Flacks & Chatburn 2014 FamCA 428

For three years after separation, children aged 15, 12 and 10 years had at the mother’s insistence spent time with the father only at the mother’s house.  The mother then severed all of the children’s interaction with the father for a period and recommenced access only if the father was supervised.  The mother proposed that the father be eliminated or excluded from the children’s lives.  The father contended the mother had exerted so much pressure upon the children they were induced to reject him and to resist any interaction with him (alienation).  The mother contended that she supported the children’s relationships with the father and their individual rejection of him and that the children’s resistance to interacting with the father was due to their own adverse experiences with him and was unrelated to her own conduct.  The mother initially held a strong belief that the father had sexually abused the oldest child despite no statement by the child that this had occurred.  During the trial the mother conceded that the father had engaged in silly tickling of the oldest child, an action the judge described as a clumsy transgression of an age-appropriate boundary for an adolescent daughter.

The mother informed the family consultant that the two younger children did not want to see the father (reluctant to contact).  When informed that the children had expressed the opposite view and that the children were anxious about the mother’s reaction to such news, the mother asked the children why they had “lied” to her, clearly displaying in the judge’s view her lack of insight about the children’s apprehension about her reaction. The children were left to explain to the mother how her demeanour had caused their apprehension and that they did not want to make her “sad”.  The family consultant reported that the mother’s attitude did not change over time (strong belief).

The mother required the middle child to keep a diary of her experiences with the father for the mother to read.  The mother also required the father and his partner to provide her with a schedule for every visit made by the two youngest children to the father setting out their travel plans, venues for activities, types of activities, and meal ingredients (personality controlling).

The judge found that the eldest child had already completely rejected the father and the youngest child was showing similar signs of alienation, although the cause of that rejection was the subject of contentious debate.  The judge found that the evidence comfortably supported the father’s case and contradicted the mother’s case. The real problem was how to remedy the situation.

The judge found that the father was an untested parent beyond short periods, but that was due to the mother’s insistence over the years that the children not stay overnight with him.

All parties agreed that the eldest child aged 15 was able to decide about contact with the father (child’s wishes).

After not seeing their father for 16 months the two younger children were observed to be apprehensive on initial contact until the father re-assured them that he was not angry with them, but rather he loved and missed them, and the children then responded by clinging to his neck for several minutes crying and then sat chatting easily to him with wide smiles (attachment assessment).  However in subsequent months these two children became more reserved with the father.  The judge found that all of the children clearly perceived that the mother disliked them maintaining their relationships with the father.  The judge found that the mother’s conduct did not match her expressed sentiments but were incongruent (withhold emotional approval).

The judge gave little weight to a recommendation by a psychologist who treated the youngest child’s anxiety, that visits by the youngest child with the father should be postponed until the child has built appropriate coping skills to manage his anxiety.  The judge preferred the opinion of the family consultant over the opinion of the treating psychologist for reasons including: (a) the psychologist had made only a superficial appraisal of the youngest child’s situation, and (b) documents containing hearsay of the treating psychologist’s opinions were tendered in evidence rather than an affidavit, denying the father the opportunity to test the evidence by cross-examining the psychologist directly (expert evidence unsatisfactory).

The family consultant recommended a change of residence for the two youngest children, if the Court found the mother was unable or unwilling to appreciate how her behaviour had aligned the children against the father.  A change of residence for the two youngest children would mean they became separated from their older sibling (sibling separation).

The judge found that if the two youngest children remained living with the mother then their relationships with the father would likely be destroyed.  The judge ordered that the two younger children live with the father.  The judge ordered a graduated approach where there was a temporary suspension of interaction between children and mother, followed by temporary period of supervision of the children’s time with the mother, leading to substantial and significant time with the mother.