Caddy and Thomson
[2016] FCCA 1819
•27 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CADDY & THOMSON | [2016] FCCA 1819 |
| Catchwords: FAMILY LAW – Entrenched and embittered parenting dispute – eldest child refusing to see father – father ultimately accepting child’s refusal – whether other two children fearful of father – whether mother genuinely foments relationship with father – ineffectual results of family counselling – conflict between experts – expert report and opinions of Dr N to be preferred – children commence time with the father as soon as practicable – orders made as sought by Independent Children’s Lawyer. |
| Legislation: Family Law Act 1975, ss.60CC, 4AB |
| Goode v Goode [2006] FamCA 1346 |
| Applicant: | MS CADDY |
| Respondent: | MR THOMSON |
| File Number: | MLC 7101 of 2014 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 30 & 31 May 2016 and 1, 2 & 6 June 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 27 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Bowen |
| Solicitors for the Applicant: | Nicholes Family Lawyers |
| Counsel for the Respondent: | Mr O’Connell |
| Solicitors for the Respondent: | Juliana Smith Barrister & Solicitor |
| Counsel for the Independent Children’s Lawyer: | Ms Hamilton |
| Solicitors for the Independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
All previous orders be discharged.
The mother have sole parental responsibility for the children of the relationship, X born (omitted) 2003 (“X”), Y born (omitted) (“Y”) and Z born (omitted) 2008 (“Z”).
The mother will notify the father in writing of decisions made in relation to:
(a)Education
(b)Religion
(c)Major health, including physical and psychological
(d)Travel outside of the Commonwealth of Australia.
The children live with the mother.
The children, Y and Z spend time and communicate with the father as follows:
(a)Commencing Friday, 5 August 2016 and each alternate weekend thereafter, from the conclusion of school, or 3.30 pm if a non-school day until the commencement of school Monday, or 9.00 am if a non-school day; and
(b)Commencing Wednesday, 3 August 2016 and each Wednesday thereafter, from the conclusion of school Wednesday or 3.30 pm if a non-school day until the commencement of school Thursday or 9.00 am if a non-school day; and
(c)For the first half of the school term holidays commencing from the conclusion of the school term until 5.00 pm on the middle Sunday in odd years and for the second half of the school holidays commencing from 5.00 pm on the middle Saturday until the commencement of the new school term; and
(d)For the first half of the long summer holidays in 2016 commencing from 10.00 am on the day after the conclusion of the school year until 5.00 pm on the middle day as agreed or failing agreement until 11 January and each alternate year thereafter;
(e)For the second half of the long summer holidays in 2017 commencing from 5.00 pm on the middle day or failing agreement 5.00 pm on 11 January until 10.00 am on the day before the commencement of the new school year and each alternate year thereafter;
(f)From 12.00 pm on Christmas day until 12.00 pm on Boxing Day 2017 and each alternate year thereafter;
(g)If the children are not otherwise in the father’s care;
(i)On Father’s Day each year from 5.00 pm on the Saturday before until the commencement of school Monday;
(ii)For three hours on the father’s birthday each year;
(iii)For three hours on the children’s birthday each year;
(h)By telephone each Tuesday between 5.30 pm and 6.30 pm with the father to initiate such calls to the mother’s mobile telephone number;
(i)For such further and other times as agreed between the parties in writing.
The time the children spend with the father is suspended as follows:
(a)On Mother’s Day from 5.00 pm the Saturday prior to Mother’s Day until the commencement of school Monday;
(b)For three hours on the mother’s birthday;
(c)For three hours on the children’s birthday;
(d)From 12.00 pm on Christmas day until 12.00 pm Boxing Day 2016 and each alternate year thereafter.
The child X spend time and communicate with the father in accordance with his wishes and the mother shall encourage and facilitate that time and communication.
All changeovers which do not take place at the children’s school take place at the Children’s Park in (omitted) unless otherwise agreed between the parties in writing.
The mother is hereby restrained by injunction from questioning the children about their time with the father.
The mother is hereby restrained by injunction from initiating contact with the children while they are in their father’s care.
The mother is hereby restrained by injunction from taking the children Y and Z to Mr R, save for one concluding appointment, or any other family therapist unless so recommended by Mr V or other such professional upon whom the parties attend pursuant to order 12 herein, for a period of 12 months from the date of these orders.
The parents attend upon Mr V or other such professional nominated by the Independent Children’s Lawyer within 14 days of the date of these orders on a maximum bi-monthly basis for a period of six months from the date of these orders for the purpose of reviewing and promoting and operation of these orders and the parents are at liberty to provide Mr V or other such professional with a copy of these orders, the family reports of Dr N and a copy of the judgment.
The father continues to attend and complete the Post Separation Parenting Program.
That the parents communicate via email in relation to all matters concerning the children unless in case of an emergency.
That each parent notifies the other in the event of any serious illness or injury to the children and the details of any treating health practitioner or hospital as soon as practicable.
That the father is authorised to obtain at his own expense any school photograph order forms, notices, newsletters, reports or any other information which parents usually receive from the children’s school.
That the father is authorised to attend any school concerts, sporting events, parent-teacher interviews, extra-curricular activities or functions ordinarily attended by parents and each party be at liberty to provide a copy of these Orders to the school.
That both parents provide the other with not less than seven (7) days prior written notice and particulars of any change of residence address or telephone number.
That the parties be hereby restrained from denigrating the other parent to, or in the presence of, the children and neither parent shall cause, permit or subject the other to denigration by any other person, including the child X, to or in the presence of the children.
NOTATION
(A)The father’s time pursuant to order 5(a) and 5(b) herein will recommence from the first Friday of the school term.
BY CONSENT
(B)A copy of the Orders and Judgment may be forwarded to Mr R, Dr G, Dr N and Ms L.
IT IS NOTED that publication of this judgment under the pseudonym Caddy & Thomson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7101 of 2014
| MS CADDY |
Applicant
And
| MR THOMSON |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a bitter parenting dispute complicated by the differing views of the various professional advisors who have been involved with the family. Put shortly, it is the mother’s position that the three children with whom we are concerned should see the father as recommended by appropriate treating professionals. In practical terms, this will mean no time with the father for some time. The Independent Children’s Lawyer, largely supported by the father, seeks that the two younger children, Y and Z, spend each alternate weekend and other time with the father, commencing from the date, effectively, of this judgment.
At a larger level of analysis, it is the mother’s case that the children are scared of their father by reason, essentially, of his violence to both them and the mother in the past, and it is the father’s case that the children are not at all scared of him and that their responses to him have been wholly fomented by the mother.
For the reasons that follow, I think that the truth as to the parents’ conduct lies somewhere between their competing positions but it is clear that the orders proposed by the Independent Children’s Lawyer are those in the children’s best interests.
Agreed or uncontroversial matters
Despite all the conflict that this case has produced, a number of matters are either agreed or not the subject of significant disputation. The mother was born on (omitted) 1966 and is an Australian citizen who has always lived in Australia. The father was born on (omitted) 1963 in the (country omitted). He retains dual citizenship, having taken Australian citizenship following his marriage. The parents met in 1998 and commenced co-habitation in (omitted) 1999. According to the family history described by Dr N in her first report, the father had had a relatively itinerant lifestyle before then and his marriage took place relatively rapidly after his arrival in Australia. The father is a (occupation omitted) by profession but has, in fact, worked for some years as a (occupation omitted). He continued to work throughout the relationship. The mother is a qualified (occupation omitted) and has worked in her own (business omitted) since 2002. Their three children, X, born (omitted) 2003, Y, born (omitted) 2006 and Z, born (omitted) 2008, obviously impacted upon the mother’s capacity to work, although she remained in (business omitted) throughout. It seems clear that she was the primary carer throughout the children’s years in the relationship.
The parents’ relationship was characterised by difficulty from an early stage. There was a separation shortly after their marriage because the father did not like living with his mother-in-law. It seems fairly clear that there were threats of separation made from time to time by the father thereafter.
Although each of the parents tends to blame the other, in the ultimate, as will be seen when I traverse the evidence given at court, it is clear that the relationship was volatile. It was marked by spiteful arguments, a number of which clearly took place in the presence of the children. Each parent accuses the other of being the more difficult but it seems clear from the concessions made at court that the father at least would from time to time withdraw from the family, so to speak and simply not speak to the mother for weeks, if not even months on end. Indeed, it seems clear that on occasions she likewise refused to engage. The disengagement between the two primary parties seems additionally to have been marked on occasion by withdrawals from the children on the part of the father and indeed those withdrawals may have much to do with the situation that now obtains.
Following a period of exceptional difficulty (both parties seized upon the word ‘toxic’ to describe the family circumstances in this period) the parties separated under one roof and ultimately finally separated on Mother’s Day 2014.
On any view of the matter, the father’s relationship with X had become strained by the time of final separation and that relationship, regrettably, has become much worse since, to a point where the father now accepts that X should only spend time with him in accordance with X’s wishes.
The case, in large part, has been about the nature of the father’s relationship with Y and Z and what is to be done in the light of it.
The parties’ affidavit material
Both parties prepared trial affidavits, despite the fact that these were not ordered. Given that both counsel expressly or impliedly conceded that the trial affidavits added no new evidence, it is difficult to see quite why, other than force of habit, these expensive documents were prepared. I have had regard to all the material the parties have filed, because cross-examination seemed to me to traverse well and truly back into those areas, but I do not propose to traverse the parties’ affidavits in great detail. The oral evidence took quite a number of days, and it is more appropriate to concentrate upon what the parties said in court and what I make of it. I should, however, make it clear that I had careful regard to the parties’ affidavit material.
The reports of Dr N
Given the way the matter proceeded, it is appropriate to traverse the two reports of Dr N, both filed on affidavit.
The report of Dr N dated 8 December 2014
Dr N noted the competing positions of the parties following separation and the mother’s assertion that the children were frightened of their father and had no significant relation with him. She noted the mother’s assertions as to particular assaults alleged against the father, to which I shall return when I deal with the oral evidence. Dr N further noted the father was seeking a week about arrangement and the fact that she conducted psychometric testing upon the parents.
Dr N noted the family history given by both the mother and the father, and I note that at page 9 of her affidavit, Dr N observed:
“Both parents appeared quite guarded about their background and each gave a pleasant sounding account that did not seem cohesive. At times they each displayed discomfort when challenged about some unlikely aspects. Their accounts had many holes in their timelines and each parent had difficulty describing their relationships with others. In addition Ms Caddy sometimes appeared sensitive to what she took as implied criticism …. Mr Thomson sometimes showed difficulty with understanding the psychological make-up of himself and others.”
Dr N had noted at page 7 of her affidavit that the mother was opposed to the children spending time with the father and was, at that time, living with her own mother but hoping to return to the matrimonial home.
The mother complained that the father would typically choose to separate every six months of their married life but she rarely understood or could identify the precipitants to such behaviour. Page 7 of the affidavit Dr N recorded:
“She asserted that typically Mr Thomson would not talk to her for weeks and that, as she came to see a pattern in his behaviour, she would also withdraw.
Ms Caddy contended that throughout the relationship Mr Thomson held the threat of separation constant.”
The report noted at page 10 of the affidavit:
“Ms Caddy alleged that in 2013 they had another period of separation under the one roof. She alleged the children would typically “withdraw” to her and that Mr Thomson would “remove himself” from the children during these tense periods in their relationship.”
The report noted the mother’s assertion that as a result of these tensions, she had moved into another part of the house and the children’s behaviour intensified, particularly in the case of X, who refused to use his bowels for 10 days and would begin banging his head on the stone wall in the house.
At page 13 of the affidavit, Dr N noted:
“Ms Caddy showed a high level of distress and it was sometimes difficult to understand her account. She frequently gave negative information about what she believed Mr Thomson had done to the children with conviction, but later questioning suggested that she had not observed these interactions herself and the children had only told her about them post separation. This distinction was not easy to make at first blush, when Ms Caddy made allegations about Mr Thomson in a very direct way. For example, she told me, “the children have a tendency to come up with the most … [strong allegations about their father], will be playing tennis and they will say dad used to smack me so hard I had bruises”. As with this example, Ms Caddy frequently used collective nouns with the children (i.e. they will say), suggesting that all three children have similar complaints about their father. She seemed surprised when I asked for direct and specific information about which child had had (sic) given her the information or disclosure. Sometimes, she appeared to consider that her assertions about Mr Thomson should be believed without providing any supporting information.
Dr N recorded the mother’s assertions about the father and it is fair to say that, on a fair reading, she expressed some measure of scepticism about at least some of what the mother told her. The report, however, was by no means one-sided. Dr N had reservations about the father also.
At page 16 of the affidavit, the report records of the father:
“He had a friendly and affable demeanour but was very difficult to interview as he appeared to have a very poor understanding of people. He gave the bare minimum of responses and did not often volunteer information. This did not appear to be related to defensiveness, and he seemed to have poor verbal skills generally.”
Dr N noted also on page 16 of the affidavit:
“Mr Thomson argued that Ms Caddy is spitefully motivated (“she is vicious”) to turn the children against him. He alleged that he has seen many indications of this type of behaviour and gave the example that during an early argument between them Ms Caddy tried to get his citizenship revoked.”
At page 17 of the affidavit, Dr N recorded:
“Mr Thomson said that he had smacked the children on occasion but the last time he could recall was when X was 4 or 5 years old. He contended that the children’s allegations that he had hurt them may have been a distorted version of his rough play with them (“I do I rough them up in play”) or potential comments to them, such as ‘do I have to drag you … [to do a task]’.”
On the same page, Dr N recorded the father’s disclosure that he had been arrested and convicted at the age of 21 after he had glassed someone in a fight at a pub.
Dr N went onto report her interviews with the children. She noted at page 18 of the report that X pretended to cry and stated:
“X’s crying behaviour was very badly done and would not convince any mildly sceptic individual.”
At page 19, Dr N noted that X’s complaints mimicked those of his mother and she also concluded on the same page that Y was being coached by his mother in what to say. At page 20 of the affidavit, Dr N noted that Y had been exposed to adult conversations and his mother’s perspective and noted that what Z was saying was very much the same as her brothers. At page 21 of the affidavit, Dr N noted somewhat theatrical behaviour by the children around the prospect of seeing their father but I note that at pages 22 and 23 of the affidavit that Dr N was of the clear view that while the children were rude, they were not scared of their father. She went onto confirm this at page 24 of her report and said that the children were over-empowered.
At page 27, when considering the psychiatric profiling, Dr N observed:
“This pattern of results suggests that Ms Caddy may be demonstrating a high degree of anxiety around a specific fear and that such behaviours may include avoidance of the feared object or situation. People who score in this way tend to have multiple phobias and pervasive symptoms.
Ms Caddy is also reporting a high degree of subjective stress and is likely to perceive herself as besieged by major and multiple undesirable changes in her life.”
Dr N concluded at page 27 of the affidavit:
“Ms Caddy’s test results were consistent with her account and my impressions of her as someone who might have high levels of anxiety and lack some insight about her functioning.”
Dr N was also concerned that Ms Caddy might have some difficulty in the appropriate expression of anger.
The report on Mr Thomson suggested that his tendency towards aggressiveness was within normal range.
Under the heading Summary and Recommendations on page 29 of the affidavit, Dr N said the following, which is:
“In this dispute, Ms Caddy alleges that the children have a very poor relationship with their father and that Mr Thomson is inclined to verbal and physical violence towards her and the children. She alleges that the children are fearful of their father and that since their separation they have begun to tell her of various incidents where their father has been violent and angry towards them.
Mr Thomson argues that he has a close relationship with the children, and that Ms Caddy is vindictively motivated and seeking to keep them from him.
Assessment of Ms Caddy found a woman who appeared to have some psychological vulnerabilities towards anxiety. She showed much barely suppressed hostility towards Mr Thomson and expressed her belief that the children had little relationship with their father and that Mr Thomson is likely to physically abuse them. While Ms Caddy indicated that she believes the children have suffered physical abuse of their father’s hands and that they are only now able to tell her because they are removed from him, sometimes other hypotheses such as the children’s exposure to their parents’ conflict and Ms Caddy’s disinclination to consider that the children may be exaggerating to please her did not seem to occur to her.
Psychometric testing suggested that Ms Caddy provided a defensive profile and may suffer symptoms of anxiety and feels subjectively stressed.
Assessment of Mr Thomson suggested he is a man who is not very psychologically minded. He was difficult to interview but this did not appear to be a feature of the assessment and context-driven, but rather related to some poor verbal skills. This was also consistent with Ms Caddy’s account of communication difficulties with Mr Thomson. Mr Thomson denied allegations that he has been violent and physically abusive to the children.
Psychometric assessment of Mr Thomson found that he provided results that appeared to suggest he was cooperative to testing and suggested that he feels a level of turmoil in many life domains. There were also some indications that alcohol may have caused problems in his life. However there was no indication that suggested personality tendencies towards aggression.
Assessment of X found an over empowered boy who spoke in a self-assured way about his father. He often used collective terms that seemed most unusual and had difficulty giving examples, however X gave a very vivid portrayal of the tensions in his parents relationship. He appeared to be most aligned with his mother and perceives his father as the source of his mother’s unhappiness. His proud boasts of distressed behaviours suggested that he perceives he will be given some attention or sympathy for them. X spoke of his parents as polar opposites: his mother as perfect, and his father as all bad. X’s portrayal of his parents and descriptions of his problems with his father indicated that he has become triangulated in their disputes, and as often happens with children in this situation felt he had to choose one parent over the other.
Assessment of Y found a very lively boy who was easily distractible. He found it difficult to concentrate but showed an irrepressible, optimistic nature. He also impressed as a very suggestible boy. Like X, he spoke in collective nouns about his father and showed exposure to repeated stories. His behavioural presentation was of overconfidence and surety of adult attention.
Assessment of Z found a young girl who appears to be developing well in many other facets of her life but who is psychologically and emotionally disturbed by the loyalty conflicts facing her from her parents’ conflicts and difficult relationship. Like her brothers she is aligned with her mother and appears to be perceive some reward in rejecting her father.
My observations of the children with their parents suggested that they are encouraged to reject their father. The similarity of the children’s disclosures about their father was obvious and lacked a feeling of authenticity. Although they were prepared to tell their mother they were scared of their father there was nothing in their behaviour that suggested to me any sense of genuine fear. Z’s distress after the observation with her father did not seem to arise from her fear of her father. An explanation that seemed more likely to me was that she was distressed because she is disturbed by her over-empowered behaviour. The children’s behaviour was so overtly insincere it was difficult to envisage that anyone might take their fears seriously. It seems likely that, over time and with more practice, their skills will improve.
On either or both parties’ accounts of their relationship it was a most unhappy one with much conflict, long periods of tension and silence, and many separations. It is my assessment that both parents are rather insightless about how their conflict and tensions in the relationship have been experienced by the children. It is my understanding that the children have been living in a very tense environment in the family home over at least the last 12 months of their relationship and placed in almost daily loyalty conflicts of having to choose between their parents.
At this time the children are firmly aligned with their mother, and Ms Caddy shows a willingness to believe anything negative the children say about their father.
Due to the children’s alignment with their mother, their overtly expressed preferences are compromised. All three children appear to be heavily exposed to their mother’s position and criticisms of their father. They do not have the perspective to make thoughtful and considered decisions about their well-being. It is my opinion that their views should not hold much weight with the Court.
It is my assessment that there are likely to be some problems for the children in their father’s care. Mr Thomson impresses as somewhat insensitive and lacking some empathy and child-centred thinking. He appears to need some support to be able to connect with the children and without assistance his difficulties with the children appear likely to increase and intensify. It is also my assessment that the children’s complaints about their father reflect the differences in parenting style between the parents and the triangulation of the children in their parents’ conflict, particularly around the time of separation and the tension of living together under such circumstances.
At the same time, I do not consider that there any justifiable reasons for the children’s time with their father to be supervised, nor is there an unacceptable risk of physical mistreatment from him.
However, I consider that Ms Caddy’s behaviour with the children is a greater risk factor as her incitement of criticism of their father seems to be the source of their disturbance. She appears to take a particularly uncritical stance towards the children’s allegations and criticisms of their father and in doing so appears to encourage them. Ms Caddy shows little to no appreciation for the children’s relationship with their father and I consider that she will struggle to support it.
The report went on to recommend therapeutic intervention through Ms L and recommended an encouragement and furtherance of the children’s relationship with the father.
The report of Dr N dated 24 May 2016
Dr N commenced by referring to her previous report and the consent orders made on 8 December 2014. She further noted orders made by consent on 19 August 2015 for specific counselling between Mr Thomson and X by Mr R, counsellor and for Mr Thomson and Ms Caddy to attend on Dr G for therapy. Dr N noted, correctly enough, that the children’s time with their father had been problematic since the previous assessment.
Ms Caddy alleged that from 8 December 2014, all three children spent time with their father on day visits until an incident between X and Mr Thomson in May 2015. The mother asserted that X returned from the visit complaining that the father had thrown a tennis ball at him, something the father explained as taking place accidentally. The mother noted a complaint by Y that his father had thrown him through a doorway, causing an injury to his shoulder and an incident alleged in September 2015, when the father hurt and bruised Z by throwing her over his shoulder. Dr N noted continuing interaction with various external treaters. The mother had been returned to the former matrimonial home in January 2015 and the father had re-partnered.
At page 9 of the affidavit, Dr N observed:
“Ms Caddy presented as intensely angry. She was civil to me but conveyed indignation about my previous report. She was guarded at the start of the assessment but relaxed somewhat over it. At times during my interview of her, she showed intense anger towards Mr Thomson particularly when speaking of the family home and his alleged poor renovations of it. At this assessment she cried less frequently than observed at the last assessment but there was no apparent amelioration of her negative feelings towards Mr Thomson.
Ms Caddy took the position at this assessment that she has consistently tried to support the children’s arrangements for seeing their father and gave arguments to suggest that she perceived Mr Thomson as entirely responsible for their lack of success. Ms Caddy made frequent references to her alleged support and facilitation of the visits. She emphasised that she had hosted her former mother-in-law when she visited from (country omitted) to allow her to see the children.”
The report noted that time had ultimately ceased in September 2015.
I note that at page 11 of the affidavit, Dr N observed:
“I noted that Ms Caddy alleged that Ms L remained confused about how to proceed and had also recommended that both parents attend on a psychologist for treatment. Ms Caddy had subsequently seen Dr G, citing that she had 35 hours of sessions since that time and had found the treatment to be “amazing”. When asked about why she felt so positive about the therapy, she alleged that it had a profound effect on her capacity to understand her relationship with Mr Thomson. Specifically, Ms Caddy reported that she had felt the therapy had put Mr Thomson’s behaviour into perspective (“I understand what he does and now understand why he does it”) which suggested she has been satisfied to focus on the perceived flaws in Mr Thomson.”
The report noted that all three children are now seeing Mr R and that X’s time had ceased in July 2015 on the recommendation of Ms L.
Having traversed her interviews with the father, Dr N went onto record her interview with X. At page 15 of the affidavit, Dr N concluded:
“Assessment of X found a boy who has many defences. He speaks in an overtly confident and over-empowered way that slips at times to suggest that he lacks a sense of security associated with parentification and been forced into a position that he is not able to deal with. The future for this young man does not look promising and he is at risk of significant psychological and emotional problems in the future. Unfortunately, X and Ms Caddy are likely to attribute any psychological problems to Mr Thomson without understanding that it is the relationship between them that perpetuates this problem. This is not to say that there are not problems in X’s relationship with his father only that there appears to be no genuine attempts to deal with them in a sensible way.
Dr N went on to record her interviews with Y and Z. At page 15, Dr N said of Y:
“When I told him that he would be seeing his father that day he gave me another staged look of shock that was laughable. Again, I could not believe that anyone could accept these melodramatic displays as genuine and even with practice in the interim his skills have clearly not improved.”
At page 17 of the affidavit, Dr N concluded:
“Assessment of Y found a confused boy who appears to have learned to focus on anything critical that he can remember about his father, and he described incidents in which he was insolent and disobedient but attributed any reaction from his father as unnecessarily harsh.”
In her description of her interview with Z, Dr N noted at page 17 of the affidavit that:
“I asked Z why she did not see her father and rather surprisingly she said with a pause, “um I’m not sure.” There was an obvious disconnect between the two sets of statements and it appeared that Z had been primed to suggest that she does not like her father because he used to smack her but did not understand the connection with not seeing him. Her words and behaviour strongly suggested exposure to negative comments about her father.”
Dr N went on to record her observations of the two younger children with their father, and I note that at pages 20 and 21 of the affidavit, Dr N was clear that the children were not scared of him. I note further that once the father told X he was not going to seek to spend time with him, X completely changed became sensible and quietly confident and indeed, at the end, he thanked his father in a mature way. Dr N concluded at page 21 of the affidavit:
“In this dispute, Ms Caddy initially made allegations that she believes the children are very frightened of their father and said they began making disclosures to her after her physical separation from Mr Thomson. In my first assessment she was adamant the children had made genuine disclosures to her about their father being unreasonably angry with them and physically hurting them, and claimed that they are very scared of him. She told me at that time that she believed the children had been too scared to make these disclosures beforehand and prior to their physical separation. Ms Caddy’s presentation at that time was unusual, and there were various anomalies in her account.
At this assessment, Ms Caddy continues to assert that the children make disclosures about their father being physically abusive towards them and she believes they are at physical risk in their father’s care. She did not consider that the children should be made to see their father at the first assessment, and at this assessment made further statements to say that she was in a dilemma and wants the children to be “mentally stable”.
Assessment of Ms Caddy indicated that she continues to feel very intense and angry towards Mr Thomson. These feelings do not appear to have subsided. She considers that she has not contributed in any way to the children’s alleged feelings for their father and argues that the problems they have with him are caused by Mr Thomson’s behaviour towards them and insensitivity to their feelings. Ms Caddy again impressed as insightless about how her feelings towards Mr Thomson are likely to be a powerful influence over the children.
Ultimately, it was difficult to reread the children’s behaviour towards their father at the last assessment and not question why Ms Caddy would not be horrified by their behaviour and adjust her parenting accordingly.
Mr Thomson had a somewhat unusual presentation at the first assessment and he sometimes had difficulty making himself clear. At this assessment there was an improvement in his presentation and he was calmer and more direct. It appears as if some of the stress noted in psychometric testing around the parental separation may have been contributing to his presentation at that time. Now, Mr Thomson provided a more coherent and focused account.
Dr N went on at page 22 of her affidavit to say:
“All three children still speak in a stilted and unnatural way about their feelings for their father. There is an overuse of collective pronouns as if they have a shared understanding of their father which is not in accord with the way the children speak when they have a genuine grievance or negative experiences with someone. There is very much a feeling of the children being emotionally rewarded for any negative assertions about their father and it appears as if they have learned to interpret any negative events as entirely their father’s responsibility.
Concerningly all three children show an inclination to ignore responsibility for their own behaviour and they are primed, like Ms Caddy, to attribute all problems to Mr Thomson. The future for these children does not look promising in terms of their psychological growth and development. They are encouraged to be disrespectful of parental authority and hone on any potential flaws in their father. These issues are likely to generalise to other domains and it is not hard to extrapolate them to the children beginning to flout authority in other contexts and become more attuned to only perceiving the negative.
I do not consider that Mr Thomson represents any genuine risk of physical abuse of the children. He likely has experienced some frustration in his attempts to manage them and there are some nuances that suggest he is somewhat insensitive, such as buying Z a motorbike for Christmas and insisting that it remain with him. These types of decisions do not assist him to repair his relationship with the children; however, he appears to have enough skills to engage with them despite their firm resistance.
The observations again showed that the children, who do not have any significant skills in acting, prefer to feign fear and worry about seeing their father, and that Ms Caddy does not challenge them and at least by failing to do so appears to encourage such behaviour. It is my considered opinion that she is either very naive or so blinded by her hostile feelings for Mr Thomson that she is unable to perceive how her feelings affect the children.
I am in agreement with Mr Thomson that Court Orders for some significant time between the children and their father are likely to do better than any therapeutic solution at this point. I would recommend that the children spend at least each alternate weekend with their father from after school on Friday until before school on Monday to protect the children from the psychological pressure of moving too quickly between their parents by having a school day to make that transition.
It is unfortunate that there appears to have been no focused therapy between X and his father as my contacts with the family suggest that this relationship might be rekindled. However, I am at a loss in terms of an appropriate referral.
While Ms Caddy describes a positive experience with individual therapy, the significant lack of improvement in her thinking and behaviour suggests that this therapy may not be challenging her to an appropriate degree.”
The evidence given at court – the mother
The mother adopted her affidavits as true and correct.
It should be noted that what follows is taken from my notes. It does not purport to be a transcript, but rather reflects my recording of those matters that were of particular interest.
The mother confirmed under cross-examination by counsel for the father that the period of separation under one roof had been a terrible time and everyone had been under strain. She had moved to the back bedroom and the children moved in with her. They were concerned about being in the front portion of the house. All three children had been in the practice of coming to the mother before separation took place. They did not give a reason. It was rare that all the children were distressed at the same time together. Two of the children sleep together, but X separately. From the age of approximately four, X would wake between 2 to 4 am with night horrors. The mother often fell asleep herself, having comforted him. The children slept in a queen-sized bed in the spare room and she slept on a couch in the lounge next door after the incident with Y and the skivvy in the bathroom and Z being slapped on the leg. She left the matrimonial bed. The children’s fear increased after the 9 July 2014 (the skivvy incident). The father had not said that the children being with the mother was a bad idea.
There is a door into the lounge from the kitchen. When taken to her affidavit of 11 November 2014 dealing with this matter, the mother confirmed that she closed the door to the front of the house. She said it was an old-fashioned latch with a bar and could be opened from the other side. The door always bangs if it is not shut. She denied seeking to isolate the father.
It should be noted that although her affidavit was straightforward and in my view, meant what it said, the mother’s answers were unresponsive and evasive.
The mother confirmed that she went to the police to make a report in July 2014. The majority of the report was correct. This was after the skivvy incident and after Z had been hit. She went to the police with her concerns, but it was not correct that she wished to tell the police about the incidents that concerned her. The mother said this was because she did not want to destroy the father. Rather, she wanted his conduct to stop, as it was escalating. There had been no communication between the parties for a month after the incident on 10 May 2014. She had texted the father to try and discuss matters. There was a verbal disagreement in front of the children. The mother had told the police what happened on 9 July 2014. She was not angry but scared.
There was a verbal disagreement on 30 July 2014 and she described to the police what had taken place. She did not say she was scared. She accepted that the reports recorded nil evidence of injury to the children, although she said that nil violence was not a phrase she would have used. I accept that she was truthful about not telling the police about the assaults on the children.
The police report was tendered as exhibit R1 but the mother says she was not unconcerned about Y. She put the matter with her lawyer and was concerned, however, that there be no further damage to the father. The mother confirmed that all the disputes that took place between the father and her on 30 July 2014 took place in front of the children. She had not said that she was going to call the police. She did not know whether Z was scared. Y was scared. X was smashing his head against the blue stone wall. She went to the police the next day but this incident was not the basis of the Intervention Order application.
The mother was cross-examined about para.25 (a) of her trial affidavit in which she asserted that on 9 July 2014, the father smacked Z, leaving a red mark on her leg for many hours. The mother confirmed that she did not see the smacking but saw a hand print on Z’s leg. Z came to the back room and said the father smacked her and showed her the mark. This was not a fabrication and she did not wish to destroy the father. Y still talks about the skivvy incident. The mother did not see it. It was put to her that the father had told her that this was unintentional but she denied this. She did not ask the father for an explanation as she was consoling the children.
When cross-examined about the version of the skivvy incident in her affidavit sworn 11 August 2014, the mother said that Y told her the father had grabbed his skivvy and twisted it round his throat. She had no reason to doubt the child. There was a mark on his neck and he was distressed. She was in the back lounge at the time. The father did not ask her to listen to any explanation and the child was distraught. When it was put to her that the father says this was an accident, the mother replied that the children told a different story and had no reason to tell her what she wanted to hear. She did not ask the father for his version, as their relationship was strained and there was no communication between them at all at that time.
The mother confirmed that the children had worked cooperatively with the father in younger years in his shed. She said that the father was harder on the children once they reached the age of four onwards and had them working, including welding work. She conceded, nonetheless, that there were good times between the children and the father and that X had liked working in the shed until he was about eight. She conceded that Z used to run to the father and give him cuddles.
It was put to the mother that, notwithstanding the skivvy incident on 9 July 2014, Y, in fact, went to his father on 15 July 2014 and slept with him. The mother’s answers were self-serving. She said she tried to encourage the children to eat with the father after serious surgery and had not failed to promote the relationship. She said that the most important thing was the children’s relationships with everybody and there was a lot of work necessary to overcome their fears. There were a lot more than three incidents of violence.
The mother was cross-examined about an incident in about 2011 at (omitted) in (omitted). The mother alleged in her trial affidavit that Y had been assaulted by the father on this occasion. Counsel put it to her that the father’s version was that this was X and some years earlier but she was not aware of any incident involving X in that way. She said Y started to wake up with night horrors, crying and sobbing thereafter.
When it was put to her that she had ignored the father and the child and kept walking out, the mother said she was endeavouring to leave the store. She had two children and the father had Y. She wanted to move out of the store and sort it out. When challenged about the version of the event, she conceded her description was not in the trial affidavit. She said she was not a (occupation omitted). She was a (occupation omitted). She did not exaggerate Y’s condition and does not exaggerate generally. She said Y was hit on the hand and his hand was bright red.
The father was served with the Intervention Order in August 2014 and moved out the next day. The mother conceded that his moving out was child-focused. She said, however, that she and the children had left prior to the father’s departure and could not recall if she returned home to work. She could not recall if the father returned for work purposes. She returned to the home after she obtained an order for sole use and occupancy but not before, even though the father had left. The children were distressed and she did not wish to return to the house. The children expressed distress over what had taken place and recounted what they had seen. The children were scared the father would take them from school from before the father left the home and this lasted many months. The mother had discussed this matter with the children. She did not believe the father would take them from school. She said she told the children it was their space and there were lots of people around. She had been cautioned by the children’s psychologist not to tell the children whether the father would hurt them or not. She said she had taken as much support as she could from professional advisors from the outset.
It was put to her that it was agreed that there be unsupervised time in August 2014 and this started on 17 August 2014 with Y and Z. The mother said that her concerns are that the children are hurt. This occurred on many occasions and she took advice upon it. It was put to her that Y broke down when seeing his father and the mother said she did not recall. She said that when the children come back distressed, she has various different approaches. She reassures the children that time with the father can be good and they should look at it as a positive. The children are always reassured that time with the father is positive.
When it was put that on the next occasion of time on 23 August 2014, Z ran to her father, the mother did not recall this. She said there was no reason for the children not to tell her that they had had a good time with their father. She was not disputing that the children do have a good time with their father. The children wanted on this occasion to spend overnight time with the father but she said no. Y said he does not want to spend overnight. She had no idea what was in his mind. She was aware that Dr N had assessed her as lacking insight in this regard. The mother was cross-examined about the events of 24 August 2014, when Z and Y spent time with the father. She told the children that leaving the father’s house without his knowledge was not something they should do. The children were always reassured that contact with the father was good. The mother said that X was very stressed whenever he saw the father. She has seen this over a long period of time. He would bang his head for moments. She would grab X and reassure him and tell him that this extreme behaviour was unnecessary. The mother could not recall if no further time was spent with the father until October 2014. The children were not with the father on Father’s Day 2014 because an incident prevented them from going. She did not say she would take the children to Darwin but it was possibly a trip with school friends. She had not instructed her lawyers to write to the father’s solicitors in these terms but he agreed with the Darwin trip and the mother conceded that this was child-focused and she told the children.
The police had applied for an Intervention Order and she did not recall whether the father’s time was cancelled. She said the police incident summary dated 15 September 2014 was accurate. The mother was cross-examined about different versions in the police incident summary and in exhibit R1. During this process, the mother’s demeanour was rigid with fury. She said there had been further incidents between July and September 2014 with the children and the psychologist had recommended and others also, that she do something about the skivvy incident on 9 July 2014. The police report was tendered as exhibit R2.
It was put to the mother that no incidents giving rise to the Intervention Order were later than 30 July 2014 and she conceded this. She said she went to the police because she did not feel safe. The Intervention Order application was tendered as exhibit R3. The father had been out of the house at that time but the mother said the application was not a tactic.
It was put to the mother that on the first return, the Intervention Order Application was adjourned on the father’s application. She did not really know what had taken place. She said that Child First and Women Against Violence and the psychologist had advised her to seek an Intervention Order. The father was not prosecuted but Y was interviewed. She denied that this was the reason Y constantly refers to the incident. Only Y was interviewed but the mother could not recall if X was told.
The mother conceded a further episode of unsupervised time took place on 1 October 2014. The mother was cross-examined about the events in para.43 of her trial affidavit. On 15 February 2015, the children were picked up by the mother whilst spending time with the father at his request. The mother said that when the children told her that the father had thrown tennis balls at them during the visit as punishment for not doing as they were told, she told them that this would have been unlikely. She conceded, however, that this was not in her affidavit.
The mother was cross-examined about the events on 6 September 2015 set out in para.52 of her trial affidavit. She said she saw bruising on Z’s back and stomach when she returned. She had complained that her back and stomach were sore and the mother asked what happened. Z had told her that the father threw her over his shoulder and slammed his hand into her back while doing so. X said he heard the air come out of Z. She told Z to have a warm bath. Z said it hurt and the mother gave her Panadol and Nurofen. Z still complained the next day and would go grey if touched on the back or stomach. When challenged with the record of a visit to the General Practitioner (GP) arising from this incident, the mother said the report was Z’s. She was, however, present with Z in the room. She had not herself mentioned the hand marks and did not exacerbate things at any time. It took several days for the mark on Z to leave.
The mother was cross-examined further about the incident on the weekend of 22 to 23 August 2015, when Y returned from time with the father, claiming that he had been thrown through a door by the father. The mother denied insisting on an x-ray. Y had a sore arm and she took him to the doctor. This incident was not raised with the father until March 2016.
When taken to para.53(b) of her trial affidavit, the mother said that she only goes on what the children say. She said that what the children experience is because of what happens when they are with the father.
When taken to Dr P’s report of 5 December 2015, the mother said that her suggestions about the father being paranoid, having psychopathic delusions and suffering from Asperger’s syndrome came from what Dr G had told her.
The mother was cross-examined about the photographs taken of the children from time to time, exhibited by the father in his trial affidavit as annexure T19. She denied that the photographs were posed. She said she took a photograph of a mark on Y. She said, “It’s posed, if that’s what you want to call it.” The mother was cross-examined about the decision of Ms L on 20 October 2015 that time should cease. She noted that since then the children had spent two hours with their father and had seen him at the family report but not otherwise. It was put to the mother that Ms L had made an appointment for November 2015 but the mother said she cancelled this because of work commitments.
The mother said that following discussion with Dr G, time was scheduled for Christmas Eve but she said that the order said that time was up to Ms L.
The mother was cross-examined about the extracts in Dr N’s report in which the father told X that he would not have to see him. It was put to her that X relaxed. The mother said she had read this and found it sad – (it should be noted that the father was completely broken down in tears throughout this passage of the evidence). The mother said she hoped there would be a relationship between the father and X in the future. She said she had constant discussions with X about his father and had a strong view that the children should have contact with him.
Counsel put it to the mother that Dr N says that she had made no attempt to address the concerns identified. The mother said that that was what the report said. She said that X has only just moved out of her room. She asked rhetorically how many 13-year-old boys have gone through what X has gone through. The mother agreed that orders had originally provided that Mr R was to be a counsellor between the father and X. She said that she wanted all three children involved. The children had therapy the same day but not together. The order varies. She said that, “Mr R calls me with any concerns at the end of the meeting.” She said she only answers questions she was asked, although behavioural issues are raised. She was very concerned that the children were rude to the father during the family report interviews. It did not occur to her that counselling might be a problem. She did not know if counselling was what was causing the problem.
The mother under cross-examination by the counsel for the Independent Children’s Lawyer
The mother said the children occupy the two front rooms in the house. At one point, X had a room and Y and Z shared. She then moved Y’s bed to X’s room but he is now back with Z. She said that night horrors are evidenced by the child screaming out or appearing beside her. X does not suffer so much.
The mother confirmed that she slept in Z’s bed to remove herself from the father. It was not just about the children’s needs. It was constantly the case that there would be times when the parents were not speaking and she often slept on the couch. There were periods of withdrawal, such as in 2013 and 2014, when she relocated in the house and the children came with her. The mother confirmed it was never difficult for the children to work out that things were bad in the house. They would come close to her. It was a toxic environment. She would ask the children to go back to their rooms but they would say that they were scared or that the father was angry. The mother tried to keep everything calm. There were cycles. The father would stop talking to her for weeks and then discuss the matter. The mother confirmed that apart from one night when Y was with the father after a hospital treatment, the children were with her. She and the children left on 9 August 2014 to go to her mother’s house, where there were multiple bedrooms. The children still come in with her and there were two spare beds in the room. This year, X is in his own room and Y and Z are in theirs. This has been for about the last 13 weeks. The children in the past asked to go to the grandmother’s house to get away from the toxic environment. The father would glare at her, and the children saw this. The children did spend time with the father but the mother was not involved and kept herself away.
The mother was cross-examined about the period from 9 July 2014 to 9 August 2014. She confirmed that this was an important time in the deterioration of the children’s relationship with the father. She confirmed that on 23 August 2014, the children asked to stay the night. They only reported when something bad had happened. The beds had been bought at (omitted).
The mother said that when she collects the children, she talks about her day. She asks what the children have done.
On 24 August 2014, the children did not want to go to their father. They said the father had been yelling at (omitted). Y said he wanted to stay with his father because there were new bunk beds. The mother said that this distressed her. There is a lot of good in the father but if the children are scared, they are scared.
When counsel put it to the mother that Y did not want her to see that he loves the father, she said she did not know. It could be. She had no understanding why the children changed from 23 August 2014 to 5 September 2014. Y was very disturbed and was punching the mother and the grandmother just before visitation. The mother conceded that this might be around the time of the worst of the break-up. The mother told Y that it was unlikely the father would take him from school. She said the children constantly say that they do not wish to see the father. She does not know what went wrong.
When cross-examined about an assertion in her affidavits that X had said that “Dad will kill you”, the mother confirmed that this was said in the car with the other children present. She says she tries to change the subject or reassure the children. She confirmed that the father is not likely to kill her and she has never thought this. She conceded that X’s view was irrational. She said X had also referred to the mother as the father’s slave and that he controlled her. The mother conceded that this has to impact upon the younger children, who may have taken up X’s views. The mother was cross-examined about a visit to Dr J in November 2014. She had taken Z with the other children to get a mental health plan. She only spoke to the doctor in the children’s absence and conceded that it is possible she had spoken about the violent break-up of the relationship. She then went on, immediately and perhaps surprisingly, to say that the break-up had not been violent. When it was put to her that she might be concerned that the children would hear these matters, her answers were equivocating and prevaricating. When it was put to her by counsel that it was not good for children to hear about these problems, the mother’s answer was, in my view, unresponsive. A bundle of medical records was tendered as exhibit R6.
The mother was questioned as to why, on 14 June 2015, she gave the children two polished stones to keep them safe. She said all three children bought crystals. These were not for safety but for confidence and self-esteem. The children bought them and the mother was present. The mother said the children had got the wrong impression. She denied trying to put fear into the children. Ms M had done work with the children and one suggestion was for the children to take something that gave a connection with her. The mother said she wanted the children to see the father. When asked how this might be explained to the children, the mother said that court orders were always addressed by professionals and not by her. She said if she was going to explain it, she would want someone else present but would otherwise refuse. She said she was at a loss as to what to do. She said X does not go out of his way to influence the younger children. He is very anxious and concerned that the children would be yelled at and hurt. The mother was concerned about changeovers at school because Y would be concerned. Y had refused to attend school for nine months.
I interpolate and note that it is quite clear from what the mother has said and the way that she said it that she is convinced that school would not be an appropriate place for changeover and would strongly oppose it.
The mother in re-examination
The mother confirmed that there must be a better place for changeover than school. It could take place at a children’s park. She would want Mr R there if she was to explain orders to the children about seeing their father. She repeated an allegation I have otherwise passed over that the children became sunburnt in the summer of 2014 to 2015 while in their father’s care. Z had a bright red face and she had taken her to hospital.
The mother confirmed that she did not agree for overnight time on 23 August 2014. She was not comfortable with the children spending overnight time so soon after the July incident. When asked about the photographs taken of the children, the mother said Y showed her a mark on the chest and she asked, “[c]an I take a picture of you so I can remember what happened?”
The opening of counsel for the father
Counsel said that the father admits there were problems before separation and it was not one-sided. The mother was also angry. The children are aligned with the mother. The father seeks relationships with his two younger children but acknowledges problems with X. The father does not denigrate the mother in any way and has undertaken counselling but has lost confidence in the counselling process. He has seen the children twice since September 2015 as a result of the mother’s refusal. Injuries to the children were not so severe and arose from time outdoors, with rough and tumble play. Counsel said it may have been rough housing, but the children did not complain to the father. The police had even interviewed the father about the skivvy incident and the situation was wholly out of hand. The father was content to adopt the report of Dr N and also seeks final time and final orders. If there are to be interim orders with counselling, the father’s preference would be for Mr V.
The evidence of the father
The father adopted his affidavits as true and correct.
The father under cross-examination by counsel for the mother
The father was taken to para.160 of his trial affidavit. He had to concede but did so readily, that it was not correct that he had no prior criminal history. He pleaded guilty to wounding following an incident in a pub in 1986, where he glassed someone. He received a suspended sentence and paid compensation to the complainant.
The father was next taken to the events of 2013. He conceded that the atmosphere in the household was toxic. He said that he was not blameless and was certainly at least 50 percent responsible. He had always accepted that he was 50 percent responsible. He started counselling with Ms T in 2013 because he believed there was a problem and he sought help for everything: his relationships with the children, his wife and his work ethic. He said that, “[w]e used to argue an awful amount” and he conceded that, on occasions, he was verbally abusive. He could not recall specifically whether this was in front of the children. He said that, “[m]y wife and children still are the most important things in my life.” He conceded, however, that he would shout and blow up at her. When taken to annexure 2 to his affidavit, filed 10 November 2014, the father conceded that this was a fair reflection of how things were in 2013. He said, “[m]aybe I blame myself more than 50 per cent.” He conceded that he had anger issues in 2013 but could not explain why he described himself as a bad partner. He said he spent too much time at work. He said he had no idea how long Z had been at (omitted) Kindergarten. He said that his own father had not been family-oriented and made a lot of money. He said things had been strained for many years and that he and the mother had occupied different parts of the house. He had asked the mother to attend counselling during the marriage and suggested the counsellor he himself was seeing. He is still seeing a counsellor for his benefit. The father said Z and Y were still moving about the house until he moved out but X not so. He would remain at the other end of the house when the father was around. This behaviour commenced about three weeks before he moved out.
The father was cross-examined about the event at the kitchen door and said this was a slanging match between himself and the mother. The father was cross‑examined about arguments on Mother’s Day 2014. He had refused to speak to the mother for a number of weeks and the children picked up on this. He could not recall swearing at the mother on this occasion and could not recall if the children were present. He said the children are lovely children but he sometimes gets frustrated. “The table manners of the children are occasionally frustrating.” He said that, on many occasions, the family did not eat together and it was pretty dysfunctional. The counsellor suggested that they have meals together in 2013.
The father was further cross-examined about an incident when he struck the table and said he could not recall the matter very well. Y was playing with his food and then Z did something. He said he could have handled the matter differently and should not have walked off. The father said his time with Z and Y was positive but his time with X was not. The mother would take the children to her own mother when they argued and it was beneficial that the children be taken out of the toxic environment.
The father was further cross-examined about the incident of 30 July 2014. This is the incident referred to as “the door incident”. He conceded there had been an argument at the door of the kitchen into the playroom. He did not recall if he tried to go into the playroom. He did recall telling the mother that, “[y]ou can’t take the children away from me”, and although he was unable to say if Z had heard this, it is clear she must have. He said it was possible he was short with Z thereafter.
It should be noted that Dr N was interposed by agreement between the parties, but I will continue with the father’s evidence.
The father said the mother had not raised concerns about his drinking, but he was drinking too much towards the end. This amounted to six or seven full bottles of beer per night. He was anxious at the time but drinking did not exacerbate his anxiety; indeed, he drank to relieve his anxiety.
The father did not seek therapy for drinking, rather it was part of the counselling process. He had never seen X bang his head against the wall and did not know if the mother makes it up. He was not under the impression that X felt unsafe. The father was cross-examined about annexure T14 to his affidavit filed 11 November 2014 but could not recall what he was referring to in the references to X. He said X was a very bright nine‑year-old living in a toxic environment. Issues between the father and X occurred after separation under one roof. X is a sensitive child. The father conceded that he had sometimes implied that X was girly and had said he would buy him a pink dress. He had not, however, gone on about it. He saw a reaction on one occasion and stopped. He had teased X in this fashion possibly three or four times but had no idea over what time period. The father conceded he shouted at the children and probably more towards the end of the relationship. He conceded he had smacked the children.
The father was cross-examined about the (omitted) incident. The father noted that the mother says it was Y who was involved but he says it was X. He did not recall but X probably cried. X was four years old at the time. The mother had said this was wrong. The father said he did not say, “[s]how me the woman, and I’ll sort her out as well”, something said with conviction and a part of his evidence I accept. He said his approach to child discipline had been inherited from his parents.
The father said he had not smacked Z before separation and could not say whether Z or the mother were lying about this. He said he would like to think neither of them lied.
The father was cross-examined about the skivvy incident. He said it happened in the bathroom, where Y, himself and Z were present. He pulled Y off the bench by his jumper. He said he was certain he was too rough and Y was very upset. Y ran out and the father followed. He could not recall if he was angry but he did admit accusing Y of lying. He had not seen a mark on the neck but Y said he was hurt and the father accused him of lying. He did not know that Y was hurt. He conceded he could have dealt with it better.
The father was cross-examined about time spent with the children after separation. There were three pretty good visits at which X was not present. He had not become annoyed at (omitted). He could not recall the reason X had not attended. He could not recall Z wanting to go home and denied telling Z that she would be smacked if she kept asking. On Father’s Day, he had asked if X could be put on the phone but the phone went dead.
The father did remember the incident where he had been chasing the mother around the house with a coffee and recalled that Z was upset by his behaviour. He could not remember ripping up a document prepared by the mother in January 2014 but conceded it could have happened. I interpolate and say it clearly did.
The father was cross-examined about the three visits that took place before the court hearing and Dr N’s report in December 2014. He understood that it indicated he should become more of a father and the visits go better when they are positive. It is negative when he seeks to discipline them and he needed to try and change the route. He said the visits had gone well.
The father was cross-examined about a visit in February 2015 when he asked the mother to collect the children. He could not recall. He said there were two times when this occurred. On one occasion at his own home, the children were very distraught and he could not get them to calm down. They were calling him names and his only option was to call the mother. The second time, they became distressed again and walked down the street. He got them back to the house. They were stressed and he rang the mother on the way and the children calmed right down. The mother took the children home and he did not object.
It was put to the father that, for Easter Sunday, all three children were to have contact and the father admitted he had said that he did not want X because he could not deal with him. Z became upset and did not want to stay if X did not stay. He had texted the mother, “[t]hey don’t want to see me. We can’t make them.” He conceded the mother was encouraging the children to see him and had done so on other occasions. On one occasion at his home, the mother had told the children to respect the father and might have spent an hour trying to help. When it was put that they had all gone to the park together, the father said this was quite possible and that the mother had acted really well. Time was eventually reduced and not only because of Ms L. He was asked to reduce time and agreed. Ms L told him that the lawyers did not know what they were doing.
The father conceded he was not paying child support and never has done. There are no court orders preventing him from attending school. He thought the mother had put a padlock on the property to keep him out.
The father was cross-examined about the alleged tennis ball incident with X. They were playing tennis ball tag that weekend. The ball was not thrown too close or with too much force. It was an underarm throw.
The father was cross-examined about the laser tag incident with Y. He denied that he had put a laser gun next to Y’s chest.
The father was cross-examined about an incident on 22 or 23 August 2015 at which Y was allegedly injured by being thrown through a door by the father. The father said that Y would not let him back into the house, which he was trying to do. Z was inside crying. He did not know why Y was trying to keep him out and did not ask him. He said Y was rolling around, pretending injury and he did not know why although now he does. Y did this to go back to his mother and tell her he had been hurt.
The father saw the children on Father’s Day 2015. They were outside at a football oval playing and Y kicked a football into Z. He picked her up in a fireman’s lift to comfort her. They had breakfast with a friend and went to Ms C’s that afternoon. The fireman’s lift had appeared to console Z but might have caused some marks.
The father was cross-examined about his interaction with Ms L. He said he has had a meeting with Ms L and the mother and saw photographs of the children’s injuries. He saw enormous stress in the mother and decided to take a step back. He thereafter emailed Ms L. The father was cross-examined about his interaction with Mr R. Mr R suggested that he should work to assist the father in his relationship with X and he seemed genuine. He needed someone local. Mr R, in fact, had not assisted. He saw Mr R three times with X not there. He never suggested a way forward for the father and X and he therefore stopped seeing Mr R. He said that, during a phone conversation, Mr R had told him that he was not there to support the relationship between X and him, but was there to support X. The father said he was getting enough support elsewhere. Mr R told the father that, if there was anything he needed to know, he would let him know.
The father said he would do absolutely anything to re-establish his relationship with his children.
The father said he had seen Dr G. He understood this to be a clinical intervention but did not know what that is. He has seen Dr G eight times, the last approximately two weeks ago. He was aware that, at one point, Dr G might have seemed uncomfortable but did not believe that he had said he felt threatened.
The father was further cross-examined about his interaction with Ms L. Ms L had said she was concerned by the father’s explanations and recommended he work out the issues for a further year. He denied that the initiative failed because he did not engage enough with it.
The father considered the orders he was seeking would be a dramatic change but a welcome one. He said Ms L had asked for a letter of apology and he had written two and the letter to the children said how sorry he was for everything. The father conceded that there was work to be done to restore the relationship between himself and his children and the mother.
The Father under Cross-Examination by the Independent Children’s Lawyer
The father confirmed that the parents argued about lots of things and the children saw them fighting big time. This involved yelling and swearing. The father conceded that he had not socialised with the children and was trying to remove himself from the mother because of huge arguments. He had not discussed these matters with the children, as he did not want them involved. He conceded that his behaviour was somewhat childish.
The father said he would return from work on Friday nights and there would be a note on the bench saying “be back Sunday”. He had not done anything about this. Discussion with the mother would not have helped. He did not call the children, as this would just aggravate the situation. He worked five to six days per week and only took the children to school occasionally.
He went to school once to have lunch with Y but should have done more. He said it did not suit him to be withdrawn from the children. The father said that the parents would stop speaking for several weeks at a time. There was a pattern. He is now more mindful of this. He has told his partner to stop him if she sees it. He said he would not withdraw from the children if there are problems. He has undertaken a course about how children feel. He said he would get the family of bears to talk to each other if there were problems. He has undertaken a post-separation parenting course and is more children-centred.
He said that Dr G said the way he expressed his love was through presents and activities. He would talk to the children most evenings. He left the family home in August 2014 and had not discussed this with the children. He did not know why. He said he and the children play. He said he would try a different way of distracting the children from now on.
If the children were with him and wanted to see their mother, hopefully he had learned enough to avoid difficulties. He said it would be discussed through the bears and he would try to divert the children through activities. He had thought about stress at night on the part of the children and suggested he would get the children to watch the television as a distraction.
The father had cancelled an appointment with Mr R in February 2016. He was annoyed with him but could not remember why. He was not withdrawing because he was angry. Mr R was looking after the children only. He said that Mr V fits the bill as a backstop if a counsellor was needed on an ongoing basis.
The Father under Re-Examination
The father said he had spoken with Ms M. Y once had a dream about a drum. He told Ms M about this in about 2014. It was after separation.
The father said he had not talked to the children’s teachers as he did not wish to put pressure on the children.
When taken to the tennis ball incident, the father said X kicked him in the leg. The goal was to reengage him on the day. There were lots of physical activities, including Nerf guns. Z plays being a fireman and also plays basketball and football.
From the outset, Mr R had refused therapy between the father and X. Mr R felt X was the client, though he had previously said he would engage with both of them. This was not conducted on a mental health plan but rather Mr R was fully paid. The father said that both he and the mother are non-communicative.
The Evidence of Dr N
Given that Dr N was the court’s witness, I permitted all three counsel, in effect, to cross-examine her.
Dr N under Cross-Examination by the Counsel for the Independent Children’s Lawyer
Dr N was asked about the effect upon the children of living in a toxic environment. She said this was catastrophic and would be likely to lead to problems for years. Different truths told by different parents cause the children to choose one parent over another. The father’s withdrawal was one factor but there were lots of others. Between May and August of 2014, the mother and the children were in the back of the house. When it was put to her that the children also shared the mother’s bed when they were at the maternal grandmother’s, Dr N said this was one small factor but there were many factors. The combination of factors included parental conflict and lack of insight and the exposure of the children to this. The mother promotes and rewards criticism of the father.
When cross-examined about the children’s desire to stay with the father and occupy their new bunkbeds on 23 August 2014, Dr N responded that the mother simply did not accept that Y wanted to see his father.
When questioned what would happen if the children resisted time with their father, Dr N said that the children were primed to reject him. There was a danger that this would develop with Z and it was now worse with X. The children needed significant time with the father. The mother had very little insight and pressures from her would continue. Changeover at school was appropriate and strong orders were necessary, including possibly a change of residence. The children need their father and need to see him.
The problem is the relationship with the mother. The children seek reassurance. X is not suicidal and his comments are pure melodrama. Z and Y really enjoy their father when they are allowed to. There need to be sanctions on the mother because that is where the motivation for the children’s disclosures is coming from. Therapy has not worked and it is damaging to have the children repeat statements that are not true. X has been in less‑effective therapy and has simply got tired of it. Dr N was quite clear that the children would not harm themselves if they were ordered to spend time with their father.
When asked what would happen if the children did not spend time with the father, Dr N said that the past history suggests that therapy will lead to there being no time spent with the father. The children are encouraged to disobey parental authority and this is likely to lead them to defy other authority and will also cause negativity in their lives. When asked what the best way to explain any orders the court might make should be, Dr N said the best way is for both parents to be present and the mother to explain them.
Dr N under Cross-Examination by Counsel for the Mother
Dr N confirmed that she has spoken to the children’s teachers in school in producing her first report. There had been no indications the children were rude. She had not spoken to the school during the preparation of her second report. The children are very good and very nice children and may only be rude to the father at the moment. The children enjoy time with their father and were not fearful or rejecting of him. When children get approval, it generally extends to other relationships. Dr N noted that there was nothing about the children being rude received from the school yet but indicated that this situation might not continue.
In the first report, the children were worried the father might try and take them from school but this is a very common phenomenon. Children are always scared that the non-custodial parent will come and get them.
When the mother first saw Dr N, she gave a history of a turbulent relationship with the father continually threatening to leave the marriage and also withdrawing from communication with her. The father was not particularly involved with the children before separation, and the parents had somewhat traditional roles. It was the mother’s position all the way through that the father never had any good relationships with his children but the father said he did. Dr N was not surprised that the father did not know Z was in kindergarten. This was not particularly relevant. The mother was concerned by events after separation and revelations of things in the past from the children.
When questioned about rough handling, Dr N said the allegation was that the children said the father was physically rough with them and that these complaints emerged after separation. There were complaints about rough play in her second meeting with the children. The mother said the children stopped going to see the father because of bruising and he was hitting them. It was also alleged to Ms L that he was locking them in a cupboard. The father described some of this as rough play, including an instance when he threw Z over his shoulder. If the father had been tied up with a skipping rope by the children, Dr N was unable to see why this would horrify Ms L.
Dr N said you had to see the children. It was not possible to believe them. Some of what they said was laughable. She used narrative technique to get the children to give a history. The children were not scared of the father. They were telling Dr N they were scared when they were clearly not. Nothing they said had validity. It was just self-righteousness. Dr N did not have a note of how long she had spent with the children. She takes as much time as she needs. She had recommended Ms L after her first report and noted that the children were seeing Mr R. There was another counsellor called Ms M. The mother had not given Dr N the name of her psychiatrist in the first report, as she was worried that the father would turn up at an appointment. Dr N had not spoken to Mr R and was not surprised that he did not agree with her. Too many people were involved. The therapy had been pretty ineffective. Mr Thomson had told her that Mr R was engaged to help X. Mr R saw all three children. It would not assist to have Dr N speak to Mr R. It would be a waste of time and she is not patient. It would not add anything to her report. She only knew the therapy has been ineffective. It is possibly harmful to the children by letting them repeat things. It is possible it was not given long enough to work. The insolence was different during the second meeting. The children alternated between rudeness while playing with pleasure with the father when they were with him. At the first interview, the father was good-natured. She thought him disorganised and shallow. He tried to question the children and showed a lack of skill in doing so.
With X, in the second meeting, the father was very skilled. She saw X. He is simply tired of it all. She then spoke to Mr Thomson and told him this. The father agreed that X be kept separate and that was the way they had gone about it. The father reassured X that he could see him in the future. The remark “even if it was just to punch me in the face” would be a joke. It was clear X saw it as a joke.
In the first meeting, the father did not discipline the children but in the second meeting, he managed them better. The children showed a lot of pretence at distress.
The father had told Dr N that there were periods when the visits were going well. Dr N was sceptical as the children sometimes wanted to go home. Dr N understood the children’s behaviour at times was challenging and distressed and she expected that the father did ring the mother to come and collect them. It was the culmination of a terrible dynamic. It was not a positive thing that the mother tries to encourage time. The children build criticism and negative beliefs about the father and their interviews were terrible.
Dr N had referred to Dr G in her report but had not spoken to him. She was asked about the last paragraph of her second report in which she expressed doubt that therapy with Dr G was sufficiently challenging for the mother. She did not resile from her opinion.
The father presented as pleasant but superficial. She never felt threatened by him. Both the mother and the father scored defensively in the first report. The second time, the mother was angry at the start but seemed slightly over it by the end of the interview. She was concerned at the first meeting that she would not be believed. The father’s presentation was not the real him. He blamed the mother entirely and still does.
Dr N’s first report shows the inept way in which the father responded with the children and it is greatly to his credit that, through the various courses and other initiatives he has undertaken since, that he was able to handle this so much better in 2015.
Regrettably, the case went off the rails because orders were made which were perceived by the parties as repositing in Ms L the power to control the future of time. This has all gone wrong and without being critical of anybody in particular, a combination of weariness on the father’s part, the unrelenting opposition of the mother to the father and the somewhat unfortunate so‑called therapeutic interventions has led to a total cessation of time.
Insofar as the mother complains that the children were returning with marks that showed assaults, there is nothing in the material provided including the photographs annexed to the father’s trial affidavit that suggests the children have been brutalised by the father. Incidents such as the so-called fireman’s lift only go to support in my mind the finding that the father does not fully know his own strength and is rougher with the children than they want from time to time and indeed rougher than he should be. His lack of insight and his earnest desire to blame the mother for all his difficulties leads him to fail to appropriately consider his own responsibilities for the difficulties that obtain.
What does, however, shriek out to me is that the two younger children, in particular, still love their father. Dr N is the one who saw the children with their father in at least a more neutral environment. She is an extremely experienced practitioner and her observation that the relationship would be rapidly rekindled is one to which I give very considerable weight.
Although the mother says she is very keen to encourage and foment the relationship between the children and the father, she does not know her own mind. What I mean by this is that she is either dishonest when she says these matters and I am prepared to give her the benefit of the doubt and presume she means what she says, or as I find she simply does not perceive the reality of the position she adopts. The children are engaged in counselling which is only reinforcing all the fantastical things that they say about what their father does to them. I fully accept Dr N’s evidence that the children will not harm themselves if forced to see their father. I accept her account of the children’s’ disclosures as at times laughable and generally unbelievable. I also accept her evidence that the more they repeat these stories to Mr R, the more they will become embedded and the worse that will be for the children.
Against these observations I turn now to the statutory pathway.
The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
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. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
Shared Parental Responsibility
It is clear in my view that there has been family violence within the extended meaning in s.4AB of the Family Law Act. More importantly, however, it is clear that the presumption as to equal shared parental responsibility is rebutted by the facts and circumstances of this dispute. The parents simply cannot agree about anything. Any suggestion that there be joint parental responsibility is going to lead to nothing more than further bitter conflict between the parents to the detriment of the children. The children, on any view of the matter, will spend a clear preponderance of their time with the mother. In X’s case, regrettably, it seems highly probable there will be no time spent with the father at all. While the father expresses dark fears that the mother will abuse the order for sole parental responsibility – for example, by moving home to avoid him spending time with the children – these are purely speculative observations. They are susceptible of being addressed in the event that some such behaviour was to occur in any event. I accept the force of the Independent Children’s Lawyer’s submissions detailed earlier and it is plain that it is in the best interests of these children, in these circumstances, that the mother have sole parental responsibility but inform the father of any major decisions as to education, health and the like.
The Children’s Best Interests – The Primary Considerations: Section 60CC(2)
Although, of course, these considerations are very important, there is not in the circumstances too much to be said. Everyone agrees that it is desirable to protect these children from abuse or family violence but in truth, despite isolated and regrettable incidents of physical punishment inflicted by the father (now somewhat historical), the primary violence to which they were exposed was the vitriolic arguments between their parents, which necessarily have now ceased. Everyone agrees, at least in principle, that it is desirable for the children to have a meaningful relationship with both parents. The question is how this is best to be achieved.
The Additional Considerations – Section 60CC(3)(a)
X’s views could not be more clearly asserted. I note, however, that even he interrelated reasonably well with his father once the pressure was off at the family interview with Dr N. I note further Dr N’s view that X is, in effect, tired with all this and needs time out. The views of Y and Z have also been clearly expressed, but I approach their views in the light of Dr N’s very important and very significant qualifications. Putting the matter shortly, their physical behaviour with their father belies the fantastical things they say and given their age and the relentless, even if unspoken, criticism of the father in the mother’s household, it is unsurprising that they say what they do. No weight can really be given to those expressions of opinion. Rather, it is what they actually did that matters.
Section 60CC(3)(b)
The children have an excellent and bonded relationship with their mother, although the extent of their alignment with her is, in my view, unhealthy and likely to be detrimental to their wellbeing in the future, as Dr N has indicated. The mother is, however, their primary carer and primary source of attachment and this is clearly a matter to which weight must be given. Their relationship with their father is, of course, more complex. X essentially does not want to see his father at all and given his age and the fact that the father is not pursuing a relationship with him at this time that will be that. The two younger children, however, despite what they say appear to have a warm and loving relationship with their father and this is a matter to which weight must be given. I note and accept Dr N’s view that these relationships will rapidly spring up if it time is ordered with strong orders.
The children appear to have a relationship with the maternal grandmother and paternal grandmother and it is noteworthy that the paternal grandmother is still on good terms with the mother who has facilitated her time with the children. This is very much to the credit of them both.
Section 60CC(3)(c)
The mother has always looked after the children and attended to their needs. The same cannot be said of the father. On his own version of the events, he substantially withdrew from the children for blocks of time of some duration during the relationship. While he may now regret it and I did not necessarily see in his demeanour perhaps the amount of regret I would have expected, the fact is that he withdrew from his children and much of his difficulties arise from that withdrawal. Although he has fought tenaciously to spend time with his children through this proceeding, his failure to do so when the relationship subsisted is the origin of his difficulties.
Section 60CC(3)(ca)
The immediately preceding remarks obviously show a failure on the part of the father to fulfil his obligations to maintain the children. Maintenance is not just a matter of money but of emotional support. He does not now pay and apparently will never pay child support. While he may have been a provider during the relationship, he has certainly not stepped up to bat since separation. No such criticism is properly available of the mother.
Section 60CC(3)(d)
This, of course, is at the heart of the matter. The mother’s submission is that the introduction of weekend time immediately is likely to be disastrous. Her case is that the children are scared of the father and become extremely fearful both before and after spending time with him and indeed even during. I note that, in the past, the father has had to call upon the mother to collect the children when they were spending time with him. Nonetheless, I also accept the evidence of both the father and Dr N that he has progressed. How he behaved at the second series of interviews with Dr N suggests that he has indeed gained some skills through the various studies he has made. Dr N has expressed the opinion, which I accept, that he is likely to be able to cope during weekend time.
Dr N has also opined that the children’s warm relationship with their father would, so to speak, re-establish itself almost immediately if immediate time was ordered and countervailingly, if the process is left to meander on, so to speak, in the counselling process, the children’s opposition to their father with all its possible long-term damaging effects, will only become entrenched.
In my view, as the Independent Children’s Lawyer and father’s cases suggest, the effect on the children of immediate ordered time with their father will be a re-establishment of that relationship. It will, of course, give rise to very vivid concerns on the mother’s part but I note that she has said through her counsel that she will obey court orders made. Strong orders will indeed be made. I am mindful, of course, that by spending time with their father, the two younger children will be removed from the presence of X each alternate weekend and on other occasions. This is perhaps not altogether undesirable in the circumstances. X is aligned with his mother and is likely, whether consciously or otherwise, to seek to inhibit his siblings spending time with their father. Should it occur on a regular basis and in a way satisfactory to the two younger children, there is the additional possible benefit that, over time, X may come to re-examine whether he wishes to see his father or not.
Section 60CC(3)(e)
There is no practical difficulty insofar as expense is concerned in the children spending time with the father. There is the potential practical difficulty that the children may be distressed and disturbed by it but that is a matter I have already dealt with above.
Section 60CC(3)(f)
I agree with Dr N that the mother has the capacity to provide for the children’s basic needs. Her lack of insight, which causes her to seize upon every possible failing that the father has and to exaggerate, as I find she does, the extent of any injuries the children sustain while in his care, has led to a circumstance where one child will not see his father and the other two are, at least at present times, equivocal. In saying this, I should emphasise very strongly that this is not to put all the blame on the mother’s part. The father has contributed at least as much to this outcome as she has but whereas he has addressed some of his difficulties, she has not. Herein lies the dilemma at the heart of the difficulties in this case. The father historically has not been well equipped to provide for the children’s needs. He has withdrawn from them. Nonetheless, I found his description of the techniques he would utilise in the event of difficulty (the discussions between the bears and so on) to be impressive and to give an indication that he is now in a position, at least adequately, to parent for the relatively short periods of time that the Independent Children’s Lawyer has submitted are appropriate.
Section 60CC(3)(g)
Both of these parents have their weaknesses and unfortunately the end result of the combination of their weaknesses has led to real difficulties for the children. Both parents impressed me as being of rigid personality and with a strong tendency to see blame in the conduct of others, while, whatever they may superficially say, in fact exonerating themselves. I accept the description of both parents by Dr N as superficial. I have seen them in the witness box and indeed in Court over extended periods of time and everything Dr N says accords with what I have seen and heard. Nonetheless, of course, they are the parents of the children they have. The children are all young, and the two younger children particularly so. Their personalities are necessarily to an extent somewhat plastic and there is every prospect that they will benefit significantly from a more secure and better established relationship with their father.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
The father’s attitude to his children is in many ways very laudable. Nonetheless, I accept that, as Dr G put it, the sheer intensity of his desire to see the children has at times probably been counterproductive. While he has had little – indeed, no – alternative other than to pursue his case to judgment, I note that Dr G found the intensity of the father’s personality to be at times somewhat threatening and I can see easily that that could be so. I also accept that the father, to an extent perhaps even greater than that which must obtain with all people in such a situation, may have sought, wittingly or otherwise, to present himself to Dr N as somewhat other than what he might really be. The mother, likewise, suffers from similar deficiencies in as much as she seeks to present herself to all concerned as extremely keen for the children to have a relationship with their father, when in fact she is in truth as a matter of practical politics, adamantly opposed to it.
Section 60CC(3)(j)
Although family violence is, of course, extremely important, I have already dealt with this above.
Section 60CC(3)(k)
There are no inferences to be drawn under this section in the light of the facts as I have found them to be.
Section 60CC(3)(l)
I agree that it is vital that final orders be made. As the Independent Children’s Lawyer submits, any interim orders run the real risk that the children, supported, whether intentionally or unintentionally, by the mother, would seize upon the fact that these are interim orders to assume that, if they misbehave, they may be set aside. Furthermore, this litigation has been proceeding for a long time. It has been fought over a number of days in court and the stress, both leading up to and during it, cannot have been good for the parents, and cannot, therefore, have been good for the children. I do not think that the mother would have been sufficiently stoic to wholly cushion the children from the stress she herself so evidently feels.
Section 60CC(3)(m)
Dr N says that time should commence immediately and that things will rapidly improve. She said strong orders were needed and indeed indicated that, if these orders were not successful, a change of residence should be contemplated.
There is no way of fudging this matter. For the reasons I have given, I have come to the conclusion that Dr N’s report, while subject to some inadequacies (most particularly her lack of understanding of the fatherlessness of the mother and her distorted view of the counselling from Dr G as a result), is uniformly otherwise correct. I entirely share her perception of the relationship between the father and the children because I accept her evidence. The mother will find this judgment extremely confronting and difficult to read and accept. Nonetheless, and to her credit, she has said she will obey court orders. I expect her to do so.
Conclusion
I have drawn draft orders to give effect to these conclusions. They reflect the minutes of proposed orders prepared by the Independent Children’s Lawyer, which are entirely consistent with the outcome as I have found it. I will fine tune the dates in the spend time orders with the two parties when they have had the opportunity to read this judgment.
I certify that the preceding two hundred and forty-six (246) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 27 July 2016
Key Legal Topics
Areas of Law
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Family Law
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Injunction
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Procedural Fairness
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Natural Justice
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