accepted the possibility that the children may well have had a good time with their father, but it was likely that they would minimise this, after the event, and particularly when with others.
Again, Dr A seemed to struggle with the concept that the children appeared to have a good time with their father prior to the incident on Christmas Day 2014. She clearly preferred to prioritise the children’s account to her, over the Father’s account of the events. She was prepared to concede that the children were safe in the Father’s care. She would accept that they enjoyed their time with their father. However, based on what the children said to her later, she could not accept that they were happy and content in the care of their father.
She explained that the problem in the relationship between the parents, and the children and the Father, are not limited simply to changeovers. This was obviously an important part of the problem, but the difficulties in the relationship were more pervasive.
She accepted the proposition that there were times, indeed not infrequently, when both the Mother and Maternal Grandmother acted in a hostile and inappropriate fashion. For example, the Maternal Grandmother’s telephone call to the police on 29 August was described by her as unwise, possibly hypervigilant, and possibly having the effect of undermining the children’s relationship with their father.
Dr A was crossexamined about the implications on the boys, or either of them, of not having a relationship with their father. She agreed that there were potential adverse impacts on them. She accepted that it is possible that the children, as individuated adults, would go and seek the parent whom they had rejected. She emphasised, however, that this was a “bad/worse case”, i.e. that whilst there are bad things about growing up without the father, it very much depends on the type of father.
If spending time with the Father perpetuated the conflict between the parents then the Court might conclude that the children are better off not being exposed to the parental battle. In this regard she referred to the concept of the children as “conscientious objectors” in their parents’ war. She accepted there were still risks for boys without a father within their lives. She accepted that children have longterm outcomes after divorce if they have a good relationship with their father. She emphasised, again, that it depends in many cases on the quality of the relationship with the father, and that another important factor was protecting the children from conflict.
Dr A again struggled with another hypothetical put to her by Mr Jackson, and that is that the Court might find that the Father does have sufficient empathy, contrary to her assessment of him. Dr A was quite strident in explaining that she was the expert on empathy, the judge was not. In this regard, Dr A is quite right. It might have been of more assistance to the Court, however, had she gone along with the hypotheticals that were put to her. In any event, as it turns out, she later explained what empathy meant in the context of the children.
She explained that empathy involved three aspects:
1. Cognitive: that a parent can understand how the child thinks.
2. Concern: that a parent cares about what a child thinks.
1. Action: an appropriate response to the above.
As it turns out, the Court accepts that the Father’s evidence is not consistent with the behaviours that she described as forming part of empathy. The examples that were put to her by Mr Jackson in crossexamination did not, per se, demonstrate his empathy. One swallow does not a summer make.
Dr A was asked to explain her reference to the Father treating the Mother with kindness. It was put to her that in view of the relentless nasty criticism directed towards him by the Mother and Maternal Grandmother, the complete disrespect showed to him by them, and the litany of quibbles iterated by the Mother, it would surely be difficult for the Father to demonstrate kindness. Dr A explained that to behave kindly is to behave kindly irrespective of what others do. In any event, the Father’s behaviour cannot be seen in isolation, but in the overall circumstances of the history of the parties.
She accepted realistically, however, that it “takes two to tango”, and whilst it must have been difficult to demonstrate kindness during some of the highly problematic changeovers, what the Father could have done is simply leave, and avoid a confrontation in front of the children. Dr A reminded Mr Jackson, and the Court, that the clearest example of the Father failing to act kindly was in fact Christmas Day 2014 when he caused a confrontation in front of the children.
In closing, Mr Jackson put it to Dr A that if the Court finds that there was alienation, but no Orders are made for the Father to spend time with the children, it would not be a good thing for the children to have no relationship with their father. Dr A agreed, but explained that the alternative may well be worse for the children.
Dr A was crossexamined by Mr Bolger, Counsel for the Mother. She was asked to give an example of the Father’s failure to behave strategically, in the context of her assessment that there had been realistic estrangement. She promptly pointed to the events of Christmas Day 2014, observing that to coerce a child who is in a loyalty conflict, is not strategic. After this incident, the children would plainly regard their father as the aggressor.
It could not be said that Dr A was not evenhanded in her criticism of the parties to this litigation. She took every opportunity to express the view that both the Mother and Maternal Grandmother have acted unwisely, provocatively and inappropriately. She acknowledged that their intentions might have been good, but they were clearly misguided. Again she confirmed that in her opinion the Mother suffered from delusional thinking, particularly in her belief, on the facts of this case, that school is a safe place. She thought it was quite likely that interrogation of the children took place in both households.
She was even critical of the Maternal Grandmother’s actions on Christmas Day, asserting that she behaved foolishly. Whilst making that description of the Maternal Grandmother’s behaviour, however, she referred to the Father’s behaviour as unwise, emotionally deregulated, and overcome by his own feeling. For the Father to have so behaved in the presence of the children would only lead to their feeling even less confidence in their father. She agreed that the Christmas Day incident could only result in greater pessimism about the prospects of Y having an ongoing relationship with his father. She opined that this could only work if the parents never met at all. She doubted if it would ever be possible now for X to resume his relationship with his father.
She was given the opportunity to explain the difference between estrangement and alienation, and why she felt that it was estrangement on the facts of this case. She accepted that X showed some features of an alienated child, but he did not have specious reasons for not wanting to have a relationship with his father. She accepted that alienation and estrangement could fold into each other, and that it was sometimes impossible to tell which came first. She was quite clear, however, in saying that hostile, coercive, nonempathic responses by a parent merely facilitate estrangement. She believed that “the father shot himself in the foot so many times”. Perhaps the most recent example of this is Christmas Day. She believed the children have reasons to be realistically estranged from their father.
If there was to be any time between Y and his father she would prefer it to be with collections from school, and a return to school, with the only alternative being a supervised contact centre. In relation to X she thought it might be best to leave Orders neutral, or silent, rather than saying there be no time with his father. If the Mother and children were in (omitted), the Father’s time could be limited to the school holidays, but the transitions would need to be carefully managed.
Dr A was also crossexamined by Mr Ford, Counsel for the Independent Children’s Lawyer. She agreed that her prognosis about Y’s relationship with his father was pessimistic following the events of Christmas Day 2014. She accepted that any spends time with arrangement is likely to be problematic, and in those circumstances going to (omitted) would be preferable. She confirmed that her preference was that there be no time with the Father during the school term, but accepted that the parents may well have suggested, or indicated a willingness, for X to spend time with his father during limited weekends in the school term.
Her view remained, however, to “reduce these flashpoints”, emphasising the importance of minimising changeovers and transitions. She accepted the possibility of tensions in the sibling relationship if Y is able to spend time with his father, when X does not want to.
It was put to her that if the Mother and children relocated to (omitted), the Father would not have the chance of seeing the children, even if Court Orders were made. Dr A confirmed that she remained pessimistic. However, to keep the Mother and the children in the (omitted), whilst enhancing the chances of Y’s relationship with the Father, privileged his rights over the rights of the Mother and the children. She felt that it was better to sacrifice the Father than the children’s peace of mind. The stark dilemma she presented was a continuing situation where the children were exposed to a war zone, or creating a situation where Y might lose his relationship with his father.
She felt that any Order for the children to spend time with the Father perpetuated the war zone. The better alternative was to allow the Mother and the children to relocate. She acknowledged, however, that if it was the case that the children spent a good time with their father before the events on Christmas Day this did create some optimism. Dr A believed that the Mother and Maternal Grandmother probably would comply with Court Orders, but would still struggle to regulate their own feelings.
Dr A’s evidence was comprehensive, and the testing of her evidence in crossexamination was thorough. Her professional assessment that the boys had become realistically estranged from their father, rather than alienated, could not be challenged. Whilst she had concerns about both parents and the Maternal Grandmother, all of whom had behaved most inappropriately at times, the incident on Christmas Day 2014 seems to have put the matter beyond doubt, so far as Dr A’s concerns about the Father go.
She believes that it is not possible to salvage the relationship between X and his father. Whilst she is sceptical, indeed pessimistic, about the prospects of salvaging Y’s relationship with his father, on balance the Court feels she thought it was worth trying this, but on the basis that the Mother and children were allowed to relocate to (omitted), thus taking the children away from what she described as the “war zone”.
The Court accepts Dr A’s evidence and recommendations. The evidence that the Court heard from all the other witnesses in the case merely confirms, and does not detract, from Dr A’s expert evidence. Indeed, it is possible that Dr A has not fully appreciated the nature and extent of aspects of the parental dysfunction in both the Mother and Father. It is possible, for example, that she has not fully appreciated the significance of the Father’s actions on Christmas Day, occurring as they did during the course of litigation when one would normally expect a parent to be certainly conscious, if not hypervigilant, about how their behaviours would be scrutinised in the course of an imminent hearing.
Dr A suggested that the Father had “shot his own foot” as a result of his actions on Christmas Day. She might not have fully appreciated the gauge of the weapon he was metaphorically using.

The incident on Christmas Day 2014

The incident that occurred at (omitted) McDonald’s on Christmas Day 2014 has already been foreshadowed in discussing the evidence of Dr A. It clearly is a most significant, and unfortunate, event. Its significance must be understood in context. Litigation was on foot. Final hearing dates had been allocated for February. The matter had been already been in Court several times. It is impossible for the Court to avoid forming the impression that all of the parties to this litigation were acutely aware of the critical scrutiny of the Court of all that they said and did, relevant the matters before the Court.
It was plainly obvious to all parties in this litigation that changeovers were fraught with difficulty. All parties must have been acutely aware of the stress that the conflict about the children was causing on them. The actions of the dramatis personae on 25 December 2014 need to be understood in this context.
The Father gives evidence of what occurred on Christmas Day 2014 in his Affidavit of 17 April 2015, commencing from paragraph 161. It is a surprisingly minimalist account of these events. He explains that on 22 December, he had emailed the Mother’s solicitor to confirm Christmas Day arrangements. The Orders provided for him to collect the children at (omitted) McDonald’s at 3:00pm. He deposes that on his arrival at the car park, both boys said to him words to the effect, “We don’t want to come and see you, Mr Needham.”
The children were with the Maternal Grandmother. The Father asserts that she, “made no effort to encourage the boys to see me, and was just standing at the car park with her hands on her hips.”
At paragraph 167, he explains that he said he was going to call the police. He adds:

I felt very concerned that the boys were exposed to this conflict. I believed that if Ms K Jamieson was made aware that the police may need to intervene, she might show a little more encouragement to the boys seeing me on this Christmas Day.

The Court interprets this evidence to mean that at the time that he said he was going to call the police, the Father was concerned about the children being exposed to conflict. He rang the police on his mobile phone. He asserts that the Maternal Grandmother said:

The children are not coming with you today, they are not coming with you for the school holidays, we’ll be going back to (omitted), you wait and see.

The Father agrees that the police officer he spoke to said that he needed legal advice.
At paragraph 171, the Father deposes:

I felt frustrated by the situation, and upset. I then did something I greatly regret. I parked my car in a position that prevented Ms K Jamieson’s car from moving. I then exited the car, and walked approximately 20 metres away from the vehicle and waited for the police to try and resolve the situation.

The Father acknowledges that the police arrived at the car park at about 3:45pm. He says: “In the ensuing confusion I was then arrested and handcuffed. The police smashed the front driver’s side door of my vehicle.”
He agrees he was taken into custody, and charged with stalk/intimidating and intending fear physical fear, and parking so as to obstruct vehicles and pedestrians.
At paragraph 175, he deposes: “I’m very sorry for what I did on Christmas Day. I am sorry that Ms K Jamieson and the boys had to experience this incident.”
In the next paragraph he says: “I take responsibility for my actions”, but then asserts that, in effect, changeover arrangements need to ensure that neither the Mother, nor the Maternal Grandmother are present.
That is the extent of the Father’s sworn evidence about the incident on 25 December. It is important to observe that the Father’s own evidence is that he was aware, and concerned about exposing the boys to conflict, at the time he called the police. Clearly the issue of how the boys would experience this event was in the Father’s mind.
The Maternal Grandmother, Ms K Jamieson, gives evidence about this incident in her Affidavit of 19 January 2015 in paragraph 75. This one paragraph is almost three pages long. The Court finds it inconceivable that a solicitor would have engaged in such prolix drafting. It is more likely than not that the deponent had a substantial part in drafting the document. One wonders whether best practice was followed in allowing the evidence to be presented in this fashion.
In any event, the Maternal Grandmother explained that the family had spent Christmas Day with friends at the beach. They, presumably the Mother and the Maternal Grandmother, came home early to get the boys ready, and she then took them to McDonald’s at (omitted) arriving at exactly 3:00pm. She says that the Father arrived at the same time, pulling into a parking space about three spaces away from the children and herself. She got the children out, and took them to where the Father was waiting. She says she gave X and Y a hug and a kiss, and started walking back towards her car.
She then heard the boys tell the Father that they did not want to go with him. She got into her car, but left the door ajar because she could still see the boys in the car park with their father. She says she observed the Father to immediately become very aggressive with the children, saying to them in what she described as an intimidating and aggressive manner, “Get in the car”. The Grandmother deposes that the Father then turned his attention to her, shouting to her, “We are not going through this again. You need to leave now. You need to leave the premises.” She agrees she ignored him. There was what she described as a standoff between the Father and the children.
The Maternal Grandmother says that about 10 or 15 minutes later it began to rain, so the boys made their way back to her car. She described the Father’s actions as, “ranting, raving and pacing around the car park, threatening us with the police and making what seemed like a lot of different calls.”
She observed what she described as another altercation occurring in the car park involving a changeover. Other children were hysterical in that context. The Maternal Grandmother deposes that the boys could see this, and “were really frightened and begging me to drive away”. She received a phone call from the police. She asked for the police to send a car around. The Maternal Grandmother was concerned about the worsening situation in relation to the other parties in the car park. There was a discussion with the police officer about whether she was refusing to hand over the children.
The Maternal Grandmother then describes what next occurred:
I was still sitting in my car with X and Y when I saw Mr Needham take a call, get in his car and start to reverse and so I told X and Y that Mr Needham was leaving and that we would be leaving shortly thereafter. However, Mr Needham reversed out of his parking spot and drove at some considerable speed straight towards my car. The children and I were in shock as…he pulled up right at the back of my car, blocking me in so I could not leave.
The Maternal Grandmother had further conversations with the police. She describes the Father as continuing to “rant and rave, throwing his arms wildly into the air and gesturing towards my car.”

She described the boys as “terrified and begging me to try and get out of there”. She says she was herself fearful, started her engine, at which point the father manoeuvred his vehicle even closer to hers, “just a fraction off my rear bumper”.

The Maternal Grandmother describes the boys as continuing to be terrified, so she locked the doors and windows, put on the climate control and turned on some music.
The Maternal Grandmother then describes what she saw:
Not long afterwards, a police car arrived with two police officers in it. They pulled up just behind Mr Needham’s car, got out of their vehicle and one of the police officers called across to Mr Needham to move his car, which he refused to do. He was asked a second time and refused again and then the officer told him that he was going to ask him one more time and if he refused, he would smash the window of the car and move it himself. Mr Needham again refused and so, in a split second of the third request, the officer removed his baton from his belt and took a few hard swings at the driver’s window of Mr Needham’s car until he smashed it all in. The keys were not inside and so the officer and his colleague then proceeded to march over to where Mr Needham was, place him under arrest, handcuff him and obtain the keys from him. They then brought Mr Needham to an area just behind his car and made him kneel on the ground in the handcuffs.
The Maternal Grandmother deposes to all of this happening in front of the boys. The Father continued “to rant and rave for some time”. She was interviewed by the police. A statement was taken.
Exhibit ICL3 is the COPS record of 25 December 2014. Part of this record seems to repeat the Maternal Grandmother’s statement. The COPS entry in this regard is consistent with the Maternal Grandmother’s evidence. However, part of the COPS entry appears to be an independent police record. That record states:
Police arrived about 3.50 pm, police have seen the victim vehicle parked in the appropriate parking spot though slightly out of alignment, the front of her vehicle was up against the kerb of the 90 degree to kerb parking spot. The accused vehicle was parked immediately behind the victim with the passenger door level with the rear near-side corner of victim’s car. The accused car was parked nose, with the back of his car preventing the victim from moving her vehicle. Police have spoken to the victim briefly and have then given the accused a number of directions to move his illegally parked vehicle. The accused has refused to move the vehicle. The accused was placed under arrest with LEPRA safeguards applied and, the accused was handcuffed. Police have smashed the front driver’s side door window to move the accused’s vehicle that was causing obstruction. Police have not been able to access the vehicle from this door. The vehicle was then unlocked and the vehicle moved.
Exhibit ICL10 is a criminal history/bail report produced by the New South Wales Police. It confirms that the Father was charged with stalk and intimidate, and park so as to obstruct vehicle/pedestrians. The Father conceded that he was not only charged, but convicted, and a good behaviour bond was imposed.
The Father was cross-examined about this event. He agreed that his affidavit did not set out all the facts relating to that day.
He agreed that the police had been involved in changeovers before. It was put to him that surely he must have appreciated that the police could not assist with changeovers. The Father’s response was to the effect, “I now recognise it”. The Court does not accept this answer as being truthful. It is common ground between the parties that the police have been called on multiple occasions to changeovers. For the Father to assert that metaphorically “the penny dropped” after the 25 December incident is plainly disingenuous.
The Father maintains that the children were about 20 metres away at the time that he was handcuffed, and the police smashed in his car window. He agreed, however, that it would have been distressing circumstances for the children, indeed, they were in the Maternal Grandmother’s car, the one that he had blocked in, at the time the police smashed in his car window. When it was put to him that this must have been distressing for the children, he agreed, but then added words to the effect, “because of what the police did”. The clear inference to be drawn from the Father’s evidence is that the distress the children suffered was not necessarily because of what he had done, but because of what the police did. This is extraordinary evidence, demonstrating the Father’s ability to externalise responsibility for the problem, as well as demonstrating enormous lack of insight.
When given what the Court considers a fairly free rein in cross-examination by Counsel for the Independent Children’s Lawyer to explain the events of 25 December, the Father added words to the effect, “I was baited”. This, of course, became a theme of the Father’s closing written submissions, but was, strangely, not put as such to either the Maternal Grandmother or the Mother. When given the opportunity to explain what he meant by “baited”, he asked why would the Maternal Grandmother bring the children at all, if they did not want to see him. He said words to the effect, “She just sat there…and made no attempt to leave.” Of course, he then added, “before I blocked her in”.
Counsel for the Mother and Maternal Grandmother also cross-examined the Father about these events. Specifically, the Maternal Grandmother’s version of the events were put to the Father. He agreed to some things, disagreed with others. He denied that the Grandmother hugged and kissed the boys, then walked away. He says she kept her back door open at all times. He says that it started raining about 25 minutes after they arrived, not 10 or 15 minutes. He agreed that the police were called, and that another changeover was going on in the car park which involved what the Father described as a “heated incident”. He agreed he blocked in the Grandmother’s car. He agreed that when the police spoke with him, he was about 20 metres away from the cars. When it was put to him that he was asked by the police to move his car but refused to do so, he agreed but said that that was “in confusion”. It was put to him there was no confusion. The Father said the police had told him to move it but he wanted to talk with them, and so they smashed the car window. He accepted all of this happened in front of the boys.
The Maternal Grandmother was cross-examined about Christmas Day by Counsel for the Father. This careful cross-examination commenced from the Christmas Day activities at the beach. The line of crossexamination involved putting to the Maternal Grandmother that she did nothing to encourage the boys spending time with their father on Christmas Day. The Grandmother conceded that the boys knew that they would be missing out on Christmas Day activities in order to spend time with their father. It was put to her that, indeed, on that basis alone, the boys might be reluctant to spend time with their father. The Maternal Grandmother disagreed, saying there were “many other factors”.
It was specifically put to her that she was trying her hardest to discourage the boys from spending time with the Father on Christmas Day. She denied this. However, the impression the Court forms from her evidence is that she was probably indifferent to whether the boys spent time with their father on Christmas Day or not. Certainly she described the boys’ resistance to wanting to spend time with their father on Christmas Day as commencing well-before they left to go to (omitted) McDonald’s.
The Maternal Grandmother was asked that if the kids were so upset at the thought of spending time with their father on Christmas Day, why did she not ring the father up, tell him how upset they were, and suggest they not come today. Her answer was unsurprising, to the effect that this would not work, and she did not trust him.
She was taken to the events in the car park. The only regret she had about these events related to the Father’s behaviour, not hers. She trenchantly rejected the proposition that she contributed to the problem. She steadfastly refused to accept that she might have defused the situation if she had simply left after the boys got out of the car. By refusing to do so, it was put to her, she contributed to what later occurred. She disagreed.
The Court notes with interest that the purpose of the cross-examination seemed to be to elicit an acknowledgment, or to otherwise demonstrate that the Maternal Grandmother contributed to the unfortunate events by not simply leaving after the boys has exited her car. She said she did not because the kids had said they did not want to go.
The Maternal Grandmother’s failure to leave the children with their father may well have been well-intentioned, but it is consistent with the evidence about prior problems at changeovers. To somehow say that she contributed to what the Father subsequently did is, with great respect, unrealistic. To somehow seek to apportion responsibility for what the Father did on Christmas Day in the car park at (omitted) McDonald’s to the Grandmother because she did not drive off is farfetched. It ignores the realities of this case. It is yet another manifestation of the Father seeking to externalise responsibility for his own actions. When a line of cross-examination is pursued, and when submissions are made, the Court can only assume that this is done on instructions.
The other interesting aspect of the Father’s cross-examination of the Maternal Grandmother is that part of her evidence which was not challenged. Thus, for example, where she described the Father as ranting and raving, it was not put to her that this did not occur.
When the Maternal Grandmother was cross-examined by Counsel for the Independent Children’s Lawyer, the full emotional impact on the children became apparent. The boys were crying. They were pleading with her to take them home. When the Father’s car window was smashed they appeared shocked.
This is an appalling incident. One can well understand Dr A’s concern about the Father’s lack of empathy, and insensitivity. If he possessed these attributes, they were certainly not present on Christmas Day 2014. One can further understand Dr A’s almost intransigence about accepting that the Father had the requisite parenting capacity to meet these children’s needs. When Dr A referred to the Father having done lots of things to objectively estrange himself from X, his actions on Christmas Day come to mind as the foremost example of this. One may well understand Dr A’s concern and, indeed, pessimism about the prospects of Y spending time with his father.
It is interesting, however, to reflect on Dr A’s description of the Father’s behaviour on this day as “unwise, emotionally dysregulated, overcome by his own feelings…”. She does not mention that he sought to externalise responsibility for what occurred, and the consequent impacts on the children, to both the police and the Maternal Grandmother. For this event to have occurred in such close proximity to a final hearing, and whilst under the critical scrutiny of the Court, speaks loudly about the difficulty facing these children in the future. If such a ghastly event can occur whilst proceedings are on foot, then what else can occur away from the gaze of the Court?

Meaningful relationship

The first of the primary considerations that the Court must undertake is the benefit to the boys of having a meaningful relationship with both of their parents. The starting point is to consider whether the boys, or either of them, have a meaningful relationship with their father, as it is not in dispute that they have a meaningful relationship with their mother. This judgment needs to be made by reference to the facts. What could have been, is irrelevant at this point. What could be, in the future, is less relevant. The question is, do these boys have a meaningful relationship with their father now? The answer to this question is informed by the evidence before the Court, and the opinion of the expert evidence of Dr A.
The older child X, does not have a meaningful relationship with his father. That is an unfortunate fact of life. How X got to this position is largely irrelevant to the facts. Each parent blames the other. In reality the fault is to be shared. Fault finding does not change the fact – X does not have a meaningful relationship with his father. Even if the Court accepted the Father’s evidence about what he considered to be the successful time that he spent with the boys in August, and then in the September school holidays in 2014, whatever gain he had was clearly lost as a result of the Christmas 2014 incident at McDonalds at (omitted). There is nothing the Court can do about this. No Order of the Court can, somehow, create a meaningful relationship that does not exist.
Is there a chance that, as a result of making Orders, there is the prospect for the creation of a meaningful relationship between X and his father, in future? The answer is no. Dr A does not believe it is possible. Based on all the evidence before the Court, the Court finds that neither the Mother, nor the Maternal Grandmother, are in any way capable of creating the environment in which a meaningful relationship between X and his father might be created. Moreover, and possibly even more importantly, the Father does not have the requisite parenting skills and attributes that are the essential groundwork for the creation of a meaningful relationship with his son X. He lacks empathy. He lacks insight. He appears incapable of accepting responsibility for his own actions. The other factor is that X will soon be 11 years old, will enter a stage of his development where he becomes increasingly autonomous, and doing the best the Court can to ascertain his views, X has no desire to even attempt to create a meaningful relationship with his father.
The position in relation to Y is more complex. Based on all the evidence, including Dr A’s evidence, the Court believes that he does have a meaningful relationship with his father, but only just. Even before the Christmas Day 2014 incident, Dr A felt that Y’s relationship with his father could be described as “gossamer thread” like. She did not see Y after the Christmas Day incident. There has been no contact or communication with his father since then. Accordingly, if there is a meaningful relationship between Y and his father, it is only in the minimalist, barest of senses.
Nonetheless, at least there is some foundation for exploring whether what meaningful relationship exists, can be built on. The foundation is a shaky one. The conditions described in earlier paragraphs about the Mother and Maternal Grandmother’s reluctance, and the Father’s parental deficiencies, continue to apply in assessing whether there are any prospects that Orders made by this Court can somehow nurture and encourage the tenuous meaningful relationship that exists.

Protecting the children from harm

The second of the primary considerations is the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The first matter to observe is that none of the evidence before the Court supports in the slightest way the Mother and Maternal Grandmother’s almost obsessive belief that there was a risk of harm to the children in their father’s household. Dr A’s description of the litany of the Mother’s complaints as being mere quibbles is apposite.
What these children need to be protected from, above all else, is the insidious, toxic conflict that exists between their parents, and which manifests itself in the most sinister form whenever the Father comes into contact with either the Mother or the Maternal Grandmother. It is unlikely that the conflict in question falls within the definition of “abuse, neglect or family violence”. In some respects it is unfortunate that the legislation fails to recognise that children need to be protected from the clear psychological harm from being exposed to parental conflict. The experience of this Court indicates, time and time again, that the impact of exposure to toxic conflict between parents can often be as insidious, and pervasive, as exposure to abuse, neglect or family violence, as those words are used in the Act. The submission that the Father has acted irrationally and erratically towards the Mother and Maternal Grandmother in the presence of the children, is amply borne out by the evidence. The Grandmother’s description of the Father’s behaviour on Christmas Day as “ranting and raving” is accepted by the Court. This does not constitute, however, the abuse, neglect and family violence referred to in this primary consideration.
The incident on Christmas Day 2014, however, falls within the definition of family violence in s.4AB of the Act. It indeed constitutes quite clear evidence of this. The Father’s quite out of control behaviour that day was “threatening or other behaviour” that caused the children to be fearful. The children were directly exposed to their father’s behaviour in parking them in so that it was not possible to leave. They were also directly exposed to the direct consequences of the Father’s action, i.e. his arrest by the police and their breaking into his car.

The views expressed by the children

The first of the additional consideration refers to the views expressed by the children and any factors that the Court thinks are relevant to the weight that should be given to those views.
The Court places no weight whatsoever on evidence about expression of the children’s views that is led by any of the witnesses in this case, with the exception of Dr A. Apart from Dr A, and meaning no disrespect to the witnesses in this case, they were all either aligned to the Mother’s case or the Father’s case. The Court could not rely on them to provide an objective representation of what views the children might have expressed to them.
Notwithstanding that, the far greater difficulty with accepting views expressed by the children to anyone other than Dr A is the twofold risk of:
1. the children expressing views under the influence of a family member; and
2. the context of the children expressing views amidst the toxic litigation between the parents, which has been going on for so long, and of which they are well aware.
Both of these factors strongly contraindicate placing any weight on views coming from any partisan source. The Court is left in no doubt whatsoever that both parents and the Maternal Grandmother have involved these children in this litigation. Despite their protestations in evidence to the contrary, the Court does not accept that the parents and Maternal Grandmother have not had highly inappropriate discussions with, or in the presence of the children, about matters before the Court. In any event, and even at a more subtle level, it would be impossible for the Mother, Father and Maternal Grandmother to somehow suppress the loathing that they have for each other, so that the children do not become aware of it. In particular, the Court finds that the Father lied about not showing X Court Orders. He clearly did during the August 2014 weekend visit. The Paternal Grandmother confirmed this in her evidence. It was disingenuous of the Father to deny this. It creates a strong impression that he was prepared to do whatever it took, and say whatever was needed, in order to obtain the outcome for this case that he desired.
The only objective and independent source of the children’s views is that of Dr A. Dr A deals with this issue at paragraphs 28 – 35 of her report. The manner in which Dr A communicates the children’s views, is far more subtle than simply asking them. It is apparent from what they did, or did not do, in their interaction with their father and with Dr A. Both boys were trenchantly critical of their father. They remain distant and detached. X was quite clear in that he preferred “never see Mr Needham again”. At paragraph 34, Dr A openly acknowledged that “it is possible he had been primed”. She demonstrated that she was actively and openly considering the possibility of the Mother and Maternal Grandmother’s influence on X’s views. This led to a discussion about alienation and estrangement that has been discussed above. As she says at paragraph 35, “Although he seems to have resolutely hardened his heart towards his father, he can give valid reasons for his negative appraisals.”
Admittedly, those same strong sentiments were not present in relation to Y, but again what is unknown is the impact on Y of the Christmas Day events.
The Court finds that, having regard to the only reliable, independent evidence, i.e. that of Dr A, X has expressed a view not to spend time or communicate with his father. The same could not be said in relation to Y. Y was certainly critical of his father at the interview, but the evidence goes no further than that.
At this point, it is convenient to deal with the issue of alienation versus realistic estrangement. If either phenomenon is present, it would reflect in the children’s views. There was much cross-examination about this issue and much said in submissions. It is clear that the Mother and Maternal Grandmother strongly believe that the children have been realistically estranged from their father as a result of his actions. It is equally apparent that the Father is convinced that the Mother has, by the actions of the Maternal Grandmother and herself, alienated the children against him. As discussed in the context of examining Dr A’s evidence, the situation is not nearly as clear-cut as either can submit. On balance, Dr A did seem to favour realistic estrangement, but did not rule out the possibility that, on the facts of this case, there were elements of both either happening at the same time, or sequentially, in the children’s lives. When the Court looks back at the life of this family since separation, as depicted in the evidence before the Court, it is easy to see how Dr A would seek to avoid providing a simplistic explanation, or theory, for why X has rejected his father and why Y appears to be strongly resisting any contact with him. There have been many events during these children’s tumultuous lives that are relevant to this issue. The Mother’s unilateral move to (omitted), notwithstanding Consent Orders to the contrary, could easily be interpreted as the act of an alienating parent. The Father’s incredible behaviour on Christmas Day 2014 can easily be characterised as the behaviour of a parent who was the prime architect for his children’s estrangement of him. In many ways, there is a real risk that applying a label to what may or may not have happened in this case distracts the Court from its main role, which is to make Orders in the best interests of the children. The problem here is the parental conflict. It is toxic, insidious, seems to pervade every moment of the interaction between the Mother and Father and the Maternal Grandmother, and continues. It is that conflict that, no doubt, created fertile ground out of which both alienation and realistic estrangement was nurtured and grow and flourished.

The nature of the children’s relationships

The Court is required, as an additional consideration, to take into account the nature of the relationship of the children with each of their parents, and any other persons in their lives.
An undisputed fact in this case is that the Mother has been the primary carer for these children for most of their lives, supported far more so by the Maternal Grandmother, than by the Father. The Mother has experienced significant periods of serious illness in her life, when the Maternal Grandmother has stepped in to care for the children. Accordingly, it is not surprising that they have established such a strong bond with her.
The Father’s relationship with the children has often been a distant one. In cross-examination of the Father, he was not able to satisfactorily explain, for example, why he did not take the opportunities that were there to become more involved in the children’s lives at school, in sport, etc. The children were very young when the relationship between the parents ended. The Father explained, and the Court accepts, that the communication problems between the parents, their lack of trust for each other, and the ongoing conflict about the children, made it harder for him to become involved in the children’s lives. He complains several times, with good reason the Court finds, that the Mother did not provide information to him about the children, or did so in a tokenistic fashion. Be all of that as it may, the fact is that his relationship with the children, even before the Final Consent Orders of July 2014, was a distant one.
Curiously, and contrary to the trend that existed up until then, once the children were ordered to be returned to the (omitted) from (omitted), the evidence suggests that they had satisfactory time with their father on the weekend of 29 August, and then in the September school holidays. The Independent Children’s Lawyer says that these events demonstrate that the children very quickly transitioned into overnight time. He points to the absence of complaint by the Mother as to the Father’s conduct during these two periods of time.
But this ignores, of course, what the Court considers to be the likely consequences on the boys of the Father’s behaviour on Christmas Day 2014. Whatever good work was done, in terms of the Father’s relationship with the boys, on that weekend in August and during that week in the school holidays, it was rapidly undone on Christmas Day.
Both the Father, and the Independent Children’s Lawyer, seem to place significant weight on what they perceive to be the father’s successful time with the children on that weekend in August, and that week during the September/October school holidays. It is important not to idealise these events, and then to somehow seek to extrapolate an improvement in relationships that was either short-lived (until Christmas Day) or in fact never occurred. For example, the evidence plainly demonstrates that on 29 August the police were called, and X plainly resisted time with his father. The Court also knows that the Father showed X the Court Orders that weekend, indeed probably asked X to read them out to him. The Father, his mother and sister, all gave evidence that the boys seemed to settle down well that weekend. The Court accepts this evidence. But was this indicative, however, of the “good and positive relationship with their father” that the Independent Children’s Lawyer and Father referred to in submissions? Dr A plainly would not have a bar of that proposition.
If the Court relies just on the Father’s evidence alone, this is what becomes apparent. The weekend of 29 August started shakily. It took about 15 minutes for the children to leave McDonalds at (omitted) and come into his care. The Father acknowledges at paragraph 86 of his Affidavit 17 April 2015 that he “had a conversation with the mother and advised her of her obligations to at least try to encourage the children to have a relationship with me.”
The clear context is that this took place in the presence of the children. The Father deposes to X using his mobile phone, presumably to speak to his mother. He eventually took it off him. He agrees that three uniformed police officers came to the house at about 8:30pm. Clearly the boys saw them. One of the police spoke with the boys. The Father observed the boys’ behaviour to change after the police left. Indeed he described it at paragraph 100 as a “remarkable turnaround in their attitude towards me.” With great respect to those who might see it in other ways, only an optimist could regard this event as being a turning point of some sort.
The Father gives little detail in his evidence about his time with the children in September. He says the time took place.
He deposes to the problems at changeover on Friday 10 October 2014 at paragraphs 115 onwards of his Affidavit. Both the Mother and Maternal Grandmother were present. X told him that he did not want to come. No contact took place that weekend. The Father went to the police.
The Mother’s version about this incident is contained at paragraph 90 of her Affidavit 23 January 2015. She deposes to the Father becoming “aggressive with the children when they told him that they did not want to go with him.”
She describes the Father’s manner to the children as being “a very intimidating manner”. Despite this, the Mother acknowledged that the Father left the premises “without the usual loud dramatics”. The Maternal Grandmother makes the same observation at paragraph 67 of her Affidavit 19 January 2015. Whilst the Court generally does have reservations about the evidence of the Mother and Maternal Grandmother (as indeed it has about the Father) the assertion of aggression and intimidation is more likely to be right, than wrong, as it is entirely consistent with, for example, the Father’s behaviour on Christmas Day.
In his Affidavit, the Father paints a picture of uncontroversial, unproblematic contact with the boys at other times in October. The Maternal Grandmother’s evidence about contact on 22 October 2014 is quite starkly different. She deals with this at paragraph 68 of her Affidavit. Here she refers to the Father as having “a face like thunder”, and on being told by the boys that they did not want to spend time with him, that he “started to bully, threaten and intimidate the children in a loud voice.”
The Maternal Grandmother asserts that the Father said to the children, “Your mother’s going to be in trouble with the judge, I’m going to call the police.”
In cross-examination, the Father denied this. The Court does not accept his denial. His actions at other times are consistent with him saying this.
The Maternal Grandmother gives evidence about the changeover on 24 October. She refers to the children as being upset. She again refers to the Father speaking to the boys “in an aggressive and loud tone” (paragraph 70). She saw both boys crying.
The important point to be made from the above evidence is that the problem that existed for this family did not magically go away in the period between the boys’ return from (omitted) and the Christmas Day incident. The Father may well have had good times with the boys, who may well have settled in with him eventually, but there were still problems there, in particular, the Father’s aggression and intimidation which, the Court would find, is consistent with Dr A’s assessment of the Father’s lack of empathy. Thus, the problems in the Father’s relationship with the boys continued in the second half of 2014. Indeed the problems merely reached a culmination on Christmas Day.

The extent to which each of the parents has taken, or failed to take, opportunity

Pursuant to this additional consideration, the Court must examine the extent to which each of the parents has taken, or failed to take, the opportunity to participate in decision-making, to spend time with the children, and to communicate with the children.
When the evidence is viewed in its totality from the perspective of this additional consideration, the view is somewhat murky. Both parents could have done better. The Mother could have done far more to create opportunities for the Father to become involved in the children’s lives. The Father likewise could have taken the initiative far more than he did. The problem with parental conflict, particularly when it is as toxic as it clearly is in this case, is that it makes parents blind to opportunity – either to creating them, or to taking them. The Mother’s decision to unilaterally relocate to (omitted) deprived the Father of the opportunity to spend time and communicate with the boys, despite the terms of Final Orders, the ink of which had barely dried.
The Mother’s unilateral relocation with the children to (omitted), so shortly after she had entered into Consent Orders that were plainly inconsistent with her actions, was nothing less than deplorable. Her subsequent attempts to justify her actions are equally appalling. The move was calculated. The evidence suggests it was planned even before the Consent Orders had been entered into. The Maternal Grandmother was complicit in this. The Mother’s attempts to construe her relocation as being a response to events that occurred after the date of the Orders is plainly disingenuous. Equally disingenuous is her attempt to construe the Father’s actions as somehow amounting to a consent to her move. Quite frankly, the Court finds the Mother’s actions gobsmackingly audacious, and her attempts to justify the same as lacking any merit whatsoever.
The Mother’s relocation with the children was as much a fiasco as was the Father’s behaviour on Christmas Day 2014. She was incredibly naïve to think that, somehow, the Father would not attempt to make her accountable for her unilateral actions. He would have to be supremely naïve to think that he would not be made accountable for his actions on Christmas Day.
But all parties to this litigation need to pause and think for a moment about this question: what shadow do these events cast on the matters before the Court? It would be all too easy to want to punish parents for their stupid acts, out of righteous indignation on behalf of the children, but these children are left with their parents for the rest of their lives. The Court needs to look beyond, and in a metaphorical sense underneath, both these events. Both irrational events occurred because these parents are singularly incapable of managing the conflict between them in such a way that their children are not exposed to the conflict. The Court must resist the temptation to punish parents for their stupidity, and instead seek to find a best interest outcome for these children, consistent with law, that addresses what the Court believes is the main need for them in this case – to protect them from the parental conflict.

Fulfilment of parental obligations of maintenance

The Court is required to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child. This does not feature as a significant consideration in this case. The Mother certainly complained that the Father could have done more. The Father says he did what he could, and provided assistance when he could, as well as meeting his statutory obligations. He probably could have done more. It is not a determinative consideration in this case.

The likely effect of changes in the children’s circumstances

This consideration requires the Court to consider the effect of any change in the child’s circumstances, including the likely effect on the children of separation from the parent, or other significant person. The Mother’s proposal not only involves relocating with the children to (omitted), but, indeed, the children spending no time with their father. There is no doubt that this is the proposed order which will bring about the greatest change in the children’s lives. It will be not just a new physical environment (albeit not entirely unfamiliar to them) but more significantly on the facts of this case, a new psychological or emotional environment for them. At least implicit, if not explicit, in the Mother and Maternal Grandmother’s proposal is that the move to (omitted) removes both them, and the children, from the conflict involving their father. Indeed, the Father’s evidence is that because of his physical and financial circumstances, and the closeness of his family, he could not himself relocate to (omitted). Of course, this would mean a significant change in the children’s relationship with their father. He would be far less accessible to them. At most, the options that emerge from the evidence, included him seeing them a few weekends during the school term, and certainly during school holidays. It should be noted that this was by no means the preferred position of either the Mother or the Father. It is merely a realistic appraisal of what could be the possible spends time with arrangements with the children, should they be allowed to relocate to (omitted). The Mother’s case, reflected in her closing submissions, is that whilst this would be a change to the children, it would be a beneficial change (removal from conflict) and in any event would not be a significant change in terms of their spending time with the Father because they have not seen him since Christmas Day 2014 anyway, almost nine months ago. The Mother’s case is that Dr A did not suggest there would be any negative effects associated with the move in that it removes the anxiety to the children of regular contact with their father. Perhaps that conceptualisation of Dr A’s evidence is simplistic. In reality, what Dr A said was that there were positive aspects of the move and negative aspects, but on balance the positive aspects seemed to prevail. She was acutely conscious of the possibility, indeed likelihood, that a relocation would result in a loss of the children’s relationship with their father altogether. This was almost certainly the case as regards X, and a possibility, indeed a probability in time, with regards to Y. In this regard, however, she thought that there were still benefits to the boys in terms of freeing them from their exposure to, and involvement in, the parental conflict.
At times in her evidence, and a matter reflected in the Mother’s closing submissions, there is reference to the notion of the Mother’s “happiness”. Indeed the submission on behalf of the mother was that “it is of fundamental importance for the children’s welfare to keep the mother happy.”
This is a submission that needs to be considered closely. If it is legitimate to consider the Mother’s happiness, then it must be equally legitimate to consider the Father’s happiness. A self-evident fact in this litigation is that it is impossible to keep both parents happy. In any event, this case is not about happiness. It is ultimately about finding a way to protect these two boys from their parents’ entrenched conflict. The problem with subjective notions such as happiness is that it points to the best interests of the parent, rather than the best interests of the child. Of course, it is frequently argued, as it is indeed in this case, that the welfare of children is inextricably linked to the welfare of their parents. That may well be the case, sometimes, but more often than not children’s needs are prioritised over parents’ needs, and the link between the two is both artificial and tenuous.
Perhaps the use of the word “happiness” by Dr A was an unfortunate choice of words. The Court suspects that she used the word happiness as an umbrella term to refer to a number of aspects of wellbeing that are directly relevant to the facts of this case. The obvious benefit of geographical distance is the hope, indeed expectation, that it either eliminates the parental conflict, or greatly mitigates it. The Maternal Grandmother has her home in (omitted), a home available to the Mother and the children. This both meets a physical need for satisfactory accommodation, plus the emotional need that the Mother has for support from her own mother. It also means that the boys continue to have their Maternal Grandmother in their lives.
But all of this comes at a cost for the boys. It is the cost that is emphasised by the Independent Children’s Lawyer and the Father. Given that the Father’s relationship with Y is held together by Dr A’s metaphorical “gossamer thread” how will relocation create an environment for that relationship to be supported? Given that X does not have a relationship with his father, and clearly does not want one, how does that geographical distance create any possibility for a relationship somehow starting again? Of course, the geographical distance raises the stakes in terms of the risks of contamination – a risk identified by Dr A in her evidence, wherein X’s rejection of his father infects Y’s tenuous relationship with his father.
The likely effect of changes in the children’s circumstances needs to be considered in the context of all the available options. Both the Independent Children’s Lawyer and the Father argue very strongly that the children ought not to be allowed to relocate, but instead, what they consider to be the root cause of the problem be addressed by changes to the Orders. In a relatively simplistic fashion, they both argue that by changing the Orders insofar as it prescribes the changeover, they are either removing, or greatly mitigating the problems associated with the children’s resistance to spending time with their father.
At a superficial level, the argument is quite attractive. If the changeovers were at school, for example, or at a supervised contact centre, it is highly likely that the risk of the parents coming into contact with each other would be a highly manageable one. By keeping the parents and the Maternal Grandmother, away from the transition of the boys from their mother’s household to their father’s, the argument is that the Orders can be successfully implemented.
Having regard to all the evidence, the Court finds that the Father had for quite some time wanted that changeovers to take place at school, and that both the Mother and Maternal Grandmother are strenuously opposed to this. In evidence, both of them said that the boys wanted to keep changeovers away from school. Indeed, both the Mother and Maternal Grandmother referred to the school as being a safe haven for the boys.
Dr A was quite scathing about the Mother and Grandmother’s resistance to using the school for changeover. It is clearly something she had recommended in her reports. The Court felt that Dr A was, at times, frustrated that her recommendations had not been implemented by the parents. Indeed, in describing the Mother as “delusional” at times, one of the contexts was in her belief the changeovers should not be at school.
The Court finds that the Mother was genuine in this belief, but it was quite misconceived, and indeed, to borrow from Dr A, delusional. It was plainly obvious to the Mother and the Maternal Grandmother that for years the flashpoint of parental conflict was changeovers, and that their presence only made things worse. At some point in time, they should have reconsidered their intransigence about the use of school.
But does that mean that merely altering the changeover arrangements suddenly, like a magic wand, miraculously changes the nature of the parents’ relationships with each other? Does making changeover at the school, or supervised contact centre, address the other serious problems that Dr A identified, in the Father’s relationship with his boys? How would such a change, for example, reverse, let alone mitigate, X’s rejection of any relationship with his father? These rhetorical questions demonstrate the flaws in the argument advanced by the Independent Children’s Lawyer and the Father. They demonstrate how the alternative to allowing the children to relocate to (omitted), i.e. requiring them to stay, does not necessarily change for the better their relationship with their father.
Making amendments to the changeover arrangements for the parents does not address the problem that Dr A identifies about the Father, a matter the Court accepts, i.e. his lack of empathy. It does not change the loathing that the Mother and Maternal Grandmother have towards the Father, and vice versa. It does not improve their communication. It changes not an iota their lack of trust for each other. It does not mean that they will stop discussing highly inappropriate matters with or in the presence of the children. It does not remove the Mother’s propensity to find a litany of inconsequential matters to complain about the Father. It does not address the Maternal Grandmother’s trenchant, but completely misguided, belief that the children are at risk of harm in their father’s care.
It is inevitable that if these children are not allowed to relocate with their mother and grandmother, that they will feel a deep resentment, and that their father will be blamed. No order of the Court can stop this. Even if words are injuncted, feelings cannot be.
At several points in her evidence Dr A reminded the questioner to consider the alternative to what was being put to her. When all the alternative scenarios of change for the children are considered in this case, the one that provides them with the greatest prospect of peace from the parental conflict is to provide some geographical space between their parents. Even if this comes at the cost of changes in the boys’ relationship with their father.

Practical difficulty and expense

The Court is required to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
It is common ground that a relocation to (omitted) is about a seven hour drive from the Father’s home. Indeed, even if he were to fly (and there is evidence before the Court about the Mother raising with the Father, before her unilateral relocation, the cost of airfares), given the distance between the (omitted) and Sydney Airport, it may not take substantially less time to fly.
Doing the best the Court can, when such limited evidence went to this issue, if the Court were to permit the children to relocate to (omitted), and if the Court was somehow minded to make an Order for one or both of the children to spend time with their father, the overall impression formed is that the issues of practical difficulty and expense would not be insurmountable.

Parental capacity, and attitudes to the children and to the responsibilities of parenthood

Under this heading, these reasons conflate two important additional considerations. The first of those considerations is the capacity of each parent to provide for the needs of the child, including their emotional and intellectual needs. The second of the additional considerations is the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents.
It is convenient to deal with both these considerations under the one heading.
It should be apparent to the reader of these reasons to date that the Court has been critical, indeed at times scathingly critical, of each of the parents and the Maternal Grandmother for what they have done, or failed to do, at various times. There has been ample evidence of the dysfunctional relationship, and the deficiencies in the parenting ability of all the parties to this litigation.
There is no question that each of the Mother, Father, and Maternal Grandmother can provide for the children’s physical needs, indeed more than adequately. The same conclusion results in relation to their intellectual needs. But meeting their emotional needs is just as important, indeed possibly more important. The three most significant adults in the lives of X and Y have let them down in this regard. Neither the Mother, nor the Maternal Grandmother, have adequately prioritised the needs that both boys have for a relationship with their father. They have allowed their own ill feelings towards him to get in the way. They have put their own needs above the needs of the boys in this regard. As a result of this, and also partly as a result of the Father’s own actions, X has completely rejected his father, and Y is resisting time with him, and is at peril of losing his relationship with his father. Let it be very clear – this is not the children’s fault – it is because of what the three most significant adults in their lives have done.
The Father was an active participant in all of this. Their feelings towards him are mirrored in his feelings towards them. The Court has used the word loathing, several times in these reasons, to describe the feelings that the Father has towards the Mother and Maternal Grandmother, and which are so ably reciprocated. It takes two to tango, said Dr A, and all three willingly dance a tango of destruction in the children’s relationship with their father. Any one of them could have, and should have, and had many, many opportunities to step back, and disengage. They did not.
They each disclose a profound blindness about the children’s emotional needs, apathetic attitudes about them, and irresponsible parenthood.
The damage has been done to the boys’ relationship with their father. Dr A warned, and the Court’s experience confirms, that both the Mother and the Maternal Grandmother need to be very careful about the future. Once the boys have individuated, whether or not the Father is in their lives in some form, they may well come to their own judgment about what happened. The boys’ judgment of them, at some future time, may be even more scathing than the Court’s judgment today.
The Court cannot change what has happened so far. If there were some reasonable expectation that the parents, or the Maternal Grandmother could somehow change, there might be some hope for the future. What is abundantly clear from the evidence is that nobody believes they have to change. Both the Mother and Grandmother attributed 100 per cent blame to the Father. The Father undoubtedly felt the same towards them. The Father was repeatedly encouraged by Dr A to obtain professional assistance but he did nothing.
Given this terrible prognosis for the children – that their parents and grandmother are unlikely to change in terms of the matters before the Court – the Court has to consider how it can protect the children from such dysfunction. Keeping the three protagonists in the same geographical space is not the answer. Keeping them in the (omitted) changes nothing for these children. Merely amending the changeover provisions changes nothing for these boys. The Court assesses the situation to be so dire for the boys, and their need to be protected from the parental conflict as being so great, that a physical distance needs to be established between the Father, and the children and the Mother and Grandmother.
It bears once again revisiting some of the arguments raised in this case. Even if the children were in fact alienated from their father, as a result of the actions of their mother and maternal grandmother, why does that necessarily lead to a particular result, being the one proposed by the Father, even at the time when he proposed that the children live with him? Decisions made about children are not based on a formula. Thus, even if there was a finding of alienation, it does not result in any predetermined outcome, let alone that the children live with the alienated parent.
Moreover, even if the children were to have been realistically estranged by their father, that does not automatically result in an outcome in which they are not to have a relationship with their father.
Of concern was a similar formulaic submission made on behalf of the Independent Children’s Lawyer, i.e. that unless there was a finding of unacceptable risk of abuse, the Court could order no time.
All of these rather formulaic submissions, reflected in one way or another in the cases presented before the Court, are simply misplaced. The submissions are inconsistent with the statutory scheme set out in Part VII of the Act. There are no formulas to be applied in working out what is in the best interests of the children. The Court looks at all of the facts, considers all of the evidence, has regard to a non-exclusive list of statutory factors, and ultimately makes a decision that it considers to be in the best interests of these children.
In many cases, such as this one, there is no ideal outcome for these children. There is a bad alternative, and a worse alternative.
The greatest risk to these children, having regard to all the evidence, is continued exposure to parental conflict. Their greatest need is to be protected from this. On the facts of this case, this need ranks in priority to many other needs.

Maturity, sex, lifestyle and background of children and parents

Any observations in this regard have been considered under other headings.

Family violence

In s.4AB(1) of the Act, family violence means:
… violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member ), or causes the family member to be fearful
It is quite possible that the children’s exposure to parental conflict has caused them to be fearful. In any event, the fiasco on Christmas Day 2014 is a clear example of family violence as defined in s.4AB. The Father was charged and convicted of offences. An AVO that was made in favour of the Maternal Grandmother, against the Father. There is clear evidence about the boys being upset, and fearful, as a result of what happened.

Order least likely to lead to further proceedings

This litigation needs to come to an end, but in a manner which minimises the prospect of future litigation. Dr A seemed to be of the view that this was best achieved by a no contact or communication order. The highly problematic history of this case leads this Court to conclude that one of the most pressing priorities for an order is to shield the children from further parental conflict, which is so often manifested by parental litigation. Apart from an appeal, the risk of further proceedings is in fact mitigated by a no contact and no communication order. Any arrangement, legal or otherwise, that maintains a connection between the parents, is an opportunity for conflict and litigation. If an order for no contact and no communication is otherwise in the best interests of the boys, then it is also the order that best addresses this additional consideration.

Parental responsibility

The statutory presumption set out in s.61DA(1) does not apply as the Court has found that the Father has perpetrated family violence, specifically on Christmas Day 2014: s.61DA(2). Moreover, the presumption is rebutted as the Court is satisfied that it is not in the children’s best interests: s.61DA(4). To set out the reasons for this would be to merely repeat the evidence that has been set out above. The Mother and Maternal Grandmother’s reasons for seeking equal shared parental responsibility as between themselves are persuasive. The Court will make this order.
As the presumption does not apply as between the parents, the Court is not required to consider either equal time or substantial and significant time. Even if it were considered, however, on the evidence before it the Court would consider that neither was reasonably practicable, or in the children’s best interests.

Order in the best interests of the children

It is important to explain to the parents in this case that in determining what is in the best interests of the children the Court must not let itself be influenced by matters pertaining to the conduct of the adults in this case. If the Court’s decision, for example, were allowed to be influenced by any notion of offence in relation to the behaviour of the adults in this case, the result may well have been a preference for the children to be removed from this family entirely. The behaviour of all of the adults in this case has been appalling at times, and to differing degrees. However, the proper focus of the Court is to make a decision that is in the best interests of the children in the future, having regard to past events. These past events are now set in stone. Where the adults in this case have different perceptions about those past events, it has been the Court’s role to adjudicate on what happened in the past. These findings, absent a successful appeal, are also set in stone. The adults in this case nonetheless carved their own histories. Their past is littered with monuments of dysfunction. History cannot be allowed to repeat itself for these boys. The only order that can achieve this is a no contact and no communication order, with the boys being permitted to relocate with their mother and grandmother. It is their only hope for a peaceful future. If the Father perceives this to be a judicial endorsement of the Mother and Maternal Grandmother’s bad conduct, that is his right, as misconceived as it is. It ignores the nature of the present exercise – to determine what is in the boys’ best interests – as well as conveniently glossing over his own culpability in this very sad situation.
The Court has considered long and hard the possibility of making an order for Y to spend time with his father during school holidays and mid-term. The obstacles, however, are insurmountable. The Father’s perseverance is an unknown. The Mother and Maternal Grandmother’s commitment to such an arrangement is questionable. The subtle corrosive impact of the sibling relationship is inevitable. The issues of practical difficulty and expense are, for these parents, insurmountable because of their feelings towards each other. Whatever past intentions they had in this regard were shattered by subsequent events. The same issues arise in relation to communication. To make any order for contact or communication is to set up these parents for failure, and to expose Y to unnecessary stress. On balance, it is best to sever the boys’ relationship with their father completely, and leave it for them to resume it at their own pace and time.
The relentless pressure of work in this Registry has meant that it was not possible to make Orders and deliver reasons within a timeframe that might enable the Mother to act on the reasons, and relocate within a timeframe that minimises disruption to the children’s schooling. Whilst the Court believes that it would be best to postpone any relocation to the end of the 2015 school year, no order will be made to this effect. The Mother and Maternal Grandmother have the benefit for an order for sole parental responsibility. The decision as to timing will be theirs.

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Family Violence and Family Law – a recent case

Family Violence and Family Law – a recent case

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