Children – children had refused to see father for two years – order erroneously made in hope

In Masih & El Saeid [2020] FamCAFC 152 (25 June 2020) the Full Court (Ryan, Watts & Austin JJ) allowed the father’s appeal in a case where two children had spent equal time with the father pursuant to interim orders for five years, but then refused to see him at all for the next two years.

The father alleged parental alienation. A single expert recommended that the father have sole parental responsibility and that the children live with him. Loughnan J ordered that the children live with the mother and that the father’s time with them increase incrementally over time.

Watts & Austin JJ said (from [50]):

“The central feature of the case was the children’s alienation from the appellant and what orders should be made in response thereto…There is no reference in the reasons for judgment to the single expert’s evidence as to how the problem of the children’s alienation from the appellant should be best addressed. (…)

[59] Given the uncontested findings of the primary judge to the effect that the children have meaningful relationships with the appellant and derive benefit from it (…) the respondent’s proposal offered little hope of any restoration of the children’s relationships with the appellant…the children would suffer significant harm if denied relationships with the appellant…and it is likely the respondent has not fully supported the children’s relationships with the appellant…the orders made by the primary judge appear to be an exercise in hope rather [than] the experience of compliance. (…)

[62] Since the respondent had demonstrated her inability to implement an ‘equal time’ residential arrangement for the children over the preceding period of about two years, the reasons for judgment provide no answer to the question of how she would be able to instead comply with orders requiring her to immediately restore the children’s visits with the appellant…”

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The case was remitted for re-hearing by another judge.

Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service (thefamilylawbook.com.au). He is assisted by Queensland lawyer Craig Nicol, who is a QLS Accredited Specialist (family law).

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