SS & AH 2010 FamCAFC 13
The case involved an appeal by a mother against orders made by a trial judge. The couple separated after being together for 7 years and having two children. In 2000 a judge ordered that the children live with the mother and spend time with the father. In 2002 the mother filed to reduce the father’s time, alleging he had engaged in sexual abuse. The allegation was thoroughly investigated but was not substantiated, but the mother continued with the persistent allegation (unsubstantiated allegation). In 2005 a judge ordered that the children live with the father and contact the mother. In 2006 the older child had a serious argument with the mother and ceased contact with her for 2 years (reluctant to contact). The younger children later also declined to see the mother after an argument. In 2007 the mother filed to reverse final orders so that the children live with her and that she have sole parental responsibility.
In 2008 a judge agreed to re-open the case due to significantly changed circumstances. The judge arranged for the children then aged 15 and 11 years to be brought to court and be interviewed by a family consultant about the child’s wishes about spending time with the mother. The family consultant interviewed each child for 15-60 minutes then gave oral evidence in court and was cross examined by the unrepresented parties. The judge then issued orders that suspended arrangements that had been in place for two years. The judge ordered that the father have sole parental responsibility and that the children live with him. The judge ordered that the children could initiate contact with the mother by any means, but the mother have structured communication with the children only by phone.
The family consultant gave evidence that the younger child expressed herself using her own words, and her emotions were congruent with her words (capacity to decide). The child reported that she did not want to see the mother as the mother said bad things about the father. The child said she had to pretend to agree with the mother to keep the peace. The family consultant considered that the child did not appear to have been influenced or coached, or to show signs that the father had tried to alienate her from the mother.
The trial judge considered that the mother had a personality that was forceful and assertive (personality domineering), and could be perceived as being intimidating for a young child (parenting style intrusive). The judge considered that the mother showed certain persecutory tendencies. The mother had instituted proceedings against the principal of the children’s school as the principal allowed teachers to consult with the father while the mother was not present.
The mother appealed against the orders, claiming that the judge had relied too heavily on the views of the children. The mother claimed that testing of the children’s views had been inadequate. The mother alleged that the children had been alienated against her by the father, but did not present evidence to support this allegation. The father alleged that the children did not want to see the mother because of the persistent pressure she had exerted upon them.
The majority of appeal judges considered that the mother was not likely ever to foster a positive relationship between the child and father, but would proactively undermine the children’s having any meaningful relationship with their father. The judges considered that the mother would continue to involve the children inappropriately in adult disputes.