Cage and Cage and Ors

[2009] FamCA 719

FAMILY COURT OF AUSTRALIA

CAGE & CAGE AND ORS [2009] FamCA 719

FAMILY LAW – CHILDREN – With whom a child lives – Best interests of child – separation of children – Allegations of violence on the part of the father – Fusion and enmeshment of child’s views with those of the maternal family – Psychological damage to the children in the maternal household

Family Law Act 1975 (Cth)s 60CC

APPLICANT: Ms Cage

RESPONDENT: Mr Cage

2^nd & 3^rd RESPONDENTS: Mr and Mrs F

INDEPENDENT CHILDREN’S LAWYER: Alan Scally

FILE NUMBER: NCC 1991 of 2007

DATE DELIVERED: 11 August 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Newcastle

JUDGMENT OF: Watts

HEARING DATE: 15 - 18 June 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR 2^ND & 3^RD RESPONDENTS: Litigants in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of NSW

Orders

1. All previous parenting orders be discharged.

2. Subject to Order 3:

   2.1.The mother have sole parental responsibility for decisions about M born … May 1996 (“M”) and C born … February 2001 (“C”).

   2.2.M and C live with the mother.

   2.3.M and C spend time with their father for three hours each week to include an evening meal between 4.30pm and 7.30pm each Sunday during school term. 

   2.4.Upon giving one week’s written notice and except for Father’s Day, the mother may change the day referred to in order 2.3 from Sunday to the prior Thursday, Friday or Saturday evening. 

   2.5.During school holidays M and C spend from 9am to 7.30pm with their father on each Monday provided that upon the mother giving to the father one month’s written notice that a particular scheduled day or days during the school holidays is not suitable because of the children’s activities, then the father will select a day or days that are nominated by the mother as being suitable. 

   2.6.The father spend from 4.30pm to 7.30pm with M and C on each of their birthdays.

   2.7.The father spend from 4.30pm to 7.30pm with M and C on the father’s birthday.

   2.8.M and C spend from 9am to 7.30pm with their father on Father’s Day.

   2.9.Order 2.3 not apply on Mother’s Day but M and C otherwise see their father on Mother’s Day weekend between 4.30pm and 7.30pm on the Saturday of the Mother’s Day weekend.

   2.10.The father see M and C from 12 noon to 7.30pm each Christmas Day.

3. In the event that M leaves his mother’s home of his own volition to ordinarily reside in his father’s household within a period of two years from the date of these orders, then:

   3.1.Order 2 shall be discharged.

   3.2.The father shall have sole parental responsibility for the children.

   3.3.M and C will live with their father.

   3.4.For a period of three months from when C commences to live with the father, C not have any face to face time with her mother nor any member of the mother’s household.

   3.5.The father facilitate regular telephone contact between C and her mother in that three month period.

   3.6.After the expiration of three months, the children have supervised time with their mother at a child contact centre for a period of no less than twelve months with the mother and members of the mother’s family on one occasion each fortnight.

   3.7.The mother have liberty to apply for greater time on an unsupervised basis after the expiration of the minimum time referred to in order 3.6. 

   3.8.The father obtain a referral for the children to receive therapeutic counselling and I request the Director of Child Dispute Services to assist the father in obtaining an appropriate referral. 

4. The Court requests that until further order the Australian Federal Police place the names of the children, M born … May 1996 and C born … February 2001 on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the children from Australia in breach of these orders.

5. The Marshall and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.

6. Except for any appeal against these orders, a Judge be appointed to manage any further application filed in relation to the children and that until further order that Judge be Justice Watts, if he is reasonably available.

7. The mother’s application for a refund of monies paid to Associate Professor Q be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Cage & Cage& Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 1991 of 2007

MS CAGE

Applicant

And

MR CAGE

Respondent

MR and MRS F

Second and Third Respondents

REASONS FOR JUDGMENT

INTRODUCTION

1. This case is about the situation in which M and C find themselves, whether or not significant long term damage will be done to them in their current situation and whether or not the dangers inherent in alternate options are worth risking to avoid the long term dangers.

THE PARTIES

1. The mother of M and C is the applicant for parenting orders.  The father is the first respondent.  The mother’s parents are the second and third respondents.  The children were represented by an Independent Children’s Lawyer. 

THE APPLICATIONS

Mother

1. At the commencement of the case and up until final submissions, the mother’s applications were as follows:-

   3.1.An order be made that M and C live with her parents (at the current time the mother, her parents, M and C all live under the same roof).

   3.2.In the alternative, an order be made that M and C live with the mother.

   3.3.In the alternative, M and C live with their maternal uncle, P, and his wife and their children.

2. It was clear during the evidence that the mother had ordered her preferred options in this manner because she perceived some tactical advantage in doing so.  The mother feared that, given A/Prof Q’s diagnosis of her, the Court would not be prepared to make an order in her favour.  There was no doubt, given the evidence, that the understanding between the mother and her parents was that any order in the parents’ favour would in fact be an order in the mother’s favour. 

3. In final submissions, the mother, in effect, conceded that was so and re-ordered her priorities so that the primary order that she sought was an order that M and C live with her.

4. The mother sought an order that the children see their father for three hours per fortnight on a Sunday (at which time the children could, for example, have dinner with their father at the S Club at L).  The mother wished this arrangement to be flexible so that the Sunday could be changed to a Saturday upon her giving one week’s notice in the event that the children had activities that would interfere with the Sunday event. 

5. The mother’s proposal was that during school holidays the children spend two days out of every fortnight with their father but not on an overnight basis.  Again, school holidays would be flexible so that the mother, upon giving one month’s notice, could indicate which particular days during the school holidays were not suitable because of the children’s activities. 

6. The mother asked that I make an order discharging the Independent Children’s Lawyer (or more specifically, the solicitor currently fulfilling that role). 

7. The mother made an application that I remain in the matter as case management judge.  Her purpose in making that application was to mitigate against future protracted proceedings in respect of contravention or otherwise and to have any future applications heard by somebody who did not have to acquire an understanding of the history of the matter. 

8. The mother wanted an order that she be refunded the money that she has paid in respect of the costs of A/Prof Q’s second report. 

Father

1. The father had a number of positions during the hearing.  It was clear that he was searching for some solution to the very difficult situation in which he believed the children found themselves. 

2. Leading into the hearing, the father’s proposal was that he be permitted to take the children to Ireland for a period of twelve months where he would live with his sisters and then come back to Australia to settle in Brisbane.  By the commencement of the hearing before me, the father had abandoned his application to initially move with the children to Ireland for a period of twelve months.  His application at the commencement of the hearing was that he be allowed to move to Brisbane with the children. 

3. On the final day of the hearing, the father was asked by A/Prof Q whether he might consider Melbourne as an alternative to Brisbane.  Following this, the father changed his position and indicated that his primary application would be to seek an order that the children live with him in Melbourne, effective after a period of three months.

4. This proposal was based largely on the notion that M might be attracted by the prospect of attending a performing arts school located in Melbourne. 

5. However, the father (given that he had only just given consideration to the idea), was not able to give any indication as to:-

   15.1.where he would live;

   15.2.what school C would go to;

   15.3.whether it was feasible that M attend the performing arts school in Melbourne;

   15.4.how he would fund re-establishment costs in Melbourne; and

   15.5.how he would fund the children’s school fees (particularly M’s attendance at the performing arts school).

6. The father indicated that there were things the Independent Children’s Lawyer was seeking that he supported and others that he did not.  He did not want the children to ever have any contact with the grandparents.  The father did not specifically endorse in submissions the alternate proposal of the Independent Children’s Lawyer that the children be split and C live with the father in Melbourne.  After the children had had face to face time with their mother for 12 months he proposed supervised time with the mother for two years.

Maternal Grandfather

1. The maternal grandfather indicated that he wanted an order that the children live with his wife and himself.  He sought orders that the children see their father in similar terms to the orders sought by the mother.

Maternal Grandmother

1. The maternal grandmother wished to add nothing in final submissions and I inferred that she supported the application of her husband.

Independent Children’s Lawyer

1. The Independent Children’s Lawyer’s primary application is inconsistent with the recommendations of the single expert, A/Prof Q.  The Independent Children’s Lawyer’s preferred option is that an order be made for M and C to live with their father in Melbourne. 

2. The alternate application made by the Independent Children’s Lawyer was that C live with her father in Melbourne and that M be invited to do so.

3. If either of those residence orders is made, the Independent Children’s Lawyer’s application is that they become effective within a period of three months (which would allow the father time to relocate to Melbourne and re-establish himself in Melbourne).  It is the Independent Children’s Lawyer’s position that if the children are not voluntarily delivered up to the father at the appointed time, that an order be made to invoke the power of the State to do so.  The Independent Children’s Lawyer says that his proposal is a “carrot and stick” approach.  The alternate application would provide a carrot to M, offering him the possibility of attending the performing arts school in Melbourne and implicitly luring M to Melbourne because that is where C would be.  The stick would be a recovery order to force the move.

4. In the event that either of the residence orders sought by the Independent Children’s Lawyer is made, the Independent Children’s Lawyer says that there should be no face to face contact between the children or child who may be living with their father in Melbourne, and the mother and her parents for a period of twelve months.  After that, face to face contact between the children and the maternal family should take place for a twelve month period in a contact centre in Melbourne.

5. The Independent Children’s Lawyer seeks an injunctive order against the mother and the maternal grandmother restraining them for a period of three months from any communication at all with the children and thereafter allowing communication by letter and telephone at reasonable intervals. 

6. The Independent Children’s Lawyer seeks that I make a request in similar terms to that made by Justice Mullane on 23 July 2008:

   “The Director General of the Department of Community Services is requested to take [M] into care if he does not cooperate with his father in implementing these Orders.”

7. The Independent Children’s Lawyer seeks that an order be made for the father to participate in a program of counselling to improve his capacity as a father, and also for the children to attend counselling to support them and to mitigate against any emotional or psychological impacts upon them of the move to their father.

CURRENT ORDERS

1. There are orders in place made by Mullane J on 23 July 2008 that the children live with their father, and further orders of Cohen J made on 30 September 2008 that the children have no contact with the mother or either of the maternal grandparents pending further order.

2. Notwithstanding those orders, and despite the father’s attempts to recover the children, the children have been living with the mother and have had little to do with their father since about October 2008.

DOCUMENTS READ

Father

1. Affidavit of the father sworn 17 September 2008.

2. Affidavit of the father sworn 14 April 2009.

3. Affidavit of Ms S sworn 18 August 2008.

Mother

1. Affidavit of the mother sworn 23 April 2009.

2. Affidavit of the mother sworn 28 May 2009.

3. Report by Dr T dated 27 October 2008.

4. Statement by the children’s uncle P (Annexure K to the mother’s Affidavit sworn 28 May 2009 and filed 5 June 2009).

Maternal Grandparents

1. Affidavit of the maternal grandfather filed 5 June 2009.

2. Affidavit of the maternal grandmother filed 5 June 2009.

3. Affidavit of the maternal grandfather filed 12 June 2009.

4. Affidavit of the maternal grandmother filed 12 June 2009.

Reports

1. Dr C’s report dated 24 November 2005.

2. A/Prof Q’s first report dated 5 July 2008.

3. A/Prof Q’s second reported dated 1 June 2009.

Exhibits

1. There are eight documents or groups of documents exhibited.

SHORT HISTORY

1. The father was born in Ireland in 1949 and is currently 59 years of age.

2. The mother was born in Australia in 1960 and is currently 48 years of age.

3. The father came to Australia in 1971.  The parties met in 1992 and commenced to live together in April 1993.  The parties married in September 1993.

4. M was born in May 1996 and is currently 13 years of age.

5. C was born in February 2001 and is currently eight years of age.

6. The parties separated in October 2003 and at that time the children remained living with their mother.

BACKGROUND

1. The parties have been involved in court proceedings in the Family Court since March 2004.  Interim parenting orders were made in June 2004.  Those orders provided that the children reside with the mother and have defined periods of contact with their father.

2. The father commenced a contravention application against the mother in August 2004 and that was resolved in October 2004 by consent, with the father obtaining additional contact and the contravention application being withdrawn.

3. The Court made further interim parenting orders in November 2004 extending the father’s time with the children.

4. The father commenced a further contravention application in October 2005.

5. A family report was prepared by Dr C dated 24 November 2005.

6. On 7 March 2006 final parenting and property orders were made.  The parenting orders provided for M and C to “reside with each of the parties in a shared care arrangement”.  This arrangement was essentially alternate weeks, with the children to spend additional time with their mother on Tuesday and Wednesday evenings. 

7. The orders also provided “that the mother and children will cease residing with the maternal grandparents within 12 months from the date of the making of these orders”.

8. In June 2006 the father filed an application for a recovery order and the mother filed an application that the children be placed on the Airport Watch List (these applications were filed in the Federal Magistrates Court).

9. In August 2006 consent orders amending the March 2006 orders were made in relation to the implementation of changeovers.

10. In August 2006 the father filed another application for recovery of the children and a contravention application.

11. In October 2006 the Federal Magistrates Court found that a number of the contraventions alleged by the father had been proved against the mother.  The mother was required to enter into a bond for a period of 12 months in the sum of $2,500.00 and upon the conditions that she would be of good behaviour during the term of the bond, comply with all parenting orders and attend a “Keeping In Contact” program conducted by Unifam, Newcastle.  The father was also required to attend that program.

12. The father again filed an application for contravention in June 2007 and the following month the mother filed the application for final orders which I am now hearing.  She seeks that the parenting orders made by the Family Court on 7 March 2006 be discharged.

13. In July 2007 the father’s contravention application was heard.  The Federal Magistrates Court found “against the mother on her own admission” in respect of two counts.  Compensatory time with the father was ordered.  An order was made restraining the mother from attending the children’s school after 1.00pm on the days they were to go with their father and a further order was made that the mother ensure that no members of her immediate family were within the proximity at the time.  Other orders were made with the aim of keeping the parents out of extra-curricular activities during weeks when the children are supposed to be residing with their other parent.

14. In August 2007 injunctive orders that restrained the parties from communicating with each other were amended by consent to enable the parties to participate together in the “Keeping In Contact” program.

15. In January 2008 the father filed a further contravention application.

16. On 28 April 2008 the matter came before Justice Mullane for the first day of a Less Adversarial Trial.  His Honour made some interim orders, including orders that:

    64.1.the children live with the mother and that the children spend time with the father each alternate weekend from after school Friday to before school Monday; and

    64.2.the mother and maternal grandmother be restrained from removing the children from school on any Friday the children were to spend time with their father;

    64.3.the parties were required to re-enrol in the “Keeping In Contact” program; and

    64.4.A/Prof Q was appointed to prepare a report as a single expert witness.

17. A/Prof Q’s first report is dated 5 July 2008 and was released on 8 July 2008.

18. On 10 July 2008 the father filed an application in a case seeking orders that the children live with him.

19. On 23 July 2008 interim orders were made that:

    67.1.the children live with their father;

    67.2.that the children spend time with the mother on a supervised basis at the Rainbow’s Contact Centre operated by Relationships Australia;

    67.3.that the maternal grandmother and the maternal grandfather be joined as the second and third respondents to the proceedings; and

    67.4.the mother and second respondent be restrained from spending time with the children except at the Rainbow’s Contact Centre.

1. These orders were made based on the discussion and conclusions set out in A/Prof Q’s report (which, of course, was untested at that point).

2. The changeover was effected at court and the father went home with the children.  The father reported to A/Prof Q that at first it was quite tense; he attempted to deal with the tension by keeping the children to their routines, specifically their school attendance and dance classes.  He and M had to see a psychologist. 

3. In August 2008 Unifam Counselling & Mediation informed the Family Court and the parties that the mother “made no contact with Unifam.  This case is now closed”.

4. Notwithstanding an order against it, M communicated with his mother and in September M went back to the maternal family and tried to recover C also. 

5. In September 2008 the father filed an application for a recovery order.  By the time the application for a recovery order came before the Family Court, M had been returned to the father (on 15 September 2008) and the father did not press for a recovery order.

6. On 25 September 2008 the Family Court made an order that “because of his impending retirement on 30 September 2008, Justice Mullane hereby abandons further hearing of these proceedings”.

7. In September 2008 both children went to the mother and did not return to the father’s care.  The father filed a contempt application against the mother and both maternal grandparents on 26 September 2008.

8. On 30 September 2008 the Family Court made orders that the maternal grandfather deliver the children to the father’s home by 4.30pm on 30 September 2008 and that the children thereafter have no contact with the mother, the maternal grandparents or either of them until further order.

9. The mother had been seeing Dr T for a mental state examination and on 7 October 2008 he produced a report.  The report reaches a different conclusion in terms of the mother’s psychiatric diagnosis than that reached by A/Prof Q.  Both psychiatrists gave concurrent oral evidence before me.

10. On 27 October 2008 M made a statement to the L Police about an incident that was alleged to have happened earlier that day involving M and his father.  M alleged that his father pushed C, punched M in the solar plexus, vigorously twisted M’s arm, bent his ring finger backwards towards his wrist and then twisted his ring finger and then finally attempted to grab M by the neck.  The L Police saw the father that day and noted that the father “denied any physical abuse and stated that he attempted to stop his children from leaving like any other reasonable parent”.  I deal with this incident in more detail below.  The children thereafter lived with the mother.

11. L Police made an application for an ADVO in favour of M against the father.  The ADVO was later dismissed on the basis the father gave undertakings.

12. In November 2008 the father filed an application for a recovery order and an order restricting the respondents from moving outside a 100km radius of L.

13. The father filed further contempt applications in December 2008.

14. In January 2009 the matter came before the Family Court.  Justice Ryan ordered a further updated report to be prepared by A/Prof Q.

15. In March 2009 the Family Court dismissed the father’s contravention and contempt applications. 

16. In March 2009 the father filed an amended response seeking for the first time to be permitted to relocate the children to Ireland for a period of 12 months and when they returned to be permitted to reside with the children outside New South Wales and for the mother to have no contact with the children until the father and the children returned to Australia and then supervised contact outside New South Wales during summer holidays.  The father further applied for the maternal grandparents to have no contact with the children.

17. The mother initially resisted attending and paying for the interviews with A/Prof Q for the purposes of her being able to complete the further report.

18. On 7 April 2009 an order was made directed to the Commonwealth Bank to secure payment of the mother’s responsibility for A/Prof Q’s fees.  The mother attended with the children for further interviews with A/Prof Q on 29 April 2008 (although A/Prof Q reports their demeanour seemed grim and unhappy).

19. A/Prof Q produced a second report dated 1 June 2009.

CREDIT

1. The evidence of the maternal household cannot be seen as evidence given by each of them independently.  On many occasions during the four days of the hearing the mother, the maternal grandmother and the maternal grandfather answered for one another.

2. Where there is a conflict between the evidence of the father on the one hand and members of the maternal household on the other I prefer the evidence of the father.

3. For reasons which emerge from the discussion below, I prefer the evidence of A/Prof Q and Dr C to the evidence of Dr T, where that opinion evidence differs.  Dr T on a number of occasions quibbled over language.  Dr T’s argument over the word “could” was him taking a pedantic point, notwithstanding his denial that that was so.

THE INCIDENT ON 27 OCTOBER 2008

1. When A/Prof Q saw the father and the children on 29 April 2009 she suggested to the father and each of the children that they might give their account as to what happened on that day.

2. The children were at that time living in their father’s home.  Both children had been dropped off by the father to the bus for school but M came back home saying he felt sick.  When the father went to collect C from the school bus in the afternoon she was not there.  The father then went back to his home and collected M and they went back to the school.  The school was contacted by the mother to say that C had come to her house and that she would drop C back to her father’s soon.  At this point M and his father had words, and M left his father and went to his mother’s house.  At about 5.45pm the mother, the maternal grandmother and the two children came to the father’s home.  The children came into the father’s house.  M had a discussion with his father about dropping this case.  C also upon coming into the house asked the father to drop the case.  The father indicated to the children that he thought it was in their best interests to proceed with the case.

3. It is the father’s version that M took C’s hand and was about to leave and the father told him, “you’re not leaving” and stood between him and the door.  He said that M then ran off.  C was crying.  The mother picked up a shovel and fork from the front garden and put them into the boot of the car that the mother, the maternal grandmother and the children had come in.  By this point C was distraught.  The father went outside and asked M to come back into the house to comfort C.  The mother by this time had left the premises but the maternal grandmother was still at the premises.  The father said that he had asked the maternal grandmother to leave but she had refused and he had indicated that he would call the police.  The father says that M lifted C over the balcony and they went down the driveway and left the premises.  Subsequently M made an allegation to the police that evening that he had been assaulted by his father.

4. ADVO proceedings were issued and settled on the basis of undertakings.  The father said he agreed so that M would not have to be put onto the stand.

5. M’s account to A/Prof Q was substantially similar.  M gave details about the discussion about his father telling them that they had been alienated with M answering, “I’ve heard that so many times”.  M agrees that upon this first argument with his father he left and went to his mother’s house.  He says he found C “gulping iced water, she was all red in the face, she had run all the way home”.

6. This may be inconsistent with C’s statement to A/Prof Q that she had decided at lunchtime on that day to run home from school to her mother’s place.  M confirms that the children returned to their father’s house and confirms that they both asked him to drop the court case because “it’s driving us all mad”.  M said that his father went on about “he’s got a duty” and that M said he had “heard that a million times”.  M said that he indicated that he and C were leaving and that his father said “she’s not going”. 

7. M said that at this point his father grabbed C’s jacket “and then he grabbed my hand and his nail went into the palm, then he punched me in the stomach, went into the solar plexus and winded me.  Then he grabbed me by the throat and I banged his hand and he let go and I ran.  He didn’t follow me.  [C] was looking out the window crying and dad was offering her chocolate and Panadol”. 

8. M confirms that his father asked him to come back into the house and speak with C because she was upset and that they left together: “[C] jumped the fence and came down”.

9. A/Prof Q notes that when C gave her version of the events she did not describe a physical assault upon M by his father.

10. Exhibit O is the police event log relating to the report of the assault.

11. In that document M alleges that the father “pushed [C]” prior to punching him in the solar plexus (this is a different version to the version he gave A/Prof Q.  His description to her was that he had “grabbed [C’s] jacket”).

12. Notwithstanding the fact that M alleged that he had been punched in the solar plexus and grabbed by the throat, M displayed no sign of injury to the police.  M also alleged to the police that his father twisted his arm and bent his ring finger backwards towards his wrist and then twisted his ring finger.  That description is not consistent with the description that he gave A/Prof Q.  The police concluded that there may have been an altercation between M and his father but due to the ongoing family law dispute M had been coached by his mother and possibly by other parties.  They commented that M was able to use phrases that they would not expect a child of M’s age to be familiar with.

13. Insofar as the mother gives evidence about aggression from the father towards M on this evening, I do not accept her evidence.

14. I find on the balance of probabilities that there was no physical assault or alternatively that any physical contact between the father and M has been significantly exaggerated (perhaps due to the heat of the emotions involved in the incident) by M.

DR C’s EVIDENCE

1. Dr C provided a report in 2005.  Dr C’s evaluation accurately predicted what has happened three years later.  She assessed the mother as having little, if any, insight into how the mother may contribute to the difficulties the mother experiences across a wide range of situations.  The mother was assessed by Dr C as egocentric and unreceptive to the point of view of others.  Dr C thought that the mother’s lack of insight had the potential to be extremely damaging to the children. 

2. Dr C reports that the maternal grandmother presented as opinionated, negative and self righteous as far as family matters and the father were concerned, and as being prepared to do anything necessary to ensure the father had as little role as possible in M and C’s lives.  That situation has not changed. 

3. Dr C was cross examined in respect of her report.  I found her evidence straightforward and reliable.  She satisfactorily addressed matters raised by Dr T in his critique of Dr C’s report.

4. The mother on a number of occasions and the maternal grandfather in final submissions expressed great concern about the content of correspondence received by Dr C prior to writing her report from David Winder, Ramsland Graham Solicitors, who represented the father at that time.  I find that there is nothing unusual or untoward in the contents of the letters written by Mr Winder to Dr C and any allegation of unethical behaviour on his part has no substance.  I also find that nothing written by Mr Winder inappropriately affected the manner in which Dr C approached her task nor did it influence in any significant way the findings that Dr C ultimately came to. 

THE MOTHER’S MENTAL STATUS

1. In her first report A/Prof Q diagnosed the mother as having a Personality Disorder, Cluster B type, with Borderline, Narcissistic and Histrionic features.

2. A/Prof Q said:

   “This is very apparent from her unusual cognitive processes, lack of empathy, troubled inter-personal relationships, exaggerated affective responses and histrionic presentations, particularly regarding medical matters.  This is a fixed characteralogical structure and is unlikely to be ameliorated by treatment particularly since there is also a marked lack of insight and a strong externalising focus so that [the mother] characteristically sees problems as located outside herself”.

3. Dr T in a report dated 7 October 2008 takes issue with A/Prof Q’s diagnosis of the mother.  The mother was originally referred by her GP to Dr T in September 2007 and saw him on seven occasions because the mother had become the subject of a rumour at the school where she taught.  Subsequently, in 2008 the mother with the maternal grandmother attended Dr T on three occasions for one hour.  Their focus in these sessions was the “damning conclusions” of A/Prof Q (and Dr C in 2005).  Dr T records that he observed that the mother spoke intensely and was difficult to interrupt.  He also observed her interaction with her mother.

4. Dr T questions A/Prof Q’s assessment that the mother manifests features of Personality Disorder.  However, Dr T records in his report that he initially found the mother “infuriating” and that he was struck “by the exaggerated expression of emotion.”  Dr T took issue with A/Prof Q on the basis that A/Prof Q had referred to the “mother’s lack of empathy”, and he challenged the ability of A/Prof Q to make that assessment based on the mother having lack of empathy for the father.  It was clear that that was not the basis upon which A/Prof Q made that observation. 

5. Because of the disagreement in respect of the mother’s psychiatric diagnosis, I had A/Prof Q and Dr T give concurrent evidence.

6. Dr T’s second challenge to A/Prof Q’s diagnosis was that Dr T asserted that A/Prof Q had not described a significant number of enduring behaviours to satisfy the criteria for any specific personality disorder, as set out in the DSM- IV-TR (the Diagnostic and Statistical Manual of Mental Disorders, 4^th edition).

7. In querying whether or not the mother met specific criteria, Dr T comments that A/Prof Q only identified one Borderline Personality criteria, two Histrionic Personality criteria and two Narcissistic Personality Disorder criteria, and for there to be a diagnosis on any of those specific Personality Disorders there needed to be substantially more criteria identified.

8. Dr T was asked by me whether or not it was possible to make a diagnosis of a personality disorder if you are unable to assess one of the specific types of personality disorder.  Dr T indicated that was so and asserted that:

   “....there is no kind of, if you like, residual or rag bag category NOS,  not otherwise specified, that is in most of the diagnostic content of DMS-IV; the last item is a kind of non specific, not otherwise classified, type of residual category and they don’t have that in personality disorders”.

9. That evidence by Dr T was not accurate. 

10. A/Prof Q made it clear in her oral evidence that she relied upon the general diagnostic criteria for a personality disorder (as opposed to any specific disorder).  She referred in her oral evidence to paragraph 301.9 DSM-IV “Personality Disorder not otherwise specified.”  That category was for disorders of personality functioning that did not meet criteria for any specific personality disorder.  It was A/Prof Q’s view that the mother fitted that description, given that she presented with features of more than one specific personality disorder.  Together, these features caused clinically significant distress or impairment in one or more important areas of functioning.

11. After the residual category for personality disorders was pointed out to Dr T, he asserted that A/Prof Q did not actually diagnose the mother having that category of personality disorder.  His attention was drawn to A/Prof Q’s original diagnosis:-

    “Personality Disorder, Cluster B type with Borderline Narcissistic and Histrionic Features”

12. He said that he thought that was different from “personality disorder not otherwise specified”.  I found, as I did with other parts of Dr T’s evidence, that he was quibbling with language. 

13. Dr T conceded that he originally found the mother difficult at the beginning of the first seven sessions that he spent with her in 2007 and that he again found her difficult when he recommenced with her in August 2008.  The mother’s first appearance before me was also quite belligerent.  Dr T opined that despite the mother being highly intelligent, she did have difficulty in retaining the exact question to be answered.  This led her to be overly inclusive and that that was part of her personality.  A/Prof Q commented that one of the features that she had highlighted in the problems that the mother had, was disturbances in cognitive style.  Dr T questioned whether or not that meant that everyone who was long winded had a personality disorder.  He said he did not think so and rhetorically asked: is a personality disorder amenable to input which effectively makes it much less troublesome?  Dr T’s view was that neither the mother nor the maternal grandmother demonstrated any pathological reaction to different views being expressed.  Dr T explained the mother’s inability to think of anything good about the father’s parenting capacity as her being desperate about the court case.  A/Prof Q commented that it was only in the most troubled families that you would find that a person could not acknowledge any positive quality in the other parent.

14. I accept A/Prof Q’s diagnosis that the mother has a Personality Disorder with Borderline Narcissistic and Histrionic features.  I also accept the further point made by A/Prof Q that in the kind of assessment she was making, where parenting function is really the major consideration, it is more important to look at features of personality disturbance which may reflect in parenting rather than to be categorical about having to have a DSM criteria fulfilled.  A/Prof Q was of the opinion that the mother’s lack of sensitivity was likely to be experienced very negatively by the children in their formative years.  There is ample evidence of features of the mother’s personality disorder and I accept that those features have a significant and deleterious impact upon the mother’s parenting ability. 

THE FATHER’S MENTAL STATUS

1. A/Prof Q said that the father had some avoidant personality traits, or at least an introverted and introspective character.  She said it fell short of constituting a personality disorder.  Nevertheless, it is A/Prof Q’s assessment that his overall adjustment is adequate, although he is inward focused and does not have a good capacity for empathic attunement.

2. A/Prof Q’s view is that although the father might be amenable to assistance with counselling, the mother was not.

ENMESHMENT AND FUSION

1. The other issue emerging from Dr T’s written report was what seemed to be a challenge to Dr C and A/Prof Q’s opinion that it was readily apparent that there was psychological fusion and enmeshment between the mother and the maternal grandmother which were likely to have deleterious effects upon the children. 

2. A/Prof Q agrees that psychological fusion and enmeshment between the mother and the maternal grandmother are readily apparent:

   “These are concepts that relate to a lack of individuation and separation in a relationship such that the two persons may operate as if of one mind rather than two mature and separate individuals. It is a condition of immaturity since individuation and separation normally takes place in a parent/child relationship so that ultimately the child becomes her own person. There will then be the tendency for a person like this to have difficulties in providing for healthy and phase appropriate individuation and separation in her own children. In addition [the mother] has a histrionic personality style with excessive emotionality and impressionistic language. This together with the problems of individuation and separation make for a relationship with her children that tends to be engulfing.      

1. In oral evidence A/Prof Q, by way of further explanation of the concept of enmeshment, said that as an infant grows and develops, there is a sense of self being separate from the parent, and during the primary school years of a child, that sense of separate self grows to the extent of being able to perform extended functions and to think reasonably independently.  By adolescence there then comes another big step in that an adolescent separates even further psychologically from their parent by developing their own ideas, perhaps their own values, perhaps challenging the values of the parent and the family, and moves to a position where they are a separate person with thoughts and ideas.  While they may still be loving towards and attached to the parent, they are no longer highly needy of them or dependent upon them.  A/Prof Q’s view was that in this case, the mother and the maternal grandmother (as highlighted throughout A/Prof Q’s report) speak for each other, share mutual thoughts, intrude upon each other’s thinking and speak for each other in ways that a mother might speak for a small child rather than the way two adults would speak.  There was therefore a fusion and enmeshment of the mother, the grandmother and the children. 

2. In oral evidence, Dr T accepted A/Prof Q’s description of the concept of enmeshment.  

3. A/Prof Q said that fusion was a very similar concept to enmeshment.  Dr T re-interpreted A/Prof Q’s word “similar” into the word “synonymous” and said that if the terms were synonymous there would only be a need for one term (I found this to be another example of Dr T’s quibbling over language). 

4. A/Prof Q provided examples in the literature which indicated that enmeshment and fusion were standard terms in family systems theory.  In the addendum to the updated single expert report, A/Prof Q had enclosed an article by Jenny Brown entitled “Bowen family systems theory and practice:  illustration and critique”.  That article defines fusion as being a situation in which individual choices are set aside in the service of achieving harmony within the system.  Fusion can be expressed either as a sense of intense responsibility for another’s reaction or by emotional “cut off” from the tension within a relationship. The former concept is referred to as enmeshment.  In that sense, enmeshment is a type of fusion where two or more people in a family act and feel almost as one.  This behaviour leads to a group mentality which suppresses individualisation. 

5. When pressed, Dr T agreed that he understood these definitions and that they were understood generally and regularly used in family systems theory.  Dr T also conceded that A/Prof Q had highlighted many times in her report examples of the kind of interaction that she saw that were examples of enmeshment and interactions which were highly problematic in terms of that being the environment in which the children were growing up.  It is clear from Dr T’s report that he, on occasions, also observed similar phenomena to those which A/Prof Q had observed. 

6. Dr T was highly critical of Dr C’s report and attacked its lack of specificity in respect of observations to underpin conclusions made in the report.  In Dr T’s view, what Dr C had observed was ordinary family dynamics under stress, and he opined that Dr C had pathologised these dynamics by using jargon.  Dr T quibbled with a good deal of Dr C’s language but as it turned out, Dr C had made some astute and what turned out to be accurate predictions:-

   “There is a very real danger, in the writer’s view, that unless there is a significant change in the mother’s attitude and behaviour, that the mother could alienate the children from the father”.

7. I accept that the mother has an enmeshed relationship with her mother who is highly intrusive and who also has a strong externalising focus, constantly locating problems outside of herself in spite of the history of what appears to have been quite turbulent relationships, including estrangement from her own children at times.  The way in which the maternal grandmother characterises other people, including the children’s father, is of great concern.  There is little doubt that the children are exposed to if not indoctrinated with such views.

8. The psychological fusion between the mother and the maternal grandmother is quite marked and it is apparent that over time the children will be drawn into this fusion.  To some extent they already have been.  As a result there has developed a form of group mentality in the maternal household.  This includes a perception of difference as potential threat and a vilification of such threat.  At present, the father is regarded as the source of threat.

9. I accept A/Prof Q’s evidence that psychological fusion in this case is clearly marked and quote notable. 

SECTION 60CC FAMILY LAW ACT

Primary Considerations

The benefit to the children of having a meaningful relationship with both of the children’s parents

1. The mother’s position is that there is no benefit to the children at all in having a relationship with the father, and her behaviour over a period of years could be seen as directed towards implementing that position by any means necessary.

2. In her first report A/Prof Q opined that it was “critical that [the children] sustain a meaningful relationship with their father in order to assist in neutralising the effects of the mother and the maternal household”.

3. A/Prof Q is of the view that the benefit to the children of “having their mother so devoted is offset by the fact that the cost of this is likely to be that they become part of the group mentality or psychological fusion of the maternal family”.

4. The second report from A/Prof Q would indicate that predictions made by both A/Prof Q (in her first report) and Dr C (in her 2005 report) have come to pass. 

5. I find that the children are likely to be psychologically damaged by living in their mother’s household.  The meaningfulness of the relationship with their mother is compromised.  It is likely that if I accept the mother’s proposal that the children continue to live in her household and have confined time with their father, then the children will not have the benefit of a meaningful relationship with their father in the short term.  A/Prof Q, however, has indicated that adopting this course may leave open the possibility of the children developing a meaningful relationship with their father over time if he stays living in close proximity and the children need to seek him out and find refuge with him. 

The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. Based on the evidence of Dr C and A/Prof Q which I accept, both children have suffered severe psychological abuse at the hands of the mother and the maternal family.

2. There has been a movement from a loving parental relationship between the children and their father to a situation in which the children are alienated from him, and that is primarily the result of the influence of the mother and the maternal grandmother.

3. In her second report, when talking about M, A/Prof Q says that he “manifest[s] features of possible personality disturbance and is certainly enmeshed with his mother … obvious lack of differentiation of views or opinions … [C] has moved from a position where she was attached to both parents to now having  joined the powerful fusion within the maternal family and has become similarly alienated from her father … Over time there are considerable risks to her individualisation as well”.

4. It is the Independent Children’s Lawyer’s position that the children need to be protected from the long term effects of “significantly psychologically abusive behaviour”.  I have evidence before me of the destructive effect of that behaviour on the children’s capacity to form satisfactory adult relations in the future.

5. The father in final submissions said that he thought that if these children had black eyes and bruises they would be taken from the family quickly, and psychological abuse should not be treated any differently as it is just as destructive in the long term.  He submitted that the children have to be moved out of the maternal household and he thought that the evidence was compelling.

6. The father continually referred to the mother’s “dysfunctional” family, and I accept that as an apt description of the mother’s relationship with the maternal grandmother.

Additional Considerations

Any views expressed by the children and any factors (such as the child’s maturity or level of understanding) the Court thinks are relevant to the weight it should give to the child’s views

1. Both children have expressed the view that they wish to live with their mother.  A/Prof Q reports that “the children are quite implacable in their attitude.  They do not wish to return to reside with the father”.

2. In final submissions the mother repeated a point that had previously been made by her by asking the question “what was stopping the father from taking the children from school here in Newcastle given that he had an order in his favour that they live with him?”  She answered the question by saying that the father knew that they would run away and he did not want the bother of that.  The mother made the point that in the last eight months the children had not run away from her and returned to the father.  She submitted that the father could not implement court orders even when they were in his favour because of the strongly held views of the children.

3. I accept A/Prof Q’s evidence that “they have little capacity for independent or critical thought, but have become fused with the group mentality of the maternal family”.  Because that is so, I place very little weight on the views expressed by the children as relevant to a consideration of what is in their best interests.  Given M’s age, of course, his attitude means that, notwithstanding his best interests, any order that is made against his views may be extremely difficult to enforce.  The father and the Independent Children’s Lawyer conceded that even if the force of the State was used to move M, it would be likely that M would abscond from the father as soon as he had an opportunity of doing so.  It is quite clear that the maternal family would participate actively in recovering M and returning M to their household.

4. During final submissions, counsel for the Independent Children’s Lawyer responded to my question as to what we would do about M wandering around Melbourne attempting to hitch a ride home.  The Independent Children’s Lawyer indicated that he imagined that M would abscond, wander around the streets and make a telephone call to the maternal family at Newcastle saying “I am at the train station, what do I do?”  At that point the maternal grandfather interjected with the words “wait for us”.  I accept that the members of the maternal family would do everything within their power to recover M once he had absconded from his father. 

5. When the children saw A/Prof Q on the last occasion, M suggested as a solution that they be on the airport watch list and that they see their father once a month for two or three hours for dinner.  C told A/Prof Q that there could be contact on Wednesday and Sunday.  At that point M agreed but said that he would need flexibility because of his program (pages 17 and 18 of A/Prof Q’s updated report). 

6. A/Prof Q recommended the children see their father for dinner once a week. 

The nature of the relationship with each of the child’s parents and other persons

1. I am comfortably satisfied that the enmeshment and fusion which is referred to by Dr C in 2005 and by A/Prof Q has been amply demonstrated by the evidence.  The relationship that both children enjoyed with their father in 2005 has dramatically deteriorated.  The Independent Children’s Lawyer referred to the counselling notes in L school (Exhibit R) which recorded C’s delight about spending time with and living with her father.  Both children are now alienated from their father and both are now expressing extreme resistance to being involved with him.

2. There is a pathological enmeshment of the children within the maternal family.

3. There was some evidence to suggest that the relationship between the children and the maternal grandfather was not as toxic as the dynamics between the children and their mother and the maternal grandmother, as described by A/Prof Q and Dr C.

The willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent

1. The detailed judgment of Coakes FM documents some of the mother’s repeated contraventions of the then current orders.

2. The mother has no willingness and no ability to facilitate anything but an extremely limited relationship with the father on the basis of her history of repeatedly contravening orders.  There is a considerable risk of her failing to facilitate even a limited relationship once final orders are made.

The likely effect of any change in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or their grandparents

1. I discussed the likely effect of the competing proposals in my conclusions.

The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relationships and direct contact with both parents on a regular basis

1. The father has proposed that he move away from the area in which the children live and that they be with him.  Whilst he is no longer thinking of going to Ireland for 12 months, the father is still thinking that it would be best to make it practically difficult for the children to spend time with and communicate with the mother for at least a three year period.

2. In this case, however, geographical distance may be insufficient to overcome the alienation that has already taken place in respect of the children adopting the enmeshed views of the mother’s household, particularly in M’s case.

The capacity of either of the child’s parents to provide for the needs of the children, including emotional and intellectual needs

1. There is little suggestion that either parent is incapable of physically caring for the children.

2. I have accepted A/Prof Q’s diagnosis that the mother suffers from a personality disorder.  

3. The mother’s capacity to provide for the emotional needs of the children is seriously in doubt.

4. Although there is some criticism of the father in regards to his level of emotional attunement to the children, that is less of a problem than “the significant psychological cost” (A/Prof Q’s words) of the enmeshment of the children with their mother.

The capacity of the maternal grandparents

1. The maternal grandmother has been described in extremely critical terms by Dr C and A/Prof Q and I accept their opinions in preference to that of Dr T. 

2. The maternal grandmother was unable to identify any positive feature of the father’s parenting capacity, with the exception that she adopted her daughter’s suggestion that the father, as a good looking man, had provided the necessary genetic material to produce good looking children. 

The maturity, sex, lifestyle and background of the children and of either of the children’s parents and any other characteristics of the child that the Court thinks are relevant

1. I accept that M is now at an age where he can effectively control his own movements and leave his father.

2. As the father had abandoned his application to move the children to Ireland, the father’s Irish heritage was not the focus of any evidence before me.

The attitude to the children and to the responsibilities of parenthood, demonstrated by each of the children’s parents

1. The mother says that the father has not properly financially supported the children.

2. The mother has repeatedly refused to discuss issues relating to the children with the father.

Any family violence involving the children or any members of the children’s family

1. Notwithstanding the incident involving M and his father, in my view there have been no serious issues of physical family violence.  The alleged assault on M happened in the circumstances discussed above.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children

1. The children have been subjected to ongoing litigation between the parents for many years. 

2. It would be naïve to think that this matter will not come back to court in the future.  The mother has invited me to adopt the role of judicial management of this case in the future and I am prepared at this point to take on that role.  Any further application relating to the children should be relisted before me if I am reasonably available.  The applications would ordinarily be dealt with by electronic means given that I would normally be sitting in the Sydney Registry. 

The mother’s alternate proposal for the children to live with her brother and his wife

1. The mother, as an alternate proposal, suggested that I make an order that the children be moved to live with her brother and his wife.  Her brother gave evidence to indicate that he was willing to make himself available for that purpose.  The mother’s brother works for an airline company.  He is married with children.  There was a period when the mother’s brother was estranged from the maternal family to some degree but that now no longer seems to be the case.  The mother’s brother would be prepared to take the children into his household and to enrol C at a local school and M at the regional centre.  

2. A/Prof Q commented that she thought it was extraordinary that the children could reside with almost anybody except their natural father in circumstances where there was no evidence that their natural father had been abusive towards them in any way.  

3. This alternate proposal has not been fleshed out at all in terms that would convince me that it is workable.  A/Prof Q referred to the letter written by the maternal grandfather in February 2003, commenting that alliances in this family can come and go and opining that this alternate arrangement may not be very stable.  I agree with A/Prof Q assessment and do not consider this alternate proposal a seriously viable one. 

Conclusions about best interests

1. The Independent Children’s Lawyer’s primary position is based on the importance of maintaining a sibling relationship between C and M.  In my view, the primary proposal of the Independent Children’s Lawyer is unrealistic.  M told A/Prof Q on the last occasion he saw her that he would not move to his father’s home even at gunpoint.  It is highly probable that if the power of the State was used to move M to Melbourne, he would attempt to run away, and if C is with him it is highly probable that if the power of the State was used to move M to Melbourne he would try and get C to run away with him.  A/Prof Q opined that that would lead to an incredibly risky situation for the children and that nobody could then predict what the result of that risk might be.

2. The Independent Children’s Lawyer suggests that this short term risk should be taken because the long term risks for the children outweigh the short term risks.

3. What would probably happen is that M would get to some place in Melbourne where he could make a telephone call to his mother’s family and that they would then make the necessary arrangements to keep him safe.  Implicitly it was suggested that I should not be overly concerned about M or C attempting to find their own transportation back to Newcastle.

4. The Independent Children’s Lawyer’s second proposal does not have the same risks associated with it.  It is less likely that C, on her own, would attempt to run away.

5. The second proposal, however, separates the siblings and there are three problems with that happening:

   180.1.It is not the father’s proposal that this happen and in fact he gave sworn evidence that he did not want it to happen.

   180.2.The maternal family does not support a separation of the children.

   180.3.A/Prof Q expressed the opinion that on balance, splitting the siblings was not in C’s best interests.  She started by saying that it is not something that one would ever recommend except in extraordinary circumstances, but then paused to reflect on whether or not these are extraordinary circumstances.  Her opinion was that C and M would be very distressed at being separated from each other because they are very close as siblings.  A/Prof Q opined that it would be particularly difficult for C because she would grieve for her brother, her mother, her friends, school and her context.  A/Prof Q thought that in this difficult situation for C, it would be very hard to say whether the positives aspects of being out of the maternal family’s system would ultimately work in her favour.  The short term effects would be fairly dramatic.  Making an order in those terms would be a gamble.  A/Prof Q said that she did not think that we could be sure about how this situation will play out in the long run.  On the one hand it might be best to get C out of her current environment in the short term, but on the other hand she may be quite damaged by the short term trauma and grief of taking that course.  I have concluded that it is not in C’s best interests for me to take that gamble with her emotional wellbeing.  As A/Prof Q opined, it would be a different situation if M voluntarily moved to his father. 

1. Neither of the Independent Children’s Lawyer’s proposals are supported by the evidence of the single expert.  Counsel for the Independent Children’s Lawyer conceded that it would have been preferable if counsel had put to A/ Prof Q during her cross examination the different positions that the Independent Children’s Lawyer proposed to advocate in final submissions.  That did not happen and I do not have A/ Prof Q’s evidence about what she might have thought about those alternate proposals.

2. Counsel for the Independent Children’s Lawyer justifies the positions taken on the basis that the circumstances of this case are extremely unusual.  Damage is going to be occasioned to the children no matter what happens.  It is the Independent Children’s Lawyer’s position that it is highly probable that the long term damage that will be occasioned to both children as a result of them remaining in the care of the mother and/ or the maternal grandparents is greater than the damage that might be caused by any short term risk.

3. The primary and alternate proposals of the Independent Children’s Lawyer and the proposals of the father are based on the notion that there is a reasonable probability that M will be able to obtain a place in the performing arts school in Melbourne.  I have no evidence about the standard required in order to qualify for that school, apart from evidence given by the mother during final submissions which would indicate that at the current time M does not have the required degree of flexibility in his movements to be able to qualify (from what she said he has until he is 15 to obtain that flexibility).  I have no evidence about what the fees are and how those fees might be funded. 

4. The mother during evidence was quite negative about M’s art in terms of it being a long term career.  She made a comment about him only being as good as his first injury.  A/Prof Q records (at page 15 of her updated report):

   “She [the mother] does not want him [M] to be a professional [artist] even though he has the capacity [this was said very firmly]”

5. It seemed to me that the mother realises that any pursuit by M of a career in the arts would take him away from Newcastle and that is not something that appeals to her. 

6. Counsel for the Independent Children’s Lawyer suggested that A/Prof Q had provided qualified support in her oral evidence for the children being removed, notwithstanding what she had written in her supplementary report about a third option.

7. A/Prof Q had said the following:

   “[the father] appears to see his options as limited to either physically removing the children from the maternal family or walking away from the situation.  In my view, there is a third option and one that better anticipates the needs of the children, and that is to remain available and await the time when they may feel the need for some individuation from the maternal family system.  This is most likely to occur during the early adolescent years and thus for [M] that time is near and he may then need the refuge of his father.”

8. It is A/Prof Q’s position that the father should continue to reside in a location were the children can reasonably make regular contact with him.  She suggested that he meet with the children for dinner one evening a week and opined that such a proposal would meet with the least resistance.  Further, she says that there is little to be gained from taking a path that would trigger or escalate resistance by the children.

9. Originally A/Prof Q in her first report said that it was critical that the children maintain a relationship with their father because of the risks in their mother’s household.  She has, however, concluded in her second report that the maintenance of that relationship can only happen in a way that has already been described above.

10. A/Prof Q’s view is that there now seems little choice but to accept the situation that has evolved and which is defended so vehemently by the children and the maternal family.  At the end of her cross examination I asked A/Prof Q whether or not she had changed the opinion that she had expressed in her recommendations in her updated single expert report.  She answered unequivocally that she had not changed her opinion.

11. It is implicit in A/Prof Q’s recommendation that it is her view that it is likely that the short and medium term risks in attempting to move the children exceed the potential long term damage that is likely to be inflicted upon the children by them remaining in the maternal household.  They are potential risks because A/Prof Q is suggesting that there is a third possibility. That is, as the children move into adolescence they may feel the need for some individuation from the maternal family system.  She suggests the father retain regular contact and remain close so that he is available as a refuge.  The Independent Children’s Lawyer did not cross examine A/Prof Q to test her opinion about this third option scenario and her opinion about it remains unchallenged.

12. The Independent Children’s Lawyer’s submission ignores the third possibility by submitting that the damage caused to the children by remaining in the household is likely to be unable to be undone in the same manner that the damage to the mother that has been occasioned in her household has been unable to be undone.  Whilst there is certainly some support in that submission in the opinion of A/Prof Q that M is commencing to exhibit the early signs of a possible personality disorder, it is not the case, based upon the single expert’s opinion, that long term damage is inevitable. 

13. Accordingly, I find that it is in the children’s best interests to accept A/Prof Q’s recommendations.  The children will live with the mother and have limited weekly and holiday time with their father.  I discuss below what I think is in C’s best interests if M votes with his feet and moves to his father’s home within the next two years. 

SECTION 65DA FAMILY LAW ACT

1. Based on the views of A/Prof Q and Dr C, the presumption of equal shared parental responsibility is rebutted because in the circumstances of this case it would not be in the interests of the children for the children’s parents to have equal shared parental responsibility for them.

2. Consequently it is not necessary to consider equal time or substantial and significant time pursuant to the provisions of s 65DAA(1) and (2) FLA. Such an arrangement is simply not reasonably practicable (s 65DAA(5)) FLA. The short distance that the parties have lived from one another has been productive of significant difficulty in the relationship between the children and each of the parents, exacerbated by the entrenched and drawn out conflict that has existed between the parties for such a significant period of time.

3. The mother has little or no capacity to implement an arrangement which would share responsibility and the mother has little or no prospect of developing any such capacity.

4. The parties have no capacity to communicate with each other.  There is no doubt that the inability of the parties to share responsibility currently has and will in the future have a negative impact upon the children.

IF M GOES TO LIVE WITH HIS FATHER IN THE NEXT TWO YEARS

1. A/Prof Q agreed that in the event that M goes to live with his father of his own volition within the next two years, then it would be appropriate for an order to be made now that C then live with her father.  A/Prof Q commented that even though C may be unhappy about it, there would be enough of a buffer in that situation with M being at her father’s home to offset that unhappiness.  After that, the overall circumstances in relation to the children in A/Prof Q’s view would need to be revisited.

2. It also follows, given the discussion about parental responsibility elsewhere in these reasons, that if C goes to live with her father as a result of M voluntarily going to live with his father, then there should be a change in parental responsibility so that the father at that time exercises sole parental responsibility and the mother does not. 

OTHER SUGGESTED ORDERS

The application for a default order that M be taken into care

1. There is no evidence that the request made by Justice Mullane on 23 July 2008 that the Director-General of the Department of Community Services take M into care if he does not cooperate with his father in implementing the orders led to any further action by anyone, including the Department.  I am unsure as to whether or not anybody, including the Independent Children’s Lawyer, drew that request to the Director-General’s attention when M ran away.  I have no evidence, and I infer that I would have had evidence if something had been done, that the Department did anything about that request.  Absent any indication by the Department that they would honour that request, I see little point in remaking it and A/Prof Q does not suggest I should.  I find it is not in M’s interest to make such an order. 

Counselling for the children

1. A/Prof Q, in her last report, said it was her view that the children should have access to an independent counselling arrangement.  It was her view that they need to speak to a person who is outside the situation.

2. This suggestion is supported by the Independent Children’s Lawyer.  A/Prof Q conceded that M would be resistant to such a proposal and there was no explanation during A/Prof Q’s oral evidence as to how this support for M could effectively be put in place.  Also during her oral evidence, A/Prof Q conceded that any therapeutic intervention for M would be very difficult given that the situation in which M finds himself is so entrenched.  A/Prof Q in the end basically thought that the only way of changing the situation was for the father to remain available for M and for him to be far more proactive in relation to supporting M’s ambitions as an artist.  I find that an order that the children be involved in counselling while living in their mother’s household would not be of benefit to them.  I accept that if the children live with their father in the next two years, there would be merit in the idea of therapeutic counselling for them.

Watchlist

1. M, in discussions with A/Prof Q on the last occasion, suggested that he and C’s name remain on the airport watch list.  Whilst I accept the father has genuinely abandoned the idea that he would take the children overseas, I think it is appropriate given the way proposals have emerged in this case, to leave in place an airport watch list order. 

Refund to mother of A/Prof A’s costs

1. The mother made an application that she be refunded the costs that she has paid for the preparation of A/Prof Q’s updating report.  Neither party led any detailed evidence about their respective financial positions.  The mother says that she has invested and earmarked for the future support of the children an amount of approximately $180,000.  The father has indicated that he will have available to him the proceeds of the sale of a property that he kept as a result of the property settlement.  The mother has not sufficiently demonstrated that it would be appropriate that the father (or the Legal Aid Commission) pay her part of A/Prof Q’s updating report and accordingly I dismiss her application for a refund of the money that she has paid for A/Prof Q’s expert assistance. 

Application by the mother to discharge the order appointing the Independent Children's Lawyer

1. Given the terms of proposed Order 3, there is some utility in not discharging the order for the appointment of the Independent Children's Lawyer and I will not do so at this time. 

I certify that the preceding two hundred and five (205) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.  

Associate: 

Date:  11 August 2009.