CRAIG & RODERICK
[2015] FCCA 204
•5 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRAIG & RODERICK | [2015] FCCA 204 |
| Catchwords: FAMILY LAW – Parenting – living arrangements for parties’ 12 and 8 year old sons – parties have highly conflicted relationship and very different lifestyles – after 4 years parties’ eldest son experiencing serious emotional and psychological distress because of exposure to the parental conflict such that he now wants to spend no time with the father – orders made for mother to have sole parental responsibility for health issues, children to live with the mother and spend day time only with the father. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC(2) and (3), 61DA, 65DAA, 121 |
| AMS v AIF (1999) 199 CLR 160 U & U (2002) 211 CLR 238 McCall v Clark(2009) 41 Fam LR 483 Mazorski & Albright (2007) 37 Fam LR 518 |
| Applicant: | MR CRAIG |
| Respondent: | MS RODERICK |
| File Number: | MLC 10237 of 2010 |
| Judgment of: | Judge Bender |
| Hearing date: | 29 September 2014 |
| Date of Last Submission: | 3 October 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 5 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mort |
| Solicitors for the Applicant: | Kordell Lawyers |
| Counsel for the Respondents: | Ms Colla |
| Solicitors for the Respondents: | Peter Baker & Associates |
| Counsel for the Independent Children’s Lawyer: | Ms Boymal |
| Solicitors for the Independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
All previous parenting orders be discharged.
Subject to Order 3 herein, the mother and father have equal shared parental responsibility for the children X born (omitted) 2002 (“X”) and Y born (omitted) 2006 (“Y”).
Subject to Order 4 herein, the mother have sole parental responsibility for X and Y in relation to all decisions about X and Y’s medical care, including their physical and mental health.
The mother:
(a)forthwith upon the making of a decision in relation to X and Y’s medical care shall advise the father by text message or email of any appointment made for either or both of their medical or treating practitioner of whatsoever nature or kind;
(b)provide to the father in writing the full name, address and telephone number of the proposed treating practitioner;
(c)permit the father to attend upon such practitioner to discuss the health of X or Y, any proposed treatment or medical care and to be involved in such process on an ongoing basis (although not necessarily at the same time); and
(d)authorise all medical or treating practitioners of X or Y to communicate with the father.
The father comply with any directions of X and Y’s treating health practitioners including the administering of prescribed and non-prescription medication and further ensure that X and Y attend all medical and dental appointments as scheduled.
X and Y live with the mother.
X and Y spend time and communicate with the father as follows:
(a)each alternate Sunday from 10am to 6:30pm;
(b)each Monday from after school until 6:30pm during school terms;
(c)from 10am to 6:30pm on the summer solstice each year;
(d)from 11am to 5pm on 25 December in 2015 and each alternate year thereafter;
(e)from 10am to 6:30pm on Father’s Day and any scheduled time with the father is suspended on Mother’s Day;
(f)if X and Y are not already in the father’s care pursuant to these orders on each of X and Y’s birthdays:
(i)if a school day from the conclusion of school until 6:30pm in even numbered years and for the same period of time on either the day before or the day after X and Y’s birthday in odd numbered years;
(ii)if a non-school day at times to be agreed and failing agreement from 10am to 2pm.
(g)if X and Y are not already in the father’s care pursuant to these orders on the father’s birthday, at times to be agreed and failing agreement from the conclusion of school until 6:30pm if on a school day and from 10am to 2pm if on a non-school day.
(h)by telephone each Wednesday between 5pm and 5:30pm with the father to initiate the call; and
(i)such further and other times as may be agreed in writing between the parents.
The father’s time with X and Y pursuant to Order 7(a) herein be suspended for the first half of the term and long summer school holidays in odd-numbered years and the second half of the term and long summer school holidays in even numbered years and such time shall resume as if the holidays had not intervened.
Unless otherwise agreed in writing, except where handover is to occur at X and Y’s schools, handover occur at (omitted) Children's Contact Centre (“(omitted)”) provided that if (omitted) is closed handover shall occur at Woolworths in (omitted).
The mother and father forthwith do all such acts and things and sign all such documents to apply to (omitted) for the purpose of changeovers.
The mother and father be restrained from arranging any appointments (including health appointments save in the event of an emergency), social or extracurricular activities for either X or Y when X and Y would otherwise be in the care of the other party pursuant to these orders save as otherwise agreed in writing.
The mother forthwith arrange and facilitate a meeting between X and Y and Mr T for the purpose of Mr T explaining these orders to the children and the costs of Mr T for this purpose be shared equally between the parties and for the purpose of this order the Independent Children’s Lawyer shall provide a copy of these order to Mr T.
The parents share equally the costs of Mr T’s attendance at Court on 2 October 2014 including any ancillary costs of Mr T in relation thereto.
Orders 7(a) and 7(b) hereof shall commence forthwith after Mr T has explained the orders to X and Y.
The mother be restrained from changing X and Y’s place of residence from any address more than 50 kms from the (omitted) Post Office.
Each of the parents be restrained from distributing, disseminating, furnishing or publishing any professional reports used in the proceedings concerning the parents and/or X and Y save as provided for in these orders or as otherwise ordered by the Court.
The mother be at liberty to provide any professional reports used in these proceedings, a copy of these orders and the judgment to the medical practitioners and health practitioner of herself, X and Y.
The father be at liberty to provide a copy of Dr M’s reports dated 14 April 2011 and 1 May 2013 to any mental health practitioner of his provided that he also provide a copy of Mr T’s report dated 24 February 2014, a copy of these orders and the judgment.
The mother and father, their servants and agents be restrained from discussing the evidence given in these proceedings with or within the hearing of X and Y or either of them.
The parents keep each other advised at all times of their respective residential addresses, mobile and (if applicable) landline telephone numbers and email addresses.
The parents immediately advise the other in the event that either X or Y suffers any substantial illness or injury or any emergency medical or dental treatment.
The father be permitted, in the event of any medical emergency of either of the children whilst in his care, to take X and Y to the (omitted) Medical Clinic, (omitted).
The mother be permitted to provide a copy of these orders to the Principal of each of X and Y’s schools.
The mother authorise all schools at which X and Y attend to:
(a)provide each parent with all copies of school reports, school notes and school photograph order forms in relation to X and Y at their expense; and
(b)communicate with each parent either by telephone, in writing or by personal attendance, in respect of X and Y’s progress at their respective schools
subject to any school policy in relation thereto.
Subject to Order 26 herein, each parent be restrained from:
(a)attending at either child’s school during any time when X and Y are in the care of the other pursuant to these orders save for events to which parents are normally entitled to attend such as speech nights, concerts and the like; and
(b)attending at either X and Y’s school at times when the other parent is delivering or collecting X and Y from school pursuant to these orders.
The parties shall be permitted to separately attend Y’s classroom on one day each week for reading if permitted to do so by Y’s school.
Ms C and the child Z shall be permitted to attend Y’s classroom for one day each week for reading if permitted to do so by Y’s school.
The parents, their servants and agents be and are hereby restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s household or family in the presence or hearing of X and Y or from permitting any other person to do so.
That as far as practicable all future parenting applications including contravention applications be listed before Judge Bender and each parent be at liberty to contact the chambers of Judge Bender to give effect to this order.
The appointment of the Independent Children’s Lawyer be discharged.
Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the parties to employ an advocate.
Pursuant to sections ss.62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Craig & Roderick is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10237 of 2010
| MR CRAIG |
Applicant
And
| MS RODERICK |
Respondent
REASONS FOR JUDGMENT
Introduction
This complex and very sad parenting matter relates to the parties’ two sons X born (omitted) 2002 aged 12 years (“X”) and Y born (omitted) 2006 aged 8 years (“Y”).
The parties have a highly conflicted relationship and neither like, respect or trust the other. It is therefore not surprising that the parties have been involved in almost constant ongoing litigation, either within the Federal Circuit Court of Australia, the State Courts or the Social Security Appeals Tribunal, since their separation in 2010.
Final parenting orders were first made in relation to X and Y’s living arrangements on 6 June 2011. Those orders provided for the parties to have equal shared parental responsibility for X and Y, for X and Y to live the mother and spend time with the father, in a two week cycle, in the first week from Friday to Monday and in the second week from Monday to Wednesday, for half school holidays and special occasions.
The matter returned to Court within 8 months of the first final orders being made. On 25 June 2013, second very detailed final parenting orders were made. The parties retained equal shared parental responsibility for X and Y, X and Y continued to live with the mother and the time they had been spending with the father was consolidated into a single block of time each fortnight being each alternate week from Friday to Wednesday. X and Y continued to spend half school holidays and special occasions with each of the parties.
The final orders of 25 June 2013 also provided for the parties, X and Y to attend upon Mr T for privileged therapeutic counselling, for Mr T to be permitted to report as to the parties’ compliance and the orders and whether the parties or either of X and Y required additional counselling or psychological treatment.
The current matter before the Court commenced when the father filed a Contravention Application on 25 November 2013 alleging the mother had breached the 25 June 2013 orders.
On the first return date of the father’s Contravention Application on
17 December 2013, orders were made adjourning the matter for interim hearing and for Mr T, who the parties had been seeing pursuant to the orders made on 25 June 2013, to prepare a report in relation to the parties, X and Y’s counselling and to make any recommendations he may have as to X and Y’s living arrangements.
Mr T released his report on 20 February 2014. In his report, Mr T suggested the parties consider reducing X and Y’s time with the father.
When the matter returned to Court on 28 February 2014 it was apparent that the living arrangements for X and Y was again a live issue. The mother indicated she would be seeking a reduction in the time X and Y spent with the father and the father indicated he wished the existing living arrangements to continue.
On 28 February 2014 orders were made for the mother to file an Initiating Application, the father to file a Response, for the appointment of an Independent Children’s Lawyer and otherwise the matter was listed for final hearing. Orders were also made for X to immediately commence confidential therapeutic counselling with Ms L.
A notation to the 28 February 2014 orders confirmed the parties’ agreement that the living arrangements for X and Y set out in the 25 June 2013 orders would continue.
It is the mother’s evidence that during the 2014 July term holidays when X and Y were with the father, she received a distressed call from X begging her to come and collect him. The mother attended upon the father’s business premises in (omitted) and, following a heated argument between the mother and the father’s now wife, she removed both X and Y from the father’s care and time between X and Y and the father ceased.
On 1 August 2014 the mother issued an Application in a Case seeking the time X and Y spend with the father pursuant to the 25 June 2013 orders be suspended and that X and Y spend such time with the father as determined by the Court. On 4 August 2014, prior to service upon the father of the mother’s Application in a Case, the father issued a Contravention Application.
The parties’ competing applications came before the Court on 25 August 2014. By consent interim orders were made that suspended the “spend time” orders made on 25 June 2013 and provided for X and Y to spend time with the father each Monday from after school to 6:30pm, each alternate Saturday from 10am to 6pm and on Father’s Day.
The father withdrew his Contravention Applications on the basis the matter was to be heard shortly and he did not want to compromise the final hearing.
In the previous proceedings before the Court in relation to X and Y’s living arrangements, the Court was assisted by two family reports prepared by Dr M, the first dated 14 April 2011 and the second dated 1 May 2013. The parties and the Independent Children’s Lawyer relied on Dr M’s reports as well as Mr T’s report at the final hearing of the matter. Both experts gave vive voce evidence at the final hearing.
Central to this matter is the issue of X’s current emotional and psychological health. At the commencement of the final hearing discussion was had between the Court and counsel for the parties and the Independent Children’s Lawyer as to whether it was appropriate to have X’s therapeutic counsellor, Ms L, give evidence. There was a real concern that given their confidential relationship, the giving of evidence by Ms L would result in a X losing trust in Ms L such that X’s relationship with her would be fatally compromised.
The Court ruled that Ms L was not to give evidence. However, with Ms L’s consent, Dr M and Mr T were asked to jointly speak with Ms L to discuss X’s counselling to date and to then feedback to the Court and the parties the opinions and information they had obtained from their discussion with Ms L in relation to X in such a way that their feedback would not jeopardise the professional relationship between X and Ms L.
Having spoken to Ms L, Dr M and Mr T jointly provided feedback to the Court of their discussion with her. Both professional witnesses remained in the witness box and jointly provided to the Court their recommendations for the future living arrangements for X and Y.
At the conclusion of the parties’ and experts’ evidence, counsel for the Independent Children’s Lawyer provided the Court and the parties with a document setting out the “Minute of Final Orders Sought by the Independent Children’s Lawyer”. Whilst lengthy, the Independent Children’s Lawyer’s proposal will be set out in full:
“Minute of Final Orders Sought by the Independent Children’s Lawyer Dated 3 October 2014”
1. All previous parenting orders be discharged.
2. Subject to Order 3 hereof the mother and father have equal shared parental responsibility for the children X born (omitted) 2002 and Y born (omitted) 2006 (“the children”).
3. The mother have sole parental responsibility for the children in relation to decisions about the children’s medical care and health, including physical and mental health subject to Order 4 hereof.
4. The mother:
(a) forthwith upon the making of a declaration to the children’s medical care shall advise the father by text message or email of any appointment made for either or both of the children’s medical or treating practitioner of whatsoever nature or kind;
(b) provide to the father in writing the full name, address and telephone number of the proposed treating practitioner;
(c) permit the father to attend upon such practitioner to discuss the health of the children, any proposed treatment or medical care and to be involved in such process on an ongoing basis (although not necessarily at the same time); and
(d) authorise all medical or treating practitioners of the children or either of them to communicate with the father.
5. The father comply with any directions of the children’s treating health including the administering of prescribed and
non-prescription medication and further ensure that the children attend all medical and dental appointments as scheduled.
6. The children live with the mother.
7. The children spend time and communicate with the father as follows:
(a) each alternate Sunday from 10am to 6:30pm;
(b) each Monday from after school until 6:30pm during school terms;
(c) from 10am to 6:30pm on the summer solstice each year;
(d) from 11am to 5pm on 25 December in 2015 and each alternate year thereafter;
(e) from 10am to 6:30pm on Father’s Day weekend and any scheduled time with the father is suspended on Mother’s Day;
(f) if the children are not already in the father’s care pursuant to these orders on each of the children’s birthdays:
(i) if a school day from the conclusion of school until 6:30pm in even years and for the same period of time on either the day before or the day after the children’s birthday in odd years;
(ii) if a non-school day at times to be agreed and failing agreement from 10am to 2pm.
(g) if the children are not already in the father’s care pursuant to these orders on the father’s birthday at times to be agreed and failing agreement from the conclusion of school until 6:30pm if on a school day and from 10am to 2pm if on a non-school day;
(h) by telephone each Wednesday between 5pm and 5:30pm with the father to initiate the call; and
(i) such further and other times as may be agreed in writing between the parents.
8. Unless otherwise agreed in writing, except where handover is to occur at the children’s school, handover occur at (omitted) Children's Contact Centre (“(omitted)”) provided that if (omitted) is closed handover shall occur at Woolworths in (omitted).
9. The mother and father forthwith do all such acts and things and sign all such documents to apply to (omitted) for the purpose of changeovers.
10. The mother and father be restrained from arranging any appointments (including health appointments save in the event of an emergency), social or extracurricular activities for either child when the children would otherwise be in the care of the other party pursuant to these orders save as otherwise agreed in writing.
11. The mother forthwith arrange and facilitate a meeting between the children and Mr T for the purpose of Mr T explaining these orders to the children and the costs of Mr T for this purpose be shared equally between the parties.
12. The parents share equally the costs of Mr T’s attendance at Court on 2 October 2014 including any ancillary costs of Mr T in relation thereto.
13. Orders 7(a) and 7(b) hereof shall commence forthwith after Mr T has explained the orders to the children.
14 The mother be restrained from changing the children’s place of residence from any address more than 50 kms from the (omitted) Post Office.
15. Each of the parents be restrained from distributing, disseminating, furnishing or publishing any professional reports used in the proceedings concerning the parents and/or the children save as provided for herein or as otherwise agreed between the parents.
16. The mother be at liberty to provide any professional reports used in these proceedings, a copy of these orders and the judgment to the medical practitioners and health practitioner of her and/or the children or either of them.
17. The father be at liberty to provide a copy of Dr M’s reports dated 14 April 2011 and 1 May 2013 to any mental health practitioner of his provided that he also provide a copy of Mr T’s report dated 24 February 2014, a copy of these orders and the judgment.
18. The mother and father, their servants and agents be restrained from discussing the evidence given in these proceedings with the children or either of them or within the hearing of the children.
19. The parents keep each other advised at all times of their respective residential addresses, mobile and (if applicable) landline telephone numbers and email addresses.
20. The parents immediately advise the other in the event that either child suffers any substantial illness or injury or any emergency medical or dental treatment.
21. The father be permitted, in the event of any medical emergency of either of the children whilst in his care, to take the children to the (omitted) Medical Clinic, (omitted).
22. The mother be permitted to provide a copy of these orders to each of the children’s schools.
23.The mother authorise all schools at which the children attend to:
(a) provide each parent with all copies of school reports, school notes and school photograph order forms in relation to the children at their expense; and
(b) communicate with each parent either by telephone, in writing or by personal attendance, in respect of the children’s progress at their respective schools
subject to any school policy in relation thereto.
24. Each parent be restrained from:
(a) attending at either child’s school during any time when the child or children is in the care of the other pursuant to these orders save for events to which parents are normally entitled to attend such as speech nights, concerts and the like; and
(b) alternating at either child’s school at times when the other parent is delivering or collecting the children from school pursuant to these orders.
25. The parents, their servants and agents be and are hereby restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s household or family in the presence or hearing of the children or either of them or from permitting any other person to do so.
26. That as far as practicable all future parenting applications including contravention applications be listed before
Judge Bender and each parent be at liberty to contact the chambers of Judge Bender to give effect to this order.
27. The appointment of the Independent Children’s Lawyer be discharged.
28. Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.
29. 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 Attachment A and these particulars are included in these orders.
30. The proceedings be removed from the list of cases pending.
The mother adopts the Independent Children’s Lawyer’s proposals save that she seeks X and Y spend time with the father each alternate Monday from after school to 6:30pm, not every Monday. She also seeks that the father’s time be suspended during the first half of school holidays in odd numbered years and the second half in even numbered years so she can go away on holidays with X and Y.
Whilst the father would ideally prefer that X and Y’s living arrangements return to those provided for in the orders made on 25 June 2013, having heard the evidence of Dr M and Mr T and the closing submissions of counsel for the Independent Children’s Lawyer, the father’s counsel advised the Court the father seeks orders in the terms proposed by the Independent Children’s Lawyer save that X and Y spend time with the father each alternate Saturday and Sunday between 10am and 6:30pm, that all time continue during the school holidays unless the mother is taking X and Y on holidays and that he, his now wife and her daughter be permitted to continue to attend Y’s school to assist in Y’s class with reading once a week as they have been for most of 2014.
Background
Whilst much of the context in which in this matter is now before the Court has been set out in the introduction to this judgment, some further brief background to the matter will be given.
The mother was born on (omitted) 1974 and is aged 40 years. She is currently a full-time student. The mother has not re-partnered.
The father was born on (omitted) 1972 and is aged 42 years. He is an (occupation omitted) who conducts his own (omitted) business in (omitted). The father has remarried. His new wife is Ms C. Ms C has a 9 year old daughter Z who lives with she and the father.
The parties commenced cohabitation in 1999 in (omitted) and in 2006 relocated to the (omitted) region. The parties separated acrimoniously in March 2010 when the mother, X and Y moved to rented accommodation in (omitted) from the then family matrimonial home in (omitted), a 5 bedroom property from which their (omitted) business was run.
Ms C had been employed in the parties’ business prior to their separation. The father formed a relationship with Ms C fairly shortly after separation. The mother believes this relationship commenced before separation.
The mother was extremely distressed by the father’s relationship with Ms C and formed a strong dislike, even hatred, of Ms C that continues to this day. The mother has openly made her dislike of Ms C known to X and Y.
The parties were unable to agree on the living arrangements for X and Y almost from separation. The mother proffered a litany of complaints about the father’s care of X and Y and limited or withheld their time with the father. It was for this reason the father instituted proceedings in November 2010.
As previously set out in this judgment, Dr M prepared her first family report dated 14 April 2011.
In paragraphs 45, 47 and 49 of her family report, Dr M sets out the impact the mother’s behaviour was having on X and Y and their relationship with the father and Ms C as follows:
45. From a clinical perspective, what we seem to have here are two children who are profoundly enmeshed an embroiled in their parents conflict, and in the face of such poor boundary definition and ‘projective identification’, these children are aligned with their mother, who seems boundaryless herself... the mother’s behaviour in particular creates a massive dilemma for them, as they understand the dramatic pull on them, and that they can’t really enjoy themselves with their father, and they certainly can’t spend time with or enjoy any time with his partner Ms C, because of the messages of restraint they receive from her (the mother), and thus in their eyes, the only way they can continue to have a relationship with their mother and continue to get her love, support, and approval, is to totally reject Ms C, and partially reject their father, and to certainly tell their mother what they think she wants to hear.
47. Of significant concern to the writer is that Ms Roderick whilst admitting that the children know how she feels about Ms C, appears to be so caught up with and overwhelmed with her own anxieties and emotional difficulties because of the situation she is in, that she seems unable to separate her needs and wants from the children’s, she seems unable to understand that it is her sharing of the adult issues that is creating their apparent negative opinions, as they feel they need to tell her what they thinks he wants to hear, she seems unable to elevate the children’s needs, and especially the children’s need to have a substantial relationship with their father above her own, and she seems to have no insight or understanding of how her negative views, opinions, actions, and expectations are impacting the children, and what they in fact say to her….
….
49. I cannot express enough how destructive Ms Roderick’s behaviour is being for the children, and how much this behaviour is actually creating, maintaining, and exacerbating the children’s anxieties and emotional distress. Whilst I understand that Ms Roderick is in a difficult position, and I understand that she is trying to be protective of the children because of her perception of what Ms C and the father are doing to the children, and whilst I understand that she is emotionally distraught and anxious herself; this does not give her the right to limit and control the children’s relationship with their father, nor force them to choose sides, as the children have the right to love both parties, and they also have the right to care for and enjoy the company of the partner’s of both parties, regardless of whether the other parent approves or not.
In paragraph 50 of her first report, Dr M made the following observations in relation to the father:
50. However, in saying this, Mr Craig’s actions and behaviour should not be ignored, minimised, or overlooked either, as it seems that he may be contributing to the children’s emotional distress and anxiety by seemingly becoming impatient and upset with the children around the issue of Ms C, and by at first allegedly pushing them to have a relationship with her, and in this way being insensitive to the anxiety and distress this is causing them.
Because of X’s increasing unhappiness after separation, the mother obtained a referral for X to attend counselling with Dr P. The mother did not initially advise the father that X was seeing Dr P.
When the father became aware that X was seeing Dr P, he contacted Dr P. Such was the manner of the father’s interaction with Dr P, Dr P refused to further speak with the father and stopped his counselling of X.
In her first report at paragraph 52, Dr M made the following comments in relation to the father’s interactions with Dr P as follows:
52. As already mentioned above, it is also concerning to the writer that Mr Craig appears to have been so inappropriate and invasive with the children’s psychologist, to the point whereby
Dr P reported that he refused to converse with Mr Craig again, and he stopped seeing the children. Again, whilst it is unclear what the real circumstances were here... it seems that he may have gone about it the wrong way. Moreover, it also remains unclear whether or not he has threatened to remove the children from Ms Roderick, or not return them as well. Again whilst this issue remains unclear, the danger is that this domineering, overpowering, and invasive demeanour could in fact be a well hidden personality trait in Mr Craig.In June 2012, Y was psychologically assessed at the behest of his school because of concerns in relation to his development. These concerns date back to kindergarten. Y was assessed as having a Mild Intellectual Disability that met with the Department of Education and Early Childhood Development Criteria for funding for the program for students with disabilities. His school obtained funding for an aide to assist Y at school.
In October 2012, the mother and X attended Dr E at the (omitted) Hospital because of concerns in relation to X’s emotional and psychological health as it was alleged X was speaking of wanting to kill himself. Dr E referred X to Child and Adolescent Mental Health Services (“CAMHS”) in (omitted). CAMHS undertook an assessment of X on 6 December 2012, during which time they spoke to X, the mother, the father and Ms C.
In (omitted) 2012, the father and Ms C married at which time the father moved to Ms C’s home.
In December 2012 the mother filed an Initiating Application seeking to relocate with X and Y to (omitted). On 6 December 2013 the mother filed an Amended Initiating Application seeking to relocate from (omitted) to (omitted) in (omitted). The father opposed both applications.
On 25 February 2013 the mother filed an urgent Application in a Case seeking injunctive relief because it had come to her attention the father had, in breach of s. 121 of the Family Law Act 1975 (Cth), provided copies of Dr M’s first family report to X and Y’s school and to CAMHS.
The father confirmed he had provided copies of the family report to CAMHS and to X and Y’s school but explained he did not realise he could not do so and that he did so as he felt it was the only way X and Y’s full story could be told.
On 25 February 2013 orders were made for the father to recover all copies of Dr M’s report distributed by him. Otherwise, the mother’s Amended Initiating Application to relocate was listed with priority to 20 May 2013. An order was also made for Dr M to prepare a further family report.
On 6 March 2013 the father filed and urgent Application in a Case seeking interim orders that X and Y live with him on the basis the mother had unilaterally moved to (omitted) with X and Y. On 14 March 2013 an interim order was made dismissing the father’s urgent Application on the basis of the Mother’s commitment made to the Court that day that she would return to live in (omitted) the following weekend.
Dr M prepared a second report dated 1 May 2013.
In her second report, Dr M observed X and Y to still be very much aligned with the mother and X in particular to be very much enmeshed with her. It was Dr M’s concern that the mother still shared inappropriate information and messages with X and Y and that the mother’s own fears, anxieties, views and opinions were very much influencing X and Y and their views of the father and Ms C.
In paragraphs 45 and 46 of her second report, Dr M “pulled no punches” as to the cause of X and Y’s emotional issues and problems. Dr M stated:
45. Whilst some of these issues remain unclear; what is clear to the writer is that these parents’ behaviour is appalling. They each mostly blame the other for the issues and conflict, and they seem to act and react on the basis of how they perceive the other to have acted; and I feel the need to be blunt and say that they both need to take a step back and look at their own behaviour and make changes, because they both seem to be relentless in what they want and perceive is right, and they hide behind this veil of civility, but underneath it is like a competition between them, and they just can let things go, and they just can’t accept it if they perceive the other to be getting the upper hand; and basically they are both involving the school, doctors, and other professionals in their conflict in an attempt to get what they want, and get their version of events heard and supported.
46. The ones that are hurting though are the children; and I am saddened by the fact that these children’s symptoms have gotten worse, and again these parties seem to blame the other for this instead of taking a good long hard look at themselves and their own contributions to this ongoing conflict. These children simply cannot function properly whilst embroiled in this constant tug of war between the parents. They are presented with two completely different parenting styles, environments, and parenting routines, and there seems to be this inference, if not outright communication to them that the other parent’s actions, environment, and parenting style is wrong or somehow faulty; and they are both so very quick to jump to conclusions, and automatically blame the other for any medical issues or symptoms or emotional issues the children might display; and the reality is that rather than it being any one parent on their own, it is both parent’s approach to this conflict and battle, because it is a battle; that in my opinion is causing these children’s various emotional issues and problems.
The final parenting orders made by consent on 25 June 2013 have been set out earlier in this judgment. It was agreed that the mother, X and Y could relocate to (omitted) where they continue to live.
As set out in the introduction to this judgment, the current proceedings were commenced with the father’s Contravention Application filed in November 2013.
At the conclusion of the hearing of this matter on 4 October 2014, the judgment was reserved. Interim orders were made that provided for X and Y to live with the mother and spend time with the father each Monday from after school (or 3:30pm if not a school day) to 6:30pm and each alternate Saturday from 10am to 6:30pm with changeover at the commencement of time not at X and Y’s school to be at (omitted) Contact Centre and to otherwise be at Woolworths (omitted).
The interim orders also permitted the father to attend Y’s classroom for reading on Mondays and for Ms C and Z to attend Y’s classroom for reading on Tuesdays.
By consent both parties agreed to orders that expire on 15 May 2015 that the father ensure Ms C does not have contact with the mother or attend her home. The consent orders also restrain the mother from attending at the father and Ms C’s home, the father’s business or the block it is located on and from contacting Ms C and Z. The orders note Ms C intends to withdraw the Intervention Order Application made by her against the mother as a result of the July 2014 incident.
The Evidence
The mother relies on her trial affidavit sworn and filed on 16 September 2014. The mother gave vive voce evidence at the final hearing.
The mother also relies on the following affidavits:
a)the affidavit of Ms R sworn 12 December 2013;
b)the affidavit of Ms S sworn 15 August 2014; and
c)the affidavit of Ms K sworn 11 June 2014.
Ms R, Ms S and Ms K were not required by either the father or the Independent Children’s Lawyer for cross-examination.
It is the mother’s evidence that X and Y, and X in particular, has struggled for some time in spending time with the father and Ms C. Because of the very different lifestyle that the father and Ms C live and because X is fearful of the father and does not believe that the father listens to or respects his opinions and views. It is the mother’s evidence that X feels unable to discuss with the father any of his issues or concerns, and particularly his concerns about the difficulties he has in his father’s household.
The father and Ms C live what perhaps can be described as an alternative lifestyle. The father and Ms C are strict vegetarians and exclude wheat and dairy from their diet.
The property that belongs to Ms C which the father moved into when they married in (omitted) 2012 is very small. It consists of two rooms only, a bathroom and a single room that contains the kitchen, living and sleeping areas. The living, sleeping and kitchen areas are divided by the positioning of wardrobes, cupboards and the like but there are no walls or doors to create separate spaces. Situated directly over the father and Ms C’s bed is a small loft area which is where X sleeps. This area has a degree of privacy provided by a wardrobe and a curtain. The entire floor space of this home is no more than three to four square metres.
It is the mother’s evidence that X has consistently complained about the food that he is required to eat when spending time with the father. It is the mother’s evidence that X would throw out the school lunches provided by the father and go hungry and he was too scared to tell the father that that was what he had done.
It is the mother’s further evidence that X and Y would often return from time with their father very dirty and smelly and that X would complain that he was not permitted to shower daily when staying with his father and that his father would not allow him to use deodorant.
It is the mother’s evidence that as X has approached puberty, the lack of privacy and hygiene in the father’s home has become an increasingly difficult issue for him.
It is the mother’s evidence that in the period leading up to July 2014, X was becoming more and more distressed and anxious about spending time with his father and was telling her very clearly that he did not wish to go to his father’s home because of his unhappiness with the lifestyle and also because of issues in relation to his inability to communicate with the father.
It is the mother’s evidence that in part because of his intellectual disability and also because he is a more robust personality than X, Y was less unhappy about spending time with the father than X. It is her evidence however that Y too was starting to express some reluctance to be spending time with his father, particularly for lengthy periods.
It is the mother’s evidence that leading up to the July term holidays 2014, X was refusing to go to his father and that she had to call upon the maternal grandfather to speak to X to explain to him that it was necessary for him to spend time with father.
It is the mother’s evidence that on 10 July 2014, X rang her from the home of one of his friends who he was visiting in (omitted). It is the mother’s evidence that during that telephone conversation X was very distressed and made a large number of concerning disclosures in relation to what had occurred since he had come into his father’s care. Those concerns included the father and Ms C accusing him of lying and berating him to the stage that he got dizzy and almost fainted. It is the mother’s evidence that X told her that the father and Ms C were lecturing him all the time and that they would become extremely passionate and thump the table, which he found frightening.
It is the mother’s evidence that she was so concerned about X’s distress and the disclosures made during their telephone conversation that she made the decision to drive to (omitted) to see if X and Y were okay. She took her friend Ms S with her on this trip.
It is the mother’s evidence she first went to the home of the friend that X was visiting but there was no one there. The mother then went to the father’s business. Ms C was present, as were Y and Ms C’s daughter Z.
There then ensued a confrontation between the mother and Ms C which was witnessed by Y and Z. Eventually Y left with the mother and Ms S. The mother collected X from his friend’s place and returned to (omitted).
In cross‑examination the mother conceded that her behaviour on 10 July 2014 was “..not her finest hour…” and that going to (omitted) and confronting Ms C and the father in front of Y and Z would have been distressing for them and her behaviour had not been in their best interests.
It is the mother’s evidence, however, that on that day she was so concerned about X in particular and how distressed and unhappy he had sounded on the phone that she acted without properly thinking through the consequences of her behaviour.
It is the mother’s evidence that she does not like Ms C and that X and Y know that she does not like Ms C as she has made her dislike known to them from the commencement of Ms C’s relationship with the father.
It is very apparent from the tenor of the mother’s evidence that she does not like the father. The mother does not trust the father and believes him to be a narcissist who was, and continues to be, emotionally abusive and controlling of her.
It is also apparent from the mother’s evidence that she believes X fears his father. She also believes the father has been at times neglectful of X and Y’s care, particularly in relation to medical matters. It is the mother’s evidence that the father does not believe in the use of antibiotics and there has been an ongoing issue between the mother and the father about the father giving both X and Y prescribed medication when in the father’s care.
It is the mother’s evidence that whilst X is currently strongly expressing the view that he does not wish to spend time with the father, she believes that it is very important for him to maintain a relationship with the father.
Given the mother’s very negative views of the father, she was asked what benefit there is in X having a relationship with his father. It is the mother’s evidence as follows:
My experience is that my father left and I rarely heard from him until well into my teenage years. And I missed that. I now know my dad. You know, I don’t have a close relationship with him, but I missed the opportunity not to have that relationship with him. And I don’t want to – I’m not going to impose that upon X.
The mother was asked what are the father’s strengths. It is the mother’s evidence as follows:
Mr Craig provides routine. He provides a certain sort of morality. He encourages them in physical activity. He encourages them in outdoor activity. He encourages academia.
In what is one of the best examples of cross‑examination I have seen, Ms Boymal, counsel for the Independent Children’s Lawyer questioned the mother as to what her contribution may have been to the current reluctance of X in particular to spend time with his father, and the current difficulties in the relationship that X has with the father and Ms C.
Ms Boymal also questioned the mother about her understanding of the concerns expressed by Dr M in her family reports and by Dr C in his report arising from the assessment done by CAMHS on 6 December 2012 of the level of alignment and enmeshment observed particularly between X and herself and how that in turn impacts of X and his relationship with the father.
The mother agreed that X in particular, is extremely enmeshed and aligned with her and acknowledged the possibility that X is coming up with stories or exaggerating what is happening in the father’s household in order to please her.
The mother was able to acknowledge that X has known from separation that she dislikes and holds Ms C in disdain and that he knows that those are still her views.
Towards the end of Ms Boymal’s cross‑examination of the mother the following exchange took place:
Ms Boymal: At paragraph 45 of Dr M’s report, she says:
“While some of these issues remain unclear, what is clear is that these parents’ behaviour is appalling. They each mostly blame the other for the issues and conflict, and they seem to act and react on the basis of how they perceive the other to have acted.”
So isn’t that what has just transpired in the last half an hour between us, that you still continued to blame Mr Craig? Do you agree with that?
Mother: Yes.
Ms Boymal: And you find it difficult to accept responsibility that your actions and conduct have created the scenario that it is today? Is that correct?
Mother: Yes.
Ms Boymal: So what are you going to do differently in the future?
Mother: Be supportive of the father’s beliefs and continue the thoughts – the verbalisation that what we do in our house is what we do in our house, and what Mr Craig – or what Dad does in his house is what goes on in his house.
Ms Boymal: But you’ve said you’ve been doing that?
Mother: I have been doing that.
Ms Boymal: So that hasn’t shifted – I’m talking about you accepting blame and what you’re going to do now that you’ve accepted some part in the dynamics that exist between the children. What are you going to do?
Mother: Step back from the children’s stories, allow them to state their stories because they need to verbalise how they feel. I won’t dismiss what they say. I will just say I understand and move on.
Ms Boymal: So what are you going to do differently to ensure that the children aren’t caught up in the adult world of your view of Ms C and Mr Craig?
Mother: I will just have no comment about it. I will let them speak, but I won’t make any comment to them about it.
Ms Boymal: And Ms Colla gave some ideas about setting a time, and you won’t turn up during contact times?
Mother: Yes, yes, of course, yes.
Ms Boymal: Has it been jarring to you to accept that you have taken some role in this?
Mother: It hurts me deeply that I hurt my children.
Ms Boymal: Has me confronting you like this made it abundantly clear?
Mother: Crystal.
Ms Boymal: For the first time?
Mother: Well, not for the first time, but it’s crystal clear.
Ms Boymal: So if your acknowledgement of your behaviour is such, do you – have you a little bit more optimism about the children spending time with the father, if you are able to manage the enmeshment issue?
Mother: I need to know – I need to learn how to do that.
Ms Boymal: Are you willing to learn?
Mother: I don’t want my children to be hurt. Sorry. I want them to grow up to be happy and healthy, with no issues that they take into their future relationships.
Ms Boymal: And when you say that, it would be up to Y and X to make their own decisions, do you think there’s also part of an enmeshment and an alignment with you that you are giving them the power to make their own decisions?
Mother: I think the children need to have some more freedom in decision making. There’s a lot of rigidity there. It would be really good if we could encourage them to say, “This is on, can I go and do it with dad?”. If we were able to get that sort of interaction going, yes, that would be really beneficial.
Ms Boymal: Do you think a change in the pattern of your behaviour might make that more possible with the children?
Mother: To a certain extent, but I’m still living with a scenario which I’m frightened won’t change.
Ms Boymal: But if you make an effort to change from your part?
Mother: I will do what I can do.
Ms Boymal: And would you be prepared to attend some counselling in relation to addressing the – how to break – I don’t want to use the word, your Honour – the enmeshment attachment?
Mother: Yes, and I already have to do that with the father. If it was focused on the children and not what I do wrong.
Whilst the mother relied on the affidavits sworn by her mother Ms R, her friend Ms S and Ms K, a counsellor who saw the mother, X and Y in 2011 and 2012, none of these witnesses were required for cross-examination and the matters deposed of in their affidavits do not particularly assist the Court in its determination of this matter.
The father
The father relies on his affidavit sworn 18 September 2014 and filed
24 September 2014. The father also gave viva voce evidence at the final hearing.
The father also relies on the affidavits of Ms C sworn 30 September 2014 and 25 September 2014.
Neither the mother nor the Independent Children’s Lawyer required
Ms C for cross-examination at the final hearing.
The father had read to him paragraph 41 of Dr M’s second report. That paragraph reads as follows:
It seems the father is still saying that the mother undermines and denigrates him and his partner to, and in front of, the children, and encourages and facilitates their anxiety and reluctance to spend time with him, that the mother cuts him out of their lives and their appointments, etcetera, that the mother encourages the children to share her negative views about him, and particularly his partner, and they feel very much pressured to support her, and that the mother exaggerates or emphasises the children’s various issues and problems, and tries to get the focus on them as a means to show that they somehow need her more as a result.
The father was asked whether that paragraph is a précis of his current criticisms of the mother. The father responded to that question, “Yes.”
The father was questioned at length about the various complaints that X has made in relation to the lifestyle that he and Ms C adopt and in particular the food they provide, the school lunches that they provide, their home and its cramped conditions and lack of privacy, the restrictions of him being able to shower and use deodorant, his embarrassment of those conditions and reluctance to invite friends over. It is the father’s evidence that X has not complained of any of these things to him and that he does not believe that they are issues for X but rather X saying to the mother what he believes she wants him to say because of his alignment and enmeshment with her.
It was put to the father that X is expressing his own independent views about these things and it is not repeating what his mother says. The father’s response to this suggestion is: “No.”
In Dr M’s evidence second report at paragraph 31 she records that X had indicated that he feels the father and Ms C only want to hear what they want to hear and not what he wants to say.
It is the father’s evidence that he does not accept that what X said to Dr M was true.
The father was asked to comment on the statement made by X that he feels Ms C and the father do not want to hear what he has to say and whether he thought X had difficulties communicating with him. It is the father’s evidence that X can be reserved and that he does not want to say things he thinks will get his mother into trouble.
When the father was asked why X telling him something the mother had said would get X into trouble, the father gave somewhat confusing evidence that because there had been two family reports, the mother might find out that X had said something to him if that information somehow made it into a family report.
In Dr M’s second report at paragraph 48, when discussing the issues around food for X, she makes the observation that:
Like the mother, it seems that the father righteously clings to his views, and possibly at the expense of X’s emotional well-being, since clearly this has become a really significant issue for X.
In Mr T’s report at paragraph 19, he states:
Finally, Mr Craig presented as rigid and fixed and to have developed a clear and strong belief system around issues such as diet and health that he considered should be instilled into the boys. He gave no indication that he was prepared to work through issues in the best interests of the boys.
On page 15 of his report, Mr T stated as follows:
The writer considered that Mr Craig has rigid beliefs that seemingly impaired the boys (X in particular) being heard and their views being considered.
The father was asked in circumstances where both Dr M and Mr T saw him as rigid and unbending and not being able to allow X to express his views clearly, did he think it a possibility that X might feel him to be rigid and unbending. The father responded as follows: “Yes, there’s a possibility.”
The two counsellors consulted by the mother, being Dr P and Ms K, both reported that they found the father’s presentation to be forceful, threatening, demanding and aggressive.
The father was asked whether it was a possibility that X also sees the father’s conduct and personality as being at times rather aggressive and demanding. The father indicated that he did not agree with this being a possibility as this description of him is not who he is.
As she had with the mother, counsel for the Independent Children’s Lawyer vigorously cross‑examined the father in relation to what, if any, contributions he may have made to Y and X’s current reluctance to spend time with him.
The following exchanges took place between Ms Boymal and the father:
Ms Boymal: What responsibility do you take in relation to the impasse between you and the children?
Father: Impasse between me and my children. I’m the other parent in the conflict – the conflictual relationship between the two parents, so I’m involved, and – and I haven’t been able to resolve that. I haven’t been able to make that better.
Ms Boymal: So do you accept that there is a lack of communication ability between you and X?
Father: He communicates a lot better to Ms C, yes.
Ms Boymal: Do you accept that there may be an issue in relation to your rigidity and holding of firm beliefs; that is – has causal effect on the relationships between you and your boys?
Father: I don’t feel I have rigid beliefs.
In cross-examination, the father conceded there is currently a problem in relation to X and Y spending time with him. Ms Boymal’s cross-examination continued as follows:
Ms Boymal: You say the problem is because the boys are aligned, enmeshed with the mother?
Father: Yes.
Ms Boymal: Dr M, Mr T say there are other reasons: rigidity, belief systems, strictly held belief systems, manner of conduct – those elements. You say, “I am part of the problem because I’m part of – I’m the other party to the conflict”?
Father: Yes.
Ms Boymal: What does that mean, “I’m the other party” – if it’s not your rigidity, if it’s not your strongly held beliefs, if it’s not your inability to communicate with X, if it’s not your ability to get frustrated, inability to keep calm at certain times, what is your part in the conflict?
Father: It’s in not being able to diffuse situations. It’s not – I can see that there – there could be situations where I could have just stepped back and walked away completely to allow – even if I thought X wasn’t telling the truth – the situation, rather than me worried that it was going to lead him down a path that we’re all going to regret, I could have stepped back and trusted that the medical professional would have just handled it and come up with the same conclusion, rather than get worried and pre-empt it. Because that only exacerbated the conflict between myself and Ms Roderick on occasions. That’s one, in particular, that springs to mind.
Ms Boymal: Is it your belief, still, that when X is saying about his lack of communication with you, his repercussions if he tells you these things, are you still saying that it is what – that is what he is saying to please his mother or do you say there is some truth that X is saying it from his own heart?
Father: Without saying what Ms L has said to me, I am comfortable that X and I have a good relationship in how we communicate. There may well have been issues in the past where he hasn’t felt comfortable speaking to me about things.
In paragraph 156 of the father’s trial affidavit he deposed that he was prepared to engage with an individual psychologist to help him effect change and understand and negate his role in the conflict.
Ms Boymal asked the father what he meant in his affidavit when he said he was prepared to attend counselling to “help him effect change.”
Father: Change in the boys, that they don’t feel that continued pressure and anxiety.
Ms Boymal: So those words shouldn’t be interpreted as “I accept some responsibility because of my own personality traits and, therefore, I’m going to seek change”. That’s not the way we interpret that question mark.
Father: I accept my involvement in the conflict. I didn’t accept how I was described but I’m open to being – for my own personality to be assessed by people who meet me.
It is the father’s evidence that he and the mother do not communicate and that by his own choice he has not directly communicated with her for some years.
Given the father’s very strongly held views that the mother is the primary cause of any issues that he has in his relationship with X and Y, the father was asked if there was any positive attributes of the mother’s parenting. The father repeated comments he had made to Dr M in the preparation of the family reports about the mother undertaking activities in class with X and Y, the time she spends on them, her care for extended for family and confirmed that he was saying there are definitely positives about her.
The father was asked whether he felt the mother puts the children’s needs first. It was his evidence that he thinks she has the intention of putting her children’s needs first but he sometimes thinks her needs come first.
When he was asked what needs of hers it was that she put first it was his evidence:
“..it is her need to have the children love her more than they love me.”
As previously set out in this judgment, the father relies on the affidavit sworn by his now wife, Ms C. Ms C was not required for cross-examination in these proceedings. The matters which were addressed in Ms C’s affidavit material were not pertinent to the issues to be determined in this matter.
Dr M and Mr T
Dr M is a Regulation 7 Family Consultant with the Federal Circuit Court of Australia. Dr M prepared two family reports in relation to this family for the previous proceedings before this court, the first dated 14 April 2011 and the second dated 1 May 2013.
Mr T is a counsellor/mediator who initially saw the parties, X and Y for therapeutic counselling pursuant to an order of this Court made on 25 June 2013. Mr T prepared a report dated 20 February 2014 pursuant to orders made on 17 December 2013.
As has been previously been set out in this judgment, with the consent of the parties and at the request of the Court, Dr M and Mr T jointly spoke to X’s confidential therapeutic counsellor, Ms L.
Because it was agreed that it was vitally important that Ms L’s therapeutic relationship with X not be placed at jeopardy, Ms L was not called upon to give evidence at the final hearing. The purpose of the discussions between the Court experts and Ms L was for them to be able to make appropriate inquiries of Ms L in relation to X’s current mental health issues and relay those to the Court in such a way that it would not jeopardise X’s therapeutic relationship with Ms L but at the same time assist Dr M and Mr T in making any recommendations to the court in relation to the future living arrangements for X and Y.
Having spoken to Ms L, Dr M and Mr T jointly provided feedback to the Court of their discussions with Ms L. They then jointly gave their recommendations in relation to what they saw as being the future living arrangements for X and Y that would be in their best interests.
Dr M and Mr T advised the Court that Ms L has had nine sessions with X to date and that whilst initially her goal with X was to support his relationship with both parents, she feels that goal has shifted and she is now supporting X with his mental health issues.
Dr M and Mr T indicated that Ms L is concerned about the way X feels, and in particular that he feels that he doesn’t have a voice and struggles to say what he thinks.
Dr M and Mr T indicated that Ms L is concerned about how X opts out of any conflict and that he tends to retreat 100 per cent when faced with conflict. Ms L believes this is a direct result of X’s experience with the parties and the journey he has been on with them.
In relation to X’s relationships with the parties, Dr M and Mr T indicated that Ms L believes X feels that his “safe haven” is with his mother. Ms L does however concerns about the level of the mother’s enmeshment with X. Ms L does not have the same level of concern about X’s enmeshment with the mother.
In relation to X’s relationship with his father, Dr M and Mr T indicated that Ms L feels that X needs a relationship with the father albeit he is currently very resistant to having that relationship. Dr M and Mr T indicated that Ms L advised that she felt that the current daytime arrangement was what was working best for X and that she would like to see the current alternate Saturday day time only continue as well as an evening during the week.
Dr M and Mr T advised that Ms L had an overriding sense that since X has been spending day time only with the father, his mental health issues have significantly improved and that to go back to overnights and significant time would not be in X’s best interests as he would not be able to manage the parental conflict and the issues that exist between the parties.
Dr M and Mr T advised that Ms L suggested that Y should spend the same time that X does with the father as X would be very concerned about what pressure Y would be placed under in the father’s home if he was not there.
It is Dr M and Mr T’s evidence that they raised with Ms L the longstanding issues of food, hygiene, accommodation that have been allegedly at the centre of X’s complaints for many years. It is their evidence that Ms L indicated that those matters continue to be real issues for X and that he is genuinely struggling with those issues and cannot manage them anymore.
It is Ms L’s feedback that X does not feel like he has to be or do something different at his mother’s house but he feels he has to manage things more at his father’s house and that he cannot be himself. X does not feel safe or listened to when with his father.
At this point in their evidence, Dr M and Mr T were asked to present to the Court and to the parties their views and recommendations in relation to the future living arrangements for X and Y.
Both Dr M and Mr T were in agreement that orders should be made for X and Y to spend the same time as each with the father. It is their evidence that the time X and Y spend with the father should be daytime only. It is their recommendation that there should be a continuation of the current arrangements whereby X and Y spend each alternate Saturday and each Monday after school with the father. They both agreed there should be no overnight time.
It is both Dr M and Mr T’s evidence that if the time that X, in particular, spent with the father went beyond daytime contact they would have serious concerns about X’s emotional and psychological health.
Both Dr M and Mr T expressed the view that even with ongoing therapeutic assistance, X is not going to be able to develop the strategies and skills to manage the issues that currently exist for him in relation to his longstanding exposure to the parental conflict and the issues identified in the father’s home, particularly where neither expert is hopeful that there will be any change within the parents.
Whilst both experts conceded that a long term plan of daytime contact is not ideal, in the circumstances of this case and given the issues and difficulties that X is struggling with, orders beyond that are not and cannot be in X and Y’s best interests.
In relation to the mother, it is the evidence of Dr M and Mr T that they believe that since Dr M prepared her reports, the mother has made some changes in relation to her parenting of X and Y. It is their evidence that the mother is much more emotionally available to X and Y and is developing some insight into the impact on X and Y of her negativity around the father and Ms C and the resultant enmeshment and alignment that was taking place.
Dr M and Mr T indicated that the feedback from Ms L was that the mother had been very open to Ms L’s recommendations and suggestions to assist her in her parenting and was exhibiting a willingness to listen and to change.
In the report prepared by Mr T in relation to his therapeutic counselling with the parties, he too observed that the mother was much more open to the therapeutic process and was focused on how to improve the parental conflict in order to assist X and Y and reduce the impact on them as a result of their exposure to the parental conflict.
In relation to the father, Dr M and Mr T express a view that the issues that were identified by Dr M in her reports about the father had become more entrenched.
It is Dr M’s evidence that when she was initially interviewing the father in relation to the family reports, he showed no insight as to how his strict views on his lifestyle was impacting on X and Y and that there seems to have been no movement at all from the father in relation to this matter.
It is the evidence of Dr M that there is an intensity and certain rigidity about the father’s personality. The father’s personality style means that he has an inability to get beyond what he thinks and needs in his lifestyle to actually have insight about other things and how his behaviour impacts his children.
The position of Dr M and Mr T in relation to the parents is perhaps best summed up in the following extract of the evidence of Dr M:
I felt that Mum definitely had to make some changes and I also felt that Dad had to make some changes. I guess where I’m at now is I feel that Mum has made some of those changes. There are still changes I think she needs to make, but I guess I’m reassured by the fact that the psychologist says that she’s really open and receptive and actually has made some of those changes. She still really needs to work on things but she seems to have actually made some improvement from when I’ve seen her based on what I’ve heard today, whereas it seems like really the father has pretty much made no improvement based on all the issues that I raised back then. They are all here but they are, like, exploded in a way and become even more problematic than what they were then.
Dr M and Mr T were asked whether they had an opinion as to whether there should be an order made for sole parental responsibility, particularly in relation to the decisions relating to X and Y’s health.
It is the evidence of Dr M that whilst she recommended equal shared parental responsibility in her family reports, it is apparent that the level of parental conflict to which X and Y are exposed has magnified since the making of her reports and she is now of the view that it is in their best interests that their orders be made for sole parent responsibility.
In his report and in his viva voce evidence, Mr T was very strongly of the view that there should be an order made for sole parental responsibility. He suggested that it should not just be limited to health issues but a blanket order for all decision-making in relation to X and Y because of the highly conflicted relationship between the parties and his observations of the father’s complete lack of willingness during his therapeutic counselling with the parties to listen to the mother, speak to the mother or take on board any of her opinions or concerns.
During the course of the trial, the father put forward a proposal that the parties jointly attend intensive therapeutic counselling with a view to improving their highly conflicted relationship and communication. The mother was somewhat resistant to this proposal given her experiences of the father and the recent unsuccessful counselling with Mr T.
Dr M and Mr T were asked their opinion as to whether joint therapeutic counselling for the parties at this time would be of benefit to the parties. Both Dr M and Mr T were doubtful that such counselling would be of any assistance to the parties at this time. Both suggested that before any joint counselling was contemplated, both parties would benefit from individual therapeutic counselling to assist them to address the longstanding issues that have been identified in relation to their behaviours and parenting and the resultant impact this has had on X and Y.
The Law
Part VII of the Family Law Act1975 (Cth) (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (and meaning for the present purposes section 60B(3) which deals with Aboriginals and Torres Strait Islanders:
60B Objects of Part and principles underlying it
(1) The objects of this Part are 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 the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Presumption of equal shared responsibility
Section 61DA of the Act provides that the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared responsibility for the child.
This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence, or where there is evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for the child.
In this matter the mother, supported by the Independent Children’s Lawyer, is seeking orders that she have sole parental responsibility for X and Y in relation to decisions relating to their physical and mental medical care and health.
Whilst the father sought orders for equal shared parental responsibility in his Response and Outline of Case Document, it was somewhat unclear from his evidence given during cross-examination and in the closings made by his counsel whether the father is still pursuing an order for equal shared parental responsibility or whether he agrees to the orders proposed by the mother and supported by the Independent Children’s Lawyer that the mother have sole parental responsibility for X and Y’s medical care and health.
Whilst it is often the approach of the court to fully consider all aspects of the best interests of the child before making a determination on the question of parental responsibility where that issue is in dispute, this is a matter where the appropriate order to be made very clear.
It is apparent from the evidence of the parties in these proceedings that they have no capacity to communicate or to agree on matters relating to X and Y and, in particular, in relation to matters pertaining to their health and medical treatment.
Affidavit material filed by the parties since 2010 is full of instances where the parties have been in heated disagreement about the children’s health care. As a result of the parties’ inability to agree on the appropriate medical interventions for X and Y, there have been occasions when their medical needs have not been attended to appropriately or quickly, to their significant detriment.
It is the strong recommendation of both Dr M and Mr T that an order should be made for the mother to have sole parental responsibility for all decisions in relation to X and Y’s medical care because of the parties’ highly conflicted relationship and their inability to reach agreement in relation to the medical treatment of their sons.
Accordingly, the presumption contained in section 61DA that is in the best interest for the parents to have equal shared parental responsibility in relation to X and Y’s medical care and health has been rebutted and an order will be made for the mother to have sole parental responsibility for all decisions in relation to X and Y’s medical care.
Consideration of equal time and substantial and significant time
Where parties have equal shared parental responsibility for a child, section 65DAA of the Act sets out that the court must consider whether the child spending equal time or substantial and significant time with each parent is in the child’s best interests and consider whether such an order is reasonably practicable.
In this matter, the parties will have equal shared parental responsibility in relation to some aspects of X and Y’s care and therefore consideration must be given as to whether equal time or significant and substantial time with each parent is in X and Y’s best interests.
In this matter, neither party is proposing there be equal time or, in fact, significant and substantial time as defined in section 65DAA(3) of the Act. It is the clear evidence of Dr M and Mr T that orders for equal time or significant and substantial time would not be in X and Y’s best interests. The Court is satisfied that an order for equal time or significant and substantial time is not in X and Y’s best interests.
Best interests of the child
Section 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.”
In considering what is in the best interests of the child, the court must consider the matter set out in section 60CC(2) and section 60CC(3) of the Act. Each of the matters contained in those subsections, were relevant to the matter before the court, must be considered and assessed in the context of each of the parties proposals. The court should then make a decision as to which of the party’s proposals, or such other arrangements as the court determines, given the court is not bound by the parties proposals (see AMS v AIF (1999) 199 CLR 160,
U & U(2002) 211 CLR 238), is in the children’s best interests.
Section 60CC(2)
Section 60CC(2) of the Act sets out the primary considerations that the court must take into account when determining what is in the child’s best interests.
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Section 60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents
The meaning of “meaningful relationship” was considered by the Full Court of Bryant CJ, Faulks DCJ, and Boland J in the decision on McCall & Clark (2009) 41 Fam LR 483. As their Honours’ noted in paragraph 109:
“The Act contains no definition of meaningful relationship”
Having reviewed the decisions where the meaning of the phrase meaningful relationship in the context of section 60CC(2)(a) has been considered, their Honours held at paragraph 118 as follows:
118. It appears to us that there are three possible interpretations of s 60CC(2)(a):
(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).
Their Honours held at paragraph 119:
We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. 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.
Brown J in Mazorski & Albright (2007) 37 Fam LR 518 considered the definition of “meaningful” and having considered the definition as set out in recognised dictionaries, held at paragraph 26:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
That X and Y have a meaningful relationship with the mother is not in dispute.
Whilst there are concerns about the level of enmeshment and alignment X and Y, and X in particular, have with the mother, it is apparent that it is with the mother that they feel they have their “safe haven”, and it is she they feel is most emotionally available to them and is the one in whom they can confide.
X’s relationship with the father is much more complex. He is currently expressing a strong reluctance to spend time with his father. X feels the father does not listen to him, respect his opinion and he is fearful of telling the father how he really feels about the issues and problems that exist between them.
The father has very strong, even rigid views about lifestyle and in particular diet and housing which differs considerably from the mainstream and from that which X experiences when living with his mother. The enormous differences between his parents’ lifestyles have become too great for X to deal with and the father’s inability to take on board the difficulties this creates for X has reached the stage where X genuinely cannot cope with the conflict and difficulties this causes him such that he is no longer able to willingly spend time with his father.
It is the evidence of Dr M and Mr T, supported by the feedback from X’s current treating psychologist Ms L, that X is unable to emotionally manage spending any more than daytime time with his father and that to require him to spend any additional time, particularly overnight time would place X’s emotional and mental health seriously at risk.
It is submitted on behalf of the mother that if orders are made that require X to spend any additional time over that which he is currently spending with the father, it would, rather than maintaining and developing X’s relationship with the father, have the opposite effect and result in X refusing to spend any time with the father at all.
It is therefore submitted on behalf of the mother that the orders that would best promote X having a meaningful relationship with his father into the future would be orders in the terms proposed by the mother and supported by the Independent Children’s Lawyer.
Whilst Y’s relationship with the father is much more robust as Y is a more robust personality than X, the parties, Dr M and Mr T are in heated agreement that Y and X should spend the same time as each other with the father.
It is the evidence of Dr M and Mr T that Y’s current positive relationship with the father would not be impacted if he were to spend time with the father in accordance with that which is being recommended for X.
Section 60CC(2)(b): the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
In many ways, this subsection goes to the very heart of this matter.
That both parties love their sons is not in doubt. That neither party would intentionally set about harming their sons is also not in doubt.
However, the reality is that the parties have, through their entrenched, longstanding, dysfunctional, conflicted relationship and their inability to acknowledge their contributions to that ongoing conflict because of their belief that the problem and the blame is entirely that of the other, caused X and Y, and X in particular, serious emotional and psychological problems, the long-term prognosis for which remains unknown.
In paragraph 45 of her second family report, Dr M, could not have been more blunt when she said that these parents’ behaviour is “appalling” and that they mostly blame the other for their issues and conflict and seem to act and react on the basis of how they perceive the other to have acted. Dr M warned that both parties needed to take a step back and look at their own behaviour and make changes as the only ones hurting are their children whose symptoms had worsened since she had seen them two years earlier because they simply were unable to function whilst embroiled in the constant tug of war that existed between their parents.
During the hearing of this trial, the mother seemed to have an epiphany and for the first time acknowledged that she bore some responsibility for what was happening to X and Y and that she needed to change her behaviours if there was to be any respite and relief for X and Y from the conflict that is their parents’ relationship.
The mother expressed a willingness to make that change and was honest enough to acknowledge that she needed help to do that and expressed a willingness to seek that help and guidance.
It is the evidence of Dr M and Mr T that they had observed changes in the mother and her behaviours. They were particularly heartened by the feedback from X’s therapeutic counsellor, Ms L, that she had also seen those changes in the mother and observed the mother to be willing to listen to and act on her recommendations as to how she could improve her parenting to assist X and Y.
When giving his evidence the father seemed to almost acknowledge that there may be some issues in his behaviours, particularly concerns expressed about his rigidity, his forcefulness and his difficulties in taking on board the views of others, particularly those of X. However when pressed about the concerns raised by X about the food at the father’s home, the kind of accommodation in which the father lives and, more importantly, that X feels that his father does not listen to him and he is scared to tell his father how he genuinely feels out of fear of repercussion or of being lectured, the father rejected that X was genuinely making those complaints based on his own feelings and squarely placed the reason for those complaints at the feet of the mother because of her having enmeshed and aligned X with her negative views of him and Ms C.
Dr M and Mr T both expressed real concern that the father has not changed or developed any insight into the impact of his strongly held views on X. They are only concerned at the father’s inability to accept that many of X’s complaints are genuinely held by X and are not him parroting the mother.
It is Dr M and Mr T’s evidence that the father does not need to change his lifestyle but, rather, acknowledge the difficulties X experiences with the father’s lifestyle are X’s own views and allow some leeway to X when he is in the father’s home.
It is the evidence of Dr M and Mr T that until the father accepts that he bears as much responsibility as the mother for the impact on X, and to some degree, Y, of the ongoing conflict between the parties and embraces the necessity for assistance and change, then X and Y’s relationship with the father will remain seriously at risk.
Section 60CC(3)
Section 60CC(3) of the Act sets out the additional considerations that the court must look at when determining what is in the child’s best interests. Each of the matters under that section will be considered at turn where applicable in this matter.
Section 60CC(3)(a): 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 view
The current evidence before the court is that X would prefer not to spend any time with his father.
It is the mother’s evidence that, at times, Y also says he doesn’t want to spend time with the father but that he is more willing and sanguine about his interactions with his father than is X.
It is the evidence of Dr M and Mr T that they, together with X’s therapeutic counsellor, Ms L, are strongly of the view that X should be spending time with his father and having a relationship with him. It is their evidence that the time X spends with the father should be daytime only and not pushed beyond the relatively limited time X currently spends with the father as this will impact on X’s emotional and mental health and X will result in X refusing to spend any time with the father at all.
Section 60CC(3)(b): the nature of the relationship with
(i) each of the child’s parents; and
(ii) any other persons (including grandparents or other relatives)
The nature of X and Y’s relationship with the parties has been well canvassed in this judgment.
The relationship X and Y have with the father’s now wife,
Ms C, is somewhat unclear.
Whilst the father reports that X, Y and Ms C have a positive relationship, the mother reports to the contrary and says that neither X or Y particularly like Ms C. The problems X has with his father in relation to his lifestyle are duplicated with Ms C as she and the father share the same strongly held views about lifestyle choices, diet and housing.
It is common ground that the mother dislikes Ms C as she believes Ms C caused the breakdown of her relationship with the father. At no time since separation, has the mother attempted to shield X and Y from her very negative views of Ms C and there can be no doubt that their relationship with Ms C has been coloured by, and negatively impacted by, the mother’s undisguised dislike of Ms C.
Section 60CC(3)(c): the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The issue in this matter is not so much a failure by the parties to take the opportunity to participate in making decisions in relation to X and Y, but rather, their inability to communicate or to jointly make any decisions about X and Y’s care.
Sadly for X and Y, it is difficult to see in the short, medium or even long term that there will be any real improvement in the parties’ relationship or ability to communicate.
Section 60CC(3)(ca): the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
It should come as no surprise that the parties have been embroiled in ongoing disputes about the level of child support payable by the father for X and Y.
In 2014, the father pursued an appeal process through the Child Support Agency all the way to the SSAT and was successful in his application such that no decision was made that he was not required to pay child support for X and Y to the mother for approximately 12 months.
As can be envisaged, this decision does not sit well with the mother and has resulted in a continuation of the parties ongoing antipathy about all matters relating to the care of their children.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from
(i) either of his or her parents; or
(ii) any other child, or any other person (including any grandparent or other relative of the child), with whom he or she has been living
The proposal of the mother, supported by the Independent Children’s Lawyer, will see a continuation of the living arrangements for X and Y that have been in place since August 2014.
Whilst those arrangements are a dramatic alteration from the pre-existing “nine-five” arrangement that had been in place since early 2011, the father is not pursuing a return to those arrangements but, rather, is seeking that X and Y spend both Saturday and Sunday with him each fortnight.
Accordingly, neither party has an application now before the Court relevant to this subsection.
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
Not relevant.
Section 60CC(3)(f): the capacity of
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
The capacity of these parties to meet the emotional and intellectual needs of X and Y, and X in particular, is, as has previously been set out in this judgment, one of the central issues in this case.
It is clear from the evidence of Dr M and Mr T that at this time they believe it is the mother who is the parent most able to meet X and Y’s emotional needs and that they see that capacity improving as she continues on the journey to make the necessary changes to her parenting to better meet those needs.
At this point in time, there has to be question about the father’s capacity to meet X and Y, and in particular X’s, emotional needs given his inability to accept responsibility for his contribution to X’s current mental health problems.
There was no doubt that in the period immediately after separation there were real and justifiable concerns raised by Dr M in relation to the mother’s parenting of X and Y, and her enmeshment of X in particular with her very negative views of the father and of Ms C. At that time, Dr M identified that many of the complaints being made by X were nothing more than him parroting the mother’s negative views of the father and that, as a result, the mother was responsible in large part for what the father perceived as unjustified and unnecessary criticism of his lifestyle and care of X and Y.
Dr M’s criticisms of the mother were made four years ago. The father continues to rely on Dr M’s first report from April 2011 as showing that the difficulties and concerns raised by X about his time with the father is caused by the mother’s enmeshment of X and her negative views of his lifestyle.
The father cannot, or will not, accept that X is now four years older and he is now expressing many of these concerns, albeit they have been around for the last four years, from the basis of his own experience and feelings.
X’s emotional and psychological health is currently parlous. He is receiving intensive therapeutic counselling to try and assist him to overcome the damage that has been done to him as a result of his exposure to the relentless conflict between his parents and has the resultant belief that he does not have a voice.
Unless the father can accept the need for change and acquire some insight about the impact that his behaviours have on X’s current reluctance to spend any time with him, the question mark about his capacity to provide for X and Y’s emotional needs will be answered in the negative.
Section 60CC(3)(g) the maturity, sex, lifestyle and background, including lifestyle, culture and traditions of the child, and of either of the child’s parents, and any other characteristics of the child the court thinks are relevant
In this judgment, the lifestyle choices and preferences of the father and wife Ms C and the impact that that has had on X and Y have been well set out in this judgment.
That the father and Ms C are at liberty to live as they do is not in any way challenged. However, their choice is so dramatically different to that which X and Y otherwise experience with the mother, their grandparents and friends that, for X in particular, the difference has become too much for him to manage. He is no longer able to cope with such stark differences.
Section 60CC(3)(h) if the child is an Aboriginalchild or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right
Section 60CC(3)(h) is not relevant.
Section 60CC(3)(i) The attitude of the child, and to the responsibilities of parenthood demonstrated by each of the child’s parents
I have no doubt that in many ways the parties in this matter are responsible parents and that they have cared for their children to the very best of their abilities.
However, the parties’ ongoing blame of the other for their issues and conflict, their acting and reacting to each other, their need to get the upper hand, their involvement of schools, doctors and other professionals in their conflict to get what they want and their inability to stand back and take on board the very clear concerns raised by professionals in this matter, are not the actions of responsible parents.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
Both parties have obtained intervention orders against the other since separation.
The mother’s recent attendance at the father’s place of business and her confrontation with Ms C, in front of Y and Ms C’s daughter Z, was not appropriate. To her credit, the mother acknowledges this.
60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is submitted on behalf of the father that if orders are made in the terms sought by the mother then the court must have concerns about how X and Y will be able to spend any additional time with the father in the future if they express a wish to do so.
It is submitted on behalf of the father that his proposal, which in reality is only an additional eight hours a fortnight, will hopefully obviate the necessity for further proceedings in this matter.
It is submitted on behalf of the mother that if orders are made other than those sought by her, X will refuse to spend any time with the father, which would lead to further Contravention Applications in this court.
It is the mother’s evidence that if X and Y seek additional time with the father, she would be more than willing to allow that to happen as this would show that they are enjoying their time with the father and that many of the issues that are currently causing X and Y to be reluctant to spend time with the father have been addressed.
It’s the evidence of Dr M and Mr T that they believe if the mother saw X and Y happy in their father’s care, the mother would be agreeable to, and would facilitate them spending more time with the father.
Section 60CC(m) Any other fact or circumstance that the court thinks is relevant
As previously set out in this judgment, the father initially raised with the court the possibility of orders being made requiring he and the mother to attend joint therapeutic counselling in an endeavour to improve their conflicted relationship and ability to communicate with each other.
The mother was reluctant to agree to such counselling, given her experiences with the father since separation, and also particularly given what occurred in the therapeutic counselling with Mr T. In the counselling with Mr T the father would not speak to the mother or be in the same room with her, he refused to take on board any of her suggestions or to properly engage in the counselling process in any way.
Both Dr M and Mr T did not support joint therapeutic counselling for the parties at this time. They were strongly of the view at this time that both parties would benefit more from individual counselling to assist them to address the issues that have been well identified in this judgment that are impacting on their parenting, and more importantly impacting on the health and well-being of X and Y.
Conclusion
This is a complex and ultimately very sad matter. Because of the parties conflicted and highly dysfunctional relationship, they have been unable since separation to put aside their differences, accept responsibility for their own behaviours and genuinely show any insight as to the impact the exposure to the parental conflict has had on their two young sons, X, now aged 12, and Y, aged eight.
Not surprisingly, given the nature of their relationship, the parties have been involved in almost constant litigation since their separation in 2010. This is the third time that parenting matters have been litigated in this court.
When the matter first came before the court in 2010/2011, Dr M prepared the first of two family reports, dated 14 April 2011. In her first report, Dr M observed X and Y to be profoundly enmeshed and embroiled in their parent’s conflict. Dr M was particularly concerned at the level of alignment that X and Y had with the mother. Dr M observed the mother to be unable to understand that it was her sharing of adult issues that was creating X and Y’s negative opinions of the father as they felt they needed to tell her what they thought she wanted to hear. Dr M felt that the mother seemed unable to alleviate the children’s needs above her own.
In her first report, Dr M could not express enough how destructive the mother’s behaviour was for X and Y and how this behaviour was creating, maintaining and exacerbating their anxieties and emotional distress.
Dr M also stated in her first report that the father’s actions and behaviours could not be ignored, minimised or overlooked either as he was contributing to the children’s emotional distress and anxiety by becoming impatient and upset with the children reflecting their mother’s views.
Parenting issues were again before the court in 2012/2013.
Dr M prepared a second family report dated 1 May 2013.
In her second report, Dr M stated quite bluntly that she found both parents’ behaviour to be “appalling”, that they blame the other for the issues in conflict and seemed to be engaged in an ongoing competition to gain the upper hand. Dr M strongly opined that both parties needed to take a step back and look at their own behaviour and make changes.
Dr M in her second report again identified that she continued to hold concerns about the children’s level of enmeshment and alignment with the mother and their exposure to her negative views of the father and his wife, Ms C.
In her second report Dr M again raised her concerns about the father’s contribution to the difficulties for X and Y and noted the father to be righteously clinging to his beliefs, possibly at the expense of X’s emotional wellbeing.
The matter initially returned to the court on this occasion as a result of a Contravention Application filed by the father in November 2013 alleging breaches by the mother of the final parenting orders made on 25 June 2013.
The orders made on 25 July 2013 provided for the parties to attend therapeutic counselling with Mr T. When the matter first came before the court in relation to the father’s Contravention Application, orders were made requiring Mr T to prepare a report in relation to the counselling undertaken by the parties and to also make recommendations as to the future living arrangements for X and Y.
When Mr T’s report was received, it became apparent that the question of a reduction of the amount of time X and Y were spending with the father was live and accordingly the matter proceeded on the basis that once again the living arrangements for X and Y needed to be explored.
Whilst X and Y were spending time with the father during the July term holidays 2014, the mother responded to a distressed telephone call from X and attended upon the father’s home where she removed X and Y from the father’s care.
After the mother removed X and Y from the father’s care in July 2014, the mother issued an urgent Application in a Case seeking orders for all time between X, Y and the father to cease. The father filed a Contravention Application as he had not spent time with X and Y since their removal during the holidays.
The parties’ applications came before the court in August 2014 and as the matter was listed for final hearing in September 2014, the father agreed to interim consent orders which provided for X and Y to spend alternate Saturday day time with him as well as time each Monday from after school to 6.30pm pending the final hearing of this matter and otherwise withdrew his Contravention Applications.
At the final hearing of this matter both Dr M and Mr T jointly gave evidence, both in relation to feedback that they had obtained from X’s therapeutic counsellor, Ms L, as well as expressing their recommendations for X and Y’s future living arrangements. Their recommendations were informed by their discussions with Ms L and by their professional involvement with the family.
It is the evidence of Dr M and Mr T that X’s emotional and mental health has been severely jeopardised. It is Dr M and Mr T’s evidence that X’s mental health issues are as a result of his longstanding exposure to the conflict between the parties, the huge difference between the parties’ lifestyles, X’s dislike of the father’s lifestyle and X’s belief that he cannot communicate with the father because the father does not listen to him or respect his views and that he cannot tell the father how he feels because he fears there will be some sort of retribution from his father.
It is the evidence of Dr M and Mr T that X’s complaints about his father’s lifestyle, which have been constant since the father moved into Ms C’s home in (omitted) 2012, are views that are genuinely held by X and are not, as is the father’s belief, X parroting the mother’s views because of his enmeshment with her.
It is the recommendation of Dr M and Mr T, which is strongly supported by X’s therapeutic counsellor Ms L, that X should spend daytime only with the father and that the current interim arrangements should continue into the future.
It is the evidence of Dr M and Mr T that to try and force X to spend any additional time, and in particular overnight, time with the father would not be in X’s best interests as it would jeopardise his emotional and psychological health and would in all probability result in X refusing to spend any time at all with his father, an outcome they do not believe to be in his best interests.
It is the evidence of Dr M and Mr T that whilst Y has a much more robust relationship with his father and has not been as impacted as X by the matters outlined in this judgment, Y should spend the same time with the father as X. This is because X would be extremely stressed and concerned if Y were to spend time with the father without him because he would be concerned that Y would receive the retributions that would otherwise have been directed at him.
The parties have since separation not been able to agree to the appropriate medical interventions for X and Y to the extent that there have been times when the parties’ failure to agree has delayed treatment for X and Y to their detriment.
For these reasons, both Dr M and Mr T support orders being made for the mother to have sole parental responsibility for all decisions in relation to X and Y’s physical and mental health care.
During the course of the parties’ evidence, it became apparent that the mother had something of an epiphany. She was able to exhibit some insight into the impact that her behaviours were having on X and Y, to accept some responsibility for those behaviours and to acknowledge the necessity for change. She also sensibly acknowledged that she needs help to affect that change and committed to obtaining that help.
In the giving of his evidence, the father did not exhibit the same insight. It was apparent that he continues to primarily place all blame for the difficulties that he is currently having in his relationship with X and Y at the feet of the mother because of the level of enmeshment and alignment that X and Y have with the mother and her negative views of him. The father is unable to accept that X’s concerns and complaints about his lifestyle and his communication with X are genuine concerns held by X and dismisses them accordingly.
At the conclusion of the evidence, including that of the experts, the Independent Children’s Lawyer put forward a comprehensive proposal which provided for the continuation of the current arrangements whereby X and Y live with the mother and spend each alternate Saturday and from after school to 6:30pm each Monday with the father, for the mother to have sole parental responsibility in relation to all decisions in relation to X and Y’s health care and otherwise addressed matters pertaining to the provision of information to the parents, restraints on moving away from (omitted) and other matters that have historically caused issues between the parties.
The mother adopted the Independent Children’s Lawyer’s proposals, save she sought that the time X and Y spend with the father after school be in each alternate week rather than each week and sought some suspension of the father’s time during school holidays to enable she and her children to go on holiday.
Whilst the father would have ideally preferred a return to the June 2013 living arrangements for X and Y, he put forward a proposal through his counsel that accorded with the Independent Children’s Lawyers proposal, save that he sought that X and Y spend time with him each alternate weekend from 10am to 6.30pm on both Saturday and Sunday.
It is very sad that matters have come to this stage for X and Y, and X in particular.
Whilst much of this judgment is very critical of both parties, it should be emphasised that they are not bad people and they have not in any way deliberately set out to harm their children who they both deeply love.
It would appear that the mother is starting to develop some understanding and insight into her own behaviours and is accepting some responsibility for those behaviours and most importantly is starting to make the changes and seek the assistance necessary to continue that process.
Sadly, the father is as yet to acknowledge the necessity for him to undertake the same journey that the mother has commenced. Whether he can and he will do so is an unknown. For X and Y’s sake, and if he wants to have the kind of relationship that I believe he does want to have with his sons, he must do that. If he does not, he and more importantly X and Y will suffer.
In relation to what is in X and Y’s best interests, it is very apparent from the parties’ evidence and more particularly from the evidence of the experts Dr M, Mr T and Ms L that the orders proposed by the Independent Children’s Lawyer are the only ones that will be in X and Y’s best interests.
I am not satisfied that there is any necessity for X and Y to spend less than the time proposed by the Independent Children’s Lawyer with their father and I therefore do not accede to the proposal put forward by the mother that X and Y only spend time with their father after school in each alternate week.
I am, however, satisfied that the father’s time with X and Y should be suspended during the school holidays in accordance with the mother’s proposals which would see that time being suspended in the first half of those holidays in odd numbered years and in the second half of the holidays in even numbered years.
Whilst I can understand that the father is very keen to be able to spend as much time as possible with X and Y, it is apparent from the evidence of the experts that to require X to spend any more time than that which is currently taking place would cause X considerable distress and may well result in him refusing to spend any time with his father at all. Orders in the terms sought by the father would therefore have the effect of X possibly having no meaningful relationship with his father rather than putting in place orders that promotes such a relationship.
Accordingly, in this matter orders will be made in the terms proposed by the Independent Children’s Lawyer that are set out in the introduction to this judgment, save there will be provision for X’s time with the father to be suspended for a part of the school holidays to enable X, Y and the mother to go away on holiday. The orders will also enable the father, Ms C and Z to continue to attend Y’s classroom to assist with reading if invited by the school to do so.
I certify that the preceding two-hundred and fifty five (255) paragraphs are a true copy of the reasons for judgment of Judge Bender
Associate:
Date: 5 February 2015
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Family Law
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Civil Procedure
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