The Full Court’s decision in Lankester & Cribb  FamCAFC 60 (delivered: 6 April 2018) emphasises that a parent embarking on alienating his or her children from the other parent, following separation, may pay the ultimate price.
The case concerned a 9-year-old girl, who had been living with her mother since her parents separated when she was 6 months of age. At first instance, a Federal Court Judge made findings that the child’s mother had imprinted on the child her belief that the father had sexually abused the child. There had been multiple notifications to Police and the relevant department, but the Department had found that there was insufficient evidence to support the mother’s concerns.
The Judge considered that the mother’s conduct posed an unacceptable risk of harm to the child. In particular, she endorsed the observations of the Family Consultant to the effect that:
- The mother was unable or unwilling to address the emotional manipulation and harm she was causing to the child; and,
- She did not have the capacity to foster a meaningful relationship between the child and her father.
The Trial Judge therefore made Orders changing the main residence of the child from the mother to the father, and giving the father sole parental responsibility. The mother was also prohibited from seeing the child for a period of six months. After that, the child was to commence spending time with the mother on a supervised basis, ultimately leading to unsupervised time.
The mother appealed, but only in relation to the Orders providing for her to have a period of supervised time with the child. She argued that there was no evidence supporting the need for supervision.
The Full Court found that both parties were aware that the child’s residence may be changed from the mother to the father, and that each of the parties (the mother, father and the ICL) had made written submissions to the Trial Judge, addressing this issue.
The father in his submissions sought that the child live with him, and that there be a moratorium on the child seeing the mother for 4 months. The bulk of the mother’s submissions, meanwhile, were directed at reducing the father’s time with the child. She did not address how a supervised time order should be managed in the event it was so ordered by the Trial Judge.
The Full Court did not accept the mother’s argument on appeal that the Trial Judge had not given adequate reasons. Her Honour had extensively addressed the Section 60CC considerations in making an Order that the residence of the child be moved to the father, and it was not necessary for her to have traversed all of those same considerations, when deciding to make an order for supervised time.
The Full Court also upheld the Orders for supervised time, finding that the trial Judge’s reasons for making such orders were clear: the mother posed a risk of harm to the child, that was considered sufficiently serious to warrant a change of residence.
In order to allow the child to build a relationship with the father and to break the cycle of harm when she is with the mother, it was necessary for there to be a break from the mother, followed by a gradual re-introduction of time with the mother, in the hope that the child would end up having a meaningful relationship with both parents.
Read the case at: http://classic.austlii.edu.au/au/cases/cth/FamCAFC/2018/60.html
Natalie Moffat practises exclusively in family law and brings a compassionate approach to family law issues and believes in providing clear, cost-effective advice to clients. Natalie has a background in the community legal sector and is passionate about the continually evolving area of family law.
She holds a Juris Doctor from the University of Technology, Sydney and a Bachelor of Arts in Communication (Public Communication) from the University of Technology, Sydney. Natalie is also the Secretary of the NSW Young Lawyers Family Law Committee.