Cape and Cape [No 2]

[2013] FCWA 35

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: CAPE and CAPE [No 2] [2013] FCWA 35

CORAM: CRISFORD J

HEARD: 18, 19, 20, 21 SEPTEMBER 2012, 19, 20, 21, 22, 23, 26, 28 NOVEMBER 2012, 13, 14 FEBRUARY 2013

DELIVERED : 11 APRIL 2013

FILE NO/S: PTW 3762 of 2011

BETWEEN: MRS CAPE

Applicant

AND

MR CAPE
Respondent

Catchwords:

CHILDREN'S ISSUES - Relocation - With whom a child lives - Best interests - Equal time not appropriate - Parental responsibility - Whether alienation of child - Child suffering from anxiety over contact

CHILDREN'S ISSUES - Single Expert's report - Whether relationship between expert and a party taints report

PROPERTY SETTLEMENT - Paucity of any evidence to justify the making of orders

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr. Rynne

Respondent: Mr S Jones

Independent Children's Lawyer : ICL

Solicitors:

Applicant: Perth Family Lawyers

Respondent: Wayne Dawkins, Lawyers

Independent Children's Lawyer : Legal Aid WA

Case(s) referred to in judgment(s):

A v A

Relocation Approach (2000) FLC 93-035

AMS v AIF; AIF v AMS (1999) FLC 92-852

Friscioni & Friscioni [2010] FamCAFC 108

Goode & Goode (2006) FLC 93-286

McCall & Clark (2009) FLC 93-405

MRR v GR (2010) 240 CLR 461

Mulvany & Lane (2009) FLC 93-404

Starr & Duggan [2009] FamCAFC 115

Taylor & Barker (2007) FLC 93-345

U v U (2002) 211 CLR 238

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cape & Cape has been approved by the Chief Judge pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1On 2 November 2011 Acting Judge Jordan made a decision in what is commonly referred to as a Hague Convention application. It concerned a request by the Australian Central Authority to return [D Cape (“the child”)] born [in] September 2002 to the care of his mother, [Mrs Cape], in Germany.

2The application was based on an assertion that the child was wrongfully removed from Germany by his father, [Mr Cape], on or about 29 April 2011. The child was born in Australia and has predominantly lived here with both his parents.

3He and his mother travelled to Germany with his father’s consent and lived there between [late] May 2010 and early April 2011. In mid-April 2011 he was brought back to Australia by his father without his mother’s consent.

4Acting Judge Jordan found that the child was habitually resident in Australia.

5This scenario forms the genesis of the present legal proceedings under the Family Law Act 1975 (Cth). The child’s mother would like to relocate to Germany, where she was born and where her family live. She wants the child to go with her. The father opposes this.

6At the beginning of the trial in these proceedings in mid-September 2012, the Independent Children’s Lawyer, expressed grave concerns about the mental state of [the child] arising, in the main, from the unresolved court proceedings. The trial was, of necessity, adjourned part-heard after four days. After a further seven days in November, it was again adjourned for two final days in February 2013. The pressure on the child increased considerably.

Orders sought

7At the commencement of the proceedings the mother’s position was that she wanted to relocate to Germany. If the Court would not allow her take the child with her, she would go to Germany in any event.

8This changed very soon after the start of the trial when she indicated that she would not leave the child and if needs be, would remain with him in Australia. However, this is a position of last resort for her as she desperately wishes to return to Germany with the child.

9The father’s primary position is that the parties and the child should remain in Australia and have an equal shared care living arrangement on a week about basis.

10If the Court allows the child to relocate to Germany with his mother, the father is very concerned that it will not be possible to put structures and safeguards in place to enable him to have a meaningful relationship with his son. He says the mother has not shown a willingness to promote the relationship between father and son and that a removal of the child to Germany will sever their relationship. He says the mother has deliberately alienated the child from him.

11At this stage there is no meaningful relationship between the child and his father.

Applicable law

12These child-related proceedings were conducted pursuant to Division 12A, Part VII of the Family Law Act1975 (Cth) (“the Act”) as amended by the Family Law Amendment (Shared Parental Responsibility) Act2006 (Cth).

13The legislation is strongly in favour of both parents being included in their children’s lives.

14Section 60CA makes clear that I must treat the child’s best interests as the paramount consideration. In doing so, I will be guided by the relevant objects of the legislation and the principles underlying them. The stated objects aim to ensure that the best interests of children are met by:

(a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning care, welfare and development of their children.

15Section 61DA(1) of the Act provides that when making a parenting order the Court must apply a presumption that it is in the best interests of the child for parents to have equal shared parental responsibility. It is a presumption that relates solely to the allocation of parental responsibility as defined in s 61B. It is not a presumption about the amount of time a child spends with each parent. The presumption, however, does not apply in certain circumstances. Section 61DA(2) provides that the presumption does not apply if a parent has engaged in abuse of the child or family violence. Section 61DA(4) provides that the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child.

16Here the father has sought an order for equal shared parental responsibility. The mother and the Independent Children’s Lawyer seek orders the mother has sole parental responsibility. For reasons I outline later in my judgment, I consider this latter course appropriate.

17In cases where the Court decides not to order equal shared parental responsibility there is no guidance to be found in the legislation about what the Court should consider or contemplate in making the decision most likely to promote the best interests of the children. In U v U (2002) 211 CLR 238 the High Court said that in such matters the Court is ‘obliged to give careful consideration to the proposed arrangements of the parties’, but is not bound by them.

18Here, the father’s proposal contemplates an equal shared care arrangement in Australia, thus requiring the Court to engage in a consideration of the matters under s 65DAA of the Act as one of the proposals.

19In A v A: Relocation Approach (2000) FLC 93-035, the Full Court of the Family Court of Australia undertook an analysis of the considerations that might properly affect the outcome of a case where relocation is proposed. Guidelines for decision making were set down. The Court followed binding principles of law that were established by a majority of the High Court in AMS v AIF; AIF v AMS (1999) FLC 92-852:

•In determining a parenting case that involves a proposal to relocate the residence of a child, the welfare or best interests of the child as the case may be under the relevant legislation, remains the paramount consideration but it is not the sole consideration.

•In determining a parenting case that involves a proposal to relocate the residence of a child, a court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence “contrary to the proposition that the welfare of the child would be better promoted by” maintenance of the existing circumstances: (per Gleeson CJ, McHugh and Gummow JJ at paragraph 47; Gaudron J at paragraph 92; Kirby J at paragraph 195; Hayne J at paragraph 209).

20I am of the view that despite the substantial amendments to the Family Law Act 1975 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 there is nothing to suggest that these binding principles no longer apply to relocation cases.

21Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration. Section 60CC sets out how to determine what is in a child’s best interests. Section 60CC(1) provides that in determining what is in a child’s best interests the Court must consider the matters set out in s 60CC(2) being the primary considerations and also the matters set out in s 60CC(3) being the additional considerations. To a certain extent a number of the considerations overlap and there may be a need for dual consideration of some issues.

22The considerations set out in s 60CC of the Act are crucial when considering all the matters a Court must decide, not only in relation to the child’s best interests, but also in relation to whether it is reasonably practicable for a child to spend either equal or substantial and significant time with each parent. They are also important where an equal shared parental responsibility order is not made. It is necessary to remember that the legislation contemplates individual justice.

23In navigating this complex legislative pathway I have turned to a number of authorities for assistance; Goode & Goode (2006) FLC 93-286, Taylor & Barker (2007) FLC 93-345, Mulvany & Lane (2009) FLC 93-404, Starr & Duggan [2009] FamCAFC 115 and, in particular, the High Court decision of MRR v GR (2010) 240 CLR 461.

Applying the law to the facts

24I will firstly turn to the primary considerations in determining what would be most likely to promote the best interests of the child.

•the benefit to the child of having a meaningful relationship with both of the child’s parents

25It is now accepted that meaningful in this context is synonymous with significant. Thus, to have a meaningful relationship is to have an important relationship or one of some consequence. The Full Court in the matter of McCall & Clark (2009) FLC 93‑405 set out what it considered to be the three possible interpretations of s 60CC(2)(a):

118. …

(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);

(b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and

(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).

26The court concluded that the preferred interpretation of benefit to a child of a meaningful relationship is the prospective approach. However, the court accepted that depending upon the circumstances of the case, the present relationship approach may also be relevant. The court went on to say:

119… If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.

27In this case the past relationship between the child and his father is also relevant given the father’s view that the mother has alienated the child and destroyed his once good relationship with him. The mother denies she has alienated the child and his father, however, she does not deny that, at least up until the trial, she considered the father a psychopath.

28Some background information is useful to give a context to the position of each party.

29The father was born in England and moved to Australia in 1987. The mother was born in Germany. The parties met in [Germany] in 1997 and the mother moved to Australia in 1999. The parents lived together in Alice Springs and married in August 2002, just prior to the child’s birth in September 2002. They moved to Perth in January 2007 where they resided together as a family until May 2010.

30During the time the parties resided in Alice Springs, and then in Perth, I find the mother was the primary caregiver for the child. I accept that the father was very dedicated to and involved in his full-time work[.] He was away from home regularly, although he had a home office. The father […] attended meetings and also undertook […] trips [as required by his work]. He accepted that from the end of January 2007 he was away about 50% of the time. The mother worked in the family business, but was not engaged in any employment outside the home.

31I accept the father was an interested and loving father commensurate with his work commitments.

32It is common ground that the parties experienced problems in their marriage which became more obvious after the child’s birth. They attended at least two marriage guidance counsellors in Alice Springs and two other counsellors after moving to Perth.

33In October 2009 the child became very ill with a skin condition which was finally diagnosed as pustular psoriasis. Between October 2009 and the early months of 2010 the child was considerably afflicted by this skin condition. He was admitted to hospital on a couple of occasions. The mother had a milder form of the same condition. Over this period of time, the father was away from the family home for what the mother considers to be long periods. The mother has interpreted this as a lack of support, whilst the father has justified it as being a need to maintain his work load and fulfil commitments.

34The skin condition, aggravated at least to a certain extent by the heat in Perth was, I find, one of the reasons that prompted the mother to take the child to Germany for a period of time in late May 2010.

35The parties were not communicating well and the mother says she needed a break from the strain of the relationship. In any event, the father consented to her going to Germany with the child until early in 2011.

36There was some telephone contact between the parties and between the child and his father during this time. There were times when communication was infrequent.

37The father made a visit to Germany in September 2010. He then made further visits. On one occasion the mother took the child to the United Kingdom to visit the father and his family.

38By September 2010 the mother had decided she did not want to return to Australia with the child. She made this known to the father. The child was not told about this until later in the year. There is a difference of opinion about whether the father agreed to the mother’s course of action, although on 15 November 2010 the father cancelled the child’s enrolment at his school in Australia […] for 2011. In any event, whether or not the parties were in agreement about a way forward at that stage is immaterial to my decision.

39In April 2011 the father took the child with him to the United Kingdom to visit his family. He had the mother’s consent. It was agreed he was to return the child to Germany in early May 2011. Instead, the father returned the child to Australia without the mother’s knowledge or consent. Later in May 2011 the Hague Convention proceedings started in Australia. This culminated in a hearing on 31 October 2011 and at about the same time these proceedings commenced for relocation.

40The mother spent some time with the child over this period. She came to Australia for about a week in August 2011 and then returned in late October 2011. She has been here since.

41Between 8 December 2011 and 10 January 2012 the child was in the exclusive care of his mother. The parties were incapable of arranging a sharing of that time. The parties then brokered an informal agreement of a week about living arrangement for the child. Although never the subject of court orders, the week about arrangement continued until 21 May 2012 when [Dr M], the court appointed expert, published his report.

42Over this period the matter was carefully managed by the late Justice Carolyn Martin, who delivered an interlocutory judgment on 3 July 2012. Relevantly, and as background, she says:

16 A significant issue has been the appointment of a Single Expert. On 29 February 2012, the applicant mother filed an application seeking that [Dr M], a Clinical Psychologist, be appointed as a Single Expert to prepare a report in the proceedings. The respondent father sought that [Mr T] be appointed the Single Expert Witness.

17 On conditions set out in the order, on 1 March 2012, I ordered that [Dr M] be appointed as a Single Expert Witness, although [Dr M’s] costs were very high. The mother had accepted that she should advance these costs for the time being and, having regard to the comparative availability of the proposed experts, I was satisfied at that time that [Dr M] was the more suitable appointment.

18 Unfortunately, it is an understatement to say that [Mr Cape] and [Dr M] did not hit it off and that there were disagreements about arranging appointment times, having regard to the proposed timetable for preparation of the report. As a result, [Dr M] took the extraordinary step of filing a lengthy affidavit in the proceedings, and attending court himself, in relation to the appointment arrangements. [Mr Cape] had even taken steps to report [Dr M] to his professional body, before the report had even been published.

…

20 [Dr M’s] report was made available to the Court on 15 May 2012. The report was accompanied by a covering letter specifically referring to the following paragraph of the report:

146.Whilst I stated above that there is no evidence the father has physically abused [the child], the father’s personality style I identified is a style that leads to unpredictable behaviour. Further, when people with the psychopathic style are exposed, they become depressed and angry and can do considerable harm to themselves or others. In the extreme this harm can extend to homicide and suicide. In the context of the Family Court and the exposure the father must now feel from this psychological examination, I believe it prudent to take a conservative approach and err on the side of putting in as many mechanisms as possible to protect [the child] and the father until such time as the Court can be assured that both are safe. It is for reason that I have spoken to the head of the Family Court Counselling Service and made the request of the Court that:

a.This report be released only to the parents in the presence of a Family Court Counsellor.

b.This report is to be read by the parents in the presence of a Family Court Counsellor.

c.The Family Court Counsellor assesses and monitors the father and if considered necessary [the child] for any signs that [the child] will be harmed or that the father will harm himself.

d.The report is released only during the week that [the child] is in the care of the mother.

e.Should the father react in any manner which might suggest he will either emotionally or physically harm [the child], the urgent orders be issued that [the child] is to only see his father under the strictest supervision and/or that [the child] not see his father until the father can demonstrate that he had received treatment and that [the child] will be safe in his care. Even at this time, I would still advise that [the child’s] contact with his father be supervised until the Court is completely satisfied that [the child] is safe in the care of his father.

…

22 As a result, arrangements were made for the parties to urgently attend a conference with [a Counsellor] of the Family Court Counselling and Consultancy Service.

23 The proceedings were listed for further hearing on 29 May 2012, by which time it had been indicated through Legal Aid that an application for the appointment of an Independent Children’s Lawyer would be likely to be favourably considered. I therefore made an order for the appointment of an Independent Children’s Lawyer on that date.

24 After the publication of the report, the mother had not returned the child to the father and nor had she sent the child to school pending the making of further orders. I ordered that she forthwith return the child to school and that the father be restrained by injunction from removing him from the school or from any other location which he attended including, but not limited to, any of the locations at which the child attends extra-curricular activities.

25 On that date, the father had filed a Form 2 application seeking various orders challenging [Dr M] on his report and seeking the return of the child, amongst many other orders. He filed an extensive affidavit critiquing the report. The mother filed an amended Form 2 application, on 31 May 2012, proposing that the father spend time with [the child] at a recognised supervision agency or, possibly, under the supervision of some friends.

26 On the adjournment date of 1 June 2012, the Independent Children’s Lawyer first attended Court, and indicated that she had concerns that any initial contact between [the child] and his father be supervised in some way. She required some time to make enquiries including speaking to the child, and other persons involved with him.

43On 1 June 2012 Justice Martin made an order suspending the alternate week arrangement. Justice Martin continued:

28 Since then, the father has spent some supervised time with [the child], on 16 June 2012, and as previously outlined, further orders have been made for family therapy, on an urgent basis, and for the father to spend supervised time with the child.

29 To his credit, the father has taken appropriate steps to deal with [Dr M’s] concerns, quite apart from his challenge to them, in that he has consulted a psychologist, [Dr W] …(content of report omitted and dealt with later)

…

31 As I have indicated to the parties, while, on the evidence presently before me, I do not necessarily presently share many of [Dr M’s] concerns for [the child’s] physical safety, I am concerned that [the child] genuinely is very trepidatious about seeing his father on his own, at least in the short term, and feels very much subject to pressure from him.

32 This is in accord with [the child’s] statements to the Independent Children’s Lawyer, and her submissions to me.

33 In these circumstances, I am satisfied that [the child’s] time spent with his father should be supervised at least at this point, but as I have made clear from the terms of my orders of 20 June 2012, I am hopeful that the position can return to a less artificial and controlled arrangement in the very near future.

44Justice Martin ordered that independent agencies were to undertake the supervised contact. [Supervision Service C] started on 16 June 2012 and then again on 28 July 2012, 18 August 2012, 1 September 2012 and 8 September 2012. [Supervision Service A] started supervision on 23 June 2012 and then 4 July 2012, 21 July 2012, 5 August 2012 and 11 August 2012. There was some overlap between of the two.

45Since the publication of the Single Expert’s report in May 2012 the relationship between the child and his father has gone from being an equal shared arrangement to one that is non-existent. The supervision of their time together and family therapy have proved fruitless.

46The mother had a holiday with the child in Germany from 4 October 2012 until just prior to the trial recommencing on 19 November 2012.

47By the end of the trial in February 2013 the child was making the required court ordered telephone calls to his father on a twice weekly basis, but they served no purpose. They were of short duration and some were monitored by the mother. The last one included the child referring to his father for the first time ever [by Mr Cape’s Christian name].

48The mother reports that the child cries at night and is reluctant to attend school. He is frightened and feels lost. She says he does not feel he belongs.

49The child’s mental health and his ability to deal with the challenges of every day life have become severely compromised. The protracted and intense legal proceedings have created considerable uncertainty for him.

50This brief chronology puts into sharp relief the rollercoaster ride of the child in his relationship with his parents. In the not too recent past he was in an equal shared care routine which endured over a five month period. I am satisfied that during that period both his parents had, on the face of it, a generally close and loving relationship with their son. Unfortunately, the relationship between the child and his father from the date of the publication of the Single Expert report has become completely fractured. It is only really since the trial itself that the mother’s relationship with the child has been examined and shown to have its problems.

51The Court needs to examine whether looking to the future there is any chance of achieving the objects of the legislation which are to have both these parents playing a significant role in the child’s life.

52The court in McCall (supra) said it considered the legislation required a court to focus on the benefit to the child of a meaningful or significant relationship. The Court here has to determine whether it is possible for the child to have substantial involvement with both his parents as envisaged by the legislation and, if so, is it of any benefit to him in trying to achieve that objective.

53The Court will return to a discussion of this primary consideration after all other relevant matters have been dealt with.

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

54Justice Martin made an order on 10 July 2012 that the relevant health professionals, [Mr R], [Mr C], Dr W and Dr M be permitted to liaise with each other to discuss issues in relation to the child’s welfare. These professionals all have relevance in helping the Court address the second primary consideration.

55Each of the psychologists took part in a conference of experts on 26 September 2012. This conference took place after the first part of the trial. There was consensus on a number of issues.

56Each of the experts is an experienced psychologist. Each has routinely given evidence in this Court. Each expert was involved with the family to a different extent and for a different reason. Each has a slightly different perspective on the family dynamics and the causes of the current dysfunction in the relationships.

57The Single Expert Witness [(Dr M)] has been briefly mentioned already. To dissect his relationship with the father serves little purpose. The rights and wrongs of it are not for this Court.

58Suffice it to say here, the father did not want Dr M appointed as the Single Expert Witness. It was never going to be easy for Dr M. However, Dr M’s response to a situation which is certainly not unknown in the context of familial disputes was unhelpful. I consider that Dr M’s evidence, especially as contained in his report dated 14 May 2012 and other written material he forwarded to the Court, has been coloured by the animosity between himself and the father. A reading of the report makes this glaringly obvious. I accept some parts of his evidence are useful, essentially where there is common ground between him and the other experts, including the father’s own psychologist. I have not relied on his evidence except where specifically referred to.

•Is the father a psychopath?

59Although at trial Dr M modified his views, considerable damage had already been done. He initially reported:

98.I formed the opinion that the father’s personality style, particularly when he begins to decompensate, is consistent with psychopathy, but in the absence of clear evidence of the anti-social facet concerning criminal behaviour, does not meet the criteria for a personality disorder. Despite not achieving a personality disorder, the father’s personality style would cause considerable distress and dysfunction in his relationships.

60By itself, this does not say the father is a psychopath. However, the tenor of the whole report and the manner in which Dr M wanted it released gave the impression that he viewed the father as having a potentially dangerous personality.

61In the report arising from the conference of the experts held on 26 September 2012, it is stated:

The experts agree that the Single Expert report was not intended to communicate that Mr Cape was a ‘psychopath’ and instead was designed to highlight patterns of behaviour which caused concern to the Single Expert Witness for the child.

62After the publication of the report the father was referred to Dr W, clinical and forensic psychologist, by his general practitioner on 24 May 2012 under a mental health plan. Dr W told [the Independent Children’s Lawyer] in an email of 19 June 2012, that after six sessions with the father, he could find no evidence of the father being a psychopath or dangerous. He said he was intellectual and opinionated. He was distrusting of the process and verbose, but there was nothing more sinister.

63Although the roles of Mr R and Mr C were focussed on the child, each had some communication and personal contact with the father. Neither reported any concerns which revolved around the father being a psychopath.

64Mr R said he had initially been concerned at how the father would present given Dr M’s use of the term psychopathy. What he saw was a father simply trying to have a relationship with his son.

65Unfortunately, nothing could undo the effect the Single Expert report had already had on the court process, the mother and, in turn, on the child.

66In her trial affidavit sworn on 19 July 2012 the mother says the parties talked seriously of separation in October 2009. She deposes that when the child was ill in 2009/2010 with the skin condition she read about psychopathy on the internet. She deposes to being amazed at the description of the personality disorder because from her years of being in a relationship with the father he seemed to fit the profile for psychopathy ‘to the smallest detail’. She says that since reading her first article on psychopathy she has completed a lot of research on the topic. She had come to the conclusion that the father fitted the profile of a psychopath.

67Unsurprisingly, in relation to Dr M’s report, she deposes ‘I agree whole heartedly with his diagnosis’. She says she felt relieved that her concerns had been recognised and validated in Dr M’s report.

68Each of the psychologists had concerns about some of the father’s behaviour. However, I am not satisfied that there is any basis upon which the label ‘psychopath’ can be accurately used to describe the father.

•The child’s relationship with his father

69Relevantly, the joint report of the experts identified and agreed:

1.3… that the father may pose an emotional risk to the child. It is agreed that the father has difficulty relating to the child on an emotional level.

70Although the experts view the father as capable of learning to be more reciprocal socially and emotionally to the child, they consider there are likely to be limits in what he can achieve. The experts disagree on the extent to which the child is currently having his emotional needs met by his father.

71Dr W said that the father is receptive to feedback about his behaviour, but he has difficulties with any capacity to change. This limits him from fully understanding the child’s emotional needs. However, he said he felt that the father had more capacity to change than he had originally considered.

72Dr W made it clear that he was in a clinical relationship with the father and he did not have an independent forensic role. He declined to be involved with any family therapy between the child and his father. He did not meet the mother or the child.

73The parties were referred to Mr R, clinical psychologist, for family therapy by virtue of court orders made by Justice Martin on 20 June 2012. The goal of the therapy was to have the father’s time with the child return to an unsupervised basis by the second half of the July school holidays. Mr R indicated his goal was to get the father/son relationship ‘back on track’ so that the child would feel comfortable spending unsupervised time with his father again. Mr R met with the father and the child both jointly and separately from 9 July 2012 until 8 August 2012. The child was also having supervised time with his father at this stage.

74Mr R made similar comments to those of Dr W in relation to the father’s capacity to act in the child’s best interests. He said the father needed to be reminded of what the child’s best interests were. At times he overlooked the child’s needs, but then justified his stance. He did not challenge his own views.

75The Independent Children’s Lawyer referred the child to Mr C, a clinical psychologist, for possible assistance to cope with his current situation. He first saw the child on 20 June 2012.

76Mr C saw the child for six sessions, the last one being 5 September 2012. He also met with the mother, and the father on one occasion. He did not approach the sessions as an assessment for court proceedings, but rather as a referral for therapeutic assistance. He was not provided with any of the court related material at the time of the referral and did not have the opportunity to observe the child with his father or, to a great extent, with his mother.

77His sessions with the child were centred on finding practical solutions to help the child deal with his relationship with his father and the uncertainty he is currently living with. He did not achieve what became the stated goal of getting the child and his father in a room together, but he felt at the conclusion of the sessions that he had been quite close to achieving that goal.

78Mr C identified aspects of the father’s behaviour that he said had a poor emotional fit for the child. He said the child talked in a consistent fashion about the emotional pressure of what he saw as the father’s ‘disingenuous’ behaviour. The child said his father did not listen to him and pressured him into agreeing to things he did not want. He said that his father was ‘always being negative’ to him, but that in public he presented a different face. He felt his father was acting when he showed emotions in front of other people. He said his father was a fake and that his behaviour was inconsistent.

79However, Mr C was clear that the father’s behaviour alone did not explain the child’s refusal to have a relationship with him. He identified that the risk the father posed to the child was something that had been to the fore for a considerable length of time and especially after the publication of the Single Expert’s report.

80Like Dr W and Mr R, Mr C felt that the father may have difficulty putting any feedback or advice about his behaviour into practice.

•The child’s relationship with his mother

81When the conference of experts took place they all agreed that:

1.4…[Mrs Cape] may pose an emotional risk to [the child] by [the child] taking on a more adult role in their relationship to protect his mother and promote her emotional wellbeing. It is agreed this is a maladaptive dynamic due to [the child’s] age and stage of development, as [the child] should be individuating from his parents and this current situation with his mother will make it difficult for [the child] to do this, which is pivotal to his psychological development; and

1.5The experts agree that [the child] and his mother are particularly close and [the child] is very aware of his mother’s emotional state and current living/financial circumstances. [The child] finds himself in a very difficult position in having to support his mother and at the same time make a decision that he knows is against his father’s wishes.

82The expert evidence on the child’s relationship with his mother and the impact this might be having on him and his relationship with his father were not initially the subject of concern. Any risk has been exposed more slowly over time.

83While Dr M noted certain behaviours, such as the child sleeping in his mother’s bed, he did not express the view that the mother posed any significant risk to the child.

84Dr W first raised the issue of potential influence by the mother in his review of Dr M’s report in June 2012.

85Dr W suggested that one of the recorded conversations of the Single Expert with the child, in which he detailed his reasons for wanting to go to Germany, had ‘all the hallmarks of a discussion with his mother being reported’ and that ‘some of his reasoning suggests to me discussion with his mother - not coaching but direct influence upon his views’. Dr W had not met the child or the mother. Importantly, he had no knowledge of what the father’s evidence at trial would be.

86At trial the father recounts a conversation between the child and himself in the car travelling to Dr M’s rooms and prior to this particular recorded interview. The father said that he, himself, had given the child reasons for going to Germany. In this particular instance both parents may have influenced the child’s justifications for choosing Germany.

87It was not until Mr R wrote his family therapy report on 10 September 2012 that an independent expert specifically addressed the mother-son relationship. He described it as a ‘dyadic’ relationship. He said that:

the most telling conclusion from the family therapy sessions was that when [the child] was with the father under supervision, he displayed no fear or anxiety towards the father. After the therapy sessions, and perhaps due to his dyadic relationship with the mother, he sometimes presented as distressed when he saw the mother. This leaves the impression that [the child] sides with the mother.

88Over time various labels have been used to describe the relationship. The father says there has been deliberate alienation.

89For his part, the father has undertaken his own research to explain what he says is the mother’s deliberate and sustained attempt at severing the child’s relationship with him. He says that the child has been alienated from him. He said he is becoming an expert on the topic of alienation due to his own research. His counsel, Mr Jones, said that the alienation of the child had started after the publication of Dr M’s report.

90Alienation was the word Dr W used at trial. Given what he described as the child’s rapid shift in position he felt this was the only way it could be explained. When asked why this had happened, Dr W said it was the nature of the child’s relationship with the mother.

91Dr W had wanted to use the word ‘enmeshed’ in the conference of experts to describe the relationship dynamic between the child and his mother, but this terminology was rejected by other experts at the conference. They used alignment.

92While Mr R used the term ‘dyadic’ to describe the relationship, he also made ongoing reference to alignment. Mr R was of the view that alignment indicated that the child had a better emotional fit with one parent, whereas enmeshment suggested that there was some pathology involved.

93Mr C said he did not conclude there was enmeshment between the mother and the child, but he would not rule it out completely. His view was the difficulties in their relationship could either stabilise or continue. He said that if the child and his mother resided in Germany, then the child’s need to protect his mother was not likely to be so much of an issue. In Australia, the mother, and thus the child were concerned over their security in a financial, emotional and practical sense. He said that if there was enmeshment and the mother and the child were to remain in Australia, such enmeshment would be likely to increase in line with escalating concerns over money and housing. In Germany, although there was some uncertainty, the mother would be in a more stable and secure environment with her family.

94Mr C said that the child was very aware of his mother’s emotional and financial state, but said that in his experience this was not unusual in a separated family. He detected some protectiveness of this mother and said that it was not unusual for sons in an only child family to step into a ‘fatherly-type protective role’. Mr C was confident that the current family situation was influencing the nature of this relationship. However, Mr C did not specifically explore this issue with the child during their sessions, given the limited time and scope of his therapy. He said although the child borrowed phrases from his mother, it was not as a result of coaching. I found Mr C to be pragmatic and impartial. He had a good rapport with the child.

•Conclusion

95The experts in their closing statement agreed that:

The child is caught in the middle of intense conflict and is aligning with his mother. The experts agree that in this particular case, this alignment has arisen because the mother is a better “emotional fit” for the child and the mother’s behaviour is amplifying the alignment, which is reinforced by the conflict between the parent and the context within which the family system is forced to operate.

96The experts were of the view that the interaction between the parents poses a serious risk to the child’s psychological development.

97Dr W, who had listened to some of the recordings Dr M made of his interviews with the child for the purpose of preparing his Single Expert report, said he could hear elements of concerning influence upon the child by each of his parents.

98Mr R made a clear identification of risk to the child as a result of the family dynamics. He said the child was simply unable to deal with the conflict between the parties. The child had developed high anxiety and this was making him ill. Mr R identified the mother’s very close emotional relationship with the child as a risk to the child. He identified the father having difficulty meeting the child’s emotional needs as a risk to the child.

99His view was that it is difficult, if not impossible, to bring about any change in family dynamics whilst there are contested court proceedings on foot. Given this, Mr R did not achieve his goal of getting the relationship ‘back on track’.

100In summary, all the experts agree that each of the child’s parents may pose some risk to him.

101I will now turn to the additional considerations set out in s 60CC(3) of the Act. These are additional considerations and not secondary considerations. They are to be read in conjunction with the primary considerations.

•any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

102The child has expressed different views at different times. He is currently 10 years old. Mr C said that the child can articulate a view to protect what he wants. He is adept at adjusting his behaviour to support his language.

103When the child was brought by his father to Australia from Germany in April 2011 he had expressed a strong view to return to and remain in Australia. Once in Australia, he continued to articulate that view. This is attested to by [the child’s school teacher and school psychologist].

104The child was concerned about even going to Germany for a holiday on the basis that his mother may not allow him to return to Australia. I find his views to be primarily linked to his father wanting him to live in Australia.

105When the child was first interviewed by the Single Expert Witness [(Dr M)] on 12 April 2012, he reported he loved both his parents and would like to live with them equally, although perhaps a little bit more with his mother. He was saying then that he wanted to live in Germany. This change in view was first articulated in early 2012 after the child had spent the 2011 Christmas period exclusively with his mother.

106The child is still expressing a view to return to Germany. It is now a consistent and strongly expressed view. However, Mr C said he did not think the child was particularly attached to any country.

107The Independent Children’s Lawyer urges the Court to take the child’s views into account. She says he wants to have a voice and to be heard. He expressed a desire to talk to me in my chambers. Given I do accept he holds his current view strongly and there is independent evidence of this, I declined to speak to the child.

108The child is a very intelligent and articulate young person. However, I am also satisfied that there are greater forces at play here. This is not a child simply stating a view without influence from one or other of his parents. His views and wishes have changed greatly over time without any real explanation for such radical change, save they mirror what a parent wants or needs.

109Mr R said that the child did want to see his father and was not scared of him. He was not anxious in his presence. He did not want to live with him. He wanted to go to Germany. The child wanted the father to change so they could have a relationship.

110Mr R recounted that after a few joint sessions with his father, the child telephoned and asked to speak with Mr R alone. Mr R noted that while this was not the usual process while family therapy was proceeding, given the dynamics here, he agreed to speak with the child. The child wanted to say that his father is not as nice as he presented during the sessions. The child said he felt that his dad was manipulating the situation to make himself look good and that his father pressured the child and made him feel guilty.

111This is consistent with the views the child communicated to Mr C and to which I have referred earlier. It is also consistent with communications the child made to some of the supervisors at the supervised visits which were taking place over the same period as the family therapy. On three occasions with Supervision Service C (18 August 2012, 1 September 2012 and 8 September 2012) the child told the supervisors that ‘his father was not like this when they were alone’, that ‘this is all an act, Dad is not like this at home’ and that his father was ‘mean’ and not what he seemed. With Supervision Service A, the child made similar comments to supervisors on 23 June 2012, 14 July 2012, 5 August 2012 and 11 August 2012. The mother is reported to have said similar things to supervisors on two occasions.

112Mr C explored the issue of the child’s perceptions as opposed to the realities of his interactions with his father. He described role playing some of the father-son interactions the child described as problematic and said he found that the interaction itself was quite functional, but that it gave the child the experience of not being heard. From a practical point of view Mr C noted that ‘whether these claims are accurate or not is secondary to the fact they represents [sic] the child’s perception’.

113More generally, in relation to the child’s feelings and responses to his father, Mr C said that the child’s responses to the idea of seeing his father were not consistent. He said that the child’s current fear of being in a room with his father is really ‘just fears based upon fears based upon fears’. He said the child’s responses should not be considered stable or have too much weight placed upon them.

114Whilst I do not disregard the child’s views at different points in time, in the context of this case I am unable to place substantial weight on his views without reference to other evidence. I need to consider whether they are really his views, the basis upon which he holds these views and whether his views are likely to be as changeable in the future as they have been in the past.

•the nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child);

115The parties provide ample evidence, both from themselves and witnesses, to show they each have a very good, close and loving relationship with the child. I am not satisfied that such evidence reflects the present nature of the relationship between either of the parties and the child.

116The father’s position is that until the publication of Dr M’s report on 21 May 2012 he had a good relationship with his son. The alignment with the mother (or as he says, alienation from him) has arisen since that time. He says the child wanted to come back to Australia from Germany, was happy when he got to Australia and did not talk to him about missing his mother.

117Whether the circumstances surrounding the appointment of Dr M and the subsequent publication of the report changed the child’s relationship with his father or whether it simply accelerated an already declining relationship, which is the mother’s view, needs to be considered.

•The change in the relationship between the child and his father

118Although it is common ground there was a stark change in the child’s relationship with his father after the Single Expert’s report, it is useful to consider earlier times as well.

119Prior to the mother going to Germany, most of the evidence points to the child having a generally good relationship with both his parents. There is no doubt he had a closer attachment to his mother given the father’s absences from the home due to work related commitments facilitating the mother’s role as primary caregiver. There is no suggestion that the child and his mother were other than very close.

120The mother’s main complaints about this period of time was that the father was not around a lot of the time and she felt unsupported, especially during the period of time in late 2009 and early 2010 when she and the child were ill with the skin condition.

121When the mother wanted to go to Germany there was no suggestion whatsoever that the child would not go with her for the extended period of time, although the father did not want the child there forever.

122I do not accept that in the time the mother and the child were in Germany there was a lack of communication with the father. I accept the mother’s evidence that there was telephone communication and possibly Skype. The father did not visit until September 2010.

123During some period of the time that the child was in Germany and attending school there, he experienced difficulty with at least one of the other children and bullying. I accept that he viewed his life in Australia, at least over that period of time, as being more comfortable for him, especially when his father visited.

124The child was taken to Australia by his father without any farewells or goodbye to his mother. He was completely removed from her.

125[Ms G] was the child’s 2011 class teacher at the beginning of term 2 (semester 1). The child had just come back from Germany with his father. She reports that the child was a bright boy. He was confident and related well to the other pupils. He spoke of his father with pride and affection.

126The child had a tendency towards perfectionism, but that had previously been part of his profile when he was at the school before going to Germany in 2010.

127At the time she said the child was very emotionally controlled, but he made it clear on a number of occasions that he wanted to stay in Australia and did not want to go to Germany.

128The mother visited Australia in August 2011. She says the child was very emotionally guarded. This was unusual as he had always been very open with her. He appeared frightened of doing anything wrong.

129Ms G referred the child to [the school counsellor]. The child was referred to the school counsellor as he was ‘exhibiting anxiety in various tasks’. He had his first meeting with the school counsellor on 27 September 2011. He had six sessions with her before the end of the year. Initially, he was anxious about having to return to Germany over the Christmas holidays in 2011. He feared he would not be able to come back to Australia.

130The mother returned to Australia in late October 2011. After the Hague Convention decision on 2 November 2011 definite chinks started to emerge in the child’s armour. His mother was extremely distressed as she had expected to be able to return to Germany with the child. The child’s living environment was uncertain and he was experiencing problems at school.

131On 28 November 2011 the child reported to the school counsellor that he was unlikely to go to Germany over the Christmas period. She said he had mixed feelings about this.

132The school counsellor said that the child was in turmoil. His mother was crying a lot. When he stayed with his father there were boarders in the house and he had a bed in the living room. The child reported that his father was doing courtroom scenarios ‘to develop the child’s thinking’. The mother says the child told her he was frightened of being questioned in Court.

133On 8 December 2011 the child went to spend time with his mother and remained there until January 2012.

134The mother said that even from the start of the week about arrangement in early 2012 the child was saying he did not want to see his father on such a basis.

135The mother said that the child would go away for a week and come back a bit different. He would take a few days ‘to come to his senses’. The mother said that the child was very loyal to her and also to his father, but he had a sense of betrayal about his father.

136The child’s current school counsellor, [Mr W], had first met the child in March 2012. He said even then the child was talking about a preference to live with his mother. Generally, at the time he was sad and lacked any enjoyment in attending school. His current living arrangements were an issue for him. Mr W said he became a very distressed young boy. His impression was that the child had a strong bond with his mother and was comfortable with her.

137Dr M said the child said to him at the first interview in April 2012 that ‘every week I need to go to him I get sicker and sicker…’.

138More recently the mother has remarked that since there has been no contact she and the child have felt ‘liberated’ and more relaxed. She said the child saw the supervised visits as a burden.

•Conclusion

139Although there was a spectacular change in the child’s relationship with his father after the publication of the Court Expert’s report, I am satisfied that even prior to this his relationship with the father was not as close as his father says it was. Having said this, I accept the father himself may not have detected any difficulties in his relationship with the child. As a number of the experts have commented, the father does not appear to be aware of the impact his behaviour has on the child, given he sees himself as simply, meaning well.

•The nature of the child’s relationship with his father

140One of the father’s strengths in his relationship with the child is his encouragement of exploratory behaviour. The evidence overwhelmingly supports the father being able to challenge the child intellectually and to present him with new and different activities. The mother had little trouble giving the father credit for this. She said the father had many positive attributes.

141Dr W, having viewed some of the video evidence, said he felt the father was good at encouraging ‘exploratory behaviour’ in the child, but that he may push him too hard at times.

142Mr R reported that the father sometimes pushed or persuaded the child to do things that he did not really want to do. He gave examples of how he had witnessed this behaviour in the father during the therapy. On a couple of occasions the child had been unwell. On one occasion he had the flu and on a second occasion he simply felt unwell and tired. On each occasion the father had wanted the child to go outside to undertake some activity. The child wanted to remain inside. Even when the child won, on the toss of a coin, the right to choose what to do, the father pushed him to do the father’s preferred activity outside.

143Despite the child’s protestations on the first occasion, the father pushed the child to go outside to play.

144On the second occasion, which was the last session between the child and his father when this took place, Mr R felt he needed to intervene. Although Mr R said the father’s intentions were good, he used the fact he ‘meant well’ to justify his behaviour. He did not really challenge what he was doing and consider its impact on the child.

145Mr R said the father was very active and was very keen on meeting his own needs to be active.

146There are examples of what I consider to be a pushing of the child in various supervision reports.

147The child also complains that his father is critical of his endeavours. He felt his father had been critical of his piano playing and had also criticised the child for poor sportsmanship. In the context described by the father himself, I accept the child’s point of view.

•The nature of the child’s relationship with his mother

148It is common ground that the mother’s relationship with the child is close and has always been close. When it was put to her in cross-examination by the Independent Children’s Lawyer that she and the child were a team, she said that they had always been a team. The closeness is hardly surprising given the mother is from another country and came to Australia as an adult. The early years of the child’s life were spent in remote Alice Springs and the child is the only child of the relationship. The father was consistently absent from the home for long periods of time.

247The mother’s proposals for relocation to Germany take into account secure housing, a more secure financial environment for the child, a known environment and a happy mother. It also takes into account a relationship with the father if there can be some re-establishment before such relocation.

248The father’s proposals in Australia are not reasonable or practical. The mother does not have stable accommodation, she does not have employment and she has little likelihood of either. The father has done little to assist her without Court intervention and, even then, it has been difficult. She has wanted to live in Germany since 2010. To remain in Australia, I accept, will cause her distress. She even considered returning to Germany without the child at one stage. The very clear evidence is that her distress impacts adversely on the child.

249I find it is in the child’s best interests to live with his mother in Germany.

250The best for the child is that he re-establish his relationship with his father as soon as possible and that there be orders for as much contact as possible when the mother and the child relocate to Germany.

251The father’s position is that he will not be able to visit often. I do not accept this to be the case. When the mother and the child lived in Germany in 2010 the father, after September 2010, visited on approximately four or five occasions. He has frequent flyer points and a firm family base in the United Kingdom. He has sold some of his [work product on the market]. I am satisfied that he could spend periods of time in the United Kingdom.

252I turn to the issue of counselling, which will be for all three of the family and must be undertaken prior to the relocation.

253Mr Jones sought to persuade me that a different approach was required in counselling, depending on whether the child’s relationship with his mother was that of alignment, enmeshment or alienation.

254It is clear whether it is alignment or enmeshment, that some counselling is required for a period of time. Neither Mr C nor Mr R were initially engaged to deal with these specific issues. However, at trial they were aware of the dynamic between the mother and the child. They know of the issues between the child and his father. I will make orders for therapy, but the exact nature of this may require some further input from the experts.

255In the conference of experts it was said:

… the Court needs to make a rapid decision about the relocation issue and once this matter has been determined, the child’s time with his father should be unsupervised and increased. To manage this process the experts suggest that Mr C recommend the rates of these changes when the time variables to be worked with are known.

256Mr Jones said the father considers Mr R the most appropriate expert to deal with the current issues. However, in cross-examination by the Independent Children’s Lawyer, the father said he was willing to work with Mr C whether the child goes to Germany or not. The experts themselves consider Mr C to be the most appropriate person to work with the child. I agree with this course. However, if Mr C has a contrary view the Court can be advised.

257Due to the mother’s practical and emotional uncertainties in this country, I intend to make a specific period of time for the child and his father to work on a reunification process. However, that process cannot be used to delay any departure to Germany.

Property

258Scant regard was paid by either party to relevant matters relating to the division of their property. It was very much a secondary matter, understandably so, given the importance of arranging the child’s life.

259However, it made for a very difficult exercise. The Court is not in a position to resolve all of the property matters without further evidence from each party. If there are matters in agreement, consent orders can follow, but without any agreement further evidence is required.

260I will hear from counsel in this regard. However, I can see no reason why the former matrimonial home should not be placed on the market for sale. Given the present market and my intended timing of the mother’s return to Germany, I cannot see her present accommodation in it will be jeopardised.

Orders

Children issues

1The child [D CAPE (“the child”)] born [in] September 2002 live with the mother, [MRS CAPE].

2 The mother have sole parental responsibility for [the child].

3The mother be permitted to relocate to Germany with [the child] and, until further order, not later than six months from the date of these orders.

4Prior to any relocation, [the child], the mother and the father, [MR CAPE], are to attend upon [Mr C], or such other therapist as recommended by [Mr C], in order to strengthen the relationship between [the child] and the father.

5Any contact between the father and [the child] prior to the relocation is to take place as recommended by [Mr C], or such other therapist as recommended by [Mr C].

6The mother is to undertake personal counselling as recommended by the Independent Children’s Lawyer in consultation with [Mr C] to address issues raised about her relationship with [the child].

7The father is to continue to attend upon [Dr W] as recommended by [Dr W].

8The definition of the time [the child] is to spend with the father and his communication with him after relocation be adjourned until prior to the date set for such relocation.

9At all times when [the child] is with one parent, the other parent have reasonable communication with [the child] by letter and email.

10Each parent ensure the other parent is kept informed of the other parent’s residential usual and ordinary address, telephone, email and any fax numbers.

11The mother be responsible for and ensure at all times that [the child]:

(a) has access to an active email account;

(b)has access to a Skype account or other web-based account enabling video calls, and that he has access to a computer with a webcam to enable the same; and

(c)has access to a mobile phone with the battery being sufficiently charged and the father is to meet the reasonable costs of his communication with [the child].

12The mother authorise the principals of the school(s) at which [the child] attends to release copies of his school reports directly to the father at the expense of the father, and in the event that the school(s) decline or are unable to provide the father with such copies, the mother provide the father with copies within 10 days of receipt.

13The mother keep the father informed by way of written communication by email in relation to the sporting and extracurricular activities undertaken by [the child.]

14The mother provide copies by way of either post or email of any schooling or extracurricular certificates received by [the child] from time to time.

15The mother forthwith do all things necessary to have these orders registered in Germany in a Court of competent jurisdiction with costs to be borne equally by the parties.

16All previous applications and responses in relation to children’s issues be dismissed.

17All previous orders in relation to children’s issues be discharged.

Financial matters

18The property situate [in Perth] be forthwith placed on the market for sale.

I certify that the preceding [260] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate