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MOTHER WHO ALIENATED CHILD FROM FATHER REWARDED WITH FULL CUSTODY AND SOLE PARENTAL RESPONSIBILITY BECAUSE THE FATHER REFUSED TO UNDERGO FAMILY THERAPY.

This is a case involving a Parenting dispute over a 6 year old girl (born 2013), she has not been able to see her father for significant periods of time, causing the father to withdraw from time with the child for various reasons resulting fracture of child’s relationship with him. 

The court recognised the mother alienates the relationship between father and child, with the family report recommending no time with the father as the least unsatisfactory outcome for the child.
The Court decided orders to be made as sought by the Independent Children’s Lawyer.

Orders Sought :
The mother seeks that the child live with her and spend no time with the father, with her to have sole parental responsibility.

The father’s position is that the child should live with the mother but spend each alternate weekend from Friday to Sunday (or Monday) with him and that there be joint parental responsibility.

FACTS:

  • The parties met in 2011, were married in 2012 and separated on 16 October 2015.
  • Following the father’s first application made in October 2015, consent orders were entered into on 2 September 2016, pursuant to which the child was to live with the mother but spend time with the father increasing to alternate weekend time.
  • The father spent time with X until August 2017 when the mother unilaterally suspended his time following alleged revelations of assault by the father which the father denied.
  • The mother applied for an Intervention Order against the respondent and an interim one was granted.
  • On 28 August 2017, the parties divorced and in March 2018 the father issued proceedings again in this court.
  • Interim orders were made for supervised time on 1 May 2018, supervised by Contact Service A. Supervised time continued largely in accordance with those orders but, towards the end of 2018 and the beginning of 2019, the father’s attendance became less constant.
  • On 19 March 2019, orders were made for X to spend gradually increasing time with the father up to an eventual outcome of each alternate weekend. Time took place initially in accordance with those orders but in May 2019 the father ceased attending.
  • In October 2019, a further interim hearing took place and orders were made for a further updated family report and final trial in what has turned out to be June 2020..
  • Some periods of time were spent between the father and the child in October, November and December 2019, the time X spent with her father did gradually improve and she became less tense and started to enjoy her time with her father far more, although it was noted that she appears to have remained resistant to, or at the very least non reciprocal to, physical affection from her father. There was increased number of non-attendances for visits towards the end of 2018, on 12 January 2019, the last meeting with the child was at McDonald’s and this attempt to spend time was a complete failure and the father has not spent time with the child since then.

Submissions of the Father

The father opened his case. He said at the time of the divorce the mother was in a relationship with someone else. He gave her time. He tried his best because there was a child involved. The mother was challenging him and would prevent him from seeing his child. Every time he gets orders, the mother breaks his streak every time. She says the child is unwell or sleeping. He misses his daughter every day. He wants X to have a clear opportunity with both parents at the same time. The mother should encourage the child to go. There is no point in him arguing to get his daughter. He wants strict orders for the mother not to keep the child away from him. He just wants his daughter. He denies the accusations against him. He runs a business.

The father said he refuses therapy. He does not want his daughter to have any pressure and feels Fifteen to twenty minutes with him at a time would be enough to give him the opportunity to rebuild the relationship with his daughter. He refuses to give the mother sole parental responsibility. He said “As a father I have a complete right to be in her life. He has not abandoned his daughter. When the supervised time failed it was because his daughter was in tears and he walked away to not make it more stressful or traumatic for her. She is a smart kid. He pleaded with the Court not to keep his daughter away. He said he had lost four years because of the mother’s pressure. A lawyer took his money and did not come to Court. He wants to see his daughter. This has been broken off because of the money. His final address the court noted with regret, characterising it as an emotional outpouring.

ISSUE:

Whether the Father should have any time with his daughter and whether he should have any parental responsibility.

HELD:
The judge stated he had reservations as to the mother’s motivation. Taking the child on numerous occasions to changeover in circumstances where she must have known the father was not going to turn up has an inherent accusatory element to it. Of course it would be said on her behalf that she was merely obeying the Court’s orders and I accept that such a construction is open, but I have a suspicion that the mother’s true position is much less keen to foment a relationship between the father and the child than she would wish to assert.

The judge found that the reality is, that this child, who is still so very young, has spent substantial periods of time not seeing her father and therefore entirely accepted the submissions of the Independent Children’s Lawyer that the child must have been disconcerted and upset by her father coming in and coming out of her life as he has.

The judge accepted that since communications between the parents are absolutely non-existent and there is no realistic possibility that these parties will sensibly be able to come to agreement about anything and further, if the judge makes the orders as to time that the mother seeks (that the father have no time with the child) then there would be no work for parental responsibility to do in any event. 
In these circumstances and given that the judge proposed to make the orders the mother seeks, it is plain that there should be an order for sole parental responsibility to the mother.
Conclusion

The judge concluded that the orders proposed by the Independent Children’s Lawyer, should be made. The fact is that the father’s conduct in the past has led to the child no longer having a relationship with the father upon which she puts any value. She has told him in terms that she does not want to see him.

Whether this is implicitly or explicitly fomented (by the mother’s alienation) does not at this point really matter.

That is because the father’s admitted conduct has undoubtedly contributed massively to this outcome. All the more regrettably, he does not appreciate this and persists in his misconceived idea that the court would grant him 15 minutes of time with the child at a time to repair the relationship.

Family therapy is plainly the only way in which the matter could possibly move towards a resumption of the relationship that would require a commitment that it appears the father is unable to give.

Notwithstanding that the excision of her father is highly likely to have deleterious effects, particularly in the long run, it is the only set of orders the Court can make in her best interests at the present time.

I will however leave the door open to the father. If, having considered this judgment, which will no doubt be deeply distressing to him, he is able to reconsider the matter and more particularly his attitude to family therapy and the degree to which he would need to truly commit himself to it and its sequelae, I will order that there be a notation that should he make an appropriate application the rule in Rice v Asplund [1978] FamCAFC 128(1979) FLC 90-725 should not be held against him.

 

 CITATION : Sfeir & Melhem [2020] FCCA 1924 (17 July 2020)

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