In this sad and tragic case recently decided in the Federal Magistrates Court in Sydney, Federal Magistrate Altobelli has ordered that the children of the relationship live with their mother but have no relationship with their father. The decision made by the court is indicative of the case’s intricate complexity and it is only upon reading the judgement that it is possible to understand the difficult task faced by the court.
There were disclosures made by the two children that the father had sexually molested the youngest child, a daughter. The court ultimately found there was not an unacceptable risk of sexual abuse to the children. Despite this, however, the mother continued to believe that the child had been abused and nothing could deter the mother from this train of thought.
As a result of these allegations, the mother maintained a position that the father was unsafe and she would not permit the children to see him. It was clear that the mother was alienating the father but the court-appointed expert was of the view that the children had simply absorbed the mother’s perspective on things and as a result, held her views as their own. The expert gave compelling evidence that the child had, on the evidence, not been abused, and that the mother had better capacity to meet the needs of the children but she was not capable nor willing to facilitate a relationship with the father.
The children were 11 and 6 at the time of trial, and held stringent views that they did not want to see their father. This concurred with the view of the mother that the father had no role in the children’s lives, in the past or the future.
The father wanted a relationship with the children and, in view of the mother’s alienation, sought to have them live with him. The mother had been the primary carer of the children and a change of residence was not considered in their best interests, nor was it held in their interests to continue to have failed attempts to spend time with dad.
Faced with the facts as they were and the resistance from the mother and children, His Honour made an Order for sole parental responsibility but specifically ordered that the mother keep the father informed about the children’s schooling and their health. He is to have no time with them but is permitted to write and send cards and gifts.
It was the expert’s evidence that he hoped the children, when they were older, would consider the matter and perhaps read the judgement to understand the court’s decision. His Honour wasn’t fond of this idea – judgements were not written with children in mind – so he reconvened the trial to seek the parties and the expert’s view on a letter to the children.
This letter was an attempt by the court to assist these children understand: firstly, why the Order was made; secondly, advise them that their father and, in fact, both of their parents loved them; thirdly, to state that the court did not hold the view that they had been hurt by their father; and finally, to encourage them to re-establish a relationship with their father. His Honour hoped the letter might accelerate or act as a catalyst for repair or restoration of their relationship with their father. The letter is to be delivered when they turn 14 years of age and with the assistance of a counsellor.
His Honour denied the children the right to know and be cared for by both their parents, denied their right to spend time with their father on a regular basis and denied them the right to enjoy their father’s culture – but he states he did so for good reason and in their best interests.
The letter His Honour wrote to these children is shown below:
Dear X and Y,
After your mum and dad separated they could not agree about where you were to live. You were 10 and 6 at the time. As a judge it was my job to make this decision. I had a lot of help from the lawyer who was representing you, and each of your parents, as well as an expert child psychiatrist. Even with all of this help it was a hard, sad case to decide. This letter is to try to explain my decision to you, even though you probably won’t read it for many years.
The most important thing I want to tell you is that both your mum and dad love you very much. They loved you from the day you were born, love you now, and will love you for the rest of their lives. Just because your dad may not have been around for a while, it does not change that he loves you.
At the time I had to decide the case your mum believed in her heart that your dad hurt you. My job is to look at all the information, and listen very carefully to what everybody says including the experts. I decided that you had not been hurt by your dad. Even after I told your mum what I decided, I think she still believed in her heart that your dad had hurt you. This just goes to show that sometimes words do not change a person’s heart.
At the time of the case both of you were saying things, and doing things, that told me you did not like your dad, and did not want to spend time with him. I don’t think you really meant this. I think maybe you were picking up the things that mum was worried about. I listened to what you were saying, but in the end the hard decision I had to make was not because of what you were saying or doing.
I told you this was a hard, sad case to decide. I decided that even though your dad really wanted you to live with him, it was best that you lived with mum, even though this might mean moving away from where you lived at the time. I knew your mum would look after you really well. I decided not to make your mum let you see your dad, even though your dad wanted this very much. I thought it would make things harder for you if I had done this.
By the time you read this letter I think you will be old enough to make up your own mind. I hope you will think about contacting your dad and getting to know him again. There are people called counsellors who can help you with how you feel about this, and help you to make it happen. Please remember that both your mum and dad love you very much, even if they love you in different ways.
Federal Magistrate Altobelli