Background
In the recent case of Ralton [2017] FamCAFC 182 (7 September 2017), the Full Court of the Family Court (Bryant CJ, Strickland & Aldridge JJ) heard the mother’s appeal against Judge Riethmuller’s order that 10-year-old, “B”, and 8-year-old, ‘C’, children, live with their father, notwithstanding that the mother had been their primary carer and where B had expressed fears of spending time with the father.
Trial: Analysis
At trial the family consultant expressed concern that the mother had engaged in parental alienation and that B’s rejection of the father had been influenced by the mother; expressing the opinion that her consistent denial of such an influence over B pushed her alienation to being “conscious” or “intentional” behaviour. While not describing the mother’s conduct as “parental alienation”, Judge Riethmuller ordered that the children live with the father, that he have sole parental responsibility and that the mother have supervised time, increasing incrementally towards unsupervised time and then alternate weekends with the mother.
Appeal: Full Court Analysis
The Full Court of the Family Court stated that in September 2015 B told a teacher at his school that he had been assaulted by his father who had hit him in the back of the head and slapped him twice in the face. The school reported this to the police and subsequently the mother refused to have the children spend time with the father.
The police interviewed B and, on a later date, the father. The police were of the view that the evidence was not sufficient to take any action against the father.
On 5 February 2016, the father went to school to collect the children under the then current orders. B could not be found. He had run away from school and had hidden. He made two 000 calls and had informed the operator he would only come out when the police arrived.
Mother’s Submission on Appeal
The mother contended that the primary judge gave inappropriate weight to the following matters:
a) B’s expressed views and his fear of his father;
b) The good care provided by the mother and the children’s attachment to her;
c) The father’s parenting; and
d) Family violence
The mother’s submission was simply that the primary judge did not give sufficient weight to B’s stated abhorrence and fear of his father. The mother also relied very heavily upon B’s diary in which he plainly set out his poor view of his father.
Consideration by the Full Court
It was quite clear that the primary judge was cognisant of B’s fear of his father. There was no doubt that B’s entries in the diary focused on his father, how he was treated poorly by him and his anger at having to spend time with him. The primary judge was well aware of the contents of this diary.
The Full Court stated that the High Court has previously stated that orders that are made in the exercise of a judicial discretion ‘can be set aside only on a strictly limited basis, in accordance with House v R.
This evidence comfortably supported the primary judge’s findings that B’s entries in the diary, and indeed his expressed fear of his father, were influenced by the conduct of the mother. His Honour’s findings were thus open on the evidence.
The Full Court stated that these findings significantly affected and reduced the weight that was to be given to B’s views and his expressed fear of the father, as had earlier been recognised by the primary judge. It was therefore open to his Honour then to place limited weight on these considerations rather than the very significant weight proposed by the mother.
His Honour accepted that B expressed fear of his father but considered that the basis of that fear arose from much more complex causes than those asserted by the mother.
Parental Alienation
The primary judge was at pains to avoid the use of labels such as ‘parental alienation’ or ‘enmeshment’. The words ‘alienation’ and ‘enmeshment’ were, however, used in the family consultant’s report in a passage quoted by his Honour.
The family consultant’s report raised certain conduct of the mother, including seeking to restrict the father’s time by means of intervention orders; seeking letters from medical practitioners to support her refusal of paternal time; arranging activities for the children during the father’s time then requiring the children to choose between those activities or spending time with the father; “service shopping” for professional advice that suited her and indications of tacit awards for the children’s rejection of their father.
The Full Court stated that the first instance decision identified particular conduct of the mother but did not attempt to provide a psychological label for it. The primary judge had clearly indicated that he would consider ‘the circumstances confronting these two children in each of the households and the behaviours exhibited’ rather than engage in a discussion of psychological concepts.
Therefore, there was no need for the Court to consider whether or not the evidence justified a finding of parental alienation or enmeshment or whether or not they are valid concepts.
Court’s Conclusion
Finally, the Court did not consider that there was any substance in the mother’s submissions that the primary judge had no regard to the scientific papers to which he was referred by the mother. First, there was no need for him to do so. Secondly, in the absence of expert evidence on the issue, having regard to academic literature can be a dangerous course. The Full Court cited the following cases: Barclay & Orton [2009] FamCAFC 159 at [71]; SCVG & KLD [2011] FamCAFC 100 at [46] – [51]; Oaks & Udall [2011] FamCAFC 211; McGregor & McGregor [2012] FamCAFC 69; (2012) FLC 93-507.
Thus, the Court concluded that the findings of the primary judge were open to him and that no error has been demonstrated.
Orders
The mother’s appeal was dismissed with costs.