Cryall and Peterman

FAMILY COURT OF AUSTRALIA

CRYALL & PETERMAN

[2009] FamCA 906

FAMILY LAW – CHILDREN – With whom children live – Best interests – Emotional abuse

APPLICANT:

Ms Cryall

RESPONDENT:

Mr Peterman

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

FILE NUMBER:

SYC

5885

2007

DATE DELIVERED:

29 July 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney and Parramatta

JUDGMENT OF:

STEVENSON J

HEARING DATE:

3/3/2008, 31/3/2008, 21/8/2008,
25-26-27-28-29/8/2008,
17-18-19-20-21/11/2008, 5/12/2008, 23/1/2009, 14/4/2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Millar

SOLICITOR FOR THE APPLICANT:

Meyer Pigdon

COUNSEL FOR THE RESPONDENT:

Mr North SC with Mr Maurice

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Wearne

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Hafey

Orders

All existing orders in relation to the children:
D born … April 1995
M born … August 1998
T born … June 2001
(‘the children’) are discharged.
2.1 The father has sole responsibility for making decisions about major long-term issues in relation to the children.
2.2The father shall consult with the mother about major long-term issues in relation to the children and endeavour to reach agreement with her as to such decisions.
Each of the parties has sole responsibility for making decisions about the day-to-day care of the children, when they are with that parent pursuant to these orders.
The children shall live with the father at all times other than the periods prescribed in order 5, during which they will live or spend time with the mother.
The children shall live or spend time with the mother on a supervised basis during the following periods:
5.1From the conclusion of school until 7:00pm on each alternate Friday during school term time, commencing on 7 August 2009.
5.2From 10:00am until 5:00pm on each alternate Saturday and Sunday during school term time, commencing on 8 and 9 August 2009.
5.3For one half of all school holidays, being the first half in odd-numbered years and the second half in even numbered years unless the parties agree otherwise in writing.
5.4From 9:00am until 5:00pm on Mothers Day.
The children’s time with the mother pursuant to order 5 shall be supervised as follows:
6.1Until 20 September 2009, by an employee of Dial-An-Angel who, insofar as is reasonably practicable, shall be female and aged no less than 40 years.
6.2 The father shall pay the cost of supervision in accordance with order 6.1.
6.3From 2 October 2009 by an agreed person and/or one of the following people:
Mr SY Cryall
Ms NE Cryall
Ms MT Cryall
Ms KMH
Mr GYH
Ms JEL
Mr PR Cryall
Ms KE Cryall
Mr MK Cryall
Mr SMS
Ms KED
Mr BTD
Ms KNT
provided that each supervisor signs, or has signed, an undertaking in the form annexed to these orders.
7.1 The father shall arrange supervision for the purposes of order 6.1.
7.2The mother shall arrange supervision for the purposes of order 6.3 and advise the father of the identity of the supervisor no later than 24 hours prior to the commencement of all periods of living or spending time with her.
The supervisor shall collect the children from their schools or the father’s home and return them to the father’s home at the commencement and conclusion of all periods of living and spending time with the mother.
The children shall communicate with the mother by telephone on no less than two occasions per week by agreement, or failing agreement each Tuesday and Thursday, between 5:30pm and 7:30pm by way of the mother initiating the calls.
Each of the parties is restrained from:
10.1denigrating each other or extended family members in the presence of hearing of the children
10.2initiating discussion with the children about these proceedings and future living arrangements.
The mother is restrained from:
11.1having any contact with or spending any time with the children outside of the provision of these orders
11.2consuming any alcohol or illicit drugs during any period when the children are in her care.
In the event that Dr W certifies that the mother has successfully completed therapy with Dr R or any other person whom he (Dr W) may recommend if Dr R is unable to continue and subject to Dr W’s recommendation, the children shall spend unsupervised time with the mother as agreed or failing agreement:
12.1each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday
12.2for one half of all school holidays, being the first half in odd numbered years and second half in even numbered years unless otherwise agreed.
The father shall keep the mother informed of significant matters relating to the children, including but not limited to:
13.1any significant medical issue including illness, accident and hospitalisation
13.2events relating to the general health of each child, including medical appointments, test results and progress reports
13.3occasions of special significance to each child
13.4matters relating to the children’s education including parent/teacher interviews, disciplinary matters, achievements, awards, concerts, special events and sports days.
The appointment of the Independent Children’s Lawyer is continued for a period of 12 months from the date of these orders.
The father’s application for exclusive occupation of the former matrimonial home is adjourned for mention on a date to be arranged with the Associate to Justice Fowler.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

UNDERTAKING

I,……………………………………………………..undertake to the court:

That on occasions when I am appointed to supervise the time spent by the children [D] born […] April 1995 (“[D]”), [M] born […] August 1998 (“[M]”) and [T] born […] April 2001 (“[T]”) with their mother, [Ms Cryall] (“[the mother]”):

I shall remain present with the children at all times.
In the event that I hear [the mother]:
a)Speak to the children in a negative or denigrating way about their father, [Mr Peterman] (“[the father]”), or their paternal grandparents, [Mrs Peterman] or [Mr Peterman] Senior; and/or
b)Speak to the children about Family Court proceedings between the parties and/or
c)Attempt to influence the children’s views in relation to “live with” or “spend time with” arrangements, or invite the children to spend time with her at times not provided for in the orders of the court
(“inappropriate matters”) I shall,
d)Initially, attempt to divert the conversation to another topic; and
e)In the event that [the mother] continues to speak to the children about inappropriate matters, I shall ask [the mother] to stop discussing those matters with the children; and
f)In the event that [the mother] continues to persist in speaking to the children about inappropriate matters, I shall terminate the children’s time with [the mother], and return them to the care of [the father].
In the event that I observe [the mother] to consume or be affected by alcohol or marijuana, then I shall terminate the children’s time with [the mother], and return them to the care of [the father].
I acknowledge that the purpose of supervision is to protect [D], [M] and [T].
I also acknowledge that it is also for the parents’ benefit that proper supervision takes place.
I shall provide a timely report to the Independent Children’s Lawyer of any event which in my opinion falls within those described in 2(a) (b)(c) or 3 hereof.

And I agree to be bound by the undertaking until…………………………………, or released by the court.

FAMILY COURT OF AUSTRALIA AT PERTH

FILE NUMBER: SYC 5885 of 2007

MS CRYALL

Applicant

And

MR PETERMAN

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

Mr Peterman (“the father”) and Ms Cryall (“the mother”) are the parents of three children:
D born in May 1995 (14)
M born in August 1998 (10)
T born in June 2001 (8)
There was little common ground between the parents as to arrangements for the care of their children.
Serious problems confront this family. One of the many difficulties is that the mother suffers from personality traits which at times cause her to behave detrimentally to the children’s best interests. These traits were identified by the single expert, Dr W, and the mother’s therapist, Dr R. In his first report dated 1 November 2007 Dr W made these observations:
“Psychiatric diagnosis: personality disorder – features of borderline and histrionic type
Alcohol dependence (probable diagnosis)” and
“Psychiatric assessment of [the mother] revealed significant personality disturbance, consistent with the diagnosis made by her treating therapist (features of borderline personality disorder)."
In his first report, dated 31 August 2007, Dr R observed:
“Based on my initial assessment [the mother] presented ‘at risk’ for long term mental health problems. Her personal history, her experiences of unhappiness, stress and isolation within her marital relationship, the level of her alcohol and marijuana usage were of particular concern. My provisional differential diagnosis, according to DSM-IV-TR, was ‘Adjustment disorder with depressed mood (309.4) associated with features of ‘Borderline personality disorder (301.83)’.
Dr W and Dr R conferred and summarised their points of agreement and difference in emails dated 27 and 28 August 2008. The major point of disagreement was that Dr R considered that the mother’s borderline personality features have been resolved, whereas Dr W was of the view that these aspects of her character are still in evidence. I will consider this issue below.
Another difficulty which confronts this family is that the father has a long history of very extensive work hours, at the expense of involvement with the children. Historically, therefore, he has been physically and emotionally absent from the children’s lives. He practices a profession.
The result for the children is that I must choose whether they live with a mother who may or may not currently have borderline personality traits or a father who has been physically and emotionally absent for much of their lives. Shared care was not suggested as a viable option and was rejected by Dr W.
With respect to the mother, the proceedings were complicated by the fact that she appeared unrepresented in the final stages of the trial. She made it clear that her ‘most desired outcome’ was the return of the children to her care but she also referred to the possibility that the children have unsupervised time with her. The mother made these submissions on 14 April 2009, which was the last day of the trial.
The father sought orders that the children continue to live with him and spend only supervised time with their mother. He objected to supervision by family or friends of the mother and proposed that only employees of Dial-An-Angel act in that role. The father’s proposal left open the prospect that the children spend unsupervised time with their mother, subject to Dr W certifying that she has successfully completed therapy and recommending the removal of supervision.
The father sought sole parental responsibility for “making decisions about major long-term issues in relation to the children”. He also sought an order for exclusive occupation of the former matrimonial home, at L.
The Independent Children’s Lawyer proposed that the children continue to live with their father. They would spend six periods of time with their mother under the supervision of employees of Dial-An-Angel or friends and family of the mother. The Minute provided by the Independent Children’s Lawyer contained a list of supervisors who met with her approval. The children’s time with their mother would then be unsupervised.
The proceedings commenced with the mother’s application filed on 20 August 2007 and concluded on 14 April 2009. In the meantime, there were three interim hearings before a Judicial Registrar on 5 September 2007, 6 November 2007 and 28 November 2007. The proceedings came before me on 3 March 2008 on the first day of a Less Adversarial Trial, a most inappropriate description for the way in which this case was conducted. On 3 March 2008 the parties’ legal representatives estimated that finalisation of the parenting proceedings would occupy five hearing days. I was required to devote time to a further interim hearing on 31 March 2008.
On 5 September 2007 a Judicial Registrar made interim orders which provided in summary that:
·    D and M live with the mother each alternate week from the conclusion of school on Thursday until the commencement of school on Monday and otherwise with the father
·    T live with the father each alternate week from the conclusion of school on Thursday until the commencement of school on Monday and otherwise with the mother
·    each of the parties was restrained from consuming illegal drugs or alcohol for six hours before and during their time with the children and from denigrating the other party or discussing the proceedings in the presence of the children
A further interim hearing took place before a Judicial Registrar on 6 November 2007, by which time the Independent Children’s Lawyer had been appointed and Dr W’s first report had been released. In summary, these interim orders provided that:
·    all three children live with the father
·    the children spend supervised time with the mother each Thursday from 3:00pm to 7:30pm; each alternate Friday from 3:00pm to 7:30pm; each alternate Saturday from 9:00am to 7:30pm and each alternate Sunday from 9:00am to 7:30pm
·    the mother have reasonable telephone communication with the children
·    the parties facilitate D’s attendance on a therapist, Mr C, once per week
·    the parties arrange for M to see a counsellor other than Mr C
·    the father attend for therapy as recommended by Dr W
·    the mother continue her therapy with Dr R
·    the injunctions made on 5 September 2009 continue, pending further order
On 28 November 2007 there was a further interim hearing before a Judicial Registrar. In summary these interim orders provided that:
·    the children spend time with the mother for two weeks during the Christmas holidays, to be supervised by the maternal grandparents
·    the children share Christmas Day between the parents
·    the children spend time with the father for two weeks during the summer holidays, during which time he is permitted to take them to the United States of America
·    in lieu of the orders of 5 September 2007, the father is restrained from consuming more than three standard alcoholic drinks while the children are in his care
·    the mother is permitted to attend specified school events with the children, with such time to be unsupervised
·    the parties are at liberty to telephone the children on a maximum of two occasions per week when they are not in that parent’s care
·    the parties are to exchange information relating to the children’s health and education
·    the father is to use his best endeavours to appoint a permanent female nanny as soon as possible, with that person to supervise the children’s time with the mother
·    neither party is to attend the home of the other except in the case of an emergency or to collect or deliver the children or on the invitation of the other party
On 31 March 2008 the proceedings came before me for a further interim hearing. By consent I made interim orders which provided, essentially, as follows:
·    the interim orders of 6 November 2007 are vacated
·    children spend supervised time with the mother, commencing on 3 May 2008, on each alternate weekend from the conclusion of school until 7:00pm on Friday; from 1:00pm to 5:00pm on Saturday and from 10:00am until 5:00pm on Sunday
·    unless otherwise agreed, the children’s time with the mother be supervised by an employee of Dial-An-Angel with the cost to be met by the father at first instance
·    the children spend school holiday time from 19 to 27 April 2008 with the mother in Western Australia, under the supervision of the maternal grandparents
As noted, I was advised by the parties’ legal representatives that five days of hearing time would be required to finalise the proceedings. Accordingly, the matter was listed for five days, to commence on 25 August 2008. This estimate proved to be completely inaccurate and the trial occupied a further five days commencing on 17 November 2008. I reserved judgment on 21 November 2008.
The father made an application to re-open his case following an incident at V School, which M and T attend, on 26 November 2008. The mother confronted and verbally abused Ms L, who was a witness in the case for the father. The incident occurred in T’s classroom and was witnessed by several children and adults. I will refer below to the details of this episode. I granted leave to the father to re-open his case on 5 December 2008.
On that date the mother appeared without representation and informed me that she did not wish to place any further evidence before the court. I was not sure whether she intended to participate any further in the proceedings, as she said at one stage that I should simply proceed to make a decision.
The father filed an additional affidavit and documents produced on subpoena by V School and the New South Wales Police Service were tendered in his case. The trial then finally completed with submissions on 14 April 2009. The mother was present on that day and took the opportunity to make some short submissions.
The mother opposed the father’s application for an order for exclusive occupation of the former matrimonial home at L. She has occupied the property since the father moved to an apartment in the same town on 8 June 2007. He purchased the apartment and has lived there with the children for about twenty months.
Each of the parties relied on a huge volume of written evidence, which required a very substantial amount of time to read. There were ten witnesses in the case for the mother and nine people provided affidavits for the father. The level of detail in the parties’ affidavits was staggering, as was the enormous amount of correspondence between solicitors which was annexed. A large volume of material from subpoenaed documents was tendered.
For reasons of sheer practicality it is impossible for me to examine and make findings as to every factual issue raised by the parties. I have endeavoured to focus on the significant parts of the evidence and the important issues in these reasons.

The Evidence and Witnesses

The applicant, the mother, relied on the following affidavits:
1.numerous affidavits of the mother
2.Ms LEI sworn 19 October 2007 and 20 March 2008
3.Mr JNA sworn 27 June 2008
4.Ms JEA sworn 27 June 2008
5.Ms KMH sworn 26 June 2008
6.Ms N Cryall sworn 27 June 2008
7.Mr S Cryall sworn 27 June 2008
8.Ms M Cryall sworn 27 June 2008
9.Dr R sworn 21 November 2007 and 1 July 2008
All of these witnesses were required for cross-examination.
The respondent, the father, relied on the following affidavits:
1.numerous affidavits of the father
2.the paternal grandmother sworn 24 October 2007, 6 November 2007, 10 July 2008
3.the paternal grandfather sworn 10 July 2008
4.Ms P Peterman sworn 10 July 2008
5.Mr DLG sworn 6 November 2007
6.Ms NEC sworn 10 July 2008
7.Ms ENC sworn 21 August 2008
8.Ms L sworn 11 November 2008 (paragraphs 37 to 40, 47, 58, 59,72 and 73)
Only Mr DLG, the father’s employer, was not required for cross-examination.

I had the benefit of two reports prepared by the court expert, Dr W dated 1 November 2007 and 19 August 20008. Dr W gave oral evidence on 20 November 2008.

Approach To These Proceedings

The principles which govern the determination of these proceedings are substantially set out in Part VII of the Family Law Act. Section 61C provides that each of a child’s parents has parental responsibility until the child attains the age of 18 years, unless the court makes an order which alters this statutory conferral.
If a parenting order is made, a statutory presumption arises that it is in the best interests of a child for each of his or her parents to have equal shared parental responsibility: section 61DA(1). This presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence: sections 61DA(2) and 61DA(3). This presumption may be rebutted if the Court is satisfied that its application would conflict with the best interests of the child: section 61DA(4).
When this presumption is applied, the Court must first consider making an order for the child to spend equal time with each parent, if such an order is consistent with the best interests of the child and reasonably practicable. If equal time is not in the best interests of the child or reasonably practicable, the Court must then consider making an order for the child to spend substantial and significant time with each parent, if such an order is consistent with the best interests of the child and reasonably practicable: section 65DA(1) and 65DA(2).
The concepts of “substantial and significant time” and “reasonable practicability” are addressed in sections 65DAA(3), 65DAA(4) and 65DAA(5). The definition of “substantial and significant time” seems to have the aim of bringing to a child the benefit of major involvement of both parents in his or her life and allowing the child to share events of special significance with each parent. The legislation contains no temporal definition of “substantial and significant time”. In assessing “reasonable practicability” the Court must have regard to the distance between the parents’ homes and their capacity to communicate and cooperate with each other, as well as the impact on the child of such an arrangement.
If there is no order for equal or substantial and significant time, then the outcome is to be determined in accordance with the child’s best interests. The process by which a child’s best interests are ascertained involves a consideration of the objects and principles set out in section 60B and the primary and additional considerations set out in section 60CC.

The Primary Considerations: Section 60CC(2)

section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents; and
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

The tension between these two very important considerations lies at the heart of this sad case. Ideally D, M and T should be free to spend liberal time and enjoy a meaningful relationship with both of their parents. Most unfortunately, there was a wealth of evidence to indicate that they require protection from the risk of physical and psychological harm to which their mother’s behaviour exposes them. The tragedy for both the children and the mother is that her personality traits seem to compel her to behaviour which has been physically and psychologically abusive of them. Regrettably, the evidence gave no realistic basis for optimism that there will be any immediate amelioration of the mother’s behaviour. In fact, the episode at V School five days after I had reserved my judgment would suggest the contrary.
Dr W summarised his opinion of the impact of the mother’s borderline personality traits on her relationship with the children in his first report as follows:
“…[the mother] has a high level of personality immaturity such that her needs must be met first, ahead of her children. In the assessment her sense of grievance and betrayal were paramount and she made sure that the children were reminded of the degree of her suffering and the cause of it, at every opportunity. She had a one-dimensional view of the children’s pain as being exactly like her own. She seemed unable to consider that she also was capable of inflicting pain on the children.”
Although Dr W found the mother to be “more contained” during the interviews for his second report, he held out little or no hope that she could change her behaviour and manner of relating to the children. He stated:
“[the mother] is without insight. She says she is unable to recognise herself in the descriptions of others and because she employs the defences of denial and projection, this is largely true. Thus she sees others as highly manipulative and attempting to influence power and control, or this is how she is herself. Lacking any true insight, she is incapable of real change. She is however capable of being emotionally supported, and believes she has been significantly assisted by her therapist. I would imagine that it will be many years before [the mother] is able to look closely at herself within a psychotherapeutic framework.”
The evidence suggested strongly that these personality traits of the mother compel her to these behaviours which can be considered abusive of the children:
·she is unable to contain her antipathy to the father and draws the children into her negativity toward him
·she generates in the children a belief that they are responsible for her emotional well-being
·she flies into rages, during which she directs verbal abuse and physical violence toward the children
·she is unable to separate her needs from those of the children
The evidence contained a number of examples of these behaviours by the mother, to some of which I refer below.
In the 2007 interviews D told Dr W of occasions when he and his sisters were hit by their mother with a wooden spoon. He said also:
“On another occasion she got angry – she got her hairbrush and gave us whacks and punched me and my sister – very, very lightly so as not to hurt us.”
It is indicative of the pathology in the relationship between D and his mother, that his complaint of physical abuse was followed immediately by a justification or defence of her behaviour.
In 2007 Dr W conducted a joint interview of the children and the mother. He reported that D said:
“We were all very angry with Mum because she hit us. We were not doing as we were told.”
At this point the mother denied “significantly hitting the children” to adopt Dr W’s words. He then observed:
“[M] now confronted her mother and said angrily: ‘It was not a tap – it made my leg all red.”
D also described to Dr W an incident in April 2007 when his mother, while in a rage, smashed an intricate Lego toy which was a present from his father. This incident was described by Mrs Peterman, the paternal grandmother, in her affidavit. She said that D was assembling the Lego toy in the dining room. For some reason, M and T screamed to their mother some complaints about D. The mother then went into the dining room and said to D: “You don’t rule the roost, you can’t have everything your own way”. The paternal grandmother then entered the dining room and saw that the Lego had fallen onto the floor and broken into many pieces. She and Mr Peterman had to physically restrain D, who was screaming “look what she has done”. D was very agitated and upset for approximately twenty minutes.
The father said that D smashed a vase after the girls teased him. The mother became enraged and screamed at D:
“You fucking leave those girls alone. You wreck everything you lazy fat bastard.”
The mother then pushed his Lego model onto the floor. D cried and later said to his father:
“Mum came into the room and grabbed me around the head and neck and punched me around the face. She punched me, Dad. I am so angry. She is a crazy woman.”
The mother denied that she said these words to D but I accept that she did so. This language is consistent with verbal abuse which she has directed at others, for example, at Ms L during the incident at V School in November 2008.
D told Dr W of verbal abuse by his mother. He said:
“My mother says things – I don’t want to repeat them. It makes me sad and I might cry. My sister might tell you.”
He made this comment immediately after he told Dr W about the incident when his Lego toy was smashed.
The paternal grandmother said in her affidavit that she heard the mother make remarks to D such as :
“No wonder you’re fat, you put half of what is on your plate back” and
“You’re a fat boy and you need more exercise”.
In his first report Dr W expressed considerable concern about “the climate of emotional abuse which the children endured when [the mother’s] emotions were out of control”. He was of the opinion that:
“The effect of this climate of abuse on the children has been twofold. In [D’s] case it has resulted in a feeling of being unloved and has led to feelings of depression and low self-worth. He is now anxious to please his mother in the hope of winning her approval. Both [D] and [M] also showed the effects of being unable to contain [the mother’s] intense feelings which have been emptied into them, rather than being contained within herself.”
I am satisfied that the mother has engaged in behaviour which must be considered abusive of the children, particularly in a psychological sense. I do not suggest that she has chosen to do so; rather, she and the children have all been victims of her pathological personality traits.
In his November 2007 report Dr W identified significant concerns as to the quality of the children’s relationships with their father. He had particular concerns with regard to D and his father. He reported:
“[the father] admitted that he has neglected the children, and this would seem to be for most of their lives. By his own admission, he was driven to achieve in his professional life, particularly as he felt increasingly alienated in the relationship. He was aware of how badly he had failed [D] in particular – in failing to appreciate him for who he was, for neglecting him in both a general and relative sense in relation to his sister, and for criticising him for his efforts at school. [D] pointed to the six month period when [the father] was theoretically not working, and thus potentially available to the children, as the worst period with his father he could remember, because of the latter’s critical attitude towards him.”
At this point, it would seem, the father’s relationship with the children was probably meaningful but less than optimal.
Nonetheless, Dr W discerned in the father a capacity to change his parenting style so as to develop a more meaningful relationship with the children. He reported:
“[the father] did seem to have a capacity to absorb his distress about how drastically he had failed with the children, without catching them up in this. His admissions to [D] about these failures appeared courageous and genuine. He resisted wounding the children with intimate details about their mother’s faults, and certainly did not seek to play one child off against the other.
When he was faced with the escalating situation between [M] and [D] in the family session, [the father] seemed shocked and out of his depth as if he had not fully grasped the degree to which [M] would ‘play dirty’ to maintain her position of supremacy. [The father’s] overall grasp of the situation in which the children had begun as innocent victims included a consideration of the contributions of both [the mother] and himself. He seemed genuinely able to think about what would be necessary in the future on his part, if he were to improve his parenting capacity.
I put considerable pressure on [the father] to examine areas of his personality functioning which had contributed to the marital difficulties, and also made him a largely unavailable parent to the children. He did not shirk from facing this challenge and did not react angrily or defensively. He was able to maintain a focus on the need for love, order and stability in the children’s future lives.”
As appears below, the father’s efforts to improve his parenting and relationship with the children seem to have been successful.

Additional Considerations: Section 60CC(3)
section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;

It is unquestionable that all three children have expressed a strong wish to live with their mother. These wishes were conveyed clearly to Dr W in 2007 and 2008. Dr W, however, warned firmly against the attachment of any significant weight to the children’s stated views.
In his first report Dr W identified the following four factors which, in his opinion, drive the children to express wishes to live with their mother:
“i.She has been the chief carer of the children, and has managed their day to day activities all their lives. They are unable to imagine their father in this role, as he has been physically and emotionally absent.
ii.They are genuinely attached to her, and love her. Separation from her is painful.
iii.The older two children and in particular [D] are concerned at how [the mother] will cope in their absence. In this sense they are parentified children. From observations of [the mother] and [T] together, it would seem likely that this pattern established with the elder two children will be repeated with [T] as well.
iv.At a level operating quite close to consciousness, the children are aware that if they make positive moves towards their father, their mother will let them know (sometimes angrily) that they are betraying her.”
Dr W was of the clear opinion that “none of the children is sufficiently emotionally mature to have a significant input into which parent should have a major part in their future upbringing”.
In his second report Dr W identified aspects of the dynamics of the mother/children relationships which mean their stated views should not carry significant weight. With regard to D he reported:
“He made it clear that he thought his mother could do no wrong. However he conceded that he would not face her with anything unpleasant for fear of hurting her. These positions which [D] feels he must adopt point to quite significant limitations in the relationship. It was clear that in [D’s] mind his mother’s emotional health is paramount, and that if she could be happy, then he would be. It was also clear that to continue to support his mother, [D] would espouse a point of view even if he really believed this to be wrong.”
As to M, Dr W reported:
“[M] is clearly incorporating her mother’s views of her father. She is driven by her wish to return to her mother and is thus an unreliable witness to the events surrounding her. She admitted that she would even lie to support her mother.”
With regard to T, Dr W reported:
“[T] was subdued and a little wary on this occasion. She was clearly afraid of negatively implicating her mother through her answers to my questions. She clearly missed her mother greatly but was able to acknowledge her father’s good points.”
Dr W observed that all of the children were reluctant to report on their mother’s anger, because they were aware that the consequences would work against their wish to return to her. As well, he noted that they were aware of their mother’s emotional fragility. Dr W explained in his oral evidence:
“Probably the children do not have the capacity to evaluate their mother’s behaviour, because of her neediness and because she is a tantalising person, they love her. She is a very warm, embracing person and once in that environment they lose the capacity to think that what she is doing is not right, unless she is in a rage.”
I have no reason to doubt any aspect of Dr W’s evidence. I thus do not attach significant weight to the stated views of the children. I appreciate, of course, that it is unusual to attach insignificant weight to the views of fourteen and ten year old children. There was, however, very strong expert evidence which leads to this conclusion.
section 60CC(3)(b): the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
I have referred already to the pathological aspects of the children’s relationship with their mother. In his oral evidence Dr W described the mother’s influence on the children as “toxic at its worst”.
By the 2008 report Dr W observed a marked improvement in D’s relationship with his father. He observed:
“As noted during the body of this observation, [D] in particular seemed to be following an agenda of grievances to direct at his father. There was anger attached to these, but not the out of control distress that I had witnessed on earlier occasions. It appeared to me that [D] had some confidence that he would be listened to, and that the intensity of his negative feelings towards his father had diminished somewhat. In general, [D] seemed more robust than on the previous occasion. He was able to share some anecdotes with his father which indicated a growing bond between them. Even [D’s] complaints against his father had a positive quality associated with them in that he had an expectation that his father could improve his performance.”
Dr W also reported in 2008:
“I found [D] far more settled and confident on this occasion. His posture and general well being seemed improved, and his mood overall was quite buoyant. He was still angry with his father and bitter about what he understood had led to the breakdown of his parents’ marriage (his father’s unfaithfulness). At the moment, for various reasons, this is the only reality he can tolerate knowing. There were times when it was clear that [D] was recapturing some sense of closeness he had lost with his father. There was a sense on this occasion, despite his cynical comments at times, that he would be heard. He could acknowledge that his father was trying.”
In 2008 Dr W expressed concerns as to the emotional state of both M and T. He observed:
“[M], however, was not in such a good space. She was quite distressed and easily moved to tears. She seemed to be feeling the lack of a maternal person and made it clear that [the father] and any carers were poor substitutes for a real mother.
[T] seemed largely lost. She spun silently in her chair and looked lost and sad. She made a brief move to her father, but found his attentions unsatisfying. She and [M] were obviously closely bonded.”
Dr W observed further:
“[T’s] presentation on this occasion was the most worrying of all the three children. She had gone from the position when I first saw her of being outgoing, confident and cheeky to a position where she felt uncomfortable in expressing herself. In her mother’s absence she did not seek for any significant period, the comfort of her father, but rather sought out her sister.”
There are thus real concerns as to the nature of the children’s relationships with each of their parents. At least it seems that the father is making real efforts to improve his parenting and strengthen his relationship with the children. Unfortunately, there does not seem to have been any change in the nature of the children’s relationship with their mother.
section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
It seems to me that the father has made creditable efforts to facilitate and encourage the children’s relationship with their mother, in very trying circumstances. Regrettably the mother has engaged in disputes with supervisors and sought time with the children beyond the scope of the interim orders. She conceded that she has “manufactured” opportunities to see the children outside the provisions of court orders.

I accept that the mother experiences the supervision regime as very demoralising of her role as a mother. Her function as a parent has been the focus of her life and its loss has been extremely painful to her. As Dr R reported on 21 November 2007:
“[the mother’s] children, particularly her involvement in their development and well-being, have provided an important stabilising influence for her in a troubled personal and marital world. Moving the children to the primary care of their father has, understandably, left a substantial void in [the mother’s] life and has placed her in a vulnerable position not only to a deterioration of her overall mental health but also to the dysfunctional nature of her relationship with her estranged husband.”
A few examples will suffice to illustrate the mother’s inability to curb her hostility toward the father and the situation in which she currently finds herself. A most unfortunate incident occurred on 23 February 2008 which involved the children’s then nanny, Ms A. This account is drawn from the mother’s own evidence and the reports of Dr W, together with notes of D’s counsellor (exhibit 7). I declined to admit into evidence the affidavits of Ms A, as she was unavailable for cross-examination.
Dr W reported the mother’s account of this incident as follows:
“I had lost my licence for 6 months. One Saturday it was sport for [M]. I had arranged for [Ms A] to come early and then get [D]. I couldn’t get hold of [the father] to tell him about the early start and the finish. There was no [Ms A]. I rang [the father] and was told she was running late. [The father] took [M] to sport. I went with a friend. I went to [D’s] game at […]. [Ms A] is a very fashionable young girl. She was not appropriately dressed around boys. On the way home I asked her why she was late. She was very flippant and said that things were out of hand. There was a screaming match. There had been no phone calls to me. I made her pull up and told her to get out. She said that I couldn’t drive. I said: Watch me!! I went home. The kids were very happy. I asked a friend to come over. When the police came I was very calm. [D] put on a bit of a performance. The Police said ‘don’t do it again’. It showed her lack of dis-respec (sic) for me.”
The mother denied that she described the incident as a “screaming match” to Dr W. She said that her words were “a very heated discussion”. Otherwise she did not dispute Dr W’s account of the conversation.
On 11 March 2008 D discussed this incident with his counsellor, Mr C. His notes recorded:
“[mother] v. angry being v. abusive about [Ms A] – v. upsetting to both [D] and [T].
[D] says [mother] swearing at [Ms A] – call her ‘piece of shit, f… off’.
After game we’ve all back in the car – go into servo station – Mum says ‘get fuck out – [Ms A].
Drives away – (?[mother] – no licence)
We go to home
V. upset – didn’t like the way Mum spoke and swore at [Ms A] – spitting?”
There was a period when the children were alone with their mother during this incident, which clearly was contrary to court orders. Whatever she said to them during this time seems to have prompted D to say to his father, when he first saw him,: “you’re an arsehole Dad”. Obviously, she convinced D that his father was to blame for what had happened.
The m other made some extraordinary statements about this episode in cross-examination. She said:
“I wholeheartedly agree with what happened that day and I was being responsible. The children and I had yet again been manipulated” and
“I believe I acted responsibly – no, I can’t explain how it was responsible but I acted as a mother.”
She conceded that her anger “probably got the better of her” and that she believed that the father created these circumstances.
I accept that the mother felt humiliated at being supervised by a nineteen year old girl. I also accept that she was entitled to be angry that Ms A was late in arriving with the children. Her reaction, however, was disproportionate to the circumstances. It seems that she was unable to restrain herself from breaking the law and otherwise behaving in a way which was unacceptable, by any standards.
This episode is an illustration of the mother’s propensity to engage in behaviour which Dr R and Dr W described as “reactive”, with the main trigger being the father. Dr R explained that there is a difference between “responding” and “reacting” to situations. A “response” involves the taking in of information and reflection, whereas “reaction” is “pre-reflective”. One of his therapeutic goals is to help the mother develop the ability to “reflect on behaviours” and “evaluate information” before “responding to situations in a reactive style”
For reasons which appear below, it seems to me that the mother has yet to achieve this goal.
The mother’s apparent inability to set proper boundaries between herself and the children was demonstrated clearly in one of their joint sessions with Dr W. It is significant that this interview occurred when the trial was imminent and at a time when Dr W assessed that the mother was “more constrained” than had been the case in 2007.
Dr W reported:
“[M] now got hot under the collar, rather reminiscent of reactions I had observed in [the mother] on previous occasions. She said: ‘I know who told a big lie – Mum told me that’s why the judge had agreed with him. He got Mum really bad lawyers so she would lose!’
I asked [the mother] what she made of this observation, since it appeared clear that [M] was simply recounting without question what she had been told by her mother. I thought [the mother] would understand that she was meant to exercise some control in this area.
[The mother] responded: ‘they’re frustrated like I am. There are complications with money and a lot of control around spousal maintenance. The children think the lawyers are not fighting hard enough. Then they are disillusioned.
[D] said: ‘No-one told us the whole truth.’ I asked him how this made him feel. [D] said: ‘Angry, upset, hurt and I can’t trust. I know where he keeps the documents for paying the nannies.”
In cross-examination the mother expressed a very concerning opinion about M’s comment. She said words to the effect:
“I did not express pride in [M’s] view that her father is working hard to earn money to bribe the judge – that is entirely her”.
It beggars belief that a nine year old child could formulate this concept without adult input.
In his 2008 report Dr W recorded that M said, in the mother’s presence:
“I don’t want to hear it! There’s so much sadness going on. He bribes the judges.”
The mother said that M stated:
“Daddy is not there on weekends – he works so hard, I think he is doing all this extra work to bribe the judges.”
Extraordinarily, the mother said in cross-examination:
“I was proud that she could articulate this statement.”`
It is most concerning indeed that the mother made no attempt to correct M’s statements. She was content to allow her to make negative statements about her father and the court process. She attributed to the children a sense of sharing of her “frustration”.
I am satisfied that the mother has attempted to sabotage the children’s relationship with their father since the separation. Regrettably, she does not seem to be able to restrain herself from doing so. In this regard, the future for the children appears bleak.
I am satisfied that the father has done what he can to facilitate and encourage the children’s relationship with their mother. He has met all of the cost of supervision by Dial-An-Angel. He has attempted to negotiate holiday visits for the children with their mother to their maternal grandparents and other family in Western Australia. The mother has created difficulties by objecting to some supervisors and engaging in disputes with others. It may well have been that there was some justification for her annoyance on occasions.
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 other person (including any grandparent or other relative of the child), with whom he or she has been living;
The children’s stated wish to live with their mother would be fulfilled if the current primary residence arrangements are reversed. On the other hand, there is a real risk that they would then be exposed to her reactive behaviour, consistent negativity toward their father and failure to set proper limits. It is thus necessary to consider the views of Dr W and Dr R as to the likelihood that the mother will continue to engage in the behaviour which she has displayed so far. I will do so below when I consider the capacity of each of the parents to meet the children’s needs.
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;
The cost of professional supervision of the children’s time with their mother has been substantial and borne entirely by the father. There is an issue between the parties as to whether future supervisors should be only employees of Dial-An-Angel or whether friends and family of the mother could adequately fulfil that role.
In the past the father has agreed to supervision by certain members of the mother’s family and some of her friends. He is now most reluctant to accept any arrangement other than professional supervision.
The Independent Children’s Lawyer proposed that family and friends of the mother act as supervisors, subject to their entering into a written undertaking for a period of six alternate weekends on Saturday and Sunday. The children’s time with their mother would then be unsupervised and limited to day periods.
Dr W recommended against supervision by family and friends of the mother. In his oral evidence he said:
“I do have a difficulty with her friends and family supervising because they would be likely to share her values, for example, it would be hard for a friend to stop her drinking.”
Dr W summarised the risks to the children of unsupervised time in his oral evidence. He said that they will be subjected to:
·    emotional abuse
·    their mother’s out of control behaviour
·    discussions and brainwashing about their father
·    an idealised view of their mother
Dr W was asked about the “priorities for selecting a supervisor”. He said that a supervisor needs “to understand that [the mother] has two sides that don’t meet – she is loving and warm but reactive and that is very destructive to people around her. In that state she can be very toxic to her children. A potential supervisor would also need to have ‘empathy for [the mother] as a mother’”.
Dr W was very clear, however, that the children need time with their mother. For that reason he said:
“So maybe the risk of less than an ideal supervisor needs to be taken once in a while.”
He also said:
“Unsupervised time is an option that realistically needs to be considered.”
The option of interim orders, leading to unsupervised time, did not commend itself to Dr W. He said that a review would be “damaging” for the children. He considered that one advantage of final orders might be that:
“When things are finalised there will be less desperate attempts to win the children back, because it can’t be done.”
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;
Much of the evidence relevant to the capacity of each of the parents to provide for the children’s needs has already been referred to and considered. As noted Dr W had concerns as to the capacity of each of the parents but significantly more serious reservations with regard to the mother.
Dr W was of the view that the father has developed the capacity to meet the children’s fundamental needs. In his oral evidence he said words to the effect:
“[the father] is not an empathic person and has some limitations but I saw that he had moved and made changes. The barometer was [D’s] development between the two reports. The other barometer is how the girls are going at school. So I think that [the father] presents in a much more defended way than he probably does in everyday life. It seems that the children are finding that in him.”
In practical terms, the father has had to make changes to his established pattern of very long work hours. … The father’s employer, Mr DLG, swore an affidavit in which he said:
“I will support [the father] in his need to work flexible hours in order to care for the children if he is successful in his application that the children reside with him. Whilst all [employees] are subject to individual budgets, there are no set hours for partners and [the father] has always and will continue to be able to work his own hours with the assistance of the senior [employees] in his team. I am confident that [the father] will be able to reorganise his work schedule in order to meet the needs of his three children. If that means his [fees] fall, then so be it.”
It thus seems that the father’s work commitments are no longer an impediment to his capacity to care for the children.
The father employs a nanny to care for the children. He also receives assistance from his parents. I am satisfied that these arrangements are sufficient to meet the day to day practical needs of the children.
As noted already, there was a difference of opinion between Dr W and Dr R as to whether the “borderline features” of the mother’s personality have resolved. Dr R was of the view that there are solid indications that the mother is now able to contain these personality traits.
In his June 2008 report Dr R stated:
“[the mother’s] commitment and capacity to engage in a long term therapeutic relationship, the resolution of longstanding personal and relational issues particularly in matters involving her estranged husband, her progress in maintaining psychological stability throughout the acrimonious separation from her husband, her earnest effort to reduce her alcohol intake and drug use, her voluntary participation in mental health promotion programs would question the suggestion of a chronic personality/character condition.”
In cross-examination by the Independent Children’s Lawyer, Dr R agreed that these considerations led him to “re-visit his diagnosis”.
In his June 2008 report Dr R also said:
“[the mother] has actively and effectively utilised the therapeutic sessions to attend to the emotional stressors and distress which have, on a number of occasions, had the potential to de-stabilise her self-image and compromise her health and well-being.” and
“Given her progress in treatment thus far and her ongoing commitment to realising and maintaining a healthy lifestyle, I would see [the mother’s] prognosis as being very good for full remission.”
In his oral evidence Dr R conceded:
“I can certainly understand concerns about her ability to distinguish her needs from the children’s – I can see that she may seek a protective closeness with the children.”
He said also:
“Yes, absolutely the way that she relates to her children warrants urgent attention.”
Dr R said that the incident at the petrol station in February 2008 needs to be viewed “in a longitudinal sense”. He indicated that it was significant that he “was not hearing about other incidents or potential incidents which did not happen.”
Regrettably, there have been incidents since February 2008 when it seemed that the mother lost control of her behaviour or, at least, could not restrain herself from acting inappropriately. I will refer below to these events.
Dr W was of the opinion that there remains a significant risk that the mother will continue to engage in reactive, destructive behaviour. In his oral evidence he said:
“I think she can still work negatively with the children’s view of their father. Her personality organisation has not changed.”
He said also:
“Her personality structure is such that it would not take a major event to stir her up, for example, if a child becomes reactive and angry to her, she would be likely to become angry and reactive back.”
Dr W said further:
“As far as I can tell she does not have insight into how her own behaviour impacts on other adults and her own children.”
Sadly, the evidence made it clear there remains a major problem in terms of the mother’s ability to regulate her behaviour in the presence of the children. Her own evidence was sufficient to establish that she is capable of losing self control in their presence. There was also independent evidence to the same effect, to which I will refer below.
I have referred already to the incident at a petrol station in February 2008 when the mother became so enraged that she drove off in her car, with the children inside, at a time when she did not hold a licence. I have noted the mother’s extraordinary claim that she believed that she had acted “responsibly” on that occasion.
The mother’s own account of events at the girls’ school in June and July 2008 also illustrates a propensity to reactivity and consequent inappropriate behaviour. She said that she went to the school on the morning of 13 June 2008 to see M and T. She could not find them in their classrooms so she approached the headmaster, Mr O. In her words she “demanded to know the girls’ whereabouts”. M then appeared and said that she had been in the library. Mr O told the mother that he could not look for T and said that she should see the deputy principal. The mother then said to Mr O: “It is not good enough. You are the headmaster, do your job. I am going to sue you and this school for harassment and bullying”. It is unclear how M and T’s absence from their classrooms amounted to “harassment and bullying” of the mother. Her reaction to her inability to find them was inappropriate and is an example of her propensity to blame others for her predicament.
On 30 July 2008 the mother took M to Mr O’s office and said to him: “We have something to say to you”. M then said: “I like seeing Mummy at school, I don’t want her to stop coming, it does not upset me”. The mother then said: “So you can’t say it upsets them, this school makes me feel like a criminal”. This conversation was inappropriate and another example of the mother’s failure to isolate her own needs from those of her children and to impose appropriate emotional boundaries.
When the mother left Mr O’s office on this occasion she encountered the paternal grandmother, who was waiting to collect the children. The mother told the paternal grandmother to inform the father that she intended to visit the girls at school for the next two mornings. At the end of the conversation the mother said to the paternal grandmother: “You’re a fucking old bag”. Her excuse was that the paternal grandmother had called her “mad” in the presence of the children. Even if that is true, the mother’s conduct on this occasion was completely unacceptable.
In cross-examination the mother said that there was “no possibility at all” that these confrontations with Mr O and the paternal grandmother would be unsettling for the children. I find this evidence most unconvincing.
I have referred already to the mother’s confrontation with Ms L at the school on 26 November 2008. Ms L had given evidence which was unfavourable to the mother in these proceedings on 19 November 2008.
On the morning of 26 November 2008 Ms L attended V School with her daughter J, who is in the same class as T. The mother was present in the classroom. Approximately nineteen seven year old girls and fifteen adults, including the children’s teacher, were in the room. Ms L’s statement to police (exhibit 29) described the incident in these terms:
“I saw [the mother] pointing towards me. She was mouthing something to me but I couldn’t hear what she was saying. [The mother] charged towards me, still pointing. I could hear her saying as she got closer ‘get the fuck outside’. She came right up close to me to a point where [J] was getting pushed up against my body. She continued to yell at me. She said ‘[Ms L] you are a fucking disgrace. Get outside right now.’ I said ‘No [Ms Cryall], I am getting [J] ready for the concert.’ She again said ‘Get the fuck outside right now you fucking bitch!’
At that point [Ms H], who was sitting next to me, said to [the mother] ‘This isn’t the time or the place.’ [The mother] replied with ‘You fucking fuck off [Ms H]’. [The mother] then said to me ‘You are a disgrace as a mother. You shouldn’t be a mother. No wonder your baby died. You are a fucking bitch. Get outside now you fucking bitch. You watch yourself you fucking smartarse. I’ll teach you.’”

It is truly extraordinary that a mother would conduct herself in this way in the classroom of her seven year old daughter and other little girls. It is inconceivable that she would choose to behave in such an unacceptable, antisocial way. It could only have been that she had lost control of herself. As noted, this episode resulted in criminal charges being laid against the mother. Another consequence is that she has been barred from attending the girls’ school.
This incident is of great concern for a number of reasons. The sight of Ms L was obviously sufficient to incite such rage in the mother that she was unable to restrain herself from behaving in a way that was completely unacceptable on any level. In my view, this incident thus shows a continuation of the mother’s reactive, destructive behaviour.
It is very concerning that the mother behaved this way at the girls’ school only six days after the trial had completed and judgment had been reserved. Any reasonable view would be that such behaviour may be brought to the attention of the court and could perhaps have consequences adverse to the mother’s position.
It is particularly concerning that the mother behaved in this way at the school, having heard the evidence of Dr W on 20 November 2008. Dr W said: “I would favour her being able to attend the school in the morning”. Any reasonable view would be that this behaviour would have the potential to close that option.
Unfortunately, it seems that Dr W has more accurately assessed the mother’s current condition than did Dr R. I must conclude that she is, as yet, unable to contain the features of her personality which were identified as problematic by both Dr W and Dr R.
Another concern in relation to the mother, although of lesser significance, is her admitted history of substance abuse. She has drunk alcohol to excess and used marihuana for many years. I am inclined to accept her evidence that, with Dr R’s assistance, she has succeeded in moderating substantially her use of alcohol and marijuana. I am left with reservations about the extent of her use of these substances, however, because her evidence on this issue was inconsistent.
Initially the mother claimed that she has not used marihuana since June 2007. Her friend Ms LEI gave evidence, however, that she saw the mother use marijuana on 23 February 2008. Ms LEI brought the marijuana to the mother’s home after the incident with the nanny Ms A. Dr R said that he would be “concerned” if she had used marijuana on this occasion.
The mother admitted that she used marijuana during a visit to a holiday location on 15 and 16 August 2008, that is, about one week before the trial began. She described her current marihuana use as follows:
“I gave up pot full time in June 2007 but I will still partake in an occasional joint when I am with friends and there are no children around.”
The real concern about the mother’s use of alcohol and marijuana is that these substances may exacerbate her vulnerability to reactive behaviour and rages. It is difficult to assess the current level of her use of these substances, because her evidence was inconsistent and all of her time with the children has been supervised since 2007.
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 that the court thinks are relevant;
I am acutely aware that D is 14 years old. It seems likely to me that he may soon simply refuse to accept supervision of his time with his mother. No doubt the mother would actively encourage him to reject supervision and the girls to follow his example.
Regrettably, there is no reason for any confidence that the mother will refrain from exploiting the children’s increasing age to achieve her aim that they return to live with her. It seems that she has already told D that he is entitled to choose his own living arrangements now that he is 14 years old. I doubt very much that the mother is capable of restraint in this regard.
section 60CC(3)(h):           if the child is an Aboriginal child 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;
No relevant matters arise pursuant to this consideration.
section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
It seemed to me that the father is learning to adopt a more appropriate attitude to the children and the responsibilities of parenthood than has been the case historically. I base this opinion on the expert evidence of Dr W and the changes which he has made to his work practices. He has also been tenacious in his pursuit of orders that the children live with him. My impression was that he has tried to act in the children’s best interests, rather than out of any motivation to hurt or punish the mother, despite her firm belief to the contrary.
Most unfortunately, some of the pathological components of the mother’s personality impact adversely on her attitude to the children and the responsibility of parenthood. I have no doubt that she loves the children dearly and wants to do her best for them. Sadly, the difficulties to which I have already made extensive reference stand in the way of her achieving that aim.
section 60CC(3)(j): any family violence involving the child or a member of the child’s family;
In his affidavit sworn on 4 September 2007 the father referred to a number of incidents when the mother allegedly directed violence at the children. The mother either denied or downplayed these alleged incidents. I prefer the evidence of the father, particularly as D and M told Dr W about some of these incidents.
I have referred above to a number of incidents when the mother directed physical violence and/or verbal abuse at the children in the context of the primary considerations.
The father’s affidavit set out numerous alleged incidents of verbal abuse of the children by the mother. I will not recount these alleged incidents in my reasons. It is sufficient to say that I accept the father’s evidence that the children, particularly D, have made these complaints to him. It seems to me that D’s interview with Dr W in 2007 strongly suggested that the mother directed verbal abuse at him, as the father alleged.
section 60CC(3)(k): any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person
There are no current family violence orders.
section 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;
I have referred already to the disadvantages of making interim orders. It seems to me that these children require certainty, whether or not the outcome of these proceedings accords with their stated views.
Section 60CC(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) 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; and

(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and

(iii) communicating with the child;

I have referred already to the father’s past abrogation of responsibility for the children to the mother. As noted, I am satisfied that he is making genuine efforts to address these past failures.
Criticism was directed at the mother because she spent approximately seven weeks in Queensland and a further six weeks in Western Australia between December 2008 and March 2009. It was said that she has thus not availed herself of all opportunities to spend time with the children. She said, and I accept, that she finds it extremely difficult to live nearby and yet be prevented from spending time with them. I accept also that she has felt the need to seek support from her family in Western Australia. Of course, the children were with her at her parents' farm in Western Australia for part of the last Christmas school holidays.
Dr R was of the view that the trips to Western Australia were a “preservation of self” for the mother. He said that he has explored this issue in therapy with her. They have discussed whether she should be with the children in a very stressed state or first take steps to calm herself, by spending time with her family in Western Australia. The trips to Western Australia and Queensland, at the expense of time with the children, seem to me to be an illustration of the depth of the mother’s difficulties rather than a deliberate choice not to spend time with the children.

Presumption of Equal Shared Parental Responsibility

On behalf of the father it was submitted that this presumption has been rebutted, on the basis of the physical and emotional abuse of the children by their mother and her “hostile attitude” to the father and his family. Reliance was placed also on Dr W’s opinion that there “is no possibility of a working partnership emerging from this case which will be in the best interests of the children”.
When the mother was legally represented, her counsel submitted that that is “no need for an order for sole long-term parental responsibility”. I am afraid that I must disagree with that proposition. It is abundantly clear that the mother and the father can in no way cooperate as to major decisions about their children. The orders which I will make have the children spending most of their time with the father. He should thus have sole responsibility for making decisions about major long-term issues in relation to the children. My orders will require the father to consult with the mother about such issues. For that reason, I am satisfied that it would not be in the children’s best interests for their parents to have equal shared parental responsibility.
It is arguable that a finding is open that this presumption does not apply because the mother has engaged in abuse of the children and family violence. I prefer to treat the presumption as having been rebutted by evidence that it would not be in the children’s best interests for their parents to have equal shared parental responsibility. The consequences are identical, in that I am not required to consider whether the children should spend equal or substantial and significant time with each of their parents.
I will adopt the suggestion of the Independent Children’s Lawyer and not alter the statutory position regarding parental responsibility prescribed by section 61C.

Conclusion

As I said at an early stage in these reasons, a choice must be made between primary residence with a father who has been both physically and emotionally absent from the children’s lives and a mother whose pathological personality traits seriously impact on her ability to provide consistently appropriate care for them. Unfortunately, there was a wealth of evidence which satisfied me that primary residence with their mother would not be in the children’s best interests.
The father does not impress me as an ideal parent but, in my opinion, he has made substantial efforts to become a viable alternative carer for the children. In effect, he has had to respond to a crisis and learn parenting skills which he was content to overlook previously.
I have thus determined that the children should remain in the primary care of their father. I appreciate that they have expressed strong wishes to return to live with the mother. I am satisfied, however, that their stated views should not carry significant weight for the reasons identified by Dr W.
There is next the issue of whether the children’s time with their mother should be supervised and, if so, which people should act in that role. Ultimately, Dr W recommended continued supervision and I reach the same conclusion. I am unconvinced that the mother has yet reached a stage in her therapy which allows for confidence that she could contain her behaviour in an unsupervised situation. The events of 2008 and the expert opinions of Dr W lead me to this conclusion.
I anticipate that these reasons and orders will enrage the mother and lead to renewed efforts on her part to influence the children to return to her. I expect that she will be particularly vulnerable to reactive behaviour in the short-term period after the delivery of judgment. I will therefore order that supervision be carried out only by employees of Dial-An-Angel for the first six occasions. Thereafter, the supervisors will be friends and family of the mother, subject to their providing an appropriate undertaking. I will adopt the list of supervisors set out in the Minute submitted by the Independent Children’s Lawyer.
I am conscious that Dr W recommended against friends and family of the mother acting as supervisors. On the other hand, he said that orders for unsupervised time should be given serious consideration. It seems to me that both the mother and the children would be more accepting of friends and family than professional supervisors. Realistically, there is no alternative if they are to continue spending time with the maternal family in Western Australia.
I have a real concern about the length of the period of supervision. I have remarked on the artificiality of supervision of a 14 year old boy. The only way which I can see to put an end to supervision is to adopt the proposal in the Minute submitted on behalf of the father, which means that this requirement would be removed upon certification by Dr W that this change would be in the children’s best interests.

Exclusive Occupation of the Former Matrimonial Home

It seems to me that there is a real risk that the mother’s rage at the outcome of these proceedings would be exacerbated by an order that she vacate the L property. That prospect is not a concern per se but I must be mindful of the flow-on effect for the children. In my view, they would be encouraged to blame their father for their mother’s loss of the home. The task of having them come to terms with the outcome of the parenting proceedings will be difficult enough for the father, without this added complication. The fate of the former matrimonial home will await the resolution of the proceedings for settlement of property.

I certify that the preceding one hundred and thirty five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:

Date: 29 July 2009

[2009] FamCA 906

29 July 2009

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