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Colvan & Colvan [2015] FCCA 99 (13 January 2015)

Last Updated: 6 February 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

COLVAN & COLVAN


Catchwords:
FAMILY LAW – Parenting – Father alienating parties’ three children from the mother – Mother has poor parenting skills – it is the Report Writer’s evidence that there is limited window of opportunity to intervene and if no change is made, the children will not have any relationship with the mother within the next twelve months. Ordered children to live with the mother, spend no time with the father for eight weeks followed by four months of supervised time then limited unsupervised time culminating in the children spending time with the father on alternate weekends, half holidays and special occasions. Also ordered that the mother and children immediately engage in intensive therapeutic counselling.


Legislation:
Family Law Act 1975, ss.60B, 60CA, 60C(2) and (3), 60DA and 65DAA


AMS v AIF (1999) 199 CLR 160
U & U [2002] HCA 36; (2002) 211 CLR 238
Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark (2009) Fam LR 483


Applicant:
MS COLVAN

Respondent:
MR COLVAN

File Number:
MLC 10551 of 2012

Judgment of:
Judge Bender

Hearing dates:
1 December 2014, 4 December 2015,
5 December 2014, 7 January 2015,
8 January 2015 and 9 January 2015

Date of Last Submission:
9 January 2015

Delivered at:
Melbourne

Delivered on:
13 January 2015


REPRESENTATION

Counsel for the Applicant:
Ms Williams

Solicitors for the Applicant:
Barbayannis Lawyers

Counsel for the Respondent:
Mr Whitchurch

Solicitors for the Respondent:
Hayden Legro Lawyers

Counsel for the Independent Children’s Lawyer :
Ms Treyvaud

Solicitors for the Independent Children’s Lawyer :
Schetzer Constantinou

ORDERS

(1) All previous parenting orders be discharged.
(2) The mother have sole parental responsibility for the children X born (omitted) 2002, Y born (omitted) 2002 and Z born (omitted) 2006 (“the children”) until such time as the children commence spending time with the father in accordance with Order 5(c) herein and thereafter the parties shall have equal shared responsibility for the children.
(3) The children live with the mother.
(4) The children spend no time or communicate with the father for a period of 8 weeks following the making of these orders and the mother be permitted to retain the children’s mobile phones during this period.
(5) Commencing 10 March 2015, the father spend time and communicate with the children as follows:
(6) The father’s time pursuant to Order 5(c)(i) herein shall be suspended during the school holidays and resume on the first weekend of each school term.
(7) In the event the children are spending time with the father pursuant to these orders, such time shall be suspended and the children shall spend time with the mother as follows:
(8) Save where changeover occurs at the children’s schools, all changeovers shall be supervised by the Contact Agency unless otherwise agreed between the parties in writing.
(9) The parties each do all things necessary to comply with all reasonable requests made by the Contact Agency and equally share the costs of supervision.
(10) The Independent Children’s Lawyer be permitted to request a report from the Contact Agency as to the progress of supervision.
(11) Both parties, by themselves, their servants and/or agents be and are hereby restrained by injunction from:
(12) Each party shall advise the other of any serious illness or injury suffered by the children as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
(13) Each party keep the other informed at all times of their current residential address and contact telephone number.
(14) Save for the purposes of contact changeover as referred to above, the father be and is hereby restrained from attending upon the children’s school/s save at the express invitation by a proper officer of the school.
(15) The mother shall do all things necessary to authorise the children’s school/s to provide the father at his expense with copies of all school reports, school photograph order forms, newsletters and all other documents usually provided to parents.
(16) The Independent Children’s Lawyer be permitted to provide a copy of these orders, the Family Report of Mr H dated 11 November 2014 and the Judgment delivered this day to the following:
(17) The mother forthwith do all things to ensure she and the children attend upon Dr D (“the therapist”) for a reportable Family Therapy as directed by the therapist, with the costs of the therapist to be shared equally by the parties and such therapist to prepare a report at the parties joint expense if requested to do so by the Independent Children’s Lawyer .
(18) The Independent Children’s Lawyer shall provide the therapist and
Dr S with copies of the three reports of Mr H, the affidavit of Ms G sworn 28 November 2014, these orders and the judgment delivered this day.
(19) It is requested that Victoria Legal Aid fund the appointment of the Independent Children’s Lawyer and she continue to be involved in the matter for a further twelve (12) months.
(20) It is requested that the Independent Children’s Lawyer meet with the children to explain these orders and the mother shall make the children available to meet with the Independent Children’s Lawyer as directed by the Independent Children’s Lawyer.
(21) There be liberty to either of the parties or the Independent Children’s Lawyer to apply on short notice by contacting the Chambers to the Honourable Judge Bender.
(22) Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10551 of 2012

MS COLVAN

Applicant

And

MR COLVAN

Respondent


REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction

  1. This matter relates to the living arrangements for the parties’ three children, twin girls, X (“X”) and Y (“Y”) born (omitted) 2002 aged 12; and Z born (omitted) 2006 aged eight (“Z”).
  2. After the parties physically separated in October 2012, interim orders were made on 17 December 2012 for X, Y and Z to live with the parties on a week about basis.
  3. On 30 January 2013, after the preparation of the first of three family reports prepared by Mr H dated 23 January 2013, further interim orders were made by consent whereby X, Y and Z lived with the mother five nights each fortnight and with the father nine nights each fortnight.
  4. On 28 October 2013 and after the preparation of a second family report by Mr H, dated 3 August 2013, final orders were made by consent whereby X, Y and Z returned to living with each of the parties on a week about basis.
  5. After an incident at changeover in August 2014, when it is alleged the mother tried to run Y over after they argued about Y’s mobile telephone number, the Police and the Department of Human Services became involved and the father retained X, Y and Z in his care.
  6. The mother filed an urgent Initiating Application on 20 August 2014 seeking orders for the return of X, Y and Z to her care.
  7. On 15 September 2014, orders were made for the shared care arrangements pursuant to the final orders made on 28 October 2013 to resume and for a third family report to be prepared by Mr H.
  8. In his first report, Mr H had noted X, Y and Z to be quite strongly aligned with the father. In his second report, Mr H expressed a genuine concern that this alignment dynamic was shifting in the direction of “child alienation”. This is because of the father’s inability to set proper boundaries and to protect X, Y and Z from his strongly held negative views of the mother and her parenting and concerns the father was either covertly or overtly influencing the children to reject the mother. In paragraph 33 of his second report, Mr H stated:

Mr Colvan’s influence on the children and the projection of his anxiety through diffuse boundaries presents as the most prominent risk to the children’s psychological and emotional wellbeing at this point in time. The risk is weighed against the benefits of the children having a substantial relationship with him, given the extent of his past parenting input. However, if Mr Colvan cannot make a more successful and cooperative adjustment to the shared care arrangement, and apply restraint around his views of Ms Colvan’s parenting, the viability of the arrangement and the provisions for joint responsibility may need to be reviewed again.

  1. Mr H’s third report was provided to the parties on 11 November 2014. In that report, he expresses the opinion that in this matter there is now a “pure alignment” dynamic and that if the current circumstances continue, it will only be a matter of time before all three children began to actively refuse contact with the mother.
  2. In what Mr H describes as “a very small window of opportunity” before the children’s behaviours become permanently entrenched, he recommends that X, Y and Z live with the mother and over a twelve month period have very limited time with the father.
  3. Mr H recommendation is that time commence with a period of two months without any contact with the father, followed by a period of four months of limited supervised time before moving to three months of unsupervised day time only culminating in X, Y and Z spending alternate weekends, holiday and special occasion time with the father.
  4. Mr H also recommends that during this period, the mother, X, Y and Z be supported by intensive reportable therapeutic counselling.
  5. The mother and the Independent Children’s Lawyer are seeking the Court make orders in accordance with Mr H’s recommendations.
  6. The mother and the Independent Children’s Lawyer also propose that the mother have sole parental responsibility for X, Y and Z until such time as they commence alternate weekend time with the father, after which time they propose parental responsibility be shared.
  7. The father denies he has alienated X, Y and Z from the mother and argues any reluctance they have to spend time with her is as a direct result of their lifetime experience of her very poor parenting.
  8. The father proposes orders that the parties have equal shared parental responsibility for X, Y and Z, that they live with him and spend time with the mother each alternate weekend from Friday to Monday, a night in the “off-week”, for half holidays and the sharing of special occasions.

Background

  1. The mother was born on (omitted) 1967 and is aged 47 years. She is unemployed and is not currently in a relationship.
  2. The father was born on (omitted) 1970 and is aged 44 years. He too is unemployed and has not been in a relationship since the parties separated.
  3. The parties married on (omitted) 2000.
  1. X, Y and Z were all conceived with the assistance of In Vitro Fertilisation (“IVF”) utilising donated eggs and the father’s sperm. This appears to be a circumstance of real import to the father, as he has raised it with a number of the experts involved with his family. He seems to believe this means he is the only “true” parent as the mother has no biological connection to the children.
  2. Both parties agree their relationship dramatically deteriorated after the birth of X and Y and that it worsened after Z’s birth.
  3. The parties, to all intents and purposes, separated under the one roof after Z’s birth. All conjugal relations ceased and they slept in separate bedrooms. However, both they and the outside world seemed to consider them to still be married.
  4. Very shortly after X and Y were born, the mother hurt her back. When this occurred, the father ceased paid employment and has not been in paid employment since that time.
  5. When the mother hurt her back, the father assumed the role of primary carer for X and Y and it seems to be common ground that it was and is to him that they are most closely attached.
  6. The care of Z appears to have been more equally shared by the parties and Z’s relationship with the mother is less complex and strained than is the relationship between the mother, X and Y.
  7. The parties’ relationship for the entirety of the children’s lives has been highly conflicted with continuous verbal altercations.
  8. The mother concedes she is loud and argumentative and that she shouts and screams.
  9. The father, X, Y and Z all indicate that during the relationship, it was the mother who was the protagonist in the arguments between the parties but that the father would also yell and argue at times in response to the mother’s aggression.
  1. In July 2012, the father suggested that X and Y in particular would be assisted by counselling with their school because of their exposure to their parents’ ongoing conflict. With the consent of the mother, X and Y commenced counselling at their school with Ms N.
  2. On 20 October 2012, there was an incident between the parties at the former matrimonial home. Whilst the parties’ evidence as to what actually occurred differs, it would appear the parties were arguing. It is the father’s evidence that the mother threatened him with a knife, the mother denies this. The father then went out to the backyard where he had some kind of emotional breakdown. At the father’s request, Y rang the Police, who attended the former matrimonial home and removed the mother from the house.
  3. As a result of the altercation at the former matrimonial home, the Police made an Application for an Intervention Order on behalf of the father and the children. The mother made a Cross-Application for an Intervention Order against the father. The parties’ Applications came before the Sunshine Magistrates Court on 29 October 2012. On that day, the parties agreed to enter into mutual Intervention Orders, prohibiting family violence against each other and the children.
  4. On 29 October 2012, the parties also agreed to a Parenting Plan which provided for X, Y and Z to live with the parties on a week about basis, whereby the children remained in the former matrimonial home and each of the parties moved in and out of the home during their respective weeks with the children.
  5. On 20 November 2012, the father filed an Initiating Application in the Federal Circuit Court seeking orders for X, Y and Z to live with him and spend alternate weekends with the mother. On 6 December 2012, the mother filed a Response in which she sought orders for X, Y and Z to live with her and spend alternate weekends with the father.
  6. The orders made following the parties’ Applications made in 2012 have already been set out in the introduction to this judgment.
  7. As set out in the introduction to this judgment, the current proceedings were commenced by the mother when the father withheld X, Y and Z after an incident at handover in August 2014. At the first return date of that Application, an order was made for a third family report to be prepared by Mr H.
  8. Given the concerns expressed by Mr H in his third report that there was a small window of opportunity before X, Y and Z started to refuse to spend time with the mother, on 19 November 2014 an order was made for the appointment of an Independent Children’s Lawyer together with an order pursuant to section 69ZW seeking information from the Department of Human Services in relation to their involvement with the family. The matter was otherwise listed for final hearing on 1 December 2014 for 3 days. Further orders were made on 19 November 2014, suspending all time between the father, X, Y and Z, save for a brief visit during a (omitted) soccer game and two periods of telephone communication.
  9. As the matter could not be finalised in the 3 days allocated to it in the week of 1 December 2014, on 5 December 2014 interim orders were made by consent which provided for X, Y and Z to live with the mother and for them to have limited time with the father, which included telephone communication on Tuesdays and Thursdays and face to face time with the father for a meal on two occasions, for Christmas shopping and on Christmas Day. The orders also provided for the father to attend the children’s school concert and X and Y’s graduation. The matter was otherwise adjourned part-heard to 7 January 2015.
  10. There were some difficulties during the period between 5 December 2014 and 7 January 2015.
  11. On 10 December 2014, X, Y and Z ran away after school to the father’s home. The father returned them to the mother an hour later.
  12. On 11 December 2014, X and Y refused to go home with the mother after school. After what I consider appropriate intervention from the school principal, Ms K, whereby she explained to X and Y they would be placed in care by the Department of Human Services if they continued to refuse to go home with mother and that given their behaviour, the school would have to consider whether they would be allowed to graduate, X and Y went home with the mother.
  13. On 12 December 2014 when the matter was still clearly before this court, the father, accompanied by the paternal grandmother, attended upon the school with a list of complaints about the mother’s parenting. This list contained many of the previous complaints reported by the children in this matter. Because of the matters contained in the father’s list, the school was required to notify the Department of Human Services.
  14. As previously set out in this judgment, X, Y and Z commenced counselling with the school, their counsellor Ms N on 22 August 2012. The children’s counselling with Ms N continued until 28 November 2012, at which time Ms N commenced maternity leave and Ms A took over the children’s counselling. The sessions with Ms A stopped in February 2013 as X and Y were reluctant to continue any counselling.
  15. In July of 2013 X, Y and Z commenced counselling with Ms G at the request of the school counsellor, Ms N. Ms G saw X, Y and Z, in various combinations, on 18 occasions until April 2014. In April 2014
    Ms G stopped the counselling as she felt X and Y, in particular, were using the counselling as a platform to make complaints and allegations against the mother which was not in their best interests or their psychological or emotional wellbeing.

The Evidence
The Parties

  1. Whilst both parties filed extensive affidavit material and gave lengthy viva voce evidence in support of their Applications, it is not my intention to canvass their evidence in detail as, quite simply, their evidence supported Mr H’s expert opinion that both parties function at a very immature psychological and emotional level and both can be seen as low-functioning, both psychologically and emotionally, in equal but different ways.
  2. Mr H expanded on his evidence as to the parties functioning at length.
  3. In relation to the mother, Mr H stated as follows:

Ms Colvan appears to have a low threshold to anxiety. She has low threshold to confrontation and she has a lack of insight and understanding about what is actually happening here. There are two or three key things she could do which will turn around the situation very, very quickly. She is incapable of having the insight to see it or to do it.

  1. Mr H was asked what are the two or three key things the mother lacked the insight to do which would turn matters around very quickly in respect to her parenting of and her relationship with X, Y and Z. Mr H stated:

Well, our basic and fundamental techniques for managing adolescent behaviour, which are about not buying into escalations and argumentative conversations, about formulating clear rules and sticking with them, but being able to negotiate around issues that the parents select are negotiable, and to be able to give and take, and not take the child’s perceptions and views and slights as a personal affront to herself. And in that regard, she has a tendency to act in a rather adolescent manner herself. She needs assistance to overcome those behaviours.

  1. Perhaps the prime example of the mother’s lack of insight into her poor parenting and the contribution she makes to her difficult relationship with X and Y in particular, is that a consistent concern raised by the children, both prior to and after separation is that she becomes angry and she yells and screams at them which they find frightening.
  2. When this was raised with the mother in crossexamination, she denied getting angry, but did concede she is loud and she does shout at times. She then said:
  3. In her evidence the mother seems to be abrogating any responsibility for her behaviour and the need for her to change that behaviour. The mother lacks any insight in respect to how her screaming and yelling at the children impacts on them and their willingness to spend time with her.
  4. In relation to the father, Mr H stated as follows:

Mr Colvan is limited by his entrenched, almost psychopathological, belief around his unique role as a biological parent. He views the mother as the incubator and fundamentally believes that she has no real biological connection to these children, and from that, his behaviours are shaped and stemmed. He has a firm belief that he is only the parent that is capable of nurturing these children, and that limits his ability to change.

  1. Mr H was asked that he would therefore not be surprised that in the middle of the trial and whilst he was still being cross-examined, the father had gone to the children’s school on 12 December 2014 with a list of complaints about the mother. Mr H responded:

Absolutely not. This pattern, this cycle where the children act provocatively, the mother acts inappropriately and then the father responds in a highly emotive and reactive way, either by calling the Police or going to the school or talking to the children’s therapist - he never challenges the children. He never asks about the details of the alleged allegations. He takes everything at face value in the belief that the mother is abusive and neglectful.

  1. In his affidavit material filed in all the proceedings before the court, in his interviews with Mr H, in his interaction with the children’s therapeutic counsellors, in his reports to the Department of Human Services, in his discussions with the Police, in his interactions with the children’s school and in crossexamination, the father was unrelentingly negative about the mother and her parenting and was unshakable in his belief that she is physically and emotionally abusive of the children.
  2. When challenged about the inconsistencies in the allegations against the mother made by X and Y and the lack of detail and context and the contradictions in the information they provided when making those allegations, the father was adamant that X and Y do not lie to him and, therefore, their reported abuse at the hands of the mother had occurred.
  3. In his first report, Mr H records that X and Y both told him their mother regularly physically disciplined them and this was often combined with verbal abuse and shouting. Mr H records that X and Y also told him the father had, at times, hit them with a plastic spoon when they misbehaved at bedtime.
  4. In crossexamination, the father denied he had ever hit X and Y with a plastic spoon and therefore X and Y must have lied to Mr H about this. He then stated that what they had told Mr H about the mother’s discipline was absolutely true.
  5. When it was put to the father in crossexamination that X and Y in particular could be “exaggerating” their complaints about the mother in an endeavour to have their wish to live with him realised, the father dismissed this possibility out of hand and remained adamant that all complaints made by them were true in every detail.
  6. The father told the court that since he separated from the mother, he has moved on in his life and he is now in a place where he is very proud of his parenting of his children. He stated:

I believe I brought a lot of love and peace to their lives which has helped their trauma. They love me even more now than ever.

  1. In a response to a question from the Independent Children’s Lawyer about X, Y and Z’s relationship with the mother, the father stated:

I would like for them to one day develop a loving relationship with their mother.

and when asked how he saw this happening, the father stated:

Ms Colvan gets the help she requires so she can be a good mum and they can forgive her for not being there.

Ms C

  1. Ms C swore an affidavit on 26 November 2014 in support of the father. She also gave viva voce evidence at the final hearing.
  2. Ms C is a longstanding friend of the father. She conceded that she had only spoken to the mother very briefly on at best three or four occasions.
  3. Ms C was very critical of the mother’s parenting. Her criticisms appeared to be based on a limited number of observations made by her of the mother’s interactions with X, Y and Z and on comments the children have apparently made to her when Ms C was visiting the father.
  4. I did not find Ms C to be an objective witness or her evidence to be of great assistance in this matter.

Ms M

  1. Ms M is the paternal grandmother. She swore an affidavit in support of the father on 11 November 2014. Ms M also gave viva voce evidence at the final hearing. Ms M impressed as a loving and caring grandmother.
  2. Ms M described having a close and loving relationship with X, Y and Z, who are three of her eight grandchildren. Ms M’s evidence is the children had dinner and sleepovers with she and their grandfather weekly prior to the parties’ separation and they have continued to do so since separation when X, Y and Z are with the father.
  3. In the paternal grandmother’s affidavit, she sets out in detail the litany of complaints made by X and Y, and to some degree, Z, to her in relation to the mother’s parenting since separation. The paternal grandmother appropriately conceded that she has not seen the mother with X, Y and Z since the parties separated and that she has no personal knowledge of the matters about which the children complain.
  4. It is the paternal grandmother’s evidence that she believes that X, Y and Z do not lie to her and that when they are telling her these negative things about the mother, they are crying and are genuinely upset.
  5. When discussing the mother’s parenting prior to separation, the paternal grandmother agreed that the mother’s parenting style is very different to that of the father. She observed the mother could be a good parent when relaxed and having a “good day”, but most of the time she would tell the children to “go to the father”.
  6. Prior to separation, Ms M reported on many occasions she observed the mother becoming upset with the children and of her telling the mother to “take it easy, they are only kids”. The mother would respond saying:

Sorry, mum. I get flustered. I shouldn’t do that.

  1. The paternal grandmother’s only criticism of the father’s parenting is that he loves his children too much.

Senior Constable X

  1. Senior Constable X gave viva voce evidence at the final hearing. Senior Constable X is stationed at (omitted) Sexual Offences and Child Abuse Unit (SOCAU). She was present when the father, X, Y and Z attended (omitted) Police Station on 4 January 2013 as a result of the father reporting to the Police that bruises on Z’s back were caused by the mother hitting Z. The father had taken a photograph of two small, yellowing bruises on Z’s back.
  2. A copy of Senior Constable X's Investigation- Full Response Report and her personal diary notes were tendered into evidence. Those documents detail that Z did not disclose to the Police that his mother had hit him on the back, but rather she had hit him on the bottom and that this was before the parties separated.
  3. The documents also revealed both Y and X reported they did not like their mother but they love their father.
  4. Senior Constable X’s notes reveal that Y attended with a piece of paper on which she had written down all the things she didn’t like about her mother and that when first spoken to, the father denied telling Y to write down her thoughts.
  5. When spoken to privately, Y told Senior Constable X that her father had suggested she write her thoughts on a piece of paper before coming to see Police.
  6. The notes from Senior Constable X indicate that the father subsequently acknowledged he had lied earlier when he said that he had not suggested to the children they write down a list of the concerns about the mother and that in fact, he had suggested to the children that they write down on a piece of paper what they don’t like about their mother before they saw the Police.
  7. When the father was cross-examined about this incident, it was his evidence that when he rang the Police station on 31 December 2012 to make an appointment for he and the children to see the Police on
    4 January 2013, “someone” on the telephone at the Police State suggested he have the children write down their concerns about the mother. He could offer no explanation as to why he did not tell Senior Constable X this when first asked why Y had a written document setting out what she didn’t like about the mother or why he had initially denied asking her to do so.

Ms K

  1. Ms K is the Principal of the children’s school, (omitted) Primary School and has been since September 2012. She gave vive voce evidence at the final hearing of this matter.
  2. Ms K was asked about evidence given by Ms C that Ms C had overheard Ms K in her office telling the mother:

she could not treat her children like that, it was unacceptable behaviour, and if she kept going this way, they would have to take the matter further.

  1. It is Ms K’s evidence that she does not remember having a conversation with the mother as described by Ms C, although she accepted the conversation “may” have taken place.
  2. There was an altercation between the parents when X and Y were going to camp in June 2014. The parties were very abusive to each other and other parents who were present seeing their children off to camp complained to the school about the parties’ behaviour. Because of the complaints made, Ms K wrote to both parties telling them that their behaviour had been a disrespectful interaction and that if it was repeated, a trespass order would be issued to both parties.
  3. It is Ms K’s evidence that because of the bus incident, the conversation Ms C described may have been when she was discussing the bus incident with the mother. It is Ms K’s evidence that she may have been telling the mother she could not speak disrespectfully in front of all children but was not referring to how the mother relates to her own children.
  4. It is Ms K’s evidence that her usual practice when having a formal discussion of this type with a parent, the door to her office is closed.
  5. Ms K was asked how X, Y and Z had been since the orders were made on 19 November 2014 limiting their time with the father. It was Ms K’s evidence as follows:

... I have observed the children. I feel that they’re – well, I’ve observed them to be probably more settled, would be my observation. How do I know that? They seem to be – well, as I’ve said before, at school they are very complaint and helpful, and that has continued. I might have thought there would have been some adverse behaviour with that result, but that doesn’t seem to be.

Ms N

  1. Ms N is a qualified social worker who was employed as a counsellor at (omitted) Primary School in 2012 until December 2012 when she commenced maternity leave. Ms N gave viva voce evidence at the final hearing, during which the extensive contemporaneous notes she took when counselling X and Y and occasionally Z were tendered into evidence.
  2. It is Ms N’s evidence that when she first saw X and Y, the parties had not separated. At that time X and Y’s concerns were more centred on school issues than issues at home. They both spoke about home being good, but said their mum can get angry and yell at them badly, which could be scary. They otherwise spoke of their mother positively. Ms N noted X and Y’s faces to light up when they spoke of their father. They told her the father does not yell badly at them and he deals with behavioural issues in a better way. Both X and Y described themselves as “daddy’s girls”, and said that they “like their mum but they like their dad more”.
  3. X and Y reported at that time that the mother only hits them on the hand when they are naughty.
  4. X and Y saw Ms N on 20 October 2012, immediately after the incident where the mother was removed from the former matrimonial home. X and Y made allegations their mother had hit them, but were primarily concerned about which parent would collect them from school that day, wanting it to be the father not the mother.
  5. In November 2012, X and Y attended with the father for two sessions with Ms N. On both occasion the father actively prompted X and Y to tell Ms N they were scared of the mother, that she hit them with the bamboo and the spoon, and referred Ms N to pieces of paper the girls had containing a list of complaints in relation to the mother which the father said they had written to give to the Police.
  6. Ms N was sufficiently concerned with what the father was saying about the mother in front of X and Y, and of his prompting of them to tell her of the things the mother had allegedly done, that she spoke to Mr D, the Deputy Principal of the school.
  7. In cross-examination, it was Ms N’s evidence that whilst X and Y claimed to be scared of the mother, she never believed they were genuinely scared of her and that their allegations that the mother had been violent towards them were historical and predated separation.

Ms G

  1. Ms G is a social worker who runs an outreach counselling service, (omitted) Counselling and Support Services.
  2. Ms G swore an affidavit on 28 November 2014 to which she attached a report dated 14 August 2014. The report was prepared at the request of the mother and was paid for equally by the parties. Ms G also gave viva voce evidence at the final hearing.
  3. I found Ms G to be a most impressive witness.
  4. Ms G was involved in counselling X, Y and Z, at the request of their school counsellor Ms N, from 13 July 2013 to 1 April 2014 during which time she saw them on 18 occasions.
  5. It is Ms G’s evidence that when X, Y and Z first started seeing her, they told her they liked their then living arrangements where they stayed in the former matrimonial home and the parents moved in and out each week. They did however express a strong preference for their father’s parenting and complained of their mother yelling a lot.
  6. Ms G’s evidence is that X and Y’s attitude to the mother changed dramatically when they learned the former matrimonial home was to be sold. X and Y made increasingly more serious complaints against the mother, accusing her of yelling at them, swearing at them and of physically abusing them. They told Ms G they wished to live with the father and did not want to see the mother.
  7. It is Ms G’s evidence that initially Z did not join his sisters in the allegations being made against the mother, but rather told Ms G he loved both his parents and was happy living weekabout with each of them.
  8. It is Ms G’s evidence that in 2014 Z started to make complaints about the mother, saying she yelled and screamed at the children, argued continuously with X and Y, had called him a “gay bastard” and that she had slapped him around the head. He told Ms G he too wanted to live with the father.
  9. It is Ms G’s evidence that when she challenged X and Y about their allegations in relation to the mother’s treatment of them, especially as their complaints were often contradictory or vague or they were unable to give the incidents they complained of any context as to time or place, they would answer many of her questions with, “I don’t know,” or “I can’t remember.”
  10. It is Ms G’s evidence that in 2014 and particularly when they were complaining about the mother, both X and Y would ask her, “Are you writing this down? Are you writing this down?” This is not something Ms G had ever experienced with other children she has counselled.
  11. In February 2014, Ms G suggested that X and Y keep a journal to write down any concerns they had about the mother’s parenting. X and Y’s journals were tendered to the court in evidence.
  12. It is Ms G’s evidence that some of the language used by X and Y in their journals and when speaking to her were not age appropriate. By way of example, Ms G referred to a time they told her that the mother “grits her teeth”. This is an expression she has never heard a child use.
  13. X and Y have rung the Police on more than one occasion to complain the mother has taken their phone or iPod from them or has not let them speak to the father for more than the 30 minutes. The 2013 orders provide for the father to speak to the children for up to 30 minutes.
  14. It is Ms G’s evidence that she challenged X and Y as to why they rang the Police over what are relatively minor and appropriate disciplinary measures taken by their mother but did not ring the Police when, if believed, X and Y were genuinely being abused by the mother. It is her evidence X and Y responded:
I don’t know.
  1. Ms G gave evidence of two instances of the father’s behaviour which were of concern to her.
  2. Ms G reports that in approximately March 2014 when she was discussing with the father that X and in particular Y were deliberately provoking the mother in order to exact an inappropriate response from her, the father responded by saying:
I’m glad that happens.
  1. Ms G also reports that in early 2014 the father rang her “out of the blue” and in that conversation was at pains to tell her the mother is not the real mother of X and Y as they were conceived using IVF with his sperm and “not the mother’s eggs”. Ms G was concerned these comments showed that the father would use any avenue to get the children into his care as it is very apparent they are his whole life.
  2. Ms G began to be concerned that X and Y were being coached by the father to say negative things about the mother.
  3. Shortly prior to the cessation of counselling, because of the contents of X and Y’s “journals”, Ms G felt bound because of mandatory reporting requirements, to report the matters contained in those journals to the Department of Human Services. It is Ms G’s evidence that she told the Department of Human Services:

I don’t know whether the complaints are true or not or whether the girls are being coached by the father or not.

  1. It is Ms G’s evidence that she stopped the counselling with X, Y and Z on 1 April 2014 as it had become apparent to her that the children, and X and Y in particular, were using the counselling as a forum to air their grievances about the mother and her parenting and were not open to any strategies being suggested by her to manage their behaviour or emotions or to cope and move on. Ms G felt to continue counselling would be emotionally and psychologically counter-productive for the children.
  2. It is Ms G’s vice voce evidence that she genuinely does not know if X and Y have been coached by the father to say negative things about the mother or whether they were telling her exaggerated stories about the mother as a “cry for help” in a desperate bid to be allowed to live in the primary care of the father, in circumstances where they said to her often during counselling:

Why isn’t someone listening to us?

  1. In her affidavit, her report and her viva voce evidence, Ms G expressed the view that she believed X, Y and Z should live with the father. Ms G is of the opinion that X, Y and Z are calmer and happier in their father’s care and that in that space they may be much more open and willing to have a relationship with the mother.
  2. Ms G properly conceded that it was not her role as the children’s therapeutic counsellor to make recommendations as to be the children’s living arrangements but as this was the first time she had been asked for a report in a family law matter, she had not fully understood her role. She did however confirm that an outcome that reflected her recommendations continued to be what she believed best for X, Y and Z.
  3. Ms G conceded she had no expertise in dealing with alienated children and had not read any literature on the long-term emotional and psychological impact on alienated children.

Dr R

  1. Dr R is a Child and Adolescent Psychiatrist who undertook psychiatric assessments of the parties in July 2013 when the matter was previously before the Court.
  2. Dr R’s assessments of the parties were relied upon by the Independent Children’s Lawyer and the parties in these proceedings and were before the Court pursuant to his affidavit sworn 7 January 2015. Dr R was not required for cross-examination.
  3. On pages 16 to 18 of his assessment, Dr R set out his summary and psychiatric report of the parties as follows:

SUMMARY AND PSYCHIATRIC REPORTS

Mr Colvan and Ms Colvan are the parents of the twins, X and Y aged ten years and eight months, and Z, aged six years and ten months. The basic facts of the history of their relationship are not in dispute. However Mr and Ms Colvan give irreconcilably different accounts of their relationship and the events leading to its breakdown and their present application to the Court. In particular Mr Colvan accuses his wife of being abusive throughout their relationship, particularly after the children were born. By contrast Ms Colvan accuses her husband of being abusive and controlling. They also give differing accounts of the circumstances leading to them obtaining Centrelink benefits, presumably a carer’s allowance for Mr Colvan. Mr Colvan claims that his wife fell shortly after the twins were born and subsequently claimed she was incapacitated and unable to look after the children or return to work. Ms Colvan acknowledges falling but denies that she was incapacitated or that she was not able to look after the children. In fact, contrary to her husband’s claim, Ms Colvan states that she was actively involved in all aspects of the children’s care throughout their lives.

They also give differing accounts of the pornographic material that was found on their computer. Ms Colvan states that this was mainly homosexual pornography and was indicative of Mr Colvan’s underlying sexual orientation. Mr Colvan acknowledges that there was pornography on their computer and that he sometimes watched it. However he states that most of the pornography was heterosexual in nature; that the computer was in the garage and therefore not accessible to the children and he accuses his wife of setting him up by downloading such material. Although Mr Colvan denied being same sex attracted, he indicated that he admires men’s bodies and that he is not 1,0000% straight.

It is beyond the scope of this assessment to determine the facts of the case however they have some bearing on the appropriate parenting arrangements for the children.

It is important to point out that this report has been prepared on the basis of the information provided and the interviews with
Mr Colvan as described above. I have not interviewed the children nor have I observed them with either of their parents.

PSYCHIATRIC REPORT: MR COLVAN

Mr Colvan presented as a 42 year old man, neatly dressed in a suit. He appeared quite anxious, anxiously showing me photos of the children in their backyard at the beginning of the interview. Throughout the interview he tended to talk excessively, in somewhat anxious manner. He presents as a rather effeminate man who described himself as unable to stand up to his wife and completely devoted to his children. There was some lowering of his mood but he showed no signs of a current depressive illness.

Mr Colvan acknowledges that he sought counselling from
Dr S, both as a couple and individually, because of the difficulties he experienced in the relationship and in dealing with an abusive wife who was physically and verbally abusive towards him. He denied feeling depressed but acknowledged feeling disillusioned and anxious. He even entertained the thought his wife might stab him while he was asleep in bed.

Mr Colvan is the oldest of three children of (country omitted) parents. He gave a rather idealised account of his childhood and schooling, all of which were described in extremely positive terms. He described having to take considerable responsibility as a twelve year old of the care of his younger siblings as well as for domestic chores. After completing VCE Mr Colvan commenced university studies however he stopped after one year and has had a number of unskilled jobs, including (omitted) and working as a (omitted) prior to being married.

Mr Colvan had one significant relationship as a 19 years old and did not have any further relationships until he met his wife when he was 27 years old. He remained at home until he married. Mr Colvan described his role in their marriage in very passive terms. He was happy to look after the children and accepted his wife’s abuse rather than confront her, even though he felt it destroyed his own self-esteem.

Mr Colvan presents as a rather anxious man with features suggestive of passive/dependent personality traits. There was some restriction of his mood, as described by Mr H, but neither this nor his anxiety levels were sufficient to warrant a diagnosis of an Acute Psychiatric Disorder. There was no evidence to suggest that any psychiatric or emotional difficulties he may experience are such as to significantly interfere with his ability to care for his children safely and effectively.

Of much greater concern is the history of parental conflict pre and post separation and the suggestion that one of both parents may be involving the children, particularly the twins, in their own interpersonal conflict. In this regard it is important to point out to both parents the considerable body of evidence of the harmful effects on children of ongoing conflict between their parents following separation.

PSYCHIATRIC REPORT – MS COLVAN

Ms Colvan is a 45 year old woman who denied most of the allegations against her by her husband and supposedly the children. She blames her husband for coaching the children for making these allegations against her.

While Ms Colvan denied feeling depressed. Her description of the difficulties she experienced at least during part of their marriage, suggests she may have had an Adjustment Disorder with depressed mood. She has recently begun seeing a psychologist to address some of these feelings.

Ms Colvan description of her childhood suggested a tendency to minimize any difficulties. She had one prolonged relationship in her twenties that almost certainly contributed to her very negative views of men at the time of meeting Mr Colvan. It may have also been a factor in choosing a rather passive man, although she did describe Mr Colvan as becoming very controlling after the twins were born. Ms Colvan denied being incapacitated following the fall soon after the twins were born. Ms Colvan denied being incapacitated following the fall soon after the twins were born. She suggested it was Mr Colvan who wanted to go on Centrelink benefits and utilized her fall as a means of obtaining a carers allowance. While Ms Colvan acknowledged having some heated arguments with her husband, she denied the allegations of physical aggression towards him. The final percipient to their separation appears to have been her discovery of gay pornography on Mr Colvan’s computer. Ms Colvan insists that her husband set her up at the time the Police were called and applied for an Intervention Order against her.

Although the history provided by Ms Colvan suggests she may have suffered from an Adjustment Disorder with depressed mood, there is no indication on her history or presentation that she suffers from any Acute Psychiatric Disorder that would significantly compromise her ability to care for the children. It is clear from the history that there has been considerable conflict and possibly some domestic violence, verbal and/or physical, between the parents before and since their separation. As indicated above it is important to remind both parents of the considerable body of evidence of the harmful effects on children on going conflict post separation and the benefits of setting aside their own differences in order to parent cooperatively.

Mr H

  1. Mr H is a social worker who has prepared three family reports in this matter, the first dated 23 January 2013, the second dated 3 August 2013, and the third dated 11 November 2014. Additionally, Mr H interviewed X, Y and Z on the afternoon of 8 January 2015. Mr H gave viva voce evidence at the final hearing of this matter.

First Family Report dated 23 January 2013

  1. In paragraphs 23 and 24, Mr H sets out the discussions he had with X as follows:
    1. When discussing the parental discipline X disclosed that her mother hits her with an open hand on the bottom and the legs and has, on occasion, pulled her hair, hit her with a bamboo stick, and called her a “fucking bitch” and a “fucking cunt” in the past. She states her father tends to use time out and consequence but when pressed acknowledged that her father had hit her on a few occasions with a plastic spoon when they had misbehaved at bedtime. However, she reiterated her mother’s physical discipline was a regular occurrence and often combined with verbal abuse and shouting.
    2. X’s preference is to live with her father and spend time with her mother, but she did not want to be separated from her siblings, and wants all the children to stay together regardless of their preferences. She describes life with the father as calmer and quieter and explained that when she spends the week with her mother, she misses her father but does not miss her mother in the same way.
  2. In relation to Y, Mr H sets out the following at paragraphs
    27 and 28:
    1. She describes being hit with a bamboo cane on the legs and slapped on the legs and bottom for not listening to her mother’s instructions. She explained that her father did not hit her, but sent her to the corner for time out. However, when pressed, she did concede her father had hit her on occasion with a plastic spoon, mainly at bedtime if they were being naughty. She describes her father doing most of the domestic chores and cooking and being responsible for the routines of family life when they lived together.
    2. Y described feeling more comfortable with her father’s care, as he is quieter and gentler in his parenting approach. She explained her mother tends to talk to her in a harsh and directive manner when she wants her to do something, and is less inclined to listen to her if she has a problem. Y wishes to live with her father and spend time with her mother, but was unable to nominate how the time should be split.
  3. In relation to Z, Mr H reports the following at paragraphs
    30 and 31:
    1. He remembers his mother and father arguing constantly when they were together, and feels life is quieter now they have separated. He describes the Police coming to the home because of his parents’ fighting, and sees his mother as the protagonist in the parental conflict. He describes Ms Colvan shouting and being angry with Mr Colvan, and was frequently frightened by her angry behaviour.
    2. In relation to the parental discipline, he states: When I’m naughty, mummy smacks me on the bottom. She smacks a lot. I’m more frightened of mum because she smacks. I would choose to live with dad because he doesn’t scream or smack. It feels more like home with dad.
  4. Under the heading “Evaluation” in paragraphs 35 to 45, Mr H states:
    1. Both parties have made a variety of allegations and counter allegations concerning the use of pornography, criminal activity, family violence, the physical disciplining of the children, and the mental health of each other. As is often the case in these matters both parties presented as selective in their accounts, with a tendency to highlight the shortcomings and behaviour’s of each other, while selectively omitting aspects of their own behaviour that have contributed to the difficulties. If the matter proceeds these issues may need to be tested by the Court and the recommendations in this report reviewed accordingly.
    2. The parties appear to have arranged their anecdotal histories of the relationship to support their individual construction of reality. The most potent example of this behaviour is the differing accounts and understanding of Ms Colvan’s alleged back injury, their understanding and acknowledge of the associated carer’s payment, and their attribution about the impact of the injury on the parenting roles.
    3. In the context of this case the relationship and post separation period are characterized by the idiosyncratic personality styles of the parties. Mr Colvan is unrelentingly critical of
      Ms Colvan’s parenting, he gives her little or no credit for any input into the care and nurture of the children, he appears oversensitive to criticism, and there is a narcissistic flavour to the self-assessment of this parenting capacity and the strength of attachment he feels to the children.
    4. Ms Colvan presents as volatile and reactive she is quick to anger and her capacity to emotionally regulate is limited. Her language skills are poor and she appears to be at the end of the spectrum in her cognitive and emotional functioning. As described in paragraph 34 the parties become quickly locked into a provocative cycle of blame and recrimination with Mr Colvan’s passive aggressive personality style fuelling the high expressed emotion of Ms Colvan.
    5. The cycle of behaviour described above informs the analysis of the family violence allegations. When deconstructed the alleged family violence is seen in the context of the above dynamics and fits the category of “Conflict Instigated Violence”. This is characterised by hostile verbal exchanges over common disagreements that can escalate over time and are initiated jointly or by one or other of the parties. There is an inability to identify and problem solve the issues that cause the disagreements and the couples respond to conflict with loud arguing, insults and accusations, and each refuses to submit to the others rules or demands. There may also be some pushing and shoving on occasion.
    6. In the context of the interpersonal dynamics and personality styles described above a shared care arrangement is contraindicated and not recommended at this point in time. These types of dynamics and behaviour’s are often indicative if underlying mental health difficulties and if the matter proceeds the Court may wish to consider a psychiatric assessment of the parties.
    7. Ms Colvan alleges that Mr Colvan has influenced and coached the children in their perceptions, wishes, and views. The inference being that Mr Colvan has embarked on a program of alienating the children against her. Both parties have exposed the children to their angry and abusive arguing over many years with little regard for the impact on them. It is reasonable to conclude that the personalities and behaviour of both parties’ has influenced the children and this influence is accumulative and acquired over time. The single most powerful influence in the circumstances of this case is the children’s long term exposure to the parental conflict and the associated behaviour’s of the parties’. In this regard the children view
      Ms Colvan as the protagonist and Mr Colvan as the victim.
    8. This type of parental conflict breeds the conditions for hybrid alignment resulting in the children expressing a preference for the care of the one parent over the other. Hybrid alignments occur in the context of parental conflict which has varying degrees of enmeshment and boundary diffusion between the child and aligned parent, and degrees of parental ineptness and or abusiveness on the part of the rejected parent. This parental ineptness usually manifests as a lack of emotional attunement and understanding of the child’s experience by the rejected parent.
    9. The children’s accounts have a ring of authenticity and they speak from their own lived experience. Their narratives are delivered spontaneously and in an undefended manner. The children’s views speak to the qualitative differences they experience in the parenting. They experience their mother as reactive, volatile, less emotionally available, and more willing to physically punish. They experience their father as more emotionally attuned and available and have a preference for his quieter and more attentive parenting approach. Any views expressed by the children are most likely shaped and influenced by the long term factors described above as opposed to the direct influence of one or other of the parties in the recent past.
    10. In the context of this case it is recommended (sic) that the children live with Mr Colvan and spend time with
      Ms Colvan each alternate weekend from Friday pm until Wednesday am, and half of all school holidays with the long summer break taken on a week about basis. It is further recommenced the parties be referred to a Parenting Orders Program to facilitate the introduction of the Orders in their early implementation stage. Both parties appear to have physically disciplined the children in the past. This rather anachronistic parenting strategy is discouraged in comtemporary parenting practices and both parties would benefit from completing a positive parenting course. This type of course is readily available through Relationships Australia or Centacare.
    11. In conclusion, the children’s wishes are shaped by their lived experience and proximity to the parental conflict and both parties share responsibility for this past context. The recommendations in this report seek to reflect the children’s temperamental fit with Mr Colvan’s parenting while providing substantial time for Ms Colvan to maintain a close and intimate relationship with the children.

Second Family Report dated 3 August 2013

  1. Mr H noted X and Y’s narrative of the mother to be remarkably similar to that set out in his first report. When forced to do so, X and Y reluctantly conceded the mother no longer smacked them, but they felt compelled to qualify this comment by saying she still called them “rude” names and that they were still scared of her. They were unable to identify any particular incident that had made them scared in recent times.
  2. Under the heading “Evaluation” in paragraphs 25 to 33, Mr H states:

25. In the previous evaluation the writer described the children experiencing a “hybrid alignment” as a result of their exposure to the parental conflict and the idiosyncratic personality styles of the parties (paragraph 42 of the previous report). The recommendations favoured a 9/5 split in favour of Mr Colvan on the basis of the children’s better temperamental fit with his parenting style. As with all psychological phenomena these dynamics tend to occur on a spectrum in which the precipitating causes can be identified as greater or lesser contributing factors to the difficulties. At the time of the last report the most significant features for determining the temperamental fit of the children to the parenting of the parties’ was Ms Colvan’s predisposition to an anxious and reactive parenting style. Her reactive mood was apparent during the interview and matched the reporting of the children’s stated experience.

26. While Mr Colvan’s obvious influence and poor boundary diffusion was identified in the first report and formed part of the children’s alignment it appeared as a lesser contributing factor. However, the reporting of Ms N and the Police interview outlined in annexures “C-6”, “C-8”, “C-10”, “C-12” and “C-13” provides a snap shot of the alignment and enmeshment dynamic in action. This material requires a reevaluation of the previous weighting given to the precipitating and perpetuating factors in the case.

27. Ms N’s reporting of the individual and conjoint sessions with the twins are particularly compelling in their illustration of Mr Colvan's poor boundaries and overt influencing of the children. In these sessions he is observed prompting and coaxing negative memories of the children’s mother, making derogatory remarks and gestures about Ms Colvan’s mental health in front of them, and bursting into tears in displays of uncontained emotion while expressing fears that Ms Colvan represents a physical threat to the children.

28. Similarly, he is identified in the Police interview (annexure “C-10”) as having “lied” about telling the children to write down their feelings and appears to have pursued the interview in the absence of any disclosures by the children. These types of behaviour begin to weight the alignment dynamic in the direction of “child alienation” in which the favoured parent actively promotes either covertly, or overtly, a hostile rejection of the other parent.

29. Ms Colvan has clearly attempted to address the critique of her parenting in the intervening period since the last report. The children grudgingly acknowledge she no longer uses physical punishment, she has completed a post separation parenting course, has voluntarily sought counselling, and there are no new or valid reports of inappropriate parenting. Mr Colvan is unable to acknowledge these changes and remains unrelentingly negative in his view of her parenting. It is the writer’s view that Mr Colvan’s influencing of the children makes their wishes in the matter an unreliable measure of their best interests.

30. While the post separation conflict and poor cooperation would usually be a contraindicator to a shared care arrangement, this needs to be balanced against the benefit of the children spending more time with Ms Colvan. This simple structural strategy is the most effective way for the children to experience information of difference around Mr Colvan’s narrative of Ms Colvan’s parenting. It is the writer’s view that, in this case, the benefits of a shared care arrangement outweigh the contraindicating factors of parental conflict and poor cooperation and the reinstatement of a week about shared care arrangement is recommended.

31. At interview, Mr Colvan was clearly anxious and his views stem from a fixed and unshakable belief about Ms Colvan’s parenting. His portrayal of the phone incident as an example of “abusive” parenting by Ms Colvan is a clear example of this fixed and reductive logic. He automatically excludes any information of difference that does not fit with his narrative of abuse. There is tendency for him to view the children’s experience through the lens of these fixed beliefs and this results in a projection of his feelings and anxiety on to the children. He will need to address the issue of his anxiety away from the children for change to occur. The writer notes Mr Colvan has sought counselling previously with
Dr S and it is strongly recommended Mr Colvan avail himself of this or other psychological support as a condition of the shared care arrangement.

32. In conclusion, the personality vulnerabilities of the parties have been instrumental in entrenching the dynamics of the conflict. However, to her credit, Ms Colvan appears to have taken steps to address these issues. The recommendations in this report are predicated on a demonstrable improvement in Ms Colvan’s parenting approach and at interview her mood and affect were much improved on her previous presentation.

33. Mr Colvan’s influence on the children and the projection of his anxiety through diffuse boundaries presents as the more prominent risk to the children’s psychological and emotional wellbeing at this point in time. This risk is weighed against the benefits of the children having a substantial relationship with him given the extent of his past parenting input. However, if Mr Colvan cannot make a more successful and cooperative adjustment to the shared care arrangement, and apply restraint around his views of Ms Colvan’s parenting, the viability of the arrangement and the provisions for joint responsibility may need to be reviewed again.

Third Family Report dated 11 November 2014

  1. Mr H summarises his interviews with X and Y in paragraphs 22 to 24 as follows:
    1. Both girls presented with makeup and heels and dressed in a rather adult fashion. They attend (omitted) Primary School and both report having been bullied this year by peers. The children were only actively engaged in the interview process when reporting on their mother’s alleged abusive behaviours and made similar allegations both in tone and content which gave their accounts a rote and rehearsed flavour. Their presentation when discussing their mother was petulant and dismissive and they speak about her in an openly derogatory and disrespectful manner that presents as disinhibited and brittle. They both describe the following incidents;
      • Ms Colvan swearing at them in a foul and abusive manner.
      • Ms Colvan feeding them on takeaway foods for the whole time they are with her and failing to provide adequately nutritious food on a regular basis.
      • Ms Colvan sending them to bed at 6.00pm every night and refusing to let them out of their rooms.
      • Ms Colvan has let her male friends see them naked.
      • Ms Colvan has been physically violent towards them in particular X who alleges her mother grabbed her by the throat.
      • Ms Colvan calls Z a “gay bastard”.
      • Ms Colvan does not monitor their hygiene properly and the children frequently go for days without showering and they worry about the impact of this on Z who is less able to fend for himself.
      • Ms Colvan does not allow them to speak with their father on their mobile phones in the evening.
    2. The writer tested several of the claims with Ms Colvan. In the first instance Y claimed they had eaten takeaway the night before the interviews. Ms Colvan describes making stir fry noodles with vegetables. When this was put to Y she became evasive and defended and retorted the noodles had come from a packet.
    3. In the second instance, X claimed the children had been sent to bed at 6.00pm the night before the interviews. Ms Colvan states the children went to bed around 8.30pm with Z possibly later. She alleges X spoke with her father on her mobile phone at around 7.00pm and this was denied by X however, Mr Colvan’s phone records showed she spoke with him at 6.48pm. X appeared flustered and defended when the writer pointed this out to her. Despite these apparent inconsistencies in their reporting both girls remained adamant and strident in their denunciation of their mother’s parenting. Both girls state they wish to live with their father and spend no time with their mother and will run away from their mother’s home if forced against their wishes to comply with Court Orders.
  2. In relation to Z, Mr H states in paragraphs 25 and 26 as follows:
    1. ... He presented as watchful and defended, his allegations and narrative concerning his mother’s care are more muted and less strident than the twins but similar in content.
    2. However, he is more descriptive around the dynamics of the parental care and describes his mother becoming frustrated and angry with the twins, and there is lots of shouting and arguments. He identifies the twins as the main protagonists in this conflict and explained that Y and X refused to listen to their mother, which makes her angry.
      • He could not identify any positive traits about his mother’s parenting and stated, “Mum’s screaming is a major issue.” He prefers the care of his father, describing him as attentive and involved and there is a quiet and harmonious atmosphere in his father’s home. His preference is to live with his father and spend less time with the mother.
  3. Under the heading “Evaluation” in paragraphs 33 to 43 Mr H states:
    1. The issue of alignment and alienation has been a constant narrative theme from the outset of the matter and has a history predating the final separation in October 2012. In the first report the writer describes a hybrid alignment that is driven by the idiosyncratic personality styles of the parties (see Family Report dated January 2013 paragraph 42) and a 9/5 split favouring Mr Colvan was recommended.
    2. In the August 2013 Family Report, Mr Colvan’s poor boundaries and overt influencing of the children was well documented by independent sources and it had become apparent he was unable to contain his behaviour in this regard. A return to a shared care arrangement with a variety of supporting processes, counselling and courses was recommended as a way of countering Mr Colvan’s negative influence while maintaining substantial relationships between the children and both parties.
    3. The writer opined at the time of the August 2013 report: “Mr Colvan’s influence on the children and the projection of his anxiety through diffuse boundaries presents as the more prominent risk to the children’s psychological and emotional wellbeing at this point in time. This risk is weighed against the benefits of the children having a substantial relationship with him given the extent of his past parenting input. However, if Mr Colvan cannot make a more successful and cooperative adjustment to the shared care arrangement, and apply restraint around his views of Ms Colvan’s parenting, the viability of the arrangement and the provisions for joint responsibility may need to be reviewed again”.

36. This statement anticipates the potential for the post separation relationship to move into a “pure alienation” dynamic. In this scenario, the favoured parent puts a spin on the rejected parent’s flaws, which are continually exaggerated and repeated, the child believes the rejected parent is unworthy and or abusive and a phobic like response to the rejected parent develops creating an anticipatory anxiety in the child. The child’s resistance or refusal is reinforced by the favoured parents approval and extra attention.

  1. A circular dynamic resulting in a mutual escalation of fear and anxiety between child and favoured parent develops, the more upset the child, the more protective the favoured parent is, which in turn escalates the child’s reactions. Learning and behavioural theory demonstrates that correction of the child’s avoidance is extremely difficult and requires the child to be protected from the perpetuating influence of the favoured parent combined with exposure and systematic desensitisation to the rejected parent.
  2. On this occasion, we see a significant deterioration in
    Ms Colvan’s relationships with the children and the twins who are on the cusp of adolescence, have become strident, derogatory and punitive in their critique of her. They are constantly engaging in provocative and abusive behaviours with their mother whose fatigue around the rejection and abuse is leading her to become reactive and short tempered which, in turn, lends weight to Mr Colvan’s self-fulfilling prophecies about her as a bad parent.
  3. While Mr Colvan presented as well contained and well-modulated on this occasion, and claims to have “moved on”, his conscious and unconscious undermining of the children’s relationships with Ms Colvan and his beliefs about her are ostensibly unchanged. He continues to call, or accepts the children’s calls every night knowing the psychological disruption this causes for Ms Colvan and the children. He negotiates changes to the arrangements through the children such as those that precipitated the current crisis, he makes unilateral decisions for the children such as the acquisition of mobile phones, and he accepts the children’s allegations and complaint without any critical or objective analysis and often escalates matters by involving the Police and DHS. His comments, at times, have a primitive proprietorial flavour (see paragraphs17 and 31 of this report) and his claims of change are not supported by his behaviour. It is the writer’s view Mr Colvan is incapable of supporting the children’s relationships with Ms Colvan at this point in time.
  4. The corollary to any analysis of alienation is the children’s views are heavily contaminated by their exposure to the alienating parent and this makes their wishes an unreliable guide to their best interests. In the context of the current dynamics there are few options left and, given the twins developmental context, only a narrow window of opportunity remains for significant remedial action to occur. If the current circumstances continue it is only a matter of time before all three children begin actively refusing contact with Ms Colvan who will quickly become peripheral to their lives. This risk will be accelerated by maintaining the status quo or reducing the children’s time with Ms Colvan.
  5. The twins developmental context and the entrenched nature of Mr Colvan’s views narrows the range of potential interventions to the most difficult and complex of the available options. This requires significantly reducing
    Mr Colvan’s time, providing Ms Colvan with sole responsibility, and imposing restrictive conditions on
    Mr Colvan's behaviour. This will ultimately require a period of no contact between Mr Colvan and the children, followed by supervised contact and the involvement of counselling services from the outset. In this scenario the writer recommends the appointment of an ICL for 12 months to facilitate the implementation of any Orders made along these lines.
  6. While there are no guarantees, and the possibility of a temporary escalation in acting out behaviour by X and Y is highly likely, this could be weathered through intensive support to Ms Colvan by Ms G and the provision of counselling for the children by a separate therapist. Ms G is an experienced practitioner and could be relied on to refer the children to someone appropriate. Both therapists would need to work closely with each other and it may require weekly visits to the home in the first six to eight weeks by Ms G. Professionals’ and agencies involved with the case should be provided with a copy of the family report and the Orders and this includes Ms G, the school, future FRC agencies involved in providing services, Dr S, the children’s GP, the Police and the DHS.
  7. In conclusion, there is a small window of opportunity before the full developmental impact of adolescence becomes apparent in the twins and their views and behaviours become permanently entrenched. Ms Colvan has demonstrated a capacity and willingness to facilitate the relationship between the children and Mr Colvan in the past and the writer holds no concerns in this regard. The previous recommendations favouring a more even division of time and input have been unsuccessful in altering the parental dynamics. It’s the writer’s view that significant structural change to support the parenting of Ms Colvan is now required if the children are to maintain a relationship with both parties going forward.

Interview on 8 January 2015

  1. At the commencement of his interview X, Y and Z first met with Ms Dorian, the Independent Children’s Lawyer. Mr H report that when speaking with Ms Dorian, they asked intelligent and inquiring questions and were confident and relaxed.
  2. Mr H reports that after Ms Dorian left, he spoke to each of the children separately about their current experience with the mother. At that time both X and Y became emotionally labile. X and Y both reported their mother fighting with them all the time and swearing at them using words such as “fuck, cunt and sluts”.
  3. X stated “she doesn’t think the mother can handle them and has never been there for them”. Y echoed similar sentiments.
  4. Mr H reports both X and Y’s wish to return to live with the father and, whilst not wanting to see the mother, indicate “they would abide by the rules” meaning they will obey court orders to see the mother.
  5. Mr H reports that Z told him he is missing his father and that life has “not been good” in the mother’s house because of the arguments between the mother and the girls. He sees the mother’s “screaming and shouting” as the major problem and that the mother swears and makes offensive comments.
  6. Unlike X and Y, Z was able to recall some recent good times with the mother over the Christmas period. X and Y were adamant that there was nothing good about their mother’s recent care, despite Mr H being able to identify five occasions in that time which would have been enjoyable experiences for X and Y when with their mother.
  7. Mr H noted an interesting incident at the end of his interviews when the mother collected X, Y and Z. The mother noted Y was wearing her shoes and X was wearing her skirt. Neither girl had permission to be wearing the mother’s clothes. Mr H asked X and Y about their clothes and he notes they both half-heartedly denied they belonged to the mother.
  8. Mr H was of the view that X and Y had deliberately dressed in their mother’s clothes in the hope of provoking a reaction from her. Mr H noted the mother did not respond. She smiled, she laughed, she looked a little bemused and resolved to let the matter go.

Vice Voce Evidence

  1. Mr H’s vice voce evidence as to the parties’ emotional and psychological immaturity and their lack of insight into how their behaviours and parenting impact on their children has been set out in detail in this judgment.
  2. It is Mr H’s evidence he believes that X and Y in particular are “in all probability more intelligent than their parents”.
  3. It is Mr H’s evidence that all three children feel a better temperamental fit with the father’s personality and care and that there is no doubt that the father is a nurturing and attentive man on a day-to-day basis with his children. However, Mr H stated:

it’s the other stuff that’s happening that is the problem.

  1. Counsel for the Independent Children’s Lawyer put to Mr H the possible care options for X, Y and Z as being a return to shared care, the children living with the father and spending alternate weekends and an off night with the mother or the recommendations contained in his third report. It is Mr H’s evidence that:

It is my belief and my professional opinion is that if we maintain a week-about arrangement or if we reduce the mother’s time then the corollary to that will ultimately be these children will not have a relationship with their mother. The children, the twins will fall first and Z will follow soon after because he will feel compromised about attending separately to on his mother when the two girls who are powerful influences in his life are not going at all. I think that scenario is inherent in both of those options and I think it’s only 12 to 18 months away.

The girls are already saying they don’t want a relationship with their mother. They’re already exhibiting the petulant narcissism of adolescence and I don’t mean that in a bad way. It’s a normal function of adolescence, particularly early adolescence so the prognosis is not good. With the recommendations that I’ve provided and I appreciate they may be perceived by the court as draconian and a little bit radical and difficult to come to terms with but in my view those recommendations provide possibility for the children down the track to maintain a relationship with both parties.

If it fails, and that’s also a likelihood, but if it fails the outcome would be the same, they will lose the relationship with their mother so there is very, very little to lose and much to gain and that was the perspective that I was coming from.

  1. Mr H explained his recommendations are predicated on five key points:

(1) Dr R’s assessment that there are no psychiatric issues impeding the parenting capacity of either party.

(2) The mother has demonstrated improvements in her parenting capacity and that the children’s views and wishes are unreliable as a result of their alignment with the father.

(3) There was evidence from Ms G that when the father’s influence was curbed, the mother had demonstrated a capacity to parent the children in a warm and consistent manner.

(4) The father has demonstrated an inability to parent cooperatively. He has a fixed belief the mother is abusive and is unworthy to be the children’s mother and he has frequently acted out of a proprietal belief based on the IVF status of the children.

(5) There is a limited opportunity to intervene given the enmeshed and entrenched dynamics and X and Y’s emerging adolescence.

  1. Mr H readily concedes that he is not certain his recommendations will be successful in enabling X, Y and Z to repair their relationship with their mother and enable them to have a relationship with both of their parents, especially if the mother:

cannot step up to the plate and change her behaviour.

  1. Mr H is very clear that if the mother does not “step up”, X, Y and Z will vote with their feet because of their natural affinity with the father’s temperamental parenting capacity.
  2. Mr H is also of the view that because of their natural affinity with the father’s temperamental parenting capacity and the very close and loving bond that X, Y and Z have with the father, his recommendation will not impact or undermine the relationship X, Z and Y have with the father in any way.
  3. Mr H briefly discussed that he described as the less than ideal research that has been conducted in relation to alienation. Mr H made particular reference to the qualitative retrospective studies conducted by Ms B in 2005, 2006 and 2007 quoted in the article “Children Resisting Post Separation Contact With The Parent. Concepts: Controversies and Conundrums” by Ms F and Mr N in the Family Court Review Number 48 of January 2010.
  4. Mr H provided the parties and the court with a dot point summary of Ms B’s research as follows:
  5. Mr H’s evidence is that the research reveals that adults who experience alienation as children have a higher incidence of depression, alcoholism, drug abuse, failed relationships, promiscuous behaviour and psycho-pathological disturbances into adulthood, particularly around maintaining relationships.
  6. It is Mr H’s evidence that it is these potential long term impact on X, Y and Z’s functioning that informs his view that it must be seen in their best interests to be afforded the opportunity to re-establish and maintain a relationship with the mother as well as the father and that his recommendation is the only way he believes this can occur. This is especially so given his view that this is the last, very limited window of opportunity for X, Y and Z to have an ongoing relationship with the mother.
  7. Mr H was asked what would be the impact on X, Y and Z’s state of mind, emotions and what stress or distress it may cause them if orders were made that reflected his recommendations. It is Mr H’s evidence that:

There will be, I would predict that there will be some acting out initially and in fact, that’s already occurred. And I think I predicted that in the report, that there might be some running away, that there might be some testing of the limits and the mother’s capacity to enforce the limits and I expect that. But I would expect that once the process is under way and established and everybody sees the way forward and the way forward is telephone contact, supervised contact with a view to re-establish unsupervised contact with the father and everybody realises that they now have a part to play in changing their behaviour in an effort to normalise this circumstance then this is the question mark, then there will be a change occurring in children and in parents both ... In relation to your quest about the impact psychologically and emotionally on the girls at being withdrawn from their father ...Yes, I think there will be a level of distress involved in that, and that will probably be short to medium term. If it gets to the point where it’s compromising the children’s health and by that I mean if the children start acting out and
self-harming then clearly the intervention has failed and we need to go back to the options that we’ve discussed here which are probably the father having primary care and ... the mother’s time being restricted.

  1. Given that he had raised the issue of the children self-harming,
    Mr H was asked whether he saw there was a possibility that X and Y would self-harm if orders were made in the terms proposed by him. Mr H answered as follows:

No. I’m not predicting self-harm. I’m saying that would be a tipping point.

  1. Mr H was very strongly of the view that, if orders are made as he recommends, then they would only work if they were to be supported by intensive therapy, particularly for the mother and X, Y and Z. This therapy would be especially needed in the first weeks and months following such orders being made. Mr H said:

I would see - somebody being brought in to assist the mother on a weekly basis, in situ, probably for about four to six weeks so that some of those skills and behaviours can be learned and the children also have access to a forum where they are going to be able to talk through their issues, but one in which the therapist is experienced enough not to have a psychodynamic view, which is that the client is always right. So the children and the parents need somebody that is strong enough to be able to challenge them at the same time as supporting them.

  1. Mr H, after some consideration, expressed the view that if his recommendations are implemented by the court, having a skilled psychologist or skilled social worker with systemic and psychological experience monitoring and case managing the welfare of X, Y and Z during the process would be a very very good idea.
  2. Mr H was asked what, if any, interventions could be provided to the father to assist him to develop a better understanding of how his behaviours are impacting on X, Y and Z and to develop some insight and understanding as to why Mr H is making his recommendations, particularly in the face of the father’s expressed “pride in his parenting”.
  3. It is Mr H’s evidence the father’s current psychologist, Dr S may be able to assist the father. This would be particularly so if Dr S is provided with the copies of the family reports, Ms G’s report, the court’s judgment and these orders so that he would be in a better position to “challenge” the father as to his beliefs and behaviours.

The Law

  1. Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
    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):

Presumption of Equal Shared Responsibility

  1. Section 61DA of the Act provides that 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 responsibility for the child.
    This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for the child.
  2. In those matters where there is an issue as to whether on order should be made for equal shared parental responsibility, it is often the approach of the court to fully consider all aspects of the best interests of the child before making a determination on the question of parental responsibility.
  3. In this matter the mother is seeking orders that she initially have sole parental responsibility in relation to X, Y and Z, until such time as they are spending unsupervised alternate weekend time with the father. This position is supported by the Independent Children’s Lawyer. The father seeks an order for equal shared parental responsibility.
  4. Given that the issue of potential responsibility is disputed between the parties, the best interests of X, Y and Z will be considered before this issue is determined.

Best interests of the child

  1. Section 60CA of the Act provides that:

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

  1. When determining what is in the best interests of the child, the Court must consider the matters set out in Section 60CC(2) and
    Section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court, must be considered and assessed in the context of each of the parties proposals.

The Court should then make a decision as to which of the parties proposals, or such other arrangements as the Court determines given the Court is not bound by the parties proposals (see AMS v AIF (1999) 199 CLR 160, U & U [2002] HCA 36; (2002) 211 CLR 238), is in the children’s best interests.

Section 60CC(2)

  1. Section 60CC(2) of the Act sets out the primary considerations that the court must take into account when determining what is in the child’s best interests.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

  1. The meaning of “meaningful relationship” was considered by the Full Court of CJ Bryant, DCJ Faulks and Boland J in the decision of McCall v Clark (2009) Fam LR 483. As their Honours noted in paragraph 109:

“The Act contains no definition of meaningful relationship.”

  1. Having reviewed the decisions where the meaning of the phrase ‘meaningful relationship’ in the context of section 60CC(2)(a) had been considered, their Honours held at paragraph 118 as follows:
    1. It appears to us that there are three possible interpretations of s 60CC(2)(a):

(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);

(b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and

(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).

  1. Their Honours held at paragraph 119:

“We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in Section 60CC(2)(a) is ‘the prospective approach’, that is once the court is satisfied that it is in the child’s best interest to have a meaningful relationship with both their parents, then orders be framed in such a way that the children are given the best possible opportunity to have that meaningful relationship with both their parents.”

  1. Justice Brown in Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518 considered the definition of ‘meaningful’ and having considered the definitions as set out in recognised dictionaries, held at paragraph 26:

“What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.”

  1. That X, Y and Z have a close, loving and meaningful relationship with the father is not in dispute in this matter.
  2. Nor is it in dispute that X and Y’s current relationship with the mother is highly conflicted and both are indicating their preference is not to have any relationship with their mother at all.
  3. Whilst Z’s relationship with the mother is not as damaged as that of his sisters, he has become more and more reluctant to spend time with his mother over the last 12 months.
  4. It is Mr H’s clear evidence that if his recommendations are not implemented, he believes that within the next 12 to 18 months, X, Y and Z will not have any relationship with their mother whatsoever.
  5. In his viva voce evidence Mr H summarised the reasons for this view as follows:

The children’s view about the mother have certainly – have certainly been planted and reinforced by the father in subtle, in covert, and overt ways, and there is enough evidence as you go through to be able to establish that, I believe. Secondly, the mother has reinforced the father’s beliefs and the thoughts and inclinations that he has placed in the children by her inappropriate parenting and her lack of ability to empathise with what adolescents and children in general need to be parented.

  1. It is Ms G’s evidence that she believes if X, Y and Z live with the father they will be much happier and settled and therefore in a much better space to embrace the concept of a relationship with the mother.
  2. As previously set out in this judgment, Mr H does not share Ms G’s view and is strongly of the opinion that the father has alienated X, Y and Z from their mother and it is only with a clear “break” of their time with the father and thereafter a 12 month period of limited time with the father that there is any chance X, Y and Z will have a relationship with the mother into the future.
  3. If X, Y and Z were not to have a relationship with the mother, there is no doubt this would alleviate their exposure to the unrelenting conflict between the parties and provide them with emotional relief in the short-term. However, the long-term serious impact on X, Y and Z both emotionally and psychologically if they do not have a relationship with the mother has been clearly enunciated by Mr H.

Section 60CC(2)(b) The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

  1. The father’s belief that X, Y and Z are subjected to constant verbal and physical abuse from the mother and his inability to consider any alternate explanation for X, Y and Z complaints of the mother’s behaviours has been well set out in this judgment.
  2. X and Y have made ever increasingly more strident allegations of the mother’s abuse.
  3. The mother concedes she yells and screams at times, especially when X and Y deliberately bait her. The mother also admits to physically disciplining the children prior to separation. She otherwise adamantly denies the allegations made against her.
  4. There has been a multitude of reports of the mother’s alleged abuse made to the Department of Human Services, the Police, the children’s school, their counsellors and treating medical practitioners. None of the more serious allegations have been substantiated.
  5. The children’s counsellors all express concern about the inconsistencies in the complaints made by X and Y and the lack of context as to place and time around their allegations. I have formed the view that all of the children’s counsellors believe X and Y’s complaints are greatly exaggerated and made in the context of X and Y, in particular, making these exaggerated complaints in the belief this will bring to fruition their wish to live with the father.
  6. In these circumstances, I am satisfied that much of what X, Y and Z report about their mother’s care is exaggerated.
  7. However, the mother’s parenting is far from ideal. Her inability to contain her anger, yelling and swearing, her constant arguing with X and Y and her lack of empathy with her children has contributed to the difficulties she has in her relationship with X, Y and Z.
  8. The father’s belief that he is the only parent capable of nurturing X, Y and Z and that the mother has no real biological connection to them is putting X, Y and Z’s psychological and emotional wellbeing at risk.
  9. What is apparent in this matter is the parties’ very immature psychological and emotional functioning resulting in their poor parenting and lack of insight has already negatively impacted on the emotional and psychological wellbeing of X, Y and Z.
  10. Mr H has identified the long-term implications for X, Y and Z if they continue to be alienated from their mother and therefore cease having a relationship with her.
  11. Mr H has put forward a recommendation which he believes is the only possible hope of salvaging the relationship X, Y and Z have with the mother and therefore protecting them from the consequences of losing that relationship.
  12. Mr H’s evidence is very clear that if his recommendation is unsuccessful and X, Y and Z ultimately reside with the father, they will be in no worse position then they currently are.

Section 60CC(3)

  1. Section 60CC(3) of the Act sets out the additional considerations that the court must look at when determining what is in the child’s best interests. Each of the matters under that section will be considered in turn where applicable in this matter.

Section 60CC(3)(a) Any views expressed by the child and any factors such as the child’s maturity or level of understanding the court thinks are relevant to the weight it should give to the child’s view.

  1. X, Y and Z have, since separation, expressed a very clear, unwavering view that they want to live with the father.
  2. It is common ground X, Y and Z have a much stronger affinity with the father and that they have a much better fit with his parenting style, personality and care.
  3. It is the father’s evidence that X, Y and Z’s strong wishes should be respected by the court and that given X’s and Y’s age, their approaching adolescence and their maturity and intelligence, very real weight should be given to their views.
  4. Ms G is of the opinion that X, Y and Z’s wish to live with the father should be followed as she believes this will make them happier and much more settled which will enable them to be in a space where they will be much more open to a relationship with their mother. She sees their exaggerated reporting of the mother’s alleged abuse as a “cry for help”, as they see this as the only way their wish to live with the father will be listened to.
  5. In his third report at paragraph 40, Mr H states:

... the corollary to any analysis of alienation is the children’s views are heavily contaminated by their exposure to the alienating parent and this makes their wishes an unreliable guide to their best interests.

  1. Mr H responded to a question from the father’s Counsel as to how his recommendation could be married to the strident wishes of X, Y and Z to live with the father, as follows:

Because of the triangulation and the splitting and the alienation, the children’s wishes in this matter are unreliable in terms of the position that they find themselves in between these two people.

Section 60CC(3)(b) The nature of the relationship with:
(i) each of the child’s parents; and
(ii) any other persons, including grandparents or other relatives.

  1. The nature of X, Y and Z’s relationship with the parties has been well-canvassed in this judgment.
  2. It is also apparent that X, Y and Z have a very close relationship with their extended paternal family with whom they have spent considerable time since birth.
  3. It is the mother’s evidence that prior to separation the father did not support X, Y and Z having a relationship with her extended family. X and Y now complain that the mother is constantly taking them to, or leaving them with, members of the maternal family. It is therefore difficult to assess the nature of the children’s relationship with the extended maternal family.

Section 60CC(3)(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
(ii) spend time with the child; and
(iii) (iii) communicate with the child.
Section 60CC(3)(ca) the extent to which each of the child's parents have fulfilled or failed to fulfil, the parent's obligations to maintain the child.

  1. Not relevant.

Section 60CC(3)(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.

  1. Mr H was asked what would happen to the father’s relationship with X, Z and Y if his recommendations were implemented by the court. It is Mr H’s evidence that:

... the father’s relationship is secure. The children favour him. They have a strong preference for his care. If they were not to see him for 12 months, and that’s what has been suggested, they would fit right back into their father’s care without any problems at all. The father’s relationship with the children is not at stake in this process. It is the mother’s relationship with the children that is at stake.

  1. It was put to Mr H that X, Y and Z’s reconnection with their father after they have spent very limited time with him would be very much dependent on the mother’s capacity to facilitate a relationship between them and the father. Mr H responded:
  2. In relation to the impact on X, Y and Z’s relationship with the extended paternal family if his recommendations were implemented by the Court, especially given how close they are to the extended paternal family, it is Mr H’s evidence that:

Firstly, I think the paternal – in these circumstances, where the children are so damaged, the paternal family have to come second, and the key relationships here are the ones that need to be salvaged, and the key relationships are the father and the mother. Everything else can flow on from that and if you can salvage the key relationships. There is going to be grief for these children. If you separate these children from the father, there is going to be some level of grief and longing initially. Once we start to reestablish Mr Colvan with the children, that will dissipate, and his extended family can come on board as and when they need to come on board, and Mr Colvan can be the determining factor in that.

Section 60CC(3)(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.

  1. Not relevant.

Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) (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.

  1. The capacity of both parties to meet the emotional and intellectual needs of X, Y and Z is very much compromised by their immature emotional and psychological functioning and lack of insight as to how their behaviour impacts on their parenting of the children and on the children’s emotional and psychological wellbeing.

Section 60CC(3)(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
Section 60CC(3)(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

  1. Not relevant.

Subsection 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

  1. In many ways, the father has been a very responsible parent. He has been X, Y and Z’s primary carer. He has devoted himself to their care, been actively involved in their school and been the parent who has mostly attended to their practical and medical needs.
  2. The mother has also cared for X, Y and Z to the best of her ability and has been involved in their school, sport and care.
  3. However, the parties inability to shield X, Y and Z from their highly conflicted and dysfunctional relationship and their lack of insight as to the impact of this on X, Y and Z is not responsible parenting.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person

  1. The father obtained an interim Intervention Order against the mother arising from the 14 August 2014 changeover incident, the circumstances of which are hotly contested. There was no evidence before the court as to if or how the Intervention Order proceedings were finalised.
  2. My findings in relation to the allegations of violence perpetrated by the mother against X, Y and Z have been set out previously in this judgment.

Section 60CC(3)(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

  1. It is conceded by Mr H that if the court makes orders in the terms recommended by him, they may not be successful. In that event, the matter will require further Court intervention.
  2. If the court makes order in the terms sought by the father, it is the evidence of Mr H that he believes the children will not comply with those orders and they will not spend time with the mother.
  3. In these circumstances, and given the history of litigation between these parties since separation, it is difficult to be overly optimistic that any orders made by me this day will see a finalisation of this matter.

Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant

  1. As set out previously in this judgment, it is Mr H’s very strong evidence that in order for his recommendations to have any chance of success, the mother, X, Y and Z will need the intense support of a skilled psychologist or social worker with systemic and psychological experience to monitor and casemanage the welfare of X, Y and Z.
  2. The mother also requires immediate assistance to develop the skills and techniques to parent and manage adolescent behaviour given she has a tendency to act in a rather adolescent manner herself.
  3. Whilst perhaps not as pressing or urgent as the therapeutic interventions required for the mother and the children, it is Mr H’s evidence that the father too would benefit from therapeutic counselling. The father needs to develop insight into how his negative attitude to the mother and her alleged parenting shortcomings and his inability to acknowledge or understand the importance of her role as the children’s mother is at the root of much of their current rejection of her.
  4. The father also needs to understand the serious impact a failure to have a relationship with the mother this will have on the children’s longterm emotional and psychological wellbeing.

Parental Responsibility

  1. The mother seeks orders that in the short term, she have sole parental responsibility for X, Y and Z until such time as they commence to spend alternate unsupervised weekend time with their father at which time she seeks the parties have equal shared parental responsibility.
  2. The mother argues that whilst she has the sole care of X, Y and Z, the input of the father will be neither practicable or in the best interests of the children as it will be an avenue whereby he can undermine her authority and ability to set limits for X, Y and Z.
  3. The Independent Children’s Lawyer supports the mother’s proposal.
  4. The father argues that, even if the court makes the orders sought by the mother and the Independent Children’s Lawyer, the parties would be able to make mutual decisions for X, Y and Z. The father submits that recent examples of the parties ability to agree and make mutual decisions is their agreement that X and Y would not take communion in 2014 and the high school they attend in 2015.
  1. The recommendations made by Mr H are very much predicated on the basis that the only chance that X, Y and Z have to maintain a relationship with the mother is that, at least initially, there be a period where there is no contact between X, Y and Z and the father and for the mother to have sole responsibility for them.
  2. If the court is of the view that orders in the terms recommended by Mr H are in X, Y and Z’s best interests, it is very apparent that the orders for parental responsibility as proposed by the mother are appropriate, and the presumption under section 61DA of the Act that it is in X, Y and Z’s best interests that both parents have equal shared parental responsibility is rebutted.

Consideration of Equal Time and Substantial and Significant Time

  1. Where parties have equal shared parental responsibility for a child, section 65DAA of the Act sets out that the court must consider whether the child spending equal time or substantial and significant time with each parent is in the child’s best interests and consider whether such an order is reasonably practicable.
  2. Where the court makes an order that one or other of the parents have sole parental responsibility, the Full Court in the matter of Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346, held that the court must consider the possibility of equal time or substantial and significant time in the context of whether such an arrangement would be in the best interests of the child.
  3. In the circumstances of this case, a finding by this court that the orders sought by the mother and the Independent Children’s Lawyer are in X, Y and Z’s best interests would mean the court would also be satisfied that an order for equal time or significant and substantial time is not in their best interests.

Conclusion

  1. This matter relates to the living arrangements for the parties’ three children, X and Y, now 12 years of age, and Z, now eight years of age.
  2. Since the parties separated in October 2012, X, Y and Z have, by consent, primarily lived in a shared care arrangement with each of their parents.
  3. Since separation, the children, and X and Y in particular, have been making increasingly negative comments about the mother’s parenting, alleging she constantly verbally and physically abuses them. X, Y and Z all express a very strong wish to live with the father and spend little or no time with the mother.
  4. The mother, whilst conceding she can be loud and that she does at times shout at the children, denies the allegations that she abuses X, Y and Z. She alleges the children’s allegations and their reluctance to spend time with her is as a result the father alienating them from her.
  5. The father denies he has alienated X, Y and Z from the mother and says that the reluctance they show to spend time with the mother is because of their lifelong exposure to her longstanding and ongoing abuse, neglect and poor parenting.
  6. Matters in which there is a genuine concern that the parties’ children have been or are being alienated from one of their parents are amongst the most difficult that the court is called on to determine, particularly when the children are adolescents or approaching adolescence.
  7. In this matter, the court is somewhat unusually, but most helpfully, assisted by three family reports prepared by Mr H over a twoyear period.
  8. In January 2013, Mr H described X, Y and Z as having a hybrid alignment with their father driven by the idiosyncratic personality styles of the parties.
  9. In August 2013, Mr H was concerned the father’s poor boundaries and overt influencing of the children had the potential to move the children’s postseparation relationship with the mother into a pure alienation dynamic.
  10. In November 2014 and at the final hearing, it is Mr H’s view that his concern the children’s relationship with the mother would move into a pure alienation dynamic has been realised and he observes a significant deterioration of the mother’s relationship with X, Y and Z.
  11. In his final report and at the final hearing, Mr H expresses the very strong view that there are very few options left to address the children’s alienation from the mother and only a narrow window of opportunity for significant remedial action to occur.
  12. It is Mr H’s professional opinion that if the current circumstances continue, it will only be a matter of time before X, Y and Z actively refuse to spend time with the mother and they will not have any relationship with her whatsoever.
  13. In what Mr H concedes are rather “draconian” recommendations and ones which have no guarantee of success, he proposes X, Y and Z live with the mother and that for 8 weeks there be no contact between the children and the father, followed by a period of 4 months of supervised time, then limited unsupervised time, culminating in them spending alternate weekends, holidays and special occasions with the father.
  14. For this intervention to have any chance of success, it is Mr H’s evidence that the mother, X, Y and Z must immediately engage in and be supported by intensive therapeutic counselling.
  15. It is Mr H’s evidence that his proposal is the only option that will create the possibility of X, Y and Z having a relationship with the mother. It is Mr H’s evidence that any other arrangements, such as a continuation of shared care or orders for X, Y and Z to live with the father and spend regular time with the mother will only result in them having no relationship with the mother within the next 12 to 18 months.
  16. Both the mother and Independent Children’s Lawyer support orders being made in the terms proposed by Mr H, arguing that this is the only and final chance for X, Y and Z to have an ongoing and meaningful relationship with the mother.
  17. Since separation, X, Y and Z have expressed a strong wish to live primarily with the father.
  18. It is common ground that the father was X, Y and Z’s primary carer from birth and that X, Y and Z have a much better temperamental fit with the father’s personality and his care of them.
  19. It is also agreed that the mother is much louder and more aggressive and reactionary in her personality and parenting and that X, Y and Z have consistently complained that they dislike her loud shouting and her yelling at them. They also complain that she verbally abuses them, and at least before separation, used corporal punishment to discipline them.
  20. The father argues that given the mother’s longstanding abuse of the children, the children’s strongly held wishes to live with him and X and Y’s age and maturity, their wishes should be given considerable weight and orders should be made for X, Y and Z to live with him and spend regular alternate weekend time with the mother.
  21. The father was adamant he would comply with any orders made by the court for X, Y and Z to spend time with the mother and that he would ensure that the children complied with those orders.
  22. The father denies categorically that he had or has in any way influenced X, Y and Z in relation to their attitude to the mother and was clear in his belief that all complaints made by them of the mother’s abuse are true and is a reflection of their lifetime experience of the mother’s parenting.
  23. Mr H describes both parents as functioning at a very immature level, both psychologically and emotionally, and of lacking any insight into how their behaviours and parenting impacts on X, Y and Z.
  24. Mr H describes the mother as having a low threshold to confrontation and of having no ability to empathise with what adolescents and children in general need, and that when confronted with X and Y’s oppositional behaviour she has a tendency to react rather like an adolescent herself.
  25. Mr H describes the father as being limited by his entrenched, almost psychopathological, belief as to his unique role as a biological parent, viewing the mother as having no biological connection to the children and as being nothing more than an incubator. The children were conceived by IVF using the father’s sperm and donated eggs.
  26. Mr H describes the father as having an unshakeable belief the mother is an abusive, neglectful and unloving parent and that he is the only parent capable of nurturing “his” children.
  27. It is Mr H’s evidence that whilst the current research into alienated children is flawed, he is of the view that there is sufficient empirical research that confirms alienated children are at much greater risk of significant emotional and psychological damage as they mature, including higher incidents of depression, alcoholism, drug abuse, failed relationships and promiscuous behaviour.
  28. It is for this reason Mr H believes it is vitally important that X, Y and Z be afforded the opportunity of maintaining a relationship with both their parents and is of the view that his recommendations, whilst extreme, are the very last opportunity for them to do so.
  29. It's Mr H’s further evidence that X, Y and Z’s relationship with the father will not be adversely impacted by the implementation of his recommendations because their relationship with the father is secure and if they were not to see him for 12 months, they would fit right back into his care without any problems at all.
  30. Whilst Mr H agreed that orders in the terms proposed by him would initially be very distressing for X, Y and Z, he was of the view that the greater risk to these children would be if they did not have a relationship with their mother.
  31. Having observed the parties over the six days of this matter, I fully understand why X, Y and Z want to live with their father. He has been their primary carer. He adores them and he has devoted his life to them. He is clearly much quieter, more empathetic and understanding than the mother and living with him must be a much more peaceful and settled experience for the children.
  32. The mother is loud, argumentative and opinionated. While I have absolutely no doubt she loves X, Y and Z, her immaturity and combative personality means that she and X and Y (who it is agreed can be very strong willed and stubborn) are constantly at loggerheads. This in particularly so in more recent times as X and Y are deliberately baiting and taunting the mother and the mother responds to this in an adolescent manner, similar to the behaviours of the girls.
  33. When with the mother, poor Z is subjected to the constant arguing and yelling of his sisters and mother. It must be an awful environment for him. It is little wonder that as he is getting older, Z is wanting the peace and quiet of his father’s home.
  34. However, I am satisfied the father is both covertly and overtly undermining X, Y and Z’s relationship with the mother. He has not one positive thing to say about the mother, her parenting, her behaviours or her personality. He makes no effort to disguise his disdain for the mother from X, Y and Z and accepts every complaint they make about her as gospel truth, even when those complaints are clearly ludicrous. He reports those complaints to the Department of Human Services, the Police and to the school, even in the middle to final hearing of this matter. He encourages the children to write down and to report their complaints and allegations to the Police, to the Department of Human Services and to their counsellors.
  35. The father clearly believes he is X, Y and Z’s only true parent and regards the mother as nothing more than an incubator who has no genuine biological or parenting link to them.
  36. The father has no insight or understanding of how his behaviours and beliefs impact on X, Y and Z and their relationship with the mother. The father is unable to genuinely encourage X, Y and Z having a relationship with the mother as he does not believe there is any real benefit to them in doing so.
  37. I am of the view that it is in X, Y and Z’s best interests to be afforded the opportunity to have a meaningful relationship with both the mother and the father.
  38. I accept Mr H’s evidence that his recommendations are the only possibility for X, Y and Z to have a meaningful relationship with the mother. Accordingly orders will be made in the terms recommended by Mr H and as proposed by the mother and supported by the Independent Children’s Lawyer.
  39. I accept Mr H’s evidence that whilst X, Y and Z will be very distressed when orders are made that reflect his recommendations, they will be at greater risk of emotional and psychological harm, especially in the long term, if such orders are not made.
  40. Mr H’s proposal is not ideal and may fail, particularly if the mother cannot immediately make the necessary changes to her parenting as identified by Mr H.
  41. For Mr H’s proposal to have any chance of success, it must be supported by immediate and intensive therapeutic assistance and support for the mother, X, Y and Z and for the mother to commit to engage fully in and follow the advice and guidance given through that therapeutic process.
  42. X, Y and Z have expressed very strong wishes to live with their father and have done so since separation. Whilst X and Y are now 12 years old and believe they have the right to determine where they live, I accept Mr H’s evidence that their views have been contaminated by their exposure to the father’s alienation of them from the mother and this makes their wishes an unreliable guide as to what is in their best interests.
  43. In an endeavour to assist X, Y and Z acquire some understanding of the orders being made, including the reality they will continue to have a relationship with their father, and to assist them in understanding the reasons why this decision has been made, I will ask the Independent Children’s Lawyer to explain the orders to X, Y and Z. I will direct the mother to bring the children to see the Independent Children’s Lawyer upon her request to do so.
  44. Given the probable volatility of this matter, I will also make a request of Victoria Legal Aid to fund the ongoing involvement of the Independent Children’s Lawyer in this matter for the next
    12 months.
  45. Because of the complexity of this matter and the importance that those dealing therapeutically or officially with this family have a full understanding of the complexities of their situation, I will make an order for the Independent Children’s Lawyer to provide copies of the reports of Mr H, the affidavit of Ms G, these reasons and the orders to their therapist, treating doctors, the principal of their school and to the Department of Human Services.
  46. I accept that the father will be very distressed with this decision and will not understand why this court believes it to be in X, Y and Z’s best interests.
  47. The father is currently being assisted by his psychologist, Dr S. The orders I will make will provide for Dr S to also be provided with copies of Mr H’s reports, the affidavit of Ms G, these reasons and the orders. With this information Dr S can assist the father to understand why the orders have been made and more importantly, assist the father to hopefully develop some insight as to how his entrenched views of the mother is impacting on and harming X, Y and Z.
  48. Both parties’ poor parenting and their failure to shield X, Y and Z from their dysfunctional and highly conflicted relationship has already caused X, Y and Z considerable emotional and psychological damage. This is the parties’ last chance to change their behaviours and improve their parenting. A failure to do so will result in the damage that they have caused to their children to become permanent. The consequences for X, Y and Z will be significant, long term and irreparable.
  49. I therefore hope that for X, Y and Z’s sake the parties can and will take on board what is needed and do everything they can to be the best possible parents for their children into the future.

I certify that the preceding two hundred and seventy-three (273) paragraphs are a true copy of the reasons for judgment of Judge Bender

Date: 4 February 2015

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