Dimer and Dimer

[2009] FamCA 1011

FAMILY COURT OF AUSTRALIA

DIMER & DIMER [2009] FamCA 1011

FAMILY LAW – CHILDREN – With whom a child lives – The Mother seeks to have orders set aside as the Father has alienated the child

APPLICANT: Ms Dimer

RESPONDENT: Mr Dimer

FILE NUMBER: BRC 11240 of 2008

DATE DELIVERED: 1 October 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 1 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Brandon, Solicitor appearing for the Applicant Mother

SOLICITOR FOR THE APPLICANT: Evans & Company

COUNSEL FOR THE RESPONDENT: Mr Pellandine, Solicitor appearing for the Respondent Father

SOLICITOR FOR THE RESPONDENT: Jensens Solicitors & Attorneys

Orders

IT IS ORDERED THAT:

1. Pursuant to Section 62G of the Family Law Act 1975 a Family Report is to be prepared by a Family Report writer.

2. Within two (2) days of today’s date the Father is to nominate three (3) Report Writers to the Mother’s legal representatives and within two (2) days thereafter the Mother is to nominate a Report Writer to prepare the Family Report.

3. The parties shall attend and ensure the children, R born … September 1996 and P born … August 1998, attend all necessary appointments for the preparation of the Family Report.

4. The parties are to share the cost equally of the Family Report.

5. The parties’ legal representatives are authorised to provide material from the Court file to the Report Writer for preparation of the Family Report.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The child, R to continue to reside with the Father.

2. The child, R to continue attending school at V School.

3. The child, R spend time with the Mother during Term 4 of 2009 on four (4) weekends in Term 4 being the first, third, fifth and seventh weekends of the school term from Friday after school to Sunday afternoon.

4. That the child, P spend time with the Father during Term 4 of 2009 on four (4) weekends in Term 4 being the second, fourth, sixth and eighth weekends of the school term from Friday after school to Sunday afternoon.

5. The Father transport the children to B and the Mother transport the children to M unless otherwise agreed.

IT IS FURTHER ORDERED THAT:

1. The proceedings be adjourned to the Judicial Duty List at 10.00 am on
   7 December 2009 at the Brisbane Registry of the Family Court, or such other date as the parties may mutually seek.

2. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

RECOMMENDATION:

The Report Writer to include the parties’ eldest daughter S in the process for the preparation of the Family Report.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11240 of 2008

MS DIMER

Applicant

And

MR DIMER

Respondent

REASONS FOR JUDGMENT

1. The parties are the parents of three children, S, aged 21; R, aged 13; and P, aged 11.  Consent orders on children’s issues were entered into by the parties on 21 May this year.  Those orders provide that the children live with the parties in an equal shared care arrangement by agreement, but failing agreement, then pursuant to the terms set out in paragraphs 2 and 3.  Paragraph 2 provided for the children during school time to live with the father in week 1 from the conclusion of school Wednesday until the commencement of school Thursday, and from the conclusion of school Friday until the commencement of school Monday, and then in week 2 of a two-week cycle, from the conclusion of school Wednesday until the commencement of school Thursday, and from the conclusion of school Friday until 9 am Sunday.  The commencement of week 1 of the cycle was to be week 1 of each school term in even-numbered years and week 2 in odd-numbered years.  The school holiday periods were to be shared, and the children were to live with their mother at all other times.  Provisions for communication by telephone.  Paragraph 6 provided that R shall forthwith commence his enrolment at S High School at B, and the parties will do everything necessary to facilitate that, and P was to be enrolled at J Primary School and the parties were to secure her enrolment at that establishment.  There were various other orders, in particular, orders resolving property issues between the parties.

2. The parties had separated, I am informed, in August of 2008.  Prior to that they had operated a business together and resided in the M area.  At some point in time, I assume around separation, the mother relocated to the B area.  There were problems with having R change school from the college that he attended being V School up to S School.  In short, the child refused to attend S School.  The matter was brought urgently before Jordan J, and his Honour made orders on an interim basis, that for term 3 of  2009 R return to V School, and that the child reside with the father until term 3, and various other orders, but primarily the matter was then adjourned through until today’s date.

3. The mother brings this application by way of an amended application filed on 24 September.  Her argument is that the father has alienated the child, R, from her affection, and to that end she seeks an order that R live with her, and the child spend time with his father only on the basis of “as agreed between the parents”.  Given the present level of disputation, I have grave doubts whether the parties could agree on anything in the present environment.

4. I was referred to two letters, also referred to as reports, which had been prepared in this matter.  The first letter appears to be dated 8 July 2009, and its author appears to be KA, a social worker with the M Youth and Mental Health.  It appears to be co-authored by Ms W from the T Youth and Family Mental Health.  It is addressed to the parties.

5. I will refer in some detail to that letter, that R was initially referred by his mother, and allocated for assessment with the T Youth and Family Mental Health team.  The mother was seeking mental health assistance for her son who was reportedly presenting with school refusal and anxiety and depression, with some possible behaviours suggesting emerging psychosis due to his manic and odd behaviours.

6. The author observes: 

   “During the interview [R] presented somewhat disengaged, hiding his face under a hood, avoiding direct eye contact and replying to questions asked by shrugging his shoulders or replying, “I don’t know.”  [R] engaged more when asked about his hobbies, such as Internet activities and his interest in music.  [R] displayed significant difficulties in communication, as well as difficulties in reading other people’s emotions.  This became most apparent when [the father] started to cry, whilst recalling the emotional impact of the separation on him.  [R] was unable to identify his father’s sadness.  It was reported to me that [R] has had previous occasions of school refusal due to him being unable to deal with the chaos in school environments at the time – that was primary school.  Some of the developmental history provided by [the father], particularly [R’s] need for structures and routines and his distress and confusion during times of changes in home and school environments, led me wanting to investigate the possibility of mild autistic traits or Asperger’s syndrome, which was rejected by [the father].  It appeared that [the father’s] main objective was [R’s] return to education, as well as finalising legal procedures between him and [the mother], not wishing to further engage in psychiatric assessments.”

7. In the penultimate paragraph of that letter the author notes:

   “It’s not the role of Youth and Family Mental Health Services to interfere with Family Law Court matters, nor are we able to make decisions for parents regarding choices for their children concerning their education, accommodation, access visits, etcetera.  However, it is noted that [R] clearly expressed his preference to be attending his former school, and his wish to be reunited with his friends, stating that his current refusal to attend education would stop immediately if he was allowed to return to his old school.”

8. There was a further report, probably a letter is a better description, from Assistant Professor F who is the clinical director of the Child and Adolescent Mental Health Service.  I proceed on the basis that Dr F is a psychiatrist, appropriately qualified, and he is writing to Ms W, a psychologist with the T Youth and Family team.  The letter is dated 25 August 2009 and he observes in the fourth paragraph: 

   “The main diagnostic question is whether [R] is socially withdrawn due to an autistic spectrum disorder such as Asperger’s syndrome, Asperger’s disorder, or whether he is simply trapped in his parents’ bitter dispute.  It has been difficult to resolve this, although there appears to have been excessive intrusion of his parents’ conflict into [R’s] life and at my first meeting with [R’s] father, he repeatedly told me it was up to [R] whether or not he chose to respect court orders regarding custody and schooling.”

9. He says:

   “At interview on 25 August 2009 there was 10 minutes allocated for [R’s] parents, with the rest of the session reserved for [R].  [R] and his father arrived 15 minutes late, so I met in the initial period with his mother, who presented in a calm and appropriate way, but expressed sadness that [R] will no longer talk to her or spend time with her.” 

10. He goes on to say that:

    “When [R] and his father arrived, his father was initially angry that I would not let him on [R’s] session, and I explained that this standard practice in child and adolescent psychiatry, especially as I had previously met with his parents.”

11. He observes that:

    “The child showed no signs of an autistic spectrum disorder, for example, Asperger’s syndrome, or any other mental disorder, but spoke disrespectfully and negatively of his mother and defended his right to choose where to live and attend school.”

12. The author says:

    “I then invited his father to join us, and he embarked upon such a tirade of criticisms of being excluded from the interview, of wanting to speak with my superiors, of my being aligned with his mother, that staff in the next room telephoned to see whether security needed to be called.  [R] was in the room throughout this period and exposed to his father’s negative comments about his mother, as well as of myself.”

13. Under the heading Findings, he says:

    “[R] is clearly an intelligent boy who does not have a mental illness.  It appears increasingly clear, however, that parental alienation has developed, perpetuated by his father’s lack of inhibitions in criticising his mother, and those people he feels are aligned with her, in front of [R].”

14. On the strength of that report or letter, the mother seeks that the consent orders made as recently as May be set aside, and the child live with her.  The father’s response document seeks orders that the child live with him during term 4 of 2009, the child continue to attend V School; P live with the mother, and the children are together each weekend with spending half of the weekends, alternate weekends, together in the father’s household and the other weekends in the mother’s household.  He proposes that the parents share the transport arrangements.

15. The matter is complex, only in the sense of identifying the dynamics in the relationship of the child, R, with his mother.  The mother says the child has been dysfunctional and difficult because of the father’s behaviour.  He has actually sought to alienate the child from her.  The father denies these allegations.  The father says the mother is alienated from her 21 year old daughter.  Looking at the allegations as they are placed before me, I do not place any weight on the fact that the father cried at one stage.  According to the first letter that I have referred to, there was no evidence of any impact on the child as a result of the father doing this.  It is hardly evidence of alienation that a parent should cry when reflecting on highly emotional matters.

16. The father’s engaging in a tirade of abuse about the mother in the presence of Dr F and the child himself is a worry.  It is singularly inappropriate, stupid behaviour.  The mother’s affidavit of 16 July details her observations of some of R’s behaviour.  She says, paragraph 18, and I intend to read paragraphs 18 down to 26:

    “As deposed, [R] ought to have commenced his first day at [S School] on 18 May 2009.” 

17. Paragraph 19:

    “He didn’t attend.  Rather, he refused and behaved very poorly.  He cut his uniform up with a knife and locked himself in his room.  The father was present at the time, but at no stage did he tell [R] that he was to attend school or that his behaviour was not acceptable.”

18. Paragraph 20:

    “Both the father and I left and delivered [P] to [J School] for her first day.  We then went and met with the year 7 coordinator at [S School].  It was suggested by the year co-ordinator that [R] attends in plainclothes and only for a short period, to acquaint himself with the co-ordinator and possibly others.”

19. Paragraph 21:

    “Armed with this suggestion the father and I returned to my residence.  The father put the suggestion to [R], but he refused.  I then tried to talk to [R], but he refused to even acknowledge me.  This was at or around the time that [R] commenced his anti-social behaviour towards me, namely his outright refusal to acknowledge my existence.”

20. Paragraph 23:

    “The days which followed resulted in no further success in trying to have [R] attend school.  With the assistance of my father, we were able to force [R] into the car so as to attend a meeting with the year 7 coordinator.  [R] commenced banging his head against the window and thrashing his arms and legs out of control.  We did not push the issue, and allowed him to alight from the vehicle and go back into my parents’ residence.”

21. Paragraph 24:

    “[R] continued to not speak to me or even acknowledge that I was present.  He was communicating with my father, and hence my parents’ involvement.”

22. Paragraph 25:

    “When we arrived at my parents’ residence and [R] exited the car, he had the appearance of a person in a psychotic state.  He was pacing and agitated and grabbed knives from the kitchen.  We were able to retrieve these from him.  On 29 May 2009 my parents visited [R] at my house.  [R] still had not attended school.  I had attempted to get him to school.  However, he had vomited several times in succession.  I was concerned for him.  My mother, who was a social worker, and had many years of experience in the mental health field, felt he was so bad he needed to be hospitalised.”

23. The child’s behaviour cannot be attributable in any way, shape or form to the tirade by the father in the presence of Dr F, as the child’s behaviour was being exhibited in May and that incident did not occur until late August.  The court is being asked to speculate that the father’s behaviour is indicative of what one assumes to be alienation when the father is spending time with the child, not subject to scrutiny by others.

24. I have read the material.  I do not know what the explanation is, but I appreciate there may be many explanations for R’s extraordinary behaviour.  He may be angry at being required to change schools without being given the dignity of being consulted about what his wishes were.  He may be really angry that without his agreement his parents go off to court and enter into orders requiring him to change schools.  It may be he feels sorry for his father and has decided to align himself with his father’s cause.  Children aligning themselves with one parent or the other at separation is not an infrequent occurrence.  It may be that children, and particularly R, is taking a cue from his older sister, S, who it appears is alienated from her mother.  There does not appear to be any suggestion forthcoming there that the father has been actively involved in indoctrinating S to take that approach.  It may be the father has directly or indirectly, deliberately or inadvertently engaged in conduct, the effect of which is to alienate the child and to destroy his relationship with his mother. 

25. The father asserts that the mother was alienated from her own mother.  Allegations go backwards and forwards.  The mother says that the father was a heavy user of cannabis in the United States, and he only ceased when he turned 50 years of age, which was about five years ago.  All I can observe at this point in time is that the waters are very muddied, and appear to be getting murkier rather than clearer.  It is not a leap of logic that I am prepared to make, that the only explanation for R’s behaviour is as a result of parental alienation.  I note that there is a great deal of speculation by the professionals in the field as to whether there is such a thing as parental alienation.  Certainly, many attempts are made by psychologists, psychiatrists and social workers to use other forms of expression.  I refrain from making any specific finding.

26. The legal representative for the mother submitted that there is a substantial risk of ongoing decline in the relationship between the mother and child, unless drastic action is taken immediately.  He suggested the only solution was to remove the child from the father’s toxic environment and place the child with his mother and order the child to go back to S School.

27. My experience tells me that there is a high degree of likelihood with a 13 year old boy with a strong personality who has engaged in the sort of behaviour described, the only impact of such an order would be he would run away from the mother’s residence; he would, at the very least, refuse to attend school, as he did back in May.  It amounts to emotional abuse to run the risk of putting the child through that sort of torment and I am not prepared to do it.  Therefore, I am not prepared to accede to the orders sought by the mother in her application of 24 September at this point in time on the evidence available.

28. The parties are agreed on one thing, and that is the need for a detailed family report.  In that regard, I agree with them.  However, the parties cannot agree on who should prepare the report.  The mother puts forward Ms C, a report writer who practises in the Gold Coast region.  The father is opposed to the appointment of Ms C.  The father had originally proposed Ms C in the earlier litigation in the Federal Magistrates Court. 

29. My initial thought was that the father’s opposition to Ms C was a knee-jerk reaction to the fact that the mother now proposed this person.  However, the legal representative for the father says that he cross-examined Ms C recently, about a month ago, and it was a heated cross-examination where he challenged her findings, and he would be concerned at some ongoing prejudice to his client if Ms C was to prepare the report. 

30. The view that I take is that where one party is significantly opposed to a particular report writer for whatever reason, it is not appropriate for that person to be designated as the report writer.  There are plenty of report writers around, plenty of good report writers.  The mother appears to advance Ms C on the basis that she can do the report expeditiously.

31. Well, what I propose to do is to make an order that the father nominate three names of report writers within two days of today’s date, to deliver those in writing to the mother’s legal representative, and within two days thereafter the mother is to select which report writer she chooses out of those three names.  I expect the father to be sensible and select somebody somewhere in the local region. 

1. I will make an order that the parties are to attend upon the report writer as directed, and to ensure the children attend.  It would be my recommendation, although I do not purport to tell report writers how to go about the methodology of preparing their reports, that S should be included, to find out what has gone wrong in the dynamics there.  I will make an order the parties are to share the cost equally of the report writer. 

2. The parties respectively contended they were not opposed to the appointment of an independent children’s lawyer, but they did not want that appointment to in any way delay the resolution of this matter on the outstanding issues.  I propose not to appoint an independent children’s lawyer at this point in time.  The family report may resolve the matter one way or the other on this primary issue.  I can say that I largely adopt the written submissions by the father’s legal representative on the primary issue.  Jordan J’s orders were until further order the child was to attend V School.  I will make an order in those terms as well.  It is only for term 3.  I will just put the child, R, is to continue to attend V School until further order.  The child is to reside with the father until further order.  I will adopt the father’s proposals that as per paragraph 3 and 5, in other words, it has the benefit of the children being together every weekend.  It also provides for the child to spend each alternate weekend with his mother. 

3. I have seen many cases where attempts have been made to turn children against one parent.  Here, where the father is proposing, and seems to be confident that the child will continue to see his mother, it is a far cry from many cases of alienation, certainly where those allegations have been raised.

4. I will make an order that the report writer is at liberty to obtain material from the court file, or it may be supplied by the legal representatives.  The parties are to ensure that the report writer is appropriately qualified.  It does not have to be a reg 7 counsellor, but somebody who is appropriately qualified.  The alternative is to send both the parents off for a psychiatric assessment, but we will have to see what the outcome – there may be a recommendation to that effect from the report writer, I do not know, but we will cross that bridge when we come to it.

RECORDED:   NOT TRANSCRIBED

1. The matter is adjourned before myself, 10 am on 7 December, or such other date as the parties may mutually seek.  So you have got a default date, but if it comes out earlier or comes later, just approach Registrar Coutts.  My associate will liaise with her, and the matter can – we will vacate that date if the report is not going to be available, or give you an earlier date if the report is available earlier. 

RECORDED:  NOT TRANSCRIBED

1. I will leave order 6 as is.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  1 October 2009