Parental Alienation – a recent case

Udall & Oaks (No 2) [2015] FamCA 1101 (10 December 2015)

Last Updated: 21 December 2015

FAMILY COURT OF AUSTRALIA

UDALL & OAKS (NO. 2)
[2015] FamCA 1101
FAMILY LAW – CHILDREN – Best interests of the child – Parental responsibility – Where the parents have been in dispute for much of the child’s life – Where the child lives with the father and has not spent time with the mother for two years – Chapter 15 expert opinion – Issue of abuse and/or neglect by each parent – Issue of the father alienating the child from the mother – Unacceptable risk of harm – Expert opinion that the child live primarily with one parent and have very limited or no contact with the other – Short term or long term risks to the child in the parenting proposals – Meaningful relationship – Need to protect the child from harm, particularly risk of serious psychological harm very significant – Likely effect of a change in circumstances – Parental capacity – Family violence – Where parental responsibility to be exercised by the parent with whom the child is to live – Determination that it is in the best interest of the child to live with the mother and associated orders.

 

Bant & Clayton [2015] FamCAFC 222.
G & C [2006] FamCA 994.
Goode & Goode (2006) FLC 93-286.
Johnson & Page [2007] FamCA 1235.
M v M (1988) 166 CLR 69; [1988] HCA 68.
Mazorski & Albright (2007) Fam LR 518.
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92.
Orwell & Watson [2008] FamCAFC 62.
W & W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93–235.
APPLICANT:
Ms Udall
RESPONDENT:
Mr Oaks
INDEPENDENT CHILDREN’S LAWYER:
Mr Layson
FILE NUMBER:
PAC
134
of
2009
DATE DELIVERED:
10 December 2015
PLACE DELIVERED:
Parramatta
PLACE HEARD:
Parramatta
JUDGMENT OF:
Hannam J
HEARING DATE:
28, 29, 30 and 31 July 2015 and 17, 18, 19, 20 and 21 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:
Ms Dart
SOLICITOR FOR THE APPLICANT:
Legal Aid NSW
COUNSEL FOR THE RESPONDENT:
Ms Obradovic
SOLICITOR FOR THE RESPONDENT:
Harb Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:
Mr Cairns
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:
Mr Layson of Sarah Bevan Family Lawyers


ORDERS

(1) All previous parenting orders are discharged.
(2) The mother have sole parental responsibility for D born … 2004 (“D”).
(3) The child, D, live with the mother.
(4) The child, D, spend no time with the father until he turns 16 years old.
(5) From D’s 16th birthday, he spend time with the father once per fortnight for a period of up to three hours on each occasion at a location proximate to where the mother may live from time to time.
(6) Pursuant to section 68B of the Family Law Act 1975, the father is injuncted from:

    <li “=””>(a) Communicating, or attempting to communicate, with D by any means whatsoever, including but not limited to communication via telephone, video chat, email, social media, and/or letter until D reaches the age of 16. From the date of D’s 16th birthday onwards, such contact is only to occur if initiated by D.<li “=””>(b) Communicating, or attempting to communicate, with D through a third person by any means whatsoever until D reaches the age of 16. From the date of D’s 16th birthday onwards, such contact is only to occur if initiated by D.<li “=””>(c) Encouraging, allowing, causing, permitting or otherwise acquiescing to D entering the father’s care and/or control. This includes, but is not limited to, allowing, causing, permitting or otherwise acquiescing to D entering into any residence where the father may live or otherwise be present other than when the father is spending time with D pursuant to Order 5.<li “=””>(d) Causing, permitting, encouraging or otherwise inciting any person including any member of his family from approaching D, communicating with him or otherwise taking D into their care or control without the prior agreement of the mother.<li “=””>(e) Filming or photographing D and/or the mother or otherwise having them placed under any form of surveillance or monitoring.<li “=””>(f) Approaching within 250 metres of:

      <li “=””>(i) D, unless otherwise permitted by these Orders or agreed between the parties in writing;<li “=””>(ii) The mother;<li “=””>(iii) Any home where D may from time to time reside;<li “=””>(iv) The school, church or other institution at which D may from time to time attend; and/or<li “=””>(v) The location of D’s sporting or extracurricular activities from time to time.

(7) The injunctions provided for in Order 6 are made for the personal protection of D and the mother. The power of arrest without warrant pursuant to section 68C of the Act attaches to the injunctions provided for in Order 6.
(8) Pending further order, each party and their agents are restrained from removing or attempting to remove or causing or permitting the removal of the child D born … 2004 (a male), from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the child reaches the age of 18 or the Court orders its removal.
(9) Pursuant to Section 65Y(2)(b) that the mother be permitted to remove D from the Commonwealth of Australia.
(10) Within 48 hours of these Orders being made, the father must surrender all passports held by or on behalf of him in D’s name to the mother’s solicitor for release thereafter to the mother.
(11) Pursuant to section 11(1)(b) of the Australian Passports Act 2006 (Cth) the mother is permitted to apply for the issue of an Australian passport and any renewal of same for D without the consent of the father being obtained.
(12) D’s name be suspended from the Airport Watchlist for such time that he is to travel overseas provided that he is accompanied to and from Australia by the mother, with the mother to notify the Australian Federal Police of her travel plans in advance of her departure, together with the provision of an itinerary.
(13) In the event the mother is required to bring a travel application in order to have D’s name suspended from the Airport Watchlist, that application may proceed without notice to the father and ex-parte unless otherwise determined by the presiding judicial officer.
(14) Immediately upon the making of these orders, the mother must make contact with Dr B for the purposes of engaging Dr B to provide therapy to herself and D or if Dr B declines to provide therapy the mother is to engage any other suitable therapist as recommended by Dr B. In the event that Dr B agrees to provide therapy that is to commence as soon as practicable. Thereafter the mother is to follow all recommendations and directions of Dr B including engaging D with other health or mental health professionals or therapists. In the event that D engages with another health or mental health professional or therapist, the mother must then also follow all recommendations and directions of that professional.
(15) Within 48 hours the Independent Children’s Lawyer shall provide:

    <li “=””>(a) These orders;<li “=””>(b) The reasons for judgment; and<li “=””>(c) The single expert report of Dr C

to the Department of Family and Community Services with a request that these documents be considered as part of any child protection investigation with respect to D.

(16) The Independent Children’s Lawyer shall forthwith provide to the principal of P Public School, and the mother is at liberty to thereafter provide to the principal of any subsequent school at which D is enrolled:

    <li “=””>(a) These orders; and<li “=””>(b) The reasons for judgment.

(17) Within 48 hours the Independent Children’s Lawyer is to provide:

    <li “=””>(a) A copy of these orders; and<li “=””>(b) A copy of the reasons for judgment

to the Officer in Charge of the … Local Area Command of the NSW Police together with a written request that consideration be given to such documents as part of any criminal complaint made by, or in relation to, D and that Police provide such assistance as deemed appropriate by them from time to time to give effect to these Orders.

(18) The mother shall promptly provide to all health professionals or therapist upon whom D attends:

(a) These orders;
(b) The reasons for judgment;
(c) The expert report of Dr C; and
(d) If engaged within 12 months from the date of these orders, a direction and authority to the professional to contact the Independent Children’s Lawyer if that professional wishes to discuss any aspect of these proceedings.
(19) The appointment of the Independent Children’s Lawyer remains in force for a period of 12 months from the date of these orders.
(20) Any contravention Application and/or Recovery Order application filed by the mother within 12 months of the date of these orders be listed on short notice and before Justice Hannam, and if she is not available, the first judicial officer reasonably available.
(21) The father and any other persons attending with him at the Court other than the child are to leave the Court Registry and the Court precincts immediately following the delivery of this judgment.
(22) Pursuant to Section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a party contravenes these Orders are included in these Orders, annexed hereto.

FULL CASE

http://www.austlii.edu.au/au/cases/cth/FamCA/2015/1101.html