“Cautious Robustness” Approach
Palmer & Kerr  FCCA 657 (31 March 2016)
The following is annotated. For full case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2016/657.html?stem=0&synonyms=0&query=family%20law%20act
Orders that are in the best interests of the children
- The parties give conflicting evidence in their affidavits. Much of the evidence is concerning, to say the least. The Mother is intransigent in her assertions that the Father is mentally ill and poses such a threat of harm to the children that no contact with him should be permitted by the Court. The evidence of the Father, by comparison, is that the Mother displays symptoms of mental illness and is actively alienating the children from him.
- It is often difficult for a court to make factual findings in interim proceedings which are conducted “on the papers” and evidence cannot be tested by cross-examination. This point was explicitly recognised by the Full Court of the Family Court in Goode & Goode, where their Honours said at :
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For example, the procedure for making interim parenting orders will continue to be an abridged process, where the scope of the enquiry is “significantly curtailed”. Where the court cannot make findings of fact it should be not be drawn into issues of fact or matters relating to the merits of the substantive case where findings of fact are not possible.
- However, this does not mean that a Court should not make decisions at all where the evidence, or lack of evidence, calls for it. The Mother’s affidavit evidence and her written and oral submissions are most disturbing, to say the least. Despite the Mother’s assertions, there is relatively little in the way of hard evidence that supports her claim that the Father poses such a threat of harm to the children that he should never see them again, in any circumstances.
- Some of the Mother’s claims about the Father, such as her claim that he bragged to her about a sexual encounter with a student and her surmises that he may have been engaging in multiple and simultaneous affairs with other women (see at  above) sound implausible bordering on far-fetched.
- The Mother’s views in the print-outs of the text messages annexed to the Father’s affidavit are concerning, including her view that the children would have been present at and participating in the mediation with Relationships Australia (see at  above) show a willingness by the Mother to involve the children in the dispute between the parents. The Father’s account (at  above) of the Mother’s attempt to put the child X on the telephone to tell him that he wanted the Father to leave them alone (if true) is disturbing and raises the concern that the Mother has manipulated the children into taking sides against their father.
- The Mother’s claim in her text message to the Father of 14th November 2013 (see at  above) that the children had been wanting to change their surnames for months and were adamant that they wished to do so if the Father continued with his quest for mediation must be viewed with the greatest degree of suspicion. On 14th November 2013 the children were respectively aged 8 and 6 years, and the likelihood that they could have formed such views unaided seems remote. As for the Mother’s claim in the same text message about the children divorcing their father, there will be no such order made, even if the Court had the jurisdiction to do so.
- It is concerning that the Mother’s submissions that the Father is mentally ill and a sociopath are based on her diagnoses of the Father taken from the Internet and not from any medical practitioner or clinical psychologist. From an evidentiary point of view, they are without foundation and worthless. There is uncontradicted evidence from a medical practitioner and a clinical psychologist that the Father has been diagnosed with stress, depression and disturbance of mood, but poses no threat of harm to his children.
- There is no evidence before the Court containing a diagnosis of the Mother’s mental state. I am unable to find that the Mother suffers from a mental illness.
- There appears to be a serious risk that the children, not having seen their father for nearly three years, will be so alienated from him that they will never have a relationship with him of any kind. This may well not be in the children’s best interests.
- I have had referred to me by Counsel for the Father the decision of Forrest J in Sandford & Cobb, where there are some similarities in the factual situation, although the facts are not identical. I reproduce in their entirety paragraphs  and  of his Honour’s decision, which, with respect, I have found very persuasive and very apt to the case before this Court:
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37. Principally, accepting the opinion of the report writer, but also the submissions of the ICL, I have determined on an interim basis that no equal shared parental responsibility should be made. It is simply not appropriate to make such an order in the factual circumstances of this case. There is too much conflict and the parents have no demonstrated recent history of reasonable communication in respect of co-parenting matters.
38. However, the best interests of the two children, in my judgment, require what might be described as “a cautious robustness” to the reintroduction of the children to spending time with their father. Immediate therapeutic counselling is in their best interests. Reintroduction to their father, through that therapeutic process, is also in their best interests, as recommended. However, I am very concerned that an open-ended time frame, couples with the mother’s clear view that the children should spend no time with their father, will result in no actual progress towards the children spending time with their father being made in the six month period suggested, before orders providing for time are made. The real risk of the children becoming completely estranged from their father, that the family report writer has so clearly pointed out actually exists at present, in my judgment, demands a fairly robust approach. If the children do not start spending time with the father soon, it could very well be too late. At the same time, there is a need to be mindful of the need for reintroduction in a way that ensures the children’s physical safety and emotional wellbeing are appropriately secure.
- It should be made clear, despite the extensive quotation from his Honour’s judgment, that Forrest J is not deciding this case, I am, and I am doing so on the basis of the evidence before me, not the evidence in Sandford & Cobb.However, I am persuaded that his Honour’s approach of “cautious robustness” is called for in this case.
- It is for those reasons that I consider the orders sought by the Applicant Father, rather than the more conservative orders suggested by the Independent Children’s Lawyer, are in these children’s best interests.
- As for the orders sought by the Mother, I do not consider it appropriate to make an order that the children have no contact with the Father, even on an interim basis. It is also inappropriate to make a wide-ranging order that the Father undertake psychiatric assessment “at a recognised psychiatric facility that specialises in anti-social personality and borderline personal disorder”. There is no evidence that the Father suffers from such conditions, other than the Mother’s assertions. I note that the Mother concludes her Case Outline with this sentence:
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Should the children wish to see their father in the future, I believe a meeting at a Contact Centre, at the father’s cost, with an independent third party present, is the safest and most viable option.
- It does not seem to be appropriate or in the children’s best interests to require children currently aged 10 and 8 years to make a decision as to whether they should see their father or not.
- The Mother also seeks an Apprehended Violence Order against the Father for the children and herself. As Apprehended Violence Orders are made under State legislation, this Court does not have the jurisdiction to make such an order. If the Mother wishes an order of this type, she would need to apply to the Local Court of New South Wales.
- It is open to the Court to grant an injunction order under section 68B of the Family Law Act 1975 for the protection of the parties, should it be appropriate. In my view, there is no basis for such an injunction. The Mother has given no explanation as to why she has waited for nearly three years before seeking such any relief of this nature. The children have not seen their father since May 2013, and if there were reasonable grounds for an injunction at that stage, then an application should have been made at the time. The delay is unconscionable and unexplained and no injunction will be granted.
- The Mother now seeks an order that the children’s names should remain on the Family Law Watch List until further order. No evidence has been led as to why this order should be made. It is in stark contrast to the matters expressed in paragraphs  to  of the Mother’s affidavit of 1st June 2015, where she sets out reasons why the children’s names should not be on the Watch List.
- A perusal of the Court file shows that if the children’s names are currently on the Family Law Watch List, it is not as a result of any order made in these proceedings.
- As there is no evidence in support of placing the children’s names on the Family Law Watch List, I will order that their names should not be on the Watch List.
- I cannot see any need to make an order requiring all communications between the parties to be made through the Father’s solicitor, Ms Harper. It is the Father’s evidence that he had a block put on his telephone to stop the Mother sending him a multitude of text messages.
- The Family Consultant suggested in the Child Inclusive Conference Memorandum to Court of 20th August 2015 that whether or not one or both of the parties have a mental health issue should be further explored by the Court. The Family Consultant strongly recommended that the family should be assessed by a Child and Family Psychiatrist experienced in Family Law matters.
- It is disappointing to be told that the parties do not have the funds to enable the Court to appoint a Child and Family Psychiatrist as a Court expert to assess the family. I suggest that the Independent Children’s Lawyer, if he has not done so already, should make representations to Legal Aid NSW for the funding to obtain the services of a Family and Child Psychiatrist as recommended by the Family Consultant.
- In the meantime, as requested, I will order a Family Report under the provisions of. S.62G of the Family Law Act .