Newberry & Newberry No 2 2014 FamCA 822

Both parents sought primary residence of three children aged 8, 6 and 5 years.  A previous judge had made orders that the children live primarily with the father and live with the mother on some days.

The mother complained that the father had contravened orders by not making the children available.  The father submitted that he withheld the children to prevent them from being exposed to the mother’s undermining his parenting by her destructive and destabilising influence (parenting style undermining).

The judge found that the mother had participated in several activities including: engaged in behaviour at handovers to increase the children’s distress before they returned to the father’s care; made denigrating remarks about the father in front of the children; encouraged the children to tell their teacher than their father was bad; encouraged the children to keep secrets from their father; told the children that their father does not love them anymore; returned the children to the father’s care without underwear or naked; and permitted the children to have access to court documents (adult topics).

The judge found that it was likely that the mother had promised one child a computer and a puppy if the child told teachers that the father had touched her private parts (artificial inducement).  The judge accepted that on returning to the father’s care one child accused the father of having in the past taken all of the mother’s money.  Two children told the father that the judge would tell him off.  The mother denied that she had exposed the children to her negative views about the father, but the judge did not accept this (credibility).

The judge found that the mother’s influence on the children had rendered the children emotionally disturbed.  The judge found that the mother had exposed the children to adult topics.

The judge accepted the opinion of an expert that statements made by one child had a rehearsed quality and lacked context, as if the child was repeating things that had been heard (coached).

The judge accepted the opinion of an expert that the mother’s contact with the children should be supervised until the child reached the age of 8-10 years by which time the child’s coping methods would have increased (access supervisedage of child).

The judge found that continuing a previous order that the children remain in the care of the mother on an unsupervised basis would expose them to an unacceptable risk of both psychological and physical harm.

The judge found that being a liar does not necessarily mean that a person is an incapable parent (competent parent).

The judge found that the mother was a person of no credibility as she was willing to prepare false statements for the purpose of attempting to obtain proof.  The judge did not accept any of her evidence unless it was corroborated by other evidence as the mother simply giving an affirmation or taking an oath meant nothing.

The judge accepted that the father had a reasonable excuse for withholding the children from the care of the mother.

The judge instructed that orders be implemented for a period of 5 years before review.