Cowley and Cowley

[2016] FCCA 3377

FEDERAL CIRCUIT COURT OF AUSTRALIA

COWLEY & COWLEY [2016] FCCA 3377

Catchwords:  
FAMILY LAW – Parenting – 14 year old – whether/when Child should be able to choose her parenting arrangements – no effective communication between parents – expert report raises issues re Mother’s personality traits and parenting style – Child permitted to decide with whom she lives from end of Year 10.

Legislation:

Family Law Act 1975, ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC

Cases cited:

H v W (1995) FLC 92-598
MRR v GR [2010] HCA 4

R and R; Children’s Wishes (2000) FLC 93-000

Applicant: MR COWLEY

Respondent: MS COWLEY

File Number: SYC 793 of 2014

Judgment of: Judge Sexton

Hearing dates: 31 August, 1 and 2 September 2016

Date of Last Submission: 2 September 2016

Delivered at: Sydney

Delivered on: 23 December 2016

REPRESENTATION

Counsel for the Applicant: Mr R. Schonell SC

Solicitors for the Applicant: Mills Oakley Lawyers

Counsel for the Respondent: Mr J. Weaver

Solicitors for the Respondent: Streeter Law

Counsel for the Independent Children’s Lawyer: Ms M. Falloon

Solicitors for the Independent Children’s Lawyer: Peter Baker Solicitor

THE COURT ORDERS THAT:

1. With the exception of final Orders made on 2 September 2016, all previous parenting orders be discharged.

2. The Father have sole parental responsibility for X born (omitted) 2002.

3. The Father give the Mother notice of any major decision he proposes to make and consider the Mother’s input into that decision.

4. X live with the Father and spend time with the Mother each alternate weekend from Friday after school until Tuesday morning before school, commencing on the first weekend of each school term.

5. From the completion of her Year 10 school year, X be permitted to live with and spend time with each parent in accordance with her wishes.  

6. The Father arrange for X to consult a therapist in the second half of her Year 10 school year on at least two occasions and in advance of the first appointment, provide a copy of Dr P’s reports, these Orders and Reasons for Judgment to the therapist.

7. The Father have liberty to apply at 7 days’ notice in the event of non-compliance for a period of 6 months.

8. Unless costs are agreed, the Independent Children’s Lawyer file and serve submissions on costs within 6 weeks, such costs to be itemised in accordance with Schedule 1 of the Federal Circuit Court Rules 2001 and each party respond within a further 21 days.

9. The Father file and serve any submissions on the question of costs within 28 days, such costs to be itemised in accordance with Schedule 1 of the Federal Circuit Court Rules 2001 and the Mother respond within a further 21 days.

10. Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

Final Orders made by consent on 2 September 2016

1. The Father have sole parental responsibility for the Child Y born (omitted) 1999 provided that the Father keep the Mother fully informed of decisions made or, if practicable, decisions proposed to be made.

2. X spend time with the Mother as follows:

   (a)During school holidays (including the Christmas holiday period):

   (i)For the first half of the school holiday period in odd numbered   years; and

   (ii)For the second half of the school holiday period in even numbered years; and

   (iii)For the avoidance of doubt, school holiday periods are calculated as commencing at 9am on the Saturday immediately following the last day of X’s school term and concluding at 5pm on the Sunday immediately prior to the commencement of X’s next school term, and the midpoint will be at 5pm on the day which falls at the midpoint of the holiday period.

   (b)Notwithstanding the provision of any other order herein, unless otherwise agreed between the parties in writing, X spend time with the parties over the Christmas period each year as follows:

   (i)With the Father from 5pm on 24 December to 5pm on 26 December in even years; and

   (ii)With the Mother from 5pm on 24 December to 5pm on 26 December in odd years.

   (c)Notwithstanding the provision of any other order herein, unless otherwise agreed between the parties, X spend time with the parties as follows:

   (i)With the Father from 9am to 6pm on Father’s Day each year;

   (ii)With the Mother from 9am to 6pm on Mother’s Day each year.

   (d)X otherwise spend time with the parties at such other times as may be agreed from time to time between the parties in writing.

3. In the event X fails to return to the Father’s care in accordance with these Orders (“the breach”) then X’s next scheduled time with the Mother pursuant to these orders is suspended for a period equivalent to the duration of the breach.

4. Changeover be effected as may be agreed between the parties in writing and, in the absence of such agreement, as follows:

   (a)During school terms, the party with whom X is to commence spending time with shall collect X from school at the commencement of such time or otherwise shall permit X to travel home from school by way of public transport; and

   (b)At all other times, the Mother deliver X to the Father’s residence at the time X is to commence spending time with the Father and the Father deliver X to the Mother’s residence at the time X is to commence spending time with the Mother or otherwise the parties shall permit X to travel to each respective parties’ residence at all other times by way of public transport.

   (c)On weekends or after school when X has sporting commitments or any other extracurricular commitments, the parent with whom X is currently spending time or living with shall take X to and from such commitments.

5. The parties forthwith do all acts and things and sign all documents necessary to permit Y to attend upon an exchange programme in (country omitted) in the Christmas holidays 2016/2017.

6. The Mother forthwith do all acts and things to return to the Father’s home X’s two cats.

7. X attend upon (omitted) School until she completes Year 12.

8. The Father indemnify and keep indemnified the Mother for any costs payable for X to enrol and attend (omitted) School.

9. Both parties be at liberty to attend any school, sporting or other extracurricular events and activities to which parents are usually invited. 

10. In the event either party travels overseas with X and Y or either of them, the party travelling shall provide to the other party a copy of the proposed itinerary and telephone number that the other party may contact either Y and X or either of them on, whilst overseas, as soon as practicable but no later than 28 days prior to the intended date of travel.

11. Each of the parties shall facilitate X having telephone, email, text or such other communication with the other parent as she may from time to time request whilst she is in his or her care and ensure that X is afforded privacy in engaging in such communications. 

12. A copy of the Reports of Dr P be provided to the Mother’s therapist.

13. Except as otherwise provided in these Orders, the Mother be restrained from taking X to any therapist, counsellor, psychologist or psychiatrist without the Father’s consent in writing.

14. Each party notify the other party as soon as is reasonably practicable of any emergency, accident, serious illness or admission to hospital of X during periods that X is living with or spending time with that parent.

15. Each party ensure that they inform the other party of any change to their respective contact details within 24 hours of any such change, and shall respond to any communication received from the other party without unreasonable delay.

16. Both parties are restrained from:

    (a)Denigrating the other party to X and Y, within X or Y’s presence or within their hearing and to as far as possible, restrain any other person from denigrating the other party to X and Y within their presence or hearing; and

    (b)Discussing or commenting on either party’s personal financial circumstances, matters relating to child support, matters relating to parenting arrangements between the parties or these proceedings generally.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 793 of 2014

MR COWLEY

Applicant

And

MS COWLEY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This dispute concerns parenting arrangements for the parties’ youngest of four children, X, aged 14 years.  

2. Each party was represented by counsel at the final hearing. Mr Schonell SC appeared for the Father, Mr Weaver appeared for the Mother and Ms Falloon appeared on behalf of the Independent Children’s Lawyer.

3. Final orders were made by consent on the last day of hearing providing for the Father to have sole parental responsibility for the parties’ daughter, Y, aged 17 years.  Neither party seeks any further Orders in relation to Y. Further final orders were made for X’s time with each party in school holidays including the Christmas period and on special days. An order was made for X to remain at (omitted) school until she completes Year 12. The orders made by consent also addressed changeover arrangements, overseas travel, electronic communication, medical issues, exchange of information and restraints in relation to denigration of either party, discussion of financial circumstances or the proceedings generally.   

4. Interim orders were also made by consent on the final day of hearing providing for the Father to have sole parental responsibility for X, for X to live with the Father and to spend time with the Mother during school terms each alternate week from after school Friday until before school on Tuesday. 

Issues

1. The issues remaining for determination are firstly, whether the parties should have equal shared parental responsibility for X or whether one party should have sole parental responsibility, and secondly, whether X should be permitted to choose with which parent she lives from the age of 16 years, from some other point in time, or at all. 

Expert evidence

1. Dr P, Consultant Child, Adolescent and Family Psychiatrist, prepared two expert reports for the Court, the first dated 18 December 2015 (with brief explanatory report on 29 January 2016) and the second dated 31 July 2016.  A Child Inclusive Conference had been held on 28 October 2014 with Family Consultant Ms R. 

Background

1. The parties commenced a relationship in their late teens, and married in (omitted) 1989 when they started living together.  They have four children: Mr O was born on (omitted) 1993, Mr G on (omitted) 1997, Y on (omitted) 1999 and X on (omitted) 2002. Mr O, 23 years and Mr G, 19 years were not the subject of these proceedings. The parties separated in January 2013, and divorced in May 2014. 

2. The Father is 48 years of age and, as a (occupation omitted), is the (occupation omitted) at (employer omitted). He also works at (employer omitted) and (employer omitted). He works on a monthly roster for 6 half days each week. In (omitted) 2013, the Father commenced a relationship with his current partner, Ms M, aged 33 years, an (occupation omitted) at (employer omitted). The Father and Ms M currently live in rented accommodation at (omitted). At the time of hearing, Y was hosting an exchange student from (country omitted) at the Father’s residence and therefore spending the majority of her time in the Father’s household.

3. The Mother is 49 years of age. She is employed part time as a (occupation omitted) at (employer omitted) and is studying a (course omitted) part time at (omitted) School, seeking to qualify as a (occupation omitted). The Mother works during school hours on 3 days a week. She relies on child support and Centrelink entitlements for additional income. The Mother lives in rented accommodation in (omitted). She has not re-partnered.

4. The Children were primarily cared for by the Mother during the marriage as the Father was the breadwinner. However, the Father was actively engaged in all aspects of the Children’s upbringing. Following separation in January 2013, Mr O lived with the Father until approximately October 2013, when he moved to independent living. Mr G has lived with the Father since November 2013 on a full time basis, though is currently in (country omitted) on a gap year. From separation until the end of May 2016, Y and X lived with each party on an equal time basis, though with some flexibility. On 11 June 2016, Y began living primarily with the Father to host a (country omitted) exchange student, spending time with the Mother on alternate weekends and for half school holidays with flexibility at other times. Dr P expected Y to return to the equal time arrangement when the (country omitted) student left in October 2016.  From 30 May 2016, X remained with her Mother and did not see her Father until interim orders were made by this Court on 19 August 2016 after the release of Dr P’s second report.  

5. Y is in Year 11 at (omitted) High School (selective). X is in Year 8 at (omitted), a private school located in (omitted). Both Y and X do well academically.  X received an average of 83% across all her subject areas at the end of 2015 and was awarded academic colours[1].

   [1] Exhibit 1

Litigation history

1. The Father commenced proceedings by application filed on 27 May 2014 seeking Orders for property adjustment. In her response filed on 14 August 2014, the Mother sought parenting orders providing for equal shared parental responsibility and for X and Y to live primarily with her and to spend alternate weekends and half school holidays with the Father.

2. On 22 August 2014, final property orders were made by consent. 

3. On 28 October 2014, the parties and the Children attended a child inclusive conference with family consultant Ms R.

4. On 7 November 2014, Dr P was appointed the Court expert. The question of where X would attend school in 2015 was listed for hearing.

5. On 15 December 2014, interim orders were made by consent providing for X to attend (omitted) school at (omitted) from the commencement of 2015, her first year of secondary school.

6. In January 2016, Dr P’s first report was released, followed by a short explanatory report on 29 January 2016.

7. In his Reply filed on 10 February 2016, the Father sought orders for sole parental responsibility to him, for X and Y to live with him, and for X to spend alternate weekends and half school holidays with the Mother.

8. On 10 March 2016, the matter was listed for final hearing in August 2016.  From 30 May 2016, X stopped spending time with the Father.

9. On 19 August 2016, following the release of a second expert report by Dr P, interim orders were made for X to live with the Father and to spend weekend time with the Mother pending the final hearing.

10. At the conclusion of the final hearing on 2 September 2016, interim Orders were made for X to live with the Father and spend time with the Mother on each alternate weekend from after school Friday until before school on Tuesday.  Final orders were made in relation to parental responsibility for Y, for X’s time with each party during school holidays and on special days, for X to complete her schooling at (omitted) and for overseas travel and other ancillary matters.  

Orders sought by Father in relation to outstanding issues

1. The Father seeks an order for sole parental responsibility, for X to live with him and spend time with the Mother on each alternate weekend.

Orders sought by Mother in relation to outstanding issues

1. The Mother seeks orders for X to live with her and to have sole parental responsibility.[2] In cross examination, she proposes that X spend every second weekend with the Father. 

   [2] At paragraph 103 of Mother’s affidavit sworn on 18 August 2016

Orders sought by the Independent Children’s Lawyer in relation to outstanding issues

1. At hearing, the Independent Children’s Lawyer proposed that X be permitted to decide her own parenting arrangements from the age of 16 years and that the party with whom X is living have sole parental responsibility for decisions regarding her welfare.

Events between 30 May 2016 and 19 August 2016

1. On 30 May 2016, the Mother sent the Father an email in the early evening to tell him X had decided to live full time with the Mother and not to return to his care.  The Mother said that X needed “space”, but there was otherwise minimal information given to the Father as to X’s reasons for this sudden change. The Father was able to engage X in text messaging for 10 days or so, but thereafter communication stopped altogether. The Father became increasingly frustrated with the lack of information and what he perceived as the Mother’s failure to facilitate X spending any time with him or to help X resolve any concerns she may have had.  The Mother arranged for X to speak to a youth worker without the Father’s consent. She says that X was unwell, was scared of the Father and needed her own space away from him.  The Mother encouraged X to contact the Independent Children’s Lawyer. She did not discuss X’s ‘issues’ with the Father, but supported X living with her full time and not seeing her Father.  The Mother also drove X to the Father’s home to collect some of her things in his absence.  

2. The Father sent the Mother 30 text messages and a voice message on 1 July 2016 which the Mother annexes to her affidavit.[3] She says she was frightened that the Father might become abusive, so reported the texts to police who took out an interim AVO on the Mother’s behalf against the Father.  While I accept that the Mother might have found so many texts irritating, I find nothing offensive or abusive in the Father’s text messages. The Father was clearly frustrated, and at a loss, as to how to break the impasse without the Mother’s cooperation, which was not forthcoming. The Father repeatedly asks how he can best spend some time with/communicate with X whom he had not heard from for a number of weeks.  I find that the Mother was frustrating his efforts to work out a constructive way forward for X.  The Mother also annexes text messages sent to X by the Father[4] which she says upset X.  Again, I find nothing abusive in the emails. However, I find that that the Father criticising the Mother to X showed poor judgment, particularly when the Father asked X to look up the meaning of “personality dysfunction” which I find is likely to have caused X considerable distress.

   [3] Annexure E to Mother’s affidavit sworn on 18 August 2016

   [4] Annexure G to Mother’s affidavit sworn on 18 August 2016

3. The Mother says that X left the Father’s house because of his behaviours: X reported to her a lot of fights, a chair being thrown and the Father criticising the Mother. X was extremely distressed and confused by overhearing the Father telling Y that the Mother had claimed that the Father had raped her. The Mother believed that X was at an emotional risk in the Father’s care. 

4. On 19 August 2016, after the release of Dr P’s second report, and as a result of his assessment, interim orders were made for X to live with her Father until the conclusion of the proceedings (2 September 2016) and to spend time with her Mother on the weekend of 26 – 29 August 2016.  X left the court with her Father, after having the Order explained by the Independent Children’s Lawyer.

5. On 22 August 2016, the Father took X to school.  Unbeknown to the Father, X did not go into school, but went to her Mother’s home. The school advised the Mother that X was not at school.  The Mother sent X back to school shortly after she arrived at her home.  Dr P complimented the Mother on giving X the strong message that she had to go back to school.  He said[5]:

   It would have been very beneficial to X because X is getting the same strong signal from both of her parents.  [t7].

   [5] At page 7 of transcript of proceedings on 31 August 2016

Expert opinion and recommendations

1. Dr P recommends that X live with the Father and spend between 2 to 4 nights a fortnight with the Mother during school terms, with a preference for 4 nights. If the Court determines that X should live primarily with the Mother, he recommends X spend 4 nights a fortnight with the Father.  He recommends 4 nights to ensure that X shares an after school experience with each parent.         

2. Dr P recommends that at the age of 16 (or in the Christmas school holidays just prior to her 16^th birthday in (omitted) 2018), X be at liberty to choose her parenting arrangements because of X’s need for “agency,” and the risk that she will otherwise “vote with her feet” anyway. However, if he were asked what arrangement he favoured, Dr P says he would recommend that X remain primarily with her Father until the age of 18.  Dr P explains his recommendation.  He says that in the next 18 months, X will[6]:

   …further develop in adolescence in terms of differentiation of her own awareness of self, or awareness of others, of her own perspective and the perspective of others…  She will develop in abstract reasoning and the ability to weigh up varying and competing perspectives and world views and she will further integrate what gets called semantic memory, which is the… actual lived experience of each parent and each place, such that, at 16, she is much more likely to be able to make a more differentiated and reflective decision about her living arrangements than now…

   [6] At page 10 of transcript of proceedings on 31 August 2016

3. In Dr P’s opinion, if X decides to live with her Mother when she turns 16 (which in his view is quite likely), she will carry a more robust experience of herself and her relationships and her life as it has actually been, into the circumstance of living mostly among the Mother’s narrative, and vice versa with the Father. He says that his view that it would be in X’s best interests to live at least 50 percent, but probably predominantly, with the Father until she is 18, must be balanced against other developmental issues “which includes how one responds to a child’s agency in – in our culture, and … I’ve already recommended something which is moderately countercultural which is to directly cross the wishes of a 14 year old.”[7] He says that, “…orders that attempt to coercively manage a young person in our culture until 18 are just probably not tenable, unless you were looking at absolute physical risk….that’s another reason why I’m suggesting 16.”[8]

   [7] At page 10 of 31 August 2016 transcript of proceedings

   [8] At page 10 of 31 August 2016 transcript of proceedings

4. Dr P believes that to coerce X to live with her Father after the age of 16 years will create a lot of “distress and dissonance” in X. There would be a cultural response, and a response from X and her friends, “that just would be very dissonant.”[9] Dr P hopes that a ‘coercive order’ that cuts across X’s wishes, but provides a point at 16 that she may [choose where she lives] “she is more likely to interpret…as respectful and to find a way to come to terms with that, and to interpret herself as one of the four children rather than the unlucky one that gets fought over the longest.”[10] Dr P says that girls, “consolidate their sense of self and demonstrate what they can be in the world and form some positive peer relationships” in years 7 to 9.[11] Their choices are more likely to be “genuine and integrated” at approximately aged 16 years.[12]

   [9] At page 11 of 31 August 2016 transcript of proceedings

   [10] At page 11 of 31 August 2016 transcript of proceedings

   [11] At page 6 of 31 August 2016 transcript of proceedings

   [12] At page 6 of 31 August 2016 transcript of proceedings

5. Dr P recommends that in the 6 month period before she turns 16, X consult a therapist, experienced in working with high conflict/polarised families, (such as Dr C)  to help her make a mature decision as to with whom she wants to live after the age of 16 years.  X should be seen by the therapist first with the Father, and then with the Mother.  He recommends that such therapy start now if the Court determines that X should remain living with the Mother.  

6. Counsel for the Father cross examined Dr P about the concept of “agency for the child” from 16 years.  Dr P agreed that the age of 16 years precisely was not an absolute, and acknowledged that X would be 16 years in February 2018, at the commencement of Year 10, her last year of middle school.  Dr P accepted that a change of residence from her Father to her Mother at that stage would probably involve a change of school, and that there is a real possibility that she would not see her Father and have less contact with her siblings.   

7. Dr P repeated his view that there is a “significant likelihood that she will choose to go to be with the mother”.[13] He says while he might love to extend the date from 16 years to 18 years[14]:

   I just think the dissidence between the cultural expectation of a young person and what the court would be expecting of her is going to get too great and be potentially too damaging.

   [13] At page 44 of 31 August 2016 transcript of proceedings

   [14] At page 44 of 31 August 2016 transcript of proceedings

8. However, in cross examination Dr P acknowledged that the ‘marker’ could be extended until the end of Year 10.

9. He recommends that the Father have sole parental responsibility for X, but says that the Mother should have the opportunity to input into non-urgent decisions.

10. Until X is 16, Dr P recommends one block of time each fortnight with the Mother, and that the orders be strictly enforced if there is non-compliance by the Mother.  X should be told about the Mother’s obligations.  In his opinion, there should be an order that time occur only as ordered and that transition back to the Father’s care should be not negotiable outside the framework of the orders. This strict compliance will help X, who will know she has no choice but to comply. He said consideration should be given to an order for X’s time with the Mother to be suspended for a month in the event of the Mother’s non-compliance, to create an incentive for cooperation.

Legal principles

1. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration. To determine the child’s best interests it must consider the primary considerations set out in section 60CC(2) and the additional considerations set out in section 60CC(3). Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, the Court must consider all the factors before making a determination.

2. The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Court must give greater weight to the second primary consideration.[15] The primary considerations are consistent with the first two objects of the Act set out in section 60B to which the Court must have careful regard.

   [15] Section 60CC (2A), Family Law Act 1975 (Cth)

3. The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:

   ·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

   ·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   ·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   ·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Father

1. While Dr P reports that the Father has suffered symptoms of depression and anxiety in the past, in his opinion, the Father does not have a current mental disorder or an alcohol or substance misuse disorder. The Father is assessed as having an anxious and obsessional personality style which “probably makes him good at his profession”.  Dr P formed the view that the Father has the capacity to provide for the children’s basic needs as well as the “more complex emotional, intellectual, relational and developmental needs.”[16] His capacity is augmented by the assistance of his partner and by the collaborative input of the older boys. 

   [16] At paragraph 380 of Dr P’s report of 18 December 2015

2. Dr P found that the Father showed respect for his children’s views, while being prepared to engage in robust exchanges. While Y described her Father as a man who could be irritable, emotionally reactive and who could be opinionated[17]:

   She [Y] described reflective conversation with the father about a range of matters including about her own personal development which has assisted her to form her own views not all of which coincided with the views of the father. 

   [17] At paragraph 169 of Dr P’s report of 18 December 2015

3. Dr P says “I think the father is a good facilitator of robustness in his children.”[18] Y did not appear to Dr P to be coerced.  In answer to questions about whether X may experience the Father as “coercive”, Dr P says that he assessed the Father as having a counter-balancing sensitivity and reflectivity so that when he saw a distressed or an angry response or an upset response, he adjusted himself.[19] Y told Dr P that the Father “got really really angry”[20] when he found out X had left his household to live with the Mother at the end of May 2016.  He later apologised to Y.  Dr P says this is an example of the Father having a “temper”, but not in a toxic or harmful way. However, in the second report interviews Y told Dr P, “when Dad gets angry, it’s more overt” and Y believed that this behaviour may have contributed to X’s decision to leave the Father’s household. 

   [18] At page 20 of transcript of proceedings 31 August 2016

   [19] At page 21 of transcript of proceedings 31 August 2016

   [20] At paragraph 98 of 31 July 2016 report

4. Dr P says the Father’s anxious/obsessional temperament style has strengths and weaknesses. On the positive side, he wants his children to get the most they can out of life, to take opportunities. On the negative side, the Father has at times been verbally aggressive, but not within the definition of family violence.  In Dr P’s view, the children feel respected by their Father.

5. However, as a result of what the children told him, Dr P believes that the Father has been more critical of the Mother than the Father admitted at the assessment. He says that the Father may elaborate too much when speaking about the Mother to the children.  A clear example was the Father discussing the Mother’s allegation that he had ‘raped’ her with Y, in X’s hearing.   

6. I accept Dr P’s assessment of the Father.

Mother

1. Dr P assesses the Mother as having “significant personality dysfunction, with prominent borderline personality traits.”[21] He says “the Mother can be driven by fear or need to be coercive.”[22] As a result of her family history and her personality, the Mother is “hypervigilant to the risk of intrafamilial (particularly male to female, and particularly sexual but also physical or emotional) abuse.”[23] Dr P says[24]:

   …the mother demonstrates a pattern of instability of self-image, emotions, and her perception of relationships, and some impulsive reactivity within her thinking and her relational responses…

   …the intensity and instability of the mother’s borderline functioning is felt within herself and within those who dwell with her in intimate or family relationships.

   Ms S, clinical psychologist, provided relationship counselling to the parties from 2012 until early 2013, shortly before the parties separated.  Ms S gave Dr P her view that the Mother may have borderline personality traits relating to her childhood. She said that the Mother had experienced an “extraordinary” childhood, the maternal grandmother having made accusations of incest and of rape by other family members.  The Father confirms the Mother’s narrative over many years of her mother alleging she was sexually abused by numbers of family and community members.

   [21] At paragraph 318 of 18 December 2015 report

   [22] At page 17 of 31 August 2016 transcript of proceedings

   [23] At paragraph 323 of 18 December 2015 report

   [24] At paragraphs 319 and 322 of 18 December 2015 report

2. Dr P also assesses the Mother to have personality strengths: “altruistic in intent”, “earnest in nature” and “kind and thoughtful in demeanour”. In Dr P’s view, the Mother’s personality strengths helped her to provide the children with a solid foundation of pre-adolescent care, “before her vulnerabilities disrupted her capacity to assist them with adolescent individuation.”[25] Dr P concluded that the Mother struggles to meet the children’s broader emotional needs, relational needs, and developmental needs, particularly in terms of the developmental tasks of adolescence.

   [25] At paragraph 333 of Dr P’s 18 December 2015 report

3. Dr P agreed with the Father’s counsel that the Mother has a suggestive way of talking; for example, at the assessment, the Mother said to Y “and you’re scared. Scared to say what you want or need”. Y did not comment. This was in the context of the Mother’s genuinely held view that the Father is a paedophile, grooming the children.[26]  At the time of the first assessment, X said[27]:

   And Mum, she keeps telling me that we live heaps far away, that it’s hard to get up every day. She keeps reminding me of that.”

   Dr P was troubled by the Mother talking down X’s capacity at (omitted) School when she was doing well, particularly in the context of parental conflict. Dr P says that both Y and X found the process of “maternal fishing for negative emotion quite distressing” but they (at the time of the first assessment) were protected because they were spending significant time with the Father and therefore had a living experience of him.[28] 

   [26] At page 34 of 31 August 2016 transcript of proceedings

   [27] At paragraph 181of Dr P’s 18 December 2015 report

   [28] At page 35 of 31 August 2016 transcript of proceedings

4. Dr P believes that there should be a level of caution in relation to what the Mother says when the evidence is not corroborated.  She has been manipulative in her presentation of the history.  For example, the Mother tried to project a view to Dr P that Ms S had diagnosed the Father as not being empathetic and possibly a sociopath, yet this was not Ms S’s opinion when Dr P spoke to her.[29] Dr P describes this behaviour of the Mother as “unconscious distortions associated with projection.”[30] Dr P also assesses the Mother’s view of X’s mental and emotional state and X’s wishes as very different from how X presented to him at both assessments. He says “these differences reflect the Mother’s personality dysfunction, and the extent to which the Mother projects her own perspectives, emotions and needs onto others”.[31]

   [29] See paragraphs 110 and 111 of Dr P’s 18 December 2015 report

   [30] At page 39 of 31 August 2016 transcript of proceedings

   [31] At paragraph 232 of Dr P’s 31 July 2016 report

5. As already noted, X overheard the Father telling Y that the Mother had accused him of rape. When X asked her Mother directly about this, the Mother says she felt the need to tell X the truth. She told X that the Father had raped her anally. The Mother described X’s distress at this response. Ms S told Dr P that the Father felt “attacked by the Mother”, fearing the Mother would press charges against him.  The Father deposes to the Mother treating him as though he was abusive towards the children when, for example, he hugged Y when she was distressed.[32] Ms S understood why the Father might feel threatened.  The Mother would be overly concerned if the Father was reading a book with sexual content, and suspicious of him being unfaithful to her, without any cause. There is no mention in Ms S’s notes of the Mother making any allegation of rape against the Father, and the Mother did not consult a medical practitioner over the incident.  Dr P assesses the Mother’s view to be genuinely held and consistent with the Mother’s opinion of the Father. However, Dr P says that the Mother holds a “distorted perspective that there is a significant” risk of sexual harm for X in the Father’s care.

   [32] At paragraph 52 of Father’s affidavit sworn on 3 August 2016

6. Dr P was critical of the Mother’s failure to take responsibility for telling the Father that X was now living with her full time, leaving it for Y to tell him. He says that neither X nor the Mother were respectful of the Father in this regard. The Mother should have assisted X to engage in direct, reflective and respectful dialogue and decision making.  Dr P says[33]:

   In my view, the Mother has acted in a manner that is extremely damaging to X in terms of X’s character development, by modelling to X this pattern of avoidant and disrespectful behaviour.

   [33] At paragraph 104 of Dr P’s 31 July 2016 report

7. Dr P says the Mother shows poor insight into X’s predicament, providing no leadership. He finds it unsurprising that X presents as sad, given the Mother’s lack of empathic connection with X’s struggle, and the Mother’s projection onto X of the heavy burden of the Mother’s own impressions, desires and needs.   

8. I accept Dr P’s assessment of the Mother. I also agree with the Father’s counsel’s submission that while the Court can make no finding as to whether or not the Father did rape the Mother, apart from the Mother’s assertion and belief, I find no other evidence to give weight to the Mother’s allegation.

X

1. In his first report, Dr P reports on his observation of all four children[34], which were consistent with his observations reported after the second assessment, except in relation to X. At the second assessment, X presented as “extremely withdrawn, constrained, and inhibited, even when seen with Y.”[35] When X was asked about her current circumstances “she spoke with a tone of passivity, disconnection, and disinterest or negativity”,[36] markedly different from her presentation at the first assessment.  She was “closed to reflection, and to discussion that invited reflection.”[37] Dr P says[38]:

   In my view, X’s aggrieved distress arises, in fact, from her experience of the partisan behaviour of both parents and her sense of being caught in the middle. 

   [34] At paragraph 118 of Dr P’s 18 December 2016 report

   [35] At paragraph 25 of Dr P’s 31 July 2016 report

   [36] At paragraph 35 of Dr P’s 31 July 2016 report

   [37] At paragraph 38 of Dr P’s 31 July 2016 report

   [38] At paragraph 137 of Dr P’s 31 July 2016 report

2. X told Dr P that she moved to the Mother’s home because, “Dad was just being annoying… I wanted to live in one house… to have one life, not two lives…I was just tired of moving all the time.”[39] She said she did not want an equal time arrangement until she was 18 years old.  Dr P says that “X was not giving a direct response regarding her current wishes. She was speaking of her past intentions, and of what she knew that she did not want.”[40] Dr P reports[41]:

   X presented as burdened and constrained, disconnected from inquiry, from joy, and from passion, and disconnected from relationship with Y…this presentation was consistent with X experiencing the burden of maternal partisan and contingent expectation and partisan projection, such that X was not free to connect and to wonder and to reflect, but was burdened by partisan loyalties, and was adapting to loss by disavowing value in those things that she had cut away from.

   [39] At paragraph 124 of Dr P’s 31 July 2016 report

   [40] At paragraph 168 of Dr P’s 31 July 2016 report

   [41] At paragraphs 45 and 46 of Dr P’s 31 July 2016 report

1. When interviewed alone for the second report, Dr P says[42]:

   At times X looked at me in silence, and took on an incongruous half-smile. In these moments, X presented as quite dissociated from thought and from emotion.  X appeared quite stuck in this state, and remained in this stance until she shifted to a more present but awkward looking down, or I [moved] to a new topic…

   [42] At paragraph 112 of Dr P’s 31 July 2016 report

2. At the first assessment, Dr P found that X was able to challenge her Mother quite easily, but by the second assessment, she had lost that ability.  X did not present to Dr P as coached or scripted or scared of her Mother, but with a partisan stance. And the only fundamental change in her circumstances was that she was living with her Mother and spending no time with her Father. 

3. At the first assessment[43], X said positive things about her Father. She said her Father could be opinionated but was not aggressive, violent or dangerous, and she was not frightened of him. This was inconsistent with her position at the second assessment 8 months later, although X did concede that she missed various aspects of her relationship with her Father.  At the second assessment interviews, she did not present as frightened of the Father, and said “I’m not scared of dad...”  Dr P says that X panicked at the thought of “coming face to face with the artificiality of her partisan stance for which she had no logic except that in her mind, she had to choose one or the other”. 

   [43] At paragraph 157 of Dr P’s 18 December 2015 report

4. Dr P says X is distressed by the behaviour of both parents criticising the other.  As an example, X spoke of her distress leading up to the choice of her school. X told Dr P that her Father was manipulating her with remarks such as “her [the Mother’s] family’s crazy” and “they put men in jail” and “mum’s family is in a cult”.[44] She was deeply affected by overhearing her Father telling Y about the Mother’s allegation of rape. X spoke to Dr P of the frustration of not knowing which parent was telling the truth when she wanted to know the truth, and clearly remained deeply troubled by the allegation.   

   [44] At paragraph 153 of Dr P’s 31 July 2016 report

5. Y was worried about X.  X and Mr G had not spoken for 2 months. Although Y felt that she and X were no longer as close, and X was sometimes angry with her, she was concerned about what would happen in the sibling relationships as time went on.

6. Dr P says that X implied, though did not state, that she wanted to stay with her Mother, and that this had been her longstanding wish. She said she wanted to change schools, because (omitted) School “put heaps of stress on you”[45] when she was “just average”, not like Y.  X defined herself as the only one of the four children who listened to the Mother, rather than the Father. Dr P is concerned that X may bind herself to the Mother’s narrative and that the Mother will induce X into this role. Dr P is concerned that if X merges with the Mother’s partisan stance, there is a risk X will lose her trusting connection with her siblings in favour of exclusive belonging to the Mother and the maternal extended family. Dr P believes that the Mother is likely to have projected her experience of rejection by Y (moving to her Father’s for the exchange student) onto X, and “increased her partisan engagement with and need for loyalty from X.”[46]

   [45] At paragraph 184 of Dr P’s 31 July 2016 report

   [46] At paragraph 172 of Dr P’s 31 July 2016 report

7. When seen with her Father (after more than 2 months of not seeing him) X was “still and closed in her body language”. When the Father asked whether she had received his texts and why she had not replied, X gave the excuse that her phone had not been working.  X told her Father she had decided to live with the Mother because it was too hard to be with both parents.  She was adamant she was not going to change her view that she would be living with her Mother.

8. After her interview with the Father, Dr P reports X being angry and distressed.  Dr P said, “My impression was that X felt that reflection upon or revision of her choice was dangerous, and that she needed to aggressively shut down the same.”[47] In his view, X’s decision was more about the dilemma of being caught in the middle of “parental partisan perspectives than of a preference for maternal care over paternal care”.[48] She was struggling with the contradictory narratives of each parent, particularly in relation to the alleged “rape”. She wanted relief from the “cognitive dissonance”.

   [47] At paragraph 203 of Dr P’s 31 July 2016 report

   [48] At paragraph 204 of Dr P’s 31 July 2016 report

9. Counsel for the Father highlights the observations by Dr P in his two reports that the Mother has been manipulative in the presentation of the history to Dr P.  Dr P believes this is an ongoing issue for X.  However, he says that when she has a “lived experience with both parents, there’s a grounding in the ordinary…”, and her ordinary experience will be a buffer.[49] Dr P believes it may help X to have the opportunity to talk to a therapist who has read the Judgment and the reports, to help her come to terms with how it can be that the parents have such different narratives and to answer questions about how each parent sees things.    

   [49] At page 77 of 31 August 2016 transcript of proceedings

10. Dr P raises significant concerns about X’s development if she stays on her present track. In his opinion, by living with her Mother and refusing to see her Father, X is trying to resolve “cognitive dissonance, not pragmatic dissonance”, and the “interpersonal dissonance involved with knowing the good and bad of both parents.”[50]  He gave the extreme example of X trying to reconcile the possibility that her Father raped her Mother with the possibility that her Mother said it happened when it really did not happen. She has decided, “I have to go one way.” Dr P says[51]:

    The difficulty with that track is resolution of insecurity or uncertainty within myself by… selecting one way of seeing a complex situation and going with that way is immature, and it be damaging developmentally in terms of the possibility of X applying that dynamic within relationships in the future, within decisions about herself in the future, resolving that stress rather than sticking with it and coming to a more accurate outcome.

    … And in terms of the interpersonal, more problematic patterns of personality tend to involve idealising or devaluing or joining or cutting off.  More functional forms of personality that are more associated with wellbeing and positive contribution to society involve a middle path of connecting with part of another but not another part and having a relationship, for example, with both  parents which holds onto some like or dislike and some uncertainty. 

    [50] At page 14 of 31 August 2016 transcript of proceedings

    [51] At page 14 of 31 August 2016 transcript of proceedings

11. Dr P says that “the more X is able to develop a strong sense of self the more she can gain from the good bits of mum and be protected from the more concerning bits of mum”.[52] She needs to develop her personality strength.  Merging with her Mother too early (at aged 14) (the Mother’s perspective assessed as “very distorted”) leads to the risk that as she gets older, there will be greater damage to her personality development. There is also the risk of the Mother coming to the view that the Father has sexually interfered with X and of X herself coming to believe this was the truth.

    [52] At page 18 of 31 August 2016 transcript of proceedings

12. In Dr P’s opinion, X needs space “to develop some differentiation of self.”[53] There is otherwise a risk that X will not have the personality strength to maintain a differentiated awareness of what her life experience has been.

    [53] At page 18 of 31 August 2016 transcript of proceedings

13. In Dr P’s opinion, X will be safer to take on the Mother’s perspective at aged 16, though says “I do feel that X will be at some risk of a merged and problematic relationship with the Mother, even at age 16.”[54] However, he believes X will, by that age, maintain her own differentiated perspectives on her experience of other family members and of life, and that it is unlikely she would completely cut off from her relationships with her Father and the paternal family at aged 16.  She may even choose to stay with the Father.

    [54] At paragraph 250 of Dr P’s 31 July 2016 report

14. I accept Dr P’s assessment of X, and give his assessment very significant weight.

THE PRIMARY CONSIDERATIONS  

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

1. Y and X described a positive and engaged relationship with their Father to Dr P, dating back to their childhood years. X said that she liked cooking dinner with her Father and that her Father’s household was “fun… normal.”[55] X referred to her Father as ‘opinionated’,[56] but said he was not aggressive, violent or dangerous and she was not frightened of him. 

   [55] At paragraph 157 of Dr P’s 18 December 2015 report

   [56] At paragraph 175 of Dr P’s 18 December 2015 report

2. However, while the other 3 children spoke positively about their ability to discuss issues robustly in the Father’s home, with the Father accepting their individual views, X appeared to Dr P more affected by the Father’s robust approach than Y. X said the Father, “exaggerates a lot” with a “very strong point of view”. Dr P believes that X was particularly sensitive to the partisan element of the Father’s “opinionated nature”.[57] She was very troubled about the parental dispute about her schooling. She said “my school is just a fight, instead of a school.”[58] Nevertheless, Dr P says X preferred the “space-for-self provided by the paternal stance” despite an element of “empathic dysjunction,” to the “no space-for-self” of the maternal intrusive stance.[59]

   [57] At paragraph 178 of Dr P’s 18 December 2015 report

   [58] At paragraph 181 of Dr P’s 18 December 2016 report

   [59] At paragraph 182 of Dr P’s 18 December 2016 report

3. Dr P found more constraints and negative elements in the girls’ relationships with the Mother, but noted that they continued to express loyalty to the Mother, to carry a strong desire not to hurt the Mother, and to value the Mother and aspects of their day to day life with her. However, they experienced the Mother and their relationships with her as associated with the Mother’s borderline personality traits, including her projection of her own emotions onto others.  X described her burden of concern for maternal emotional wellbeing. When she was siding with the Father about her choice of school, X feared her Mother’s sadness at the decision.  

4. I am satisfied that X has a strong loving relationship with each parent. I note that Dr P finds both Y and X’s self-reliance reflects “an anxious-avoidant attachment style”,[60] but that this is not a concern.

   [60] At paragraph 130 of Dr P’s 18 December 2016 report

5. The parties agree that X will spend substantial and significant time with the Mother while living with her Father, at least until the age of 16 years. I accept Dr P’s opinion that, even if X moves back to the Mother at aged 16 years, it is unlikely she will cut herself off from the Father or from her siblings again. I am satisfied that X will therefore continue to benefit from a meaningful relationship with both her parents into the future.  

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

1. “Abuse” is defined in section 4 of the Family Law Act 1975 as:

   (a)     an assault, including a sexual assault, of the child; or

   (b)     a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)     serious neglect of the child.

2. “Neglect” is not defined in the Family Law Act and therefore must be given its ordinary meaning.  

3. Section 4AB(3) provides that “For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.”

4. Family violence is defined at section 4AB(1) of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family….or causes the family member to be fearful.”

5. Section 4AB(4) outlines examples of situations that may constitute a child being exposed to family violence which include (but are not limited to) the child:

   (a)    overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

   (b)     seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

   (c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

   (d)     cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or

   (e)     being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.”

6. Section 4AB(2) provides a non-exhaustive list of examples of behaviour that may constitute family violence, which include:

   (a)     an assault; or

   (b)     a sexual assault or other sexually abusive behaviour; or

   (c) stalking; or

   (d)     repeated derogatory taunts; or

   (e)     intentionally damaging or destroying property; or

   (f)     intentionally causing death or injury to an animal; or

   (g)     unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h)     unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (i)     preventing the family member from making or keeping connections with his or her family, friends or culture; or

   (j)     unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.”

7. At interview with Family Consultant Ms R in October 2014, the Mother said the Father is “probably a sociopath”. She alleged a pattern of controlling and manipulative and abusive behaviour by the Father throughout the marriage.  She alleged the Father was prone to outbursts of anger and that his ‘rage’ caused her distress and fear.[61] The Mother also alleged that the Father drank alcohol to excess, that the Father had been sexually violent towards her and believed that the Children may be at risk of sexual harm in the Father’s care. The Father vehemently denied the Mother’s allegations and was concerned as to how he could defend himself in the face of the Mother’s “lies and distortion.”[62]

   [61] At page 2 of Ms B's Child Inclusive Conference Memorandum dated 28 October 2014

   [62] At page 2 of Ms B's Child Inclusive Conference Memorandum dated 28 October 2014

8. None of the children interviewed by Family Consultant Ms R raised any concerns about their Father’s behaviour, nor identified any aspect of their Father’s behaviour that made them feel uncomfortable.[63]

   [63] At page 3 of Ms B's Child Inclusive Conference Memorandum dated 28 October 2014

9. I am not persuaded that X has been exposed to abuse, neglect or family violence.  Consistently with Dr P’s opinion, I am not satisfied that the Father perpetrated a pattern of family violence against the Mother or a pattern of sexually intrusive or abusive behaviour. Ms S said the Father was terrified of the Mother and the Mother was reactive when the Father shouted or was angry.  She felt the parties appeared “evenly matched.”[64] Dr P accepted Ms S’s assessment that there was a pattern of mutual distrust and symmetrical couple conflict, “but not of asymmetrical paternal abusive behaviour or of family violence.”[65]  I find it noteworthy that the children’s observations and narrative accord with this finding and that his current relationship is respectful.  Dr P formed the view, which I share, that the Father has been verbally aggressive at times, but that this has not extended to family violence.  I am not persuaded by the evidence before me that the Mother’s fears that the Father may sexually abuse the girls has any foundation.        

   [64] At paragraph 113 of Dr P’s 18 December 2015 report

   [65] At paragraph 275 of Dr P’s 18 December 2016 report

RELEVANT ADDITIONAL CONSIDERATIONS

Any views expressed by the Child 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. In October 2014, both Y and X were adamant they did not want to spend less time with their Father.[66]  In July 2016, Dr P says that X implied, though did not clearly state, that she wanted to stay with her Mother, and that this had been her longstanding wish. She said she wanted to change schools, because (omitted) School “put heaps of stress on you” when she was “just average”, not like Y.  However, although X is 14 years old, Dr P cautions against unquestioning acceptance of X’s views in the context of her circumstances. Counsel for the Father submits that “context is everything.”

   [66] See child inclusive conference memorandum dated 28 October 2014

2. As already noted, I accept Dr P’s opinion that X became distressed by the “cognitive dissonance” created by living from week to week in two households.  She decided it was too hard to maintain that arrangement and chose to live in one home.  So she stopped seeing her Father altogether and then stopped all communication with him until the Court intervened more than 2 months later.  As stated earlier, Dr P believes that the Mother is likely to have projected her experience of rejection by Y (moving to her Father’s for the exchange student) onto X.[67]

   [67] At paragraph 172 of Dr P’s 31 July 2016 report

3. When the court ordered X to go home with her Father on 19 August 2016, the Father describes X settling into his care within approximately 24 hours.  While she was unsettled to an extent in her first week with him back at school, (returning to the Mother from school early on the Monday, reporting tummy upset during the week and to not eating her school lunches, complaining to her cousins that she had not been heard by the Court), there was nothing particularly troubling in her presentation. X did ask her Mother “why did you sign that I could go to dad’s?” and the Father described X as “not quite her old self over that week.. she accepts a hug, but doesn’t give you a hug back.”  Despite her initial ‘pushing back’, I find that X did warm up and soon re-engaged and enjoyed activities with the Father in his household.  Dr P remarked that X would have been relieved not to be required to talk about how bad things were at the Mother’s, and simply to engage in activities and connect with the family. In contrast, at the Mother’s “there was a need in X to enact a narrative about personal dysfunction at the other home … needed to say she had diarrhoea and couldn’t eat and had to bring her lunches back etc…There was a need to talk to the broader family in a partisan way.”[68] Dr P therefore concludes that despite what X says, “it’s of greater developmental benefit to be in the Father’s home… it’s a less partisan space.”[69]

   [68] At page 75 of 31 August 2016 transcript of proceedings

   [69] At pages 75 to 76 of 31 August 2016 transcript of proceedings

4. I accept that X would currently prefer to be living with her Mother.  I have regard to this finding in reaching my decision. 

1. I have decided the Father will have sole parental responsibility. Given my decision, I am not required to consider the matters under s.65DAA.

Discussion and Determination  

1. X is 14 years of age and completing Year 8 at school. She did not spend time with her Father from 30 May this year for over 2 months, after over 3 years of living with each parent in an equal time arrangement week by week.  Unfortunately the matter was not brought to the attention of the Court during this period.

2. I accept that X would prefer to live with her Mother at this point. 

3. However, it is the expert’s opinion that “X’s current views have been influenced by significant conscious and unconscious coercive behaviour by the mother” and that X is at risk of serious developmental harm if she remains in her Mother’s sole care.  For that reason, I made interim orders in August 2016 for X to live primarily with her Father.  Those orders were continued by consent at the conclusion of the hearing in early September 2016 when the parties also reached agreement about X’s schooling at (omitted) School until the completion of Year 12. 

4. The issues are firstly whether, and if so, at what point X should be able to choose her own living arrangements and secondly whether both or one parent should have sole parental responsibility.

5. It is clear that X has struggled over a long time to negotiate the pathway between her highly conflicted parents. I accept that she has been drawn into the ‘battle’ by both parties, and been forced to listen to regular criticism of the other parent in each parent’s household.  I am critical of both parties for putting her in this situation and expecting so much of her.  It is no surprise that X decided she could no longer tolerate moving between her two homes, and felt emotionally compelled to choose one base.

6. I agree with Dr P that it is unusual for a Court to compel a child of 14 years to live primarily with one parent when she has made it clear she wants to live with the other parent.  I also agree with him that there are risks inherent in forcing the issue.  However, in this case, I accept the expert assessment that X’s views have been influenced by the Mother’s behaviour, and that X’s developmental needs should outweigh her expressed views, at least at this stage of her development. 

7. The parties have agreed that X will live primarily with the Father and spend 4 nights with the Mother (from Friday to Tuesday in alternate weeks) during term times until her 16^th birthday.  Dr P says that should be the point at which she can decide her own parenting arrangements.  In his view, it is counter-cultural to force a child of over 16 years to live in a particular arrangement, and to do so may be counter-productive.  Dr P says:

   The risk of overplaying the hand of coercive advice, potentially having messy, immature, voting with feet-type response in year 10 is greater than the downside of moving her or giving her that opportunity to choose in February of her year 10 year.

8. I agree with the Father’s counsel that the Court must focus its inquiry on X and not on any other child.  I agree with counsel (as does Dr P) that there is no ‘magic’ about X’s 16^th birthday.  X will be no different on that day than on the day before or the day after.  I agree with the Father’s counsel, and with Dr P, that it is likely that if given a choice of where she lives from that day, it is highly likely X will return to her Mother’s home. She may or may not choose to spend time with her Father, and it is unlikely her Mother will support her to do so.

9. Notwithstanding her expressed wishes, X has a positive relationship with her Father, her Father’s partner, her brothers, and has a significant attachment relationship to Y. When the four children were all interviewed by Dr P in September 2015, he formed the view that Y and X “were more naturally and positively adapted to life in paternal care” but did not want to express that view for fear of hurting their Mother.  Now X feels she is the only child of the 4 who listens to the Mother. It is likely that she will put herself under pressure not to let her Mother down.

10. I have accepted Dr P’s assessment that the Mother struggles to meet X’s broader emotional needs, relational needs and developmental needs, particularly in terms of the developmental tasks of adolescence.  I accept that she has projected her own perspectives, motives and needs onto others, including X. I find that while genuinely well motivated, the Mother lacks insight into the impact of her behaviours on X. 

11. In his first report in late 2015, Dr P recommended that X live primarily with the Father “because the Father is strongest in terms of strong and predictable and straightforward decision-making and expectations and problem-solving and routine.”[88] He said that both Y and X need to spend time with their Mother and the maternal extended family but “from a foundation of a less constrained and coercive home base with the Father.”[89] Dr P now believes that the strongest development outcome for X is to stay at (omitted) School until Year 12 (as she will be), and to live with her Father at least half the time, until at least the end of Year 12. However, as noted, Dr P does not support X being compelled to follow orders to that effect beyond her 16^th birthday.

    [88] At page 394 of Dr P’s 18 December 2015 report

    [89] At page 397 of Dr P’s 18 December 2015 report

12. It is only 14 months before X will be 16 years old and commencing Year 10.  She has had an unsettled year in 2016, with illness, a block of time away from her Father and this litigation. Dr P assesses X as immature and says X is a vulnerable child.  I am satisfied that she will be under considerable pressure to move back to her Mother.  I conclude that X needs longer than 4 further school terms to be established in her new routine, which has only been in place for one full school term. I have carefully considered Dr P’s evidence and note that he was not against the Father’s counsel’s suggestion that she be given the chance to choose where she lives at the end of Year 10. I have carefully considered the Father’s counsel’s submission that the orders should stand until X is 18 years, but I am persuaded that X needs an end point that is within reach, to help her withstand any pressure on her to vote with her feet against the arrangements currently in place.  I have decided that X will have the opportunity to vary her living arrangements at the end of her Year 10 school year should she wish to do so.  I am hopeful that if she decides to increase her time with her Mother, that she will maintain a regime of significant time with her Father and that her Mother will, by then, appreciate the benefits to X of doing so.

13. I am not persuaded the 4 night a fortnight regime with her Mother should be reduced to a 3 night fortnight, despite the distance X has to travel on the Monday to and from school.  She spent well over a year travelling to (omitted) School from her Mother’s home for a whole week every second week and I am satisfied that one long travel day a fortnight will be manageable for her. 

14. For practical reasons and because I find the Father has the greater capacity to make balanced, carefully considered decisions for X, the Father will have sole parental responsibility for X until she is 18 years, but he will be required to consult the Mother in advance of any non-urgent major decisions he proposes to make.  

15. In accordance with Dr P’s recommendations, and agreed by both parties, X will see a therapist at least once, approximately 6 months before the end of her Year 10 school year and again 2 months before Christmas that year so she can be assisted to decide whether any change in her arrangements would help her.  Each parent will have the opportunity to engage with the therapist. Should X want therapy before that time, the parties should facilitate it. The therapist should be (as recommended by Dr P), “experienced in working with adolescents who are experiencing situations of mistrust and conflict between their parents.” The therapist will be given copies of the 2 reports prepared by Dr P, the Court’s orders and these Reasons for Judgment.

16. In Dr P’s opinion, there should be an order that time occur only as ordered and that transition back to the Father’s care should be ‘not negotiable’ outside the framework of the orders. He says that such strict compliance will help X, who will know she has no choice but to comply.  Dr P said that consideration should be given to an order for X’s time with the Mother to be suspended for a month in the event of the Mother’s non-compliance, to create an incentive for cooperation. 

17. It is the obligation of both parties to strictly comply with the Court’s orders unless the parties otherwise agree. I am not persuaded that the Mother is likely to breach Court orders and the evidence is that X is a compliant child.  I have therefore not included the orders recommended by Dr P in relation to non-compliance. I will, however, give the Father liberty to relist before me for a period of 6 months in case any substantial difficulties arise.  

18. The Mother will continue to attend upon a therapist (currently Ms F) qualified to assist her with her mental health difficulties.  

19. I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of X.  

Costs application

1. The Independent Children’s Lawyer seeks costs in the total sum of $9,713.00 against each party.  The Father opposes the application. It is submitted by the Father’s counsel that he has met all the costs of Dr P and he should not be required to contribute further. The Mother’s position is not yet clear. 

2. The Father seeks costs against the Mother. 

3. If the parties are unable to agree on costs, the Father will be given 28 days to file and serve short submissions on the question of costs, and the Mother will be given a further 21 days to respond. 

4. The Independent Children’s Lawyer will be required to file and serve submissions including an itemised account of costs sought in accordance with Schedule 1 of the Federal Circuit Court Rules 2001 within 6 weeks and each party will have a further 21 days to respond.    

I certify that the preceding one hundred and forty eight (148) paragraphs are a true copy of the reasons for judgment of Judge Sexton

Date:      23 December 2016