Bower and Bower
[2012] FMCAfam 515
•20 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BOWER & BOWER | [2012] FMCAfam 515 |
| FAMILY LAW – Entrenched family dispute involving children between 11 and 16 – children living with father and refusing to see mother – mother’s strongly held views that children alienated by father – whether father sincere in efforts to foment relationships with mother – whether mother’s conduct contributed to difficulties – orders made as proposed by Independent Children’s Lawyer. |
| Family Law Act 1975, ss.60CC, 61DA |
| Goode v Goode [2006] FamCA 1346 |
| Applicant: | MS BOWER |
| Respondent: | MR BOWER |
| File Number: | MLC 3971 of 2007 |
| Judgment of: | Burchardt FM |
| Hearing date: | 2 May 2012 |
| Date of Last Submission: | 2 May 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 20 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Dr O’Brien |
| Solicitors for the Applicant: | D & M Lawyers |
| Counsel for the Respondent: | Mr Wadsley |
| Solicitors for the Respondent: | McCormacks |
| Counsel for the Independent Children’s Lawyer: | Ms Mandelert |
| Solicitors for the Independent Children’s Lawyer: | Lampe Family Lawyers |
ORDERS
That the father have sole parental responsibility for the children, [V] born [in] 1995, [W] born [in] 1998, [X] born [in] 2000, [Y] born [in] 2001 and [Z] born [in] 2001 (“the children”).
That the children live with the father.
That the mother’s face-to-face spending time and telephone time with the children be reserved.
That the mother be entitled, at her expense, to obtain copies of the school reports of the children, but the mother be prohibited from attending the children’s schools.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Bower & Bower is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 3971 of 2007
| MS BOWER |
Applicant
And
| MR BOWER |
Respondent
REASONS FOR JUDGMENT
Introductory
This very long-running and very sad dispute concerns the best interests of five children aged from 16 ½ down to 11 years of age. The children have lived with their father since 2008 and have all expressed an adamantine opposition to seeing their mother.
The mother seeks, in the ultimate, that the three younger children be the subject of ongoing counselling in an endeavour to enable them to spend unsupervised time with her, albeit that counsel was not able to propose any particular set of orders on the mother’s behalf.
The Independent Children’s Lawyer says that this saga must come to an end and that the mother’s time with the children should be ordered to cease completely.
Very regrettably, it is quite clear that the outcome that is in the best interests of the children is that I should make the orders sought by the Independent Children’s Lawyer and almost completely supported by the father.
Some uncontested facts
The mother, Ms Bower, was born [in] 1970 and the father, Mr Bower, [in] 1971. The parties married [in] 1994 in Melbourne and had five children. [V] was born [in] 1995, [W] was born [in] 1998, [X] (the name is spelt in various ways in the materials) was born [in] 2000 and twins [Y] and [Z] were born [in] 2001.
The parties separated in either November or December 2005 but lived under the same roof, according to the mother, until 21 April 2006.
The father had a stroke in December 2004, and this has affected his subsequent employment as has his childcare responsibilities.
The mother is now in employment but has had extensive periods, self-evidently, during the relationship when she did not work and looked after the children.
The children initially lived with their mother although right from the start, there were difficulties with [V]. In December 2008, following an incident to which I shall return, the children were removed from the mother’s care and have lived with their father ever since.
Proceedings issued in June 2006 were concluded by final orders made by consent before Connolly FM on 10 August 2006. The parties were all legally represented at the time, and the orders required that the children live with their mother and spend time with their father.
The matter has been before the Court on numerous occasions since, with the proceedings which have given rise to this decision commencing as long ago as July 2008. Nonetheless, as counsel for the mother submits, the matter has never been the subject of a disputed hearing, and no formal findings have ever been made. It is clearly necessary for everybody involved in the matter that the Court now arrive at a final determination.
The positions of the parties
Although there is a positive mountain of material on the Court files, in many ways the parties’ positions can be expressed very shortly. It is the mother’s case that the children have been brainwashed by the father and alienated from her. The reluctance of the children to spend time with her, which she acknowledges at least to an extent, stems wholly (she says) from the manipulative behaviour of the father and the children’s fear of his reaction if they were to see her.
The mother asserts that there is nothing wrong with her mental health, that she is a good and loving mother, and that the children should in the ultimate, at the very least, be facilitated through Court orders into resuming a relationship with her, bearing in mind that on any view they have spent virtually no time with her, or certainly no meaningful time with her, since at least 2009.
The mother asserts that the father was violent to her during the relationship, stalks her, and insidiously connives to influence all the independent professionals with whom the family has been involved.
The father, by way of counterpoint, says that the mother is unwell and needs help. He says that he does everything within his power to encourage the children to maintain a relationship with their mother, an outcome he is desirous of achieving. He says that nonetheless, he simply cannot make the children see their mother as they are utterly refusing to do so. He denies any violence by him during the relationship but makes allegations of violence on the part of the mother, both to himself and to the children.
Given the children’s complete refusal to see their mother, he seeks that her time be expunged, and that the children live wholly with him.
It will be necessary to deal with the evidence of the mother and father, but before coming to that, and in an endeavour to give some structure to the decision, it is appropriate to commence by looking at what has been recorded by the independent professional advisors with whom the parties have consulted from time-to-time. It should be noted that only the most recent report writer, Ms I, was required to attend for cross-examination.
It should be noted that I have read the entirety of the two sets of files that are before the Court. I have no intention of referring to each and every affidavit filed but will record those aspects of the evidence that seem to me to be of particular significance in my reasoning.
The report of Ms M prepared on 28 July 2006
The first thing to note about Ms M’s report is that it took place relatively shortly after separation, which occurred on any view only in late 2005, and only shortly after the parties ceased to live under the same roof. It took place at a time when the four youngest children were living with their mother and [V] with her father. [V] (sometimes referred to as [V]) was spending time with her mother each Saturday and after school on Tuesdays and Thursdays.
Ms M noted that a Dr T had taken out an intervention order against the mother until 14 December 2006. It is also noted that the father signed an undertaking of bail on 30 March 2006 in relation to charges which were not entirely clear to Ms M.
Ms M noted that the mother alleged regular assaults by the father on the children after his stroke in 2004, which she said had led to his temper deteriorating. Ms M noted that the mother denied an affair with a Mr F and said that the father was to blame for the intervention order taken out by Dr T.
Ms M noted that the mother asserted that the parties separated from under one roof on 29 March 2006 when the father had become aggressive and accused her of having an affair with Mr F, following which she subsequently moved out. The mother denied ever having hit the children and denied ever having threatened to do so. She said, noteworthily (see paragraph 30 of the report):
“[Ms Bower] says that she is never in a bad temper or a bad mood, she has not yelled at the children or been unreasonable with them saying “I think before I take action”, she has no regrets over any aspects of her parenting. This issue was discussed with Ms Bower in respect to a normal expectation that a parent may at times yell at children or act on occasions in a way they may later feel regretful, [Ms Bower] stated clearly that this is not the case.”
The mother wanted [V] to return to her and said that [V] seemed anxious that if she returned to her, she would not be able to see her father and she wished to reassure [V] that that was not so. The father accepted that he had had a stroke and that it had hit him hard initially but he denied hitting the children with a spoon, admitting that he yelled at the children at times and had smacked them on the bottom. He, however, asserted that the mother disciplined the children by yelling and screaming at them and that he had seen her smack the children many times with a wooden spoon.
The father’s position was that the children loved their mother but that they were also very frightened of her at times, and she was a danger to them because, “[Ms Bower] has good and bad days, she “snaps”
(see paragraph 54 of the report).
It should be noted that [V] was interviewed and at paragraph 62 the following was recorded:
“Her mum yells at all the kids except [X]. She also hits them, but for the last couple of months she has not done so. Her mother has a black plastic spoon in the car to scare them but she has not used it in the car. She has hit them in the home with a wooden spoon. When asked if she had seen this herself, [V] says she has heard it, but was not in the room at the time. She has seen her mum hit the children with her hand. Her mum has never hit her with a spoon but has hit her with her hand on her arms, legs and face.”
[V] wished to stay with her father and did not wish to return to live with her mother.
The other children had things to say but given their youth it is perhaps not necessary to note too much. It is not necessary to deal with their remarks in any detail. In conclusion, Ms M noted that:
“From accounts from both parents they each appear to have contributed significantly to the children’s care during the marriage; to have had adequate parental capacity to provide for their practical needs and to manage their day to day care.
The five children have an established relationship with each parent; they give indication of a significant affection for their father; the two eldest children [V] and [W] have expressed a clear view that they would like to live with their father; the three youngest children would like to see more of him; they are happy and content in the care of their mother.”
Ms M assessed the children as having a strong sibling connection and that separation of the siblings, as assessed, had not been in their best interests. In the ultimate, and noting concerns about both parents to an extent, Ms M recommended “a more or less equal shared care arrangement or week about”.
Family report dated 17 October 2008 prepared by Ms R
Even at this stage of this long-running saga many of the salient features of the litigation were apparent to Ms R. Having recorded the parties’ positions, Ms R noted the mutual blame and mutual allegations made by each of the parents. Each accused the other of abusing the children and even by this stage, assertions as to the mother’s then partner disciplining the children were extant.
It is noteworthy that although the children had remained in the primary care of the mother, apart from six weeks between June and August 2006 when Mr Bower was the primary carer for [V] (see paragraph 19), it was apparent that [V] wished to live with her father and sent a document to Ms R outlining “her difficulties with living with her mother and Ms Bower’s boyfriend specifically, verbal abuse and the degradation of Mr Bower.” Further, [V] wrote that Ms Bower threatened the children with being relocated to a foster home if they discussed the home environment with the writer”. [W] and [X] both expressed a desire to live with their father although in [W]’s case, Ms R thought it might be because the father’s style was more “soft”.
[Y] and [Z] “talked of the difficulties they had with Ms Bower’s boyfriend and they were able to describe times of discontent with his physical discipline”.
Ms R was to an extent critical of each parent (see paragraphs 42-43) and went on to say:
“Both parties appear to have little insight into the impact of their behaviour upon the behaviour of the children. For example;: they appear to blindlessly accept information provided by children with respect to the other party without consideration that there may be some element of positional bargaining in what the children choose to report.
Neither party has effectively disengaged from the relationship. Whilst they appear to genuinely want to establish living and contact arrangements for the best interests of the children, they appear prevented from doing so by singularly focusing on issues of dispute between them. It would appear equal contribution to the ongoing dispute by both parties with neither party being able to disengage from the argument or focus on the needs of the children.”
At paragraph 47 Ms R continued:
“It is the opinion of the writer that the ongoing conflict between Mr and Ms Bower constitutes the greatest threat to their children’s care, welfare and development. The research evidence is clear that this persistent conflict poses more risk to the children than the adequacy of either parent’s parenting style or the appropriateness from time-to-time of either’s behaviour. In both instances the parties appear to have difficulties with identifying and behaving within the children’s best interests by labouring the injustice that each perceives of the other.”
Ms R noted at paragraph 51 that:
“With respect to the risk of physical abuse of the children by either party, there would appear no substantive evidence to suggest that the children are at risk of physical harm when in the care of either party. With respect to the issue of psychiatric assessment by the party, there does not appear to be any substantive evidence to necessitate further psychiatric assessment.”
Family assessment review report dated 10 March 2009 prepared by Ms R
Once again, it is not necessary to traverse this report in intimate detail. It is sufficient perhaps to record that at paragraph 7, Ms R said, in my view correctly:
“Briefly, each party claims the other has demonstrated poor parenting skills, difficulty in meeting the children’s needs socially, medically and developmentally, and displayed aggressive and/or inappropriate discipline of the children.”
By this stage, the children had been living with the father since December 2008.
I note that at paragraph 18, the mother is reported to state that she was supported by her current partner, Mr S, in her quest to parent the children. Relevantly, for the reasons that will become apparent, the report writer said:
“She explained that the incident with [W] was not accurate, but was typical of Mr Bower’s over concern regarding the children’s “normal” scrapes and bruises. Ms Bower reported that on the night of the incident, [W] refused to go to bed, and in line with strategies developed with his paediatrician, Ms Bower and Mr S lifted him, placing him in his bedroom. Ms Bower reported that once in his bedroom, [W] continued to have a tantrum, and she filmed his behaviour to support her claims regarding his behaviour. It is evident from Ms Bower’s behaviour that she remains focused on irrelevant details about Mr Bower’s behaviour.”
The report went on at paragraph 19 to say:
“Ms Bower reported that she understands why [V] and [W] prefer to live with Mr Bower, explaining that he does not enforce rules and routines on them, to assist in their development. Based on her self report she continues to undermine Mr Bower’s parenting.”
Ms R noted at paragraph 22 of her report that [V] did not want any contact with her mother:
“... stating that when she was living with her mother, Ms Bower would often yell at her when Ms Bower was angry rather than when [V] deserved it.”
In considering [W] (misspelt as [W]), Ms R noted that he did not want contact with his mother, saying that he was scared of her and believed she might hurt him again.
[X] was recorded as being uncomfortable and reticent talking about her mother. [Y] was reported as not wanting any contact with his mother, but Ms R thought he had been coached (see paragraph 37 of the report).
[Z] effectively had nothing to say.
At paragraph 44 of her report, Ms R stated:
“Both parties continue to have little insight into the impact of their behaviour upon the children. They continue to appear to blindly accept information provided by the children, with respect to the other party, without consideration that there may be some element of positional bargaining in what the children choose to report.”
At paragraph 46, Ms R said:
“Neither party has effectively disengaged from the relationship. While they appear to genuinely want to establish living and contact arrangements that are in the best interests of the children, they are prevented from doing so by singularly focusing on issues of dispute between them. It would appear equal contribution to the ongoing dispute by both parties, with neither party being able to disengage from the argument or focus on the needs of the children.”
Ms R went on to recommend that the children continue to live with the father, as they were then doing, noting that the living situation was not ideal.
Department of Human Services (“DHS”) report 3 February 2009
The children were taken out of the mother’s care following DHS intervention in December 2008. A notice of risk of child abuse was also filed. A DHS report is on the Court file and states, relevantly, as follows:
“The Department of Human Services has since completed their investigations in relation to these children. The outcome of these investigations is that the Department has made a decision to substantiate the children having been at risk of physical and emotional harm whilst in the care of Ms Bower and her partner. This decision being based upon the reported concerns, interviews with Ms Bower and her partner, Mr Bower and the children as well as other professionals.
The children have disclosed that they do not feel safe in the care of Ms Bower or her partner as a result of long term physical discipline/abuse being used upon them by Ms Bower and her partner. As such, the Department is at this time recommending that the children’s contact with Ms Bower be supervised and that the children remain in the care of Mr Bower.”
It should be noted that in May 2009 the Department ceased their involvement in the case. The mother has indeed put the DHS material to this effect as an exhibit to one of her affidavits. Nothing, however, in that material suggests that the earlier finding by DHS has been countermanded.
Report by Ms F of Home Access Network Pty Ltd 26 March 2009
Ms F provided a report following various visits in February and March 2009. It is noteworthy that on 17 February 2009:
“[V] stated she did not want to go. Father did say she has to. She again repeated she did not want to go. The 4 younger siblings got ready and introduced and ready to leave.”
The time at the home went well with no inappropriate incidents and
Ms F noted that:
“All four children on access were very comfortable around Mum, relaxed, smiling, laughing + hugging ... Mum demonstrated automatically knowing what children wanted + needed + very attentive to children as well as questioning or negotiating as appropriate. Mum and children speak open and honestly with each other without hesitation, Mum also involves self (with child’s consent) in toys or games.”
A further report, number 2, of a visit on 19 February 2009 was less successful, and [W] also refused to go but the others went and time went well.
On 21 February 2009, the children were far more ambivalent but the three youngest children went to see their mother. Once again, the visit went well. By 24 February 2009, none of the children would visit and on 28 February 2009, [W], [Z] and [Y] agreed to visit their mother. [X] told the access worker in an upset voice, “No, not going, because you tease me after” as [V] said “I do not.” The visit appeared to go reasonably well.
By 5 March 2009, the children did not want to go at all, and none of them did. Thereafter, the various occasions intended for visits did not occur.
Report by Ms K dated 15 January 2010
As Ms K accurately reported:
“In summary, the parents continue to have ongoing unresolved conflict and tension between them.”
Perhaps unsurprisingly, it was the mother’s position that the children had been turned against her, and I note that the father said that the mother had psychiatric difficulties. [V] expressed a fear of her mother, and [W] disclosed the violent incident he encountered on 5 December 2008 which led to his being removed from the mother’s care. [W] said that “He believes his mother has lied to him and to the court.”
I note that at paragraph 36 of Ms K’s report, she asserts that, relevantly, [W]:
“Reported that when with his mother, she had hit another female parent, resulting in negative consequences for the child.”
[X] told Ms K that she feared her mother, and that [Z] and [Y] did not want to spend time with the mother. The report recommended a psychiatric examination of the mother and a slow reintroduction with no immediate time with the mother for three to six months. At paragraph 66 of her report, Ms K said:
“However, what is essential before the children can begin to have a positive relationship with their mother is for Ms Bower to acknowledge her role and behaviour with [W] in particular but with the other children as well. She needs to take responsibility for her actions, apologise and reassure the children about her behaviour for the future. Until and unless she is able to directly and firmly acknowledge her actions, show remorse and reassure the children of their safety, the children will not engage positively with her. The children have to believe that she is sorry and then they may be able to move forward.”
The reports of Dr D sworn 9 March 2011
Parties were sent for psychiatric examination by Dr D, who produced a report on each of them.
Dr D noted at page 2 of his report about the father that:
“Mr Bower presented a friendly and engaging man. He appeared to be candid and forthcoming. He provided a reasonably detailed and flowing narrative. He did not present with any features suggestive of mental disorder. He spoke freely and eloquently. His affect was normal and reactive. His thoughts were communicated normally. The most prominent theme was mistrust in the relationship with Ms Bower. He highlighted that Ms Bower was unwilling to ever be challenged or questioned about her misgivings. He conceded that she had in part been a good mother, but due to significant mood changes, could alter in her parental functioning. He wondered if she lived a double life, with infidelity being a core component. He advised that he had endeavoured to encourage a relationship being maintained between the children and their mother, but for reasons unexplained, she had not cooperated with court recommendations.”
At page 3 of the report, Dr D recorded:
“Mr Bower said he had a stroke in 2004. After developing blurred vision, dizziness and headaches, he requested that
Ms Bower call an ambulance. He recalled her swearing and argument developing. He said they rarely fought.”At page 6, Dr D recorded:
“Mr Bower is a 39 year old man who presented well on mental state. He did not present with features on mental state or personal history consistent with a mental disorder.”
The report about the mother was less favourable. At page 2 of the report, Dr D recorded:
“Ms Bower presented as a woman dressed in neat black clothes. She proved difficult to comprehensively assess in a single psychiatric interview. She appeared to engage in a superficial manner. She provided a narrative that lacked detail and consistency. There was evidence of marked discrepancies in content. She painted the impression that she was an unblemished character, falsely accused of various wrong-doings. She steadfastly refused to highlight any examples of her life experience that may have given the impression that she was imperfect. She extraordinarily claimed she had never raised her voice with any of the children on any occasion. She appeared to be inflexible in thought, and unwilling to fairly and impartially reflect upon her life. The overall impression was that Ms Bower was an unreliable interviewee. She did not impress as obviously mentally disordered, yet she was so guarded and avoidant in discussing matters that it was difficult to interpret aspects of her thought content. She referred to fixed beliefs that Mr Bower had engaged in various affairs and falsely accused her of the same. There was a subtle paranoid flavour to Ms Bower’s thoughts. She did not present with clear features of delusional thinking, although it was difficult to eliminate this possibility given the lack of confirmatory evidence to substantiate the various parties’ claims. Ms Bower was so concrete that she was unwilling to be drawn into discussion focusing on aspects of her thoughts. She was generally critical and dismissive of past professional opinions. She dismissed the family reports as being inaccurate as she believed the children had been coached into saying what Mr Bower instructed them. Despite highlighting her distress in being separated from the children, and issues relating to this separation being raised throughout the assessment, Ms Bower’s affect remained unchanged. There was a notable incongruency between her reported upset and the emotions she communicated. Ms Bower appeared to lack any insight into her apparent personality style and concrete thought form.”
At page 6 of his report, Dr D stated under the heading Opinion and Recommendations:
“Ms Bower is a 40 year old woman who impressed as being unreliable and inconsistent. She was quite guarded and avoidant in manner. She was unwilling to be drawn into open discussion in certain key areas. She globally dismissed all allegations that may highlight potential flaws in her character. She extraordinarily claimed that she had never raised her voice with her children. To suggest this would seem to be patently absurd, but even more unbelievable given the plethora of allegations suggesting difficulties between herself and the children.
Ms Bower was completely dismissive of past family assessment. She suggested that the children had all been coached to provide a false impression to the assessor, because they were terrified of Mr Bower. To suggest that all of the data accumulated by the multiple reports to be completely inaccurate provides an insight into Ms Bower’s concrete and narrow thought processing style. Even when presented with irrefutable evidence, Ms Bower was unwilling to concede defeat. She did not volunteer that there had even been problems in the workplace. When confronted with information obtained in the subpoenaed documents from the Eye and Ear hospital, she quickly attributed all issues to
Mr Bower’s behaviour. There is a body of material that highlights a range of concerns from various staff about
Ms Bower’s conduct that has nothing to do with Mr Bower.”On the same page, Dr D continued:
Without Ms B admitting to any of the allegations, it is very difficult to characterise her personality structure. Based on the limited information provided, it would be reasonable to speculate that she has a form of personality psychopathology. The different elements to her personality profile are difficult to ascertain while she remains guarded and insightless. There is a prominent paranoid flavour, but there is a lack of evidence to confirm a paranoid illness.
Page 7, Dr D went on to say:
“There are clearly many areas of Ms Bower’s presentation and history that raises concern about her parenting capacity. It is encouraging that the observations made in the home access report include positive and appropriate interactions between
Ms Bower and the children. There are also negative elements highlighting the children’s avoidance of Ms Bower. Until such time that elements of her history can be explored in more detail, I would be loathe recommending unsupervised contact with the children.”
The affidavit of Ms F dated 24 April 2012 relating to a Home Access visit on 11 April 2011
Ms F has deposed to a visit that took place on 11 April 2011, the subject of contact supervision notes dated 14 April 2011. This was a visit between [X] and the two brothers at which the father was present.
It suffices to say that this was a disastrous occasion, with the mother becoming deeply distressed when she found that the father was present, (the father’s reasons appear to me to be unobjectionable). It should be noted that Ms F was not required for cross-examination. Relevantly, the following took place:
“Ms Bower said “Right” and walked straight over to the table. I followed and then Ms Bower leaned over the table and began speaking to the children, her voice was raised. She said “I want you to understand one thing. Do you realise, you are letting your father rule you and control you and that these decisions to let him do that are for life. How dare you, how dare you do this to me and not let me, your mother, see you, her children. I never stopped you seeing your Dad. I love you but this what you are doing is unacceptable behaviour. These decisions are going to affect you for the rest of your lives.” Ms Bower’s face was red, and her voice was very loud. I calmly said, “Ms Bower, you need to lower your voice and stop yelling at the children.”
Ms Bower stormed out.”The visit thus came to an end.
The affidavit of Ms H filed 27 July 2011
Ms H is a person who specialises in access and counselling services. She provided a report relating to a visit arranged for 30 April 2011. Her report suggests that:
a) The father told her that the mother was not present when he in fact knew that she was.
b) The father made no endeavour to encourage the children to see their mother and he let them get back in his car to avoid doing so.
The report says, relevantly:
“The father is very obviously influencing his three children into not visiting with their mother and has lied to me about her not being there on the first visit. At no stage has he ever encouraged contact between his three younger children and their mother.
The mother desperately wants contact with her children, but due to the father’s attitude I believe this will be very hard to achieve unless the court makes some strong alternative arrangements.
It would also be extremely important for both parties to attend post-separation counselling and a psychiatric assessment of both parents, as it is always in the child’s interest to have contact with both parents unless there are severe mitigating circumstances.”
The report of Ms I filed under affidavit 24 April 2012
The report of Ms I necessarily traverses a lot of the matters already set out in the other reports. I note, amongst other relevant considerations, the following.
At paragraph 13, Ms I recorded:
“According to Mr Bower, he and Ms Bower “began to have lots of fighting in around 2005”.”
At paragraph 18, Ms I recorded:
“Ms Bower appeared to be very stressed and defended and, although she was very articulate, her manner came across as hostile and intense. She resisted discussing her life, giving only the briefest of answers to any efforts to explore her past.”
Ms I noted that it was Ms Bower’s position that the children had been brainwashed to not want to see her, but also noted that the views of the children were clear. They did not wish to see their mother, save with significant qualification.
At paragraph 43, in dealing with [Z], the following was said:
“[Z] was asked if he thought his father wanted him to spend time with his mother and he replied, “Yeah, I think he does - he always says ‘She’s your mum’”. Asked what do you think that means, [Z] said, “I don’t know - maybe he’s supposed to say that because of the court””
At paragraph 53, the report records:
“[V] explained that the last time she saw her mother was last Christmas (Christmas 2010). She said, “We had to see her
(Ms Bower) at a contact centre, and it was awful ... she gave the kids old toys from her house and they were broken, and some of them had pieces missing ... it wasn’t good - it was upsetting.””At paragraph 59 to 60, Ms I recorded interaction between the children and their mother – the following was recorded:
“Ms Bower began by asking the children if they had had a good Christmas, but they were not very responsive - only nodding or mumbling “yes”. After a pause, Ms Bower told the children that she didn’t remember doing anything to hurt them, adding, “But if you think I did, I’m sorry, but when Grandpa died, I was really sad that I didn’t get a chance to spend time with him.” She began to cry as she said this but continued to speak as she sobbed. She said, “I don’t want you kids to go through life not having time with your mother, alright. So I want to try to make a life with you children and be a part of your life because I miss Grandpa every day, every day there was so much I wanted to say; I wanted to go there every day and tell him I loved him. I don’t want you kids to feel like that; I should have spent more time with my dad. I don’t want you kids to miss out on your mother – it’s been three years, three years.”
The writer tried, at first, non-verbally to direct the mother away from this course of speech, however, Ms Bower was understandably very distressed and continued to cry and tell the children that she was sorry “but no mums or dads are perfect ... when we make mistakes, we try not to make them again”. The children were becoming visibly uncomfortable and the mother was asked if she would like to leave the room in order to compose herself which she indicated wasn’t necessary.”
The interview continued to go badly and involved significant distress to [X]. At paragraph 68, Ms I recorded:
“[V], [Z] and [Y] were silent and all appeared to the writer to have expressions of anger on their faces. The writer checked this out by asking them if they were annoyed and all indicated “Yes”. Ms Bower was asked if she understood why they might be annoyed and answered, “No.” It was suggested that repeated mention of her dead parent had upset [X] and the others might be responding to that. Ms Bower tried to understand the situation but wasn’t able to shift her focus from the topic and referred back to details from that time.”
In essence, Ms I was of the view that:
“While no doubt the children’s emotions towards Ms Bower are ambivalent at some level, it is clear that they are distrusting of her and feel unsafe in her care. Consequently, compelling them to spend time with the mother is not in their best interest. In fact, to do so at this time is likely to cause them distress and further emotionally alienate them from their mother.
Therefore, I recommend that the mother’s time with the children be reserved. It is hoped that as the children mature and become more confident and secure, they may come to understand their mother better and be more inclined to engage with her. Towards this end, it is suggested that Ms Bower remain in touch with her children via birthday cards, letters, emails and the like. However, at this point phone contact is not recommended.”
It should be noted that this recommendation was made in circumstances where, as Ms I recorded at paragraph 79 of her report:
“It would seem from this recent correspondence from Ms Bower to [Z] that she has taken in the children’s wish not to spend time with her and has in some way resigned herself to this.”
The report also stated in the same paragraph:
“It is the opinion of the writer that the estrangement between [Z], [Y] and [X] and their mother is irrevocable for the foreseeable future and that any further attempts at reconciliation would be both futile and unnecessarily disturbing to the children.”
The witnesses
The parties have put on, as I have already said, enormous amounts of affidavit material. The mother and the father both adopted their affidavits as true and correct. I do not propose to traverse all of the things they have said about one another, many of which are repetitive in the sense that affidavits recapitulated earlier affidavit material. It is fair to say that each accuses the other of mental ill health, violence towards each other and the children, and asserts, on the father’s part, that the mother monstrously creates fictions about his conduct, and on the part of the mother, likewise, but to the other effect. The mother gave evidence first. Her demeanour, understandably enough in the scheme of the case, presented as stressed and at times somewhat agitated. She was not inhibited in her conduct, taking time out, so to speak, to make criticism of a person sitting next to the father in Court, whom I infer was either a family member or a partner.
It was the mother’s position that the family report by Ms I was incorrect. She asserted that Ms I was biased from the start. She did, however, concede that the description of the father as “that ugly thing” (see Ms I’s report at paragraph 19) was something that she probably said and reflected her attitude towards him. She maintained, however, that she would never say such a thing to her children.
The mother also suggested that the husband had forged her writing, and it would appear that this was her explanation for a second card alleged to have been sent to [X] (see Ms I’s report at paragraph 77).
She did not accept the validity of Dr D’s analysis of her and said that Dr D had been got at through third party acquaintances of the father. She also repeated her assertion that the father was stalking her and said that she was unable to say anything positive at all about him. She did not accept that the children did not wish to see her and roundly continued to attribute the alienation of the children, to the extent it pertained, to the father.
In re-examination, she asserted that the report writers in each and every instance had been over-influenced and improperly influenced by the fact that they saw the father before they saw her and that this had lead to the misunderstandings and inaccuracies in their reports.
The father, by way of contrast, attacked the report of Ms H and said it was not true. He was prepared for the mother to obtain copies of school reports and unlike the mother, he said that there were lots of positives about the mother. She was capable of being a great mum at times.
It would appear from the evidence given by the father that while the domestic arrangements at his home are extremely crowded they are, in a general way, unexceptional. It seems clear to me on his evidence that his parenting skills are more than adequate for the task. It should be noted that while the overcrowding in the father’s home is undesirable, the fact is that not everybody is sufficiently wealthy to have optimal accommodation, and the father’s accommodation appears to be as good as it can be hoped to be.
Ms I was the only other witness called. She elaborated upon some matters in her report. She confirmed that the mother had been difficult and rude and that she found the mother’s lack of insight striking. She confirmed that the father thought the mother needed help but that the mother was highly critical of the father. It was her view that the children did not think that their father did not want them to see the mother.
Findings about the witnesses
It is sufficient for these purposes to say that I found Ms I a thoroughly credible witness. Despite at least inferential implications of partiality made by the mother, I saw no reason to accept that she was in any way partisan or biased. Her evidence was given within her professional field of competence, and she was not in any way swayed by cross-examination. I accept that she was a witness of truth, and I would further say that the conclusions at which she arrived were well open to her upon what she heard.
Dealing with the evidence of the father and mother we come in a sense to the crux of the problem. Neither was a wholly satisfactory witness.
I have already dealt with the mother’s stressed and perhaps overactive demeanour. The father by way of contrast was at times, it seemed to me, bordering on the smug.
Having seen and heard the witnesses give their evidence, and bearing in mind the objective evidence that I have set out at some length, I have no doubt that the following is what took place.
There is no question in my mind that the father committed an act of violence upon the mother at or about the time of separation because he discovered that the mother was having an affair. The mother’s denials of the affair are utterly unconvincing, albeit it that they were not explored in any detail. Nevertheless, even if the father was wrong to assume that the mother had had an affair, there is no doubt that he thought she did. He obviously committed an act of violence upon her at that time. The fact is that he is still thinking about this, and it resonates throughout the materials described to the various family reporters and in particular to the first one, Ms M.
Nonetheless, and notwithstanding this, from a very early stage the eldest child, [V], did not wish to live with the mother. She said and has continued to say that she was and has been scared of the mother ever since. She was only ten when all this started and she is still saying it. I have no doubt that, contrary to her denials, the mother must have yelled at the children. Her untruthfulness and lack of insight in this regard only confirms what the children have said, namely that the mother did commit acts of violence upon them by way of discipline from time-to-time.
Accordingly the children’s fear, expressed from time-to-time, springs from a well-spring of the mother’s own conduct.
Nonetheless, I do not accept the father’s assertion that he has tried and tried and tried without reservation to make the children spend time with their mother. I have no reason to doubt his word, and more particularly that of the children, that he routinely tells them they ought to go to see her. Equally, I have no doubt that whether consciously or otherwise, he has inculcated an environment in which the children’s fear of their mother is reinforced. I note the response of [Z] that the father might be saying things because the Court required him to do so.
Putting the matter shortly, because I think it can be put shortly, I think that the origin of the children’s lack of desire to spend time with their mother is the conduct of the mother, exacerbated by the father’s tacit disapproval.
I have little doubt that the change from 2009 when the younger children were prepared to see their mother, to rapidly thereafter when they were not, may have fed upon the insecurities of the elder siblings. Nonetheless, the evidence does not go far enough to suggest for an instant that the mother’s assertions that the children have been actively brainwashed by the father are made out. I roundly reject any such suggestion.
The fact is that a number of disinterested professionals have found the mother to lack insight and I have no doubt that that is the case. Everything she said in her evidence only suggested that she was unable to imagine that her children might genuinely not want to see her for reasons which to them seem valid.
Counsel for the mother said that this dispute had never been tried, and it was to be inferred from her submission that it was time that it was. I agree.
In order that it can be abundantly clear to the parties, I confirm that the mother has hit and yelled at the children when they were young in such a fashion as to give rise, particularly in [V] and [W], to a lack of desire to see her. This lack of desire has been consciously or unconsciously exacerbated but not actively inculcated by the father. This has led the younger children to adopt the position of their elder siblings.
There is no possible doubt that the children do not wish to see their mother at the present time, and there can be no doubt in the face of all the materials that any endeavours to make them do so will be distressing to them.
The legislative pathway
At this point, it is appropriate to turn to the legislative pathway as indicated by the Full Court of the Family Court in Goode v Goode [2006] FamCA 1346 at paragraph [65].
Section 61DA of the Family Law Act 1975 (“the Act”) provides that the presumption of equal shared parental responsibility is to be applied unless there are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence.
In the circumstances of this case, it is immediately apparent that there has been abuse of the children and family violence. In fact, it is clear that there has been family violence by both parents, because the father admits smacking the children, and I have no doubt that the mother has assaulted them also.
It is also appropriate to note that in any event, the presumption would be rebutted by evidence in this case that would satisfy me that it would not be in the best interests of the child for there to be an order for equal shared parental responsibility. The mother’s complete lack of insight unfortunately makes such a conclusion inevitable.
It is appropriate in the scheme of things, therefore, that there be an order for the father to have sole parental responsibility.
As the Full Court noted in Goode v Goode at paragraph [65(10):
“When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents.”
The Court went on to note at paragraph [65](11):
“The child’s best interests remain the overriding consideration.”
The submissions of the parties
The Independent Children’s Lawyer who made submissions first, submitted, putting the matter shortly, that the matter must end now. Counsel submitted that the mother showed a complete lack of insight about the children and their problems and that she blamed everyone else. She submitted that the mother was suspicious of anybody who was in any way antithetical to her, and she had nothing positive to say about the father. She had in fact told Ms I that she should not have picked the father up off the floor when he had his stroke. It was submitted that she would say this to the children. It was noted that the mother submitted that Ms F was wrong in her account of events, but Ms F was not required for cross-examination. Counsel submitted that time spent with the mother was a disaster and that the children were doing well with the father. It was noted that the mother conceded that [V] and [W] had moved on and as I say, it was submitted that matters must end now. It was submitted by counsel that letters and cards were inappropriate because they might have inappropriate content and would then put the children under pressure.
Counsel for the father made similar submissions to the Independent Children’s Lawyer, noting that it was conceded that school reports should be sent to the mother at her own expense. Counsel sought restrictions on the mother attending school and submitted that the father could see no change to the current situation unless the mother was able to understand that she needed help.
Counsel for the mother pointed out that there had been no time spent with the children for a long time. The children had been taken from her because of the actions of her partner. The loss of the children dominates the mother’s life and she sometimes gets very angry but has never given up her efforts to have time with the children. Reports, it was submitted, show that the mother can interrelate with the children and she wished to reconcile with them, even though they did not wish to do so.
Tellingly, although counsel admitted that the mother had made some mistakes, she was unable to advise any particular set of orders that might meet these circumstances.
Miscellaneous findings about the evidence
I note that as early as 14 July 2006, the father’s affidavit not only records complete denials of the mother’s assertions but records that [V] was actively recording telephone calls with her mother in the father’s presence without any discouragement to do so.
I note the ongoing disputation between the parents as to the various health problems alleged by the mother but denied by the father to be experienced by the children. I note the father’s denial of some medical advice on the footing that medical advice had not heard his side to the story. In this regard, I think both that the mother exaggerates things and that the father unreasonably denies, but I note that the children appear to be in reasonably good health.
I note that the incident in 2008 that led to the removal of the children has been the subject of an affidavit by the mother’s former partner,
Mr S, who, together with the mother, denies all wrongdoing. Even on their version of the events, however, [W] was screaming and yelling abuse and/or thrashing about for a period of well over an hour and a half.
In this regard, the affidavit of the father filed on 4 February 2009 appends exhibit SB1. These are photographs of [W] taken sometime after the incident. It is quite clear that the mother’s suggestion that the father was making overly much of ordinary everyday abrasions is utterly untrue. It is quite clear that Mr S and/or the mother assaulted [W] and that he was injured badly thereby. I do not accept the mother’s denials.
I further note that exhibit SB2, being a letter from the Department of Human Services (“DHS”) dated 16 December 2008, shows that the DHS had no concerns about the children in the father’s care. This contrasts with the DHS report dated 3 February 2009, which shows that the children should not be in the mother’s care.
The considerations in Section 60CC of the Act
Section 60CC of the Act determines what is in a child’s best interests. I will deal with each matter separately.
Section 60CC(3)(a): The views of the children
The children are aged from 16 ½ down to 11 and have expressed the clearest and strongest possible view that they do not wish to see their mother at all. In my view, these views are highly relevant to the outcome of this case and the weight that should be given to them is significant. It should be noted that although in formal terms the mother does not seek orders in respect of [V] and [W], in fact, in her evidence, she made it clear she wished both these elder children to be reconciled with her and to live with her also. This complete lack of insight is disturbing. The children’s views should be given significant weight.
Section 60CC(3)(b): The nature of the children’s relationships with their parents
The children have a warm and loving relationship with their father but very unfortunately appear at the moment not to want anything whatever to do with their mother. The evidence suggests that they have a good relationship with the father’s family (a number of whom live with them) but no relationship at all with the mother’s family.
Section 60CC(3)(c): The willingness and ability of the parents to foment a relationship with the other
The mother cannot say a single good word about the father and plainly would wish to take the children from him and excise him from her life and theirs if she were able. The father says he wishes to promote a relationship with the mother, but I do not believe him. Nonetheless, it must be said in his favour that he at least goes through the show of seeking to promote such a relationship.
Section 60CC(3)(d): The likely effect of any changes in the children’s circumstances
Clearly, any endeavour to make the children see or live with their mother would be disastrous to them in the light of the opinions expressed not only by the children but more particularly by the relevant professionals with whom they have interrelated.
Section 60CC(3)(e): The difficulty and expense of spending time with and communicating with the parent
The reality is that there is no practical impediment to the children spending time with their mother other than the fact that the children themselves deeply desire not to do so.
Section 60CC(3)(f): The capacity of the parents to provide for the needs of the children
Here, as I have already said, the father does have an adequate capacity to care for the children, even though his home circumstances are not ideal. The capacity of the mother to do so is severely impaired by her complete lack of insight into the children, even though I have no doubt that she loves the children very dearly. She has no capacity to provide for their needs, because she has no insight into their personalities and circumstances.
Section 60CC(3)(g): The maturity, sex, lifestyle and background of the children and their parents
As I have already said, the children are now relatively mature. [V] will be of adult age in only about 18 months. Even the youngest are already 11. As I have indicated, their views must be given significant weight, and the fact is that they do not wish to see their mother.
Section 60CC(3)(h)
Is not relevant.
Section 60CC(3)(i): The attitude to the children demonstrated by the children’s parents
The father’s attitude to the children is one of appropriate parenting. Unfortunately, he is very enmeshed with the mother and continues to be deeply concerned about her personality and behaviour to an extent that, in my view, reflects not only an understandable concern about aspects of the mother’s behaviour, which are themselves troubling, but also his ongoing feelings of betrayal at her affair and general conduct in the relationship. The mother’s behaviour, however, is far worse. She simply does not understand that the children do not wish to see her for reasons that she has largely fomented herself. This lack of insight, overwhelmingly made out on the evidence, is of the greatest concern.
Section 60CC(3)(j): Family violence
As I have indicated, there was family violence within the meaning of the Act perpetrated by both parents. This violence was perpetrated by the father on the mother and certainly by both parents, but more particularly the mother, on the children.
Section 60CC(3)(k)
Is not relevant (albeit that there have been orders from time-to-time).
Section 60CC(3)(l): The finality of orders
The orders I make are intended to be final orders.
Conclusion
It will be apparent from the structure of this judgment that in large part the observations of the independent professionals have provided the mainstream of consideration. In my view, given the night versus day nature of the parties’ positions, this is not only proper but inevitable. The overwhelming weight of the independent evidence, which in my view is only wholly supported by the demeanour of the witnesses and the evidence that they have given, shows that the mother simply fails to appreciate in any way the position that exists. Even if she were correct, and the children have indeed been brainwashed by the father (something I make clear is not the case, albeit that he may have contributed to this outcome to an extent for the reasons I have given), the fact is, as the Independent Children’s Lawyer submits, this matter must stop. Any continuation will only be detrimental to the children’s wellbeing.
Although there is an enormous mass of material, in the end the answer in this case is as simple as it will be distressing to the mother. These children do not wish to see her and should not be made to do so.
The father does not oppose the provision of school reports, and I see no reason why this should not occur. However, the mother must not attend the school and must indeed, unfortunately, be excised from the children’s lives for the present.
I accept the submission of the Independent Children’s Lawyer that even the provision of cards and gifts and the like, though not opposed by the father as I understand it, is likely to be detrimental to the children because of the mother’s tendency to abuse such situations.
It gives me no comfort to make a finding of this sort. It will be desperately distressing to the mother, whose mental health is plainly unstable according to Dr D, whose reports I see no reason to doubt. In the end, however, the Court is concerned primarily and ultimately with the best interests of the children, and it is clear that orders should be made in their best interests and as the Independent Children’s Lawyer seeks. There will be orders accordingly.
I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 20 June 2012
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