Wolleman & Wolleman  FCCA 1000
Parenting Trial – Children aged 7 (Y) and 10 (X) – currently living with Father – 2nd round of proceedings – where Mother has fixed belief that the father poses a risk of sexual harm to child X and that both children fear the Father – no other person who has contact with the children share those beliefs – where 10 year old X is refusing to see the Mother after the Mother withheld the two children from the Father for 2 months in 2017 – where it is impossible to make orders which will restore the 10 year old’s relationship with the Mother – orders made for child Y (7 year old) to spend limited supervised time with the Mother.
The history of the litigation surrounds the Mother’s fixed and persistent belief that the child X was sexually abused in the care of the father and that X is at risk of sexual harm in the care of the Father and that both children fear the Father.
During the first round of court proceedings the Mother had raised these allegations against the Father but ultimately the parties agreed to final orders on the morning of the Trial, that the parties have equal shared parental responsibility for decisions concerning the children, that child X live with the Father, that child Y live with the Mother and that each child spend alternating weekends with the non-resident parent.
Shortly after the Trial, the orders fell apart and all the issues which existed at the time of the Trial reared their ugly heads, the major one being the Mother refusing to let go of her fixed belief that the Father had sexually abused X. The Mother then told X that she was taking X for a ‘checkup’ to see if her Father had raped her and did take her to the doctors to have her sexually examined despite X being uncomfortable with that. The Mother also went to see X’s counsellor, persisted with the allegations and expressed a fear that X would commit suicide. The child X later expressed some concern to her counsellor about her mother picking her up and about being taken to the doctors but believed “mum might not do it because she made a promise to Dad in a text.”
The Mother thereafter picked up both children from school and withheld them from the Father for a period of two months.
The Father subsequently filed an application for recovery orders. Orders were made on the first date that the children be returned to the Father and the Mother’s time with both children was suspended pending preparation of a Family Report.
A Family Consultant Report was subsequently prepared. The Family Consultant noted that the children were both happy and comfortable in the Father’s care. When this was reported to the Mother by the Family Consultant, given her statement that the children were fearful of him, the Mother attributed their observed positive relationships with the Father to them trying to please him because they were so fearful of him.
The Family Consultant noted there was no information to support the Mother’s contention that X was sexually harmed in the Father’s care.
On the day of the interviews X refused to see her mother and expressed a strong reservation against spending time with her in the future. Y agreed to see his mother but his presentation was concerning and he felt uncomfortable seeing the mother and when asked he opted to return to the Father.
Ultimately the Family Consultant recommended, at least short term, that the children live with the Father, that X spend no time with the Mother and that Y spend supervised or no time with the Mother.
At the Trial, His Honour placed some weight on the children’s views and the fact that there was no evidence that the Father had done anything to align the children with him and get them to reject the Mother. The problems, particularly between X and the Mother and the Mother believing that X had been sexually harmed by the Father, had clearly existed since the first court proceedings began and from that time up until the Mother withheld the children from the Father, the Father had always made sure child X spent time with the Mother.
The Court noted the relationship between X and the Mother was non-existent and/or poor.
His Honour said:
“The Mother maintains her fixed belief that the Father may be sexually abusing X. She made that clear during closing submissions and in the face of that there is nothing to suggest that there is any likelihood that X’s relationship with the mother can be repaired.”
The relationship between the children and the Father was noted to be close, warm and loving.
The Mother at the Trial in her submissions and throughout the Hearing refused to accept that this was so.
His Honour also placed some emphasis on the impact on the children of a change to their circumstances and the Mother’s capacity to meet the needs of the children.
His Honour stated:
- the Mother’s views about the children are at odds with the children’s reality and she conveys to others that the children are in fear of their father and they accept that as the children’s reality;
- The Mother used the children’s alleged fear of their father, which simply isn’t true, to justify withholding the children from the Father for two months and obtained a letter from her counselor supporting her conduct as appropriate and child focused;
- no other person including the Family Consultants and other people at the children’s school including the children’s counsellor share the view that the children are afraid of the Father, that the Father is sexually abusing child X or that child X is at risk of sexual harm in the care of the Father, and it doesnt matter what other people say to the Mother about it, she will not accept it;
- The Mother took child X to the doctors despite X being uncomfortable with that to have her sexually examined due to her persistent belief that X is being sexually abused by the Father. X later reported this to her counselor stating that in front of the doctor the Mother started to ask X is she being touched on her private parts by her Father. X reported feeling embarrassed and didn’t say anything. She said the Mother had told her she was going to be medically examined but she did not want to be.
- The Family Consultant noted the extreme harm this had done to X, that it was emotional abuse and it had created a situation where X did not want to see the Mother.
- the Family Consultant noted that the Mother had no insight into how her own behaviour had impacted upon her relationship with X.
- Even a denial by X that nothing had happened was a confirmation in the Mother’s eyes that something had happened.
His Honour concluded that:
- There was no evidence that X had been sexually abused by the Father;
- The Mother’s own evidence did not remotely suggest that;
- There was no prospect of the Mother letting this issue go;
- The Mother’s refusal to accept that the children do not fear the Father and her refusal to accept that X had not been sexually abused by the Father or is at risk of being sexually abused by the Father, suggests that the Mother is incapable of providing for the children’s emotional needs
- The Mother’s lack of capacity to provide for the children’s needs is so severe that she is abusive to X due to her false fixed belief that X is at risk of sexual harm from the Father;
- The children are at risk of being exposed to psychological harm by spending unsupervised time with the Mother, namely exposure to the Mother’s fixed false belief that X is at risk of sexual harm from the Father. This has the potential to cause psychological harm and may have already done so to X.
- The child X’s relationship with the Mother is incapable of restoration due to X’s strong wishes not to spend time with her Mother.
- The child Y’s relationship with the Mother is different and the child Y is not likely to resist spending supervised time with her.
Orders made for the children to live with the Father, for the father to have sole parental responsibility, for child X to spend no time with the Mother and for child Y to spend supervised time 4 times each year with the Mother. Further orders made for the Mother to send the children letters, cards, photographs and gifts to the children.