Dixon and Dixon
[2014] FCCA 2014
•11 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIXON & DIXON | [2014] FCCA 2014 |
| Catchwords: FAMILY LAW – Parenting – consideration of least worst alternative for parenting orders. |
| Legislation: Family Law Act 1975, ss.60B, 60CC |
| Applicant: | MS DIXON |
| Respondent: | MR DIXON |
| File Number: | PAC 6092 of 2009 |
| Judgment of: | Judge Dunkley |
| Hearing dates: | 28, 29, 30 April & 9 May 2014 |
| Date of Last Submission: | 9 May 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 11 September 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Maddox |
| Solicitors for the Applicant: | Dignan & Hanrahan Solicitors & Attorneys |
| Counsel for the Respondent: | Mr Cook |
| Solicitors for the Respondent: | Dribbus Kovacevic Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms Lawson |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW Nowra Family Law |
ORDERS
All prior parenting orders are discharged.
The mother shall have sole parental responsibility for the children X born (omitted) 2001, Y born (omitted) 2004 and Z born (omitted) 2005.
The children shall live with the mother.
Remove all outstanding Applications and Responses from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Dixon & Dixon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 6092 of 2009
| MS DIXON |
Applicant
And
| MR DIXON |
Respondent
REASONS FOR JUDGMENT
The future for the children X, born (omitted) 2001 (hereinafter “X”), Y, born (omitted) 2004 (hereinafter “Y”), and Z, born (omitted) 2005 (hereinafter “Z”) is not bright.
The children will either lose a relationship with their father, on the mother’s application; or Y and Z will lose a ‘live with’ relationship with their mother and sister, on the father’s application.
It is clear that there will be significant psychological damage for the children, whatever the outcome.
In essence, I have to decide which of these outcomes will be least psychologically damaging for the children.
To understand how it has come to this, it is necessary to understand this family’s history, and the beliefs and behaviours of the parents, post separation.
The parties’ relationship started to unravel in 2008. It was a year long unravelling process that did not furnish until mid-2009.
By mid-2009, when the parents’ relationship ended, the mother was of the view that the children should spend weekend time and holiday time with the father, and the children would live with her. The father was accepting of this arrangement.
There was nothing of such concern in the mother’s mind about the father’s behaviour during the marriage that for her required his time with the children to be supervised or occurring only in daytime.
By mid-2010, this was changing and by 2011, the mother’s concerns were so heightened that in her mind, either supervised time or preferably spending no time with the father was necessary in order to protect the children.
Although currently the mother’s formal case is that the father’s time should be supervised, I am of the view that she only proposes this out of the fear that if she does not offer this, for her the unimaginable may occur, being that the Court may order the children to live with the father.
The father for his part, believes the mother will never permit him to have a relationship with the children, and will do all that she can to thwart any orders that might be made for him to spend time with the children. On the evidence, a not unreasonable belief.
During the course of the hearing, the father has come to the conclusion that X is so aligned with her mother that it is impossible to conceive she would abide by any order to live with him. Hence he does not seek a live with or time with order for X. He seeks a live with order for Y and Z, recognising that thereby on his proposal, the siblings would be split.
The mother views this change in the father’s position with more suspicion, thinking it indicative of his intention to abuse the children.
The mother already has an implacable, but not rational (on the facts) belief that the father shot Z with a gun injuring Z’s leg.
Documents relied upon
The documents relied on by the parties at the final hearing were as follows:
a)Affidavits of Ms Dixon, filed 29 September 2011, 23 December 2011, 8 May 2013, and 23 April 2014
b)Affidavit of Ms K, filed 29 September 2011
c)Notice of Child Abuse, Family Violence, or Risk of Family Violence (Form 4) filed 29 September 2011
d)Affidavits of Mr Dixon filed 20 March 2012, 28 June 2013, and 23 April 2014
e)Affidavit of Ms K filed 23 April 2014
f)Affidavit of Ms S filed 23 April 2014
g)Family Report by Dr C dated 29 September 2012
Ms W filed 23 April 2014 was read at the hearing, but she was not required for cross-examination.
A number of documents became exhibits during the course of the hearing.
Each party including the Independent Children’s Lawyer handed to the Court proposed minutes of order at various times during the final hearing.
Issues to be determined
The issues to be determined are as follows:-
a)What order for parental responsibility is to be made;
b)With whom are the children to live; and
c)What time, if any, and subject to what conditions, if any, are the children to spend time with the parent with whom they do not live.
Law
The law with respect to parenting cases is well settled. In summary, parenting orders made by the Court are to be informed by the objections in s.60B of the Family Law Act 1975; parenting orders must have as their paramount consideration the best interest of the children; parenting orders must as well as being in the best interest of the children be reasonably practicable. In deciding what is in the children’s best interest the evidence in the case must be analysed by considering the factors in s.60CC.
Chronology
(omitted) 1978
The father, Mr Dixon is born
(omitted) 1978
The mother, Ms Dixon is born
(omitted) 1999
The parties commence living together
(omitted) 2000
The parties marry
(omitted) 2001
X is born
(omitted) 2004
Y is born
(omitted) 2005
Z is born
2 June 2009
The parties separate
The children live with the mother, and spend time with the father
August 2009
The father commences a relationship with Ms S
Mid-2010
X starts spending less time with the father. Her time is reduced to approximately one weekend every 1-2 months
October 2010
Z diagnosed with Obsessive Compulsive Disorder (hereinafter “OCD”)
Early 2011
The mother says Z begins to exhibit “sexualised behaviour”
March 2011
Y and Z’s time with the father reduces in frequency to approximately every 4th weekend
5 August 2011
The children cease spending time with the father
14 August 2011
The father’s employment with (employer omitted) is terminated
19 August 2011
The mother says Z tells her “Dad wants to kill you”
24 August 2011
The mother says Z tells her that the father has a gun and “he shot me with it” and shows the mother a mark on his ankle
Late August 2011
The father is served with a police application for an Apprehended Domestic Violence Order (hereinafter “ADVO”)
September 2011
The mother removes the children from their Public School and enrols them into a new school, before returning them some weeks later to their original school
29 September 2011
The mother files an Initiating Application
22 November 2011
The children are interviewed by Joint Investigation Response Team
19 December 2011
The ADVO application is dismissed by the Local Court
22 March 2012
Interim Orders are made for the father to have supervised time with the children at (omitted) Children's Contact Centre at (omitted)
25 May 2012
(omitted) Children's Contact Centre writes to the parties advising supervised contact service cannot be provided
September 2012
The father’s employment with (employer omitted) is terminated
13 July – November 2013
The father spends time with the children supervised by (omitted) Children's Contact Service on six occasions, with three of those occasions being less than two minutes
28 April 2014
Final hearing commences in the Federal Circuit Court at Parramatta
None of the parties led evidence disputing the above chronology of events.
Evidence
Mother
The mother has Department of Housing accommodation for herself and the children. At the time of the final hearing she works part time five days a week during school hours.
She says she is in good health. She says X has a diagnosis of anxiety and depression. She says Z is diagnosed to have Oppositional Defiance Disorder. She says Y is diagnosed with anxiety and ADHD. All the children attend a psychologist, there was a social worker involved with the family, but this social worker ceased visiting in July 2013.
In 2011 she changed the children’s school attendance for several weeks to a new school it seems to hide the children from the father citing family violence concerns. The children were aware of the reason for changing schools. The children were not happy to change schools. After several weeks they returned to their former schools. A hugely disruptive situation for all.
She says she was primarily responsible for the care of the children during the parties’ relationship receiving little assistance from the father. At that time she was working a night shift.
After the parties separation she says the children became resistant to spending time with the father, with X ceasing time with the father in mid-2010, and Y and Z’s time reducing in frequency at this time and ceasing in August 2011.
In paragraphs 37, 38 and 39 of her Affidavit sworn 27 September 2011 the mother says:
37. Approximately two weeks later, I had a further conversation with Z who said words to the following effect. Z said,
Mum remember that secret I told you.
I said,
Yes
Z said,
I have more to tell you.
38. Z then leant up close to me and whispered in my ear. He said words to the effect,
Dad has got a gun and he shot me with it.
I said,
Oh!
39. I was shocked by what he had said. Y then said,
Oh when we went to the football that night, Dad was drinking beer whilst he was driving the car.
I said,
What?
Y said,
Yep, they had beer in between their legs and they had their seat belts off. Dad said to us, the next time I see your Mum I’m going to stab her.
Y went on to say,
I saw the gun
I said,
Was there a real bullet in it or was it just pretend? Is it metal?
Z said,
It’s real.
Y said,
It’s a long gun.
In paragraphs 41 and 42 of her Affidavit sworn 27 September 2011 the mother says:
41. Z and Y both then said words to effect,
We were pushed into a wooden box and it was shut and we could not breathe.
I said,
You’re a brave boy and you’ve done nothing wrong.
Z said,
Mum there is one more thing I’ve got to show you.
42. Z showed me a dot on his left foot near his ankle. It was a pink/red colour and circular in shape, about the size of a five cent piece. Z said,
That’s where Dad shot me in the leg with the gun.
I said,
Do you know why he did that?
he said,
Because he wants to hurt you.
A report was made to the Department of Community Services (DOCS) and they investigated and interviewed the children and applied for an Apprehended Domestic Violence Order. No charges were laid.
The mother also particularises a number of incidents of family violence she was subject to by the father during their relationship.
The mother believes that the (omitted) Contact Centre would not provide supervision services for the children because none of the children wanted to see their father.
The mother says she has observed what she considers is an improvement in the children’s behaviour after they stopped spending time with their father. She puts this down to them not spending time with their father.
She says after being interviewed by Dr C and being observed with their father as part of the process for preparation of the Family Report the children’s behaviours deteriorated and about a week later Y jumped out of his bedroom window and ran away and later said to her:
Why did the doctor force us to see him? It’s your fault. You should have told him again we said we didn’t want to.
X is in year 7 at High School. Y is in year 5 and Z is in year 3, both in Primary School.
As a result of interim orders (omitted) Children's Contact Service was contracted to supervise visits between the children and their father. In paragraphs 8 and 9 of the her Affidavit sworn 22 April 2014 the mother says:
8. On 16 November 2013, I attended the park and met the child supervisor. The children went with her. X refused outright to cross the road with her to go and see the Respondent Father. As a result X did not spend time with the Respondent Father. Y and Z crossed the road with the child supervisor but were returned to me about a minute later as they had apparently refused to stay with the Respondent Father.
9. On that date, the child supervisor said words to me to the effect of:
Well that is it, we are not going to come up here anymore. The visits are stopped.
During the course of her cross examination the mother was certain X was not influencing Z and Y to not want to spend time with the father.
She confirmed Z and Y would consult their psychologist after each time they were to see their father so that their feelings could be “checked out”. She thinks they have told the psychologists they will run away from their father.
When cross examined the mother said it took Z a long time to disclose about being shot. When cross examined about the reliability of the disclosure she answered:
My children don’t lie. I accept verbatim what the children tell me.
She said the disclosure came a year after the incident. She asked the children “was it a pretend or real gun”. Z replied “a real gun, a real bullet”, she then said “it remains my belief today; it was a real gun and a real bullet.
During cross examination the mother said as a result of her notifications to the police about the boys saying their father was going to kill her, shoot her and stab her the police provided a safe house for them. Prior to moving she told the children “we are moving house to keep you safe from your father and to keep me safe from him”.
She conceded the father never had guns during their marriage. She agreed the only evidence about guns was the boys’ disclosure.
The mother was insistent that both Dr C and the supervisor from (omitted) Children's Contact Service were wrong to conclude the boys were pleased to see their father.
The mother rejects Dr C’s opinion that she was for a long time emotionally hurt by the ending of her marriage with the father. She accepts she has a low opinion of the father, but says she “keeps this to myself”. The mother was unable to explain how she kept her feelings about the father from the children given her statement as set out in paragraph 40 hereof.
The mother doesn’t believe supervised time is best for the children but sees it as a compromise that manages what she sees as the risk to the children of spending time with the father. Recently when the boys came back from a period supervised by (omitted) Contact Services with the father she says she would bend down hug them and say “I am so proud of you”. She would not send them back.
In answering questions during cross examination from the Independent Children’s Lawyer about her view of what she described as Z’s sexualised behaviour she said:
My explanation for Z’s behaviour was that the father was grooming Z for his sexual purposes or to be a sexual deviate.
She concluded the father was either engaging in sexual activity in front of Z or showing him pornography.
She further said:
It is a possibility in my mind that the father has been touching Z. I am not sure, I don’t discount the possibility it is a deep concern to me.
She said to Z:
Where have you been learning this from, it is not appropriate to do this to your mother or sister.
She said Z replied “Dad”.
In answering a question posed by the Independent Children’s Lawyer during cross examination about the change in the father’s application to only seek orders relevant to Z and Y the mother said:
I don’t understand why he only wants the boys and not X. It just reinforces my view he would abuse them. I believe he is sexually motivated to groom the boys and abuse them.
Ms K
She is the maternal grandmother. She gave evidence corroborating the disclosure of Z as to threats of family violence Z said the father made. She also signed a written undertaking to be a supervisor of the children’s time with the father. That undertaking became Exhibit “J”.
Father
He is now working as a (occupation omitted) about four days a week. He was previously working as a (occupation omitted) for (employer omitted) and also (employer omitted) but was effectively terminated from his employment with each for reasons of inappropriate interactions with subordinates in the workplace.
The father believes that his time with the children that occurred by agreement post separation started to become problematic in November 2009 when his relationship with his current partner Ms S started. He thinks the mother became jealous and as a consequence problems in spending time with the children started.
On 28 August 2011 police served an Application for Apprehended Family Violence Order on him, particularising that he had shot Z.
He says he was horrified. He says he has never owned a gun. He says other particulars in the application were extracts from X’s diary “I know that he (Daddy) wants to hurt us and kill us”.
He says after the mother was cross examined at that the AVO hearing the application was dismissed on 19 December 2011. He understands the children came to the Court.
In about May 2013 he says his relationship with Ms S came to an end. The relationship resumed in late July 2013, they do not live together full time but spend three to four nights together at her home. Ms S has a daughter A. She also lives with her mother.
He denies showing or exposing Z to sexual acts or material.
If the boys were to come to live with him he says he knows they would need time to adjust and would need extensive psychological and counselling assistance. He had undertaken little investigation about how or where he would source such assistance. What investigations be did occurred recently prior to the hearing.
He acknowledges Z and Y would miss X“terribly”. He sees her as having too much influence over them. He acknowledges given her age she would never stay living with him and he could not compel her to.
If Z and Y are to live with him he initially said he would live with Ms S at (omitted) and would enrol the boys at (omitted) Primary School. Ms S owns a six bedroom home, in which her two daughters B aged 22 and A aged 13 live as does her 61 year old mother, Ms L. When cross examined further he conceded if it were better he would stay for a time living with his father.
During his cross examination he was asked to read documents produced by New South Wales Police as to Z’s interview. He said Z’s account was completely made up as to threats made and about shooting Z.
He said at one time when visiting in 2009 Z and Y were playing with a large cardboard box. There was no other incident he could recall that would approximate the boys being locked in a box and unable to breathe.
In answering a question posed by Counsel for the mother he said:
I believe Ms Dixon hates me so much she told the boys to lie. Over time I believe they have been so groomed by Ms Dixon to lie about me, they don’t know what is a lie or the truth.
The father said his alcohol consumption has remained consistent over time, being several drinks at a time several times a week.
Ms S
She is the father’s partner.
She works as a (occupation omitted) from Monday to Friday 6.30am to 3pm.
She denied ever having hit Z in the head.
Since August 2011 she has only seen Z and Y once – at the interview for the preparation of Dr C’s report.
In paragraph 24 of her Affidavit sworn 23 April 2014 she says:
On 7 and 8 August 2011, the boys spent part of the weekend playing with toy guns in the garage shooting at a target that had come with the guns. The boys were not allowed to shoot at each other. Some of the guns looked similar to rifles and handguns and had soft rubber bullets. While they were playing Z hurt his finger on the pool table.
In paragraph 25 of the same Affidavit she says:
During this weekend the boys and my daughter A also played for hours in a large cardboard box that was still in the back yard from a new outdoor dining setting that I had purchased. The children played in and with the box and made a cubby house out of it. At one point during their play, I heard A and Y calling out “Z, get off the box! Let us out!” Z was sitting on top of the opening of the box. Mr Dixon had to go up to the box and get Z off the box because he refused to let A and Y out. Z became cranky and kept jumping up on top of the box. Mr Dixon sent Z to his room for time out. After his time out, Z went back and continued to play with A and Y in the box. That evening the children said “can we please sleep out in the lounge room without the box. Throughout the weekend the boys enjoyed their time with us. This was the last time the boys spent overnight time with us.
Ms W
She is the paternal grandmother.
She swore an Affidavit on 23 April 2014.
She was not required for cross examination.
Dr C
He is a child and adolescent psychiatrist.
Pursuant to an Order dated 13 August 2012 he prepared a Family Report. That Report became Exhibit “H”.
In lines 202 through to 227 of the report Dr C summarises the account to him of the mother’s allegations of family violence.
Commencing at line 271 of the Report, Dr C records the mother’s allegations of the father grooming Z as follows:
He was grooming Z to be like him and abuse girls. Z is oppositional defiant and ADHD. He is manipulative like his father. He was teaching the boys how to be horrible to women.
Commencing at line 290, Dr C, with respect to X’s relationship with her father, recorded:
I asked her about her father. She said she doesn’t get on well with him. She didn’t know why. “I can’t remember”. … then she said she didn’t like her father. “He was hitting me. I don’t know”. I asked her to indicate what was the best thing she had done with her father. She said “nothing at all, nothing really”. I asked about her wishes. She said “never see him again, I’d rather die”.
Commencing at line 319 Dr C records Y’s wishes as:
I asked him if he had any special wishes. He said “never see him [dad] again. I want to stay with mum my whole life”.
Starting at line 328 of the Report, Dr C records a conversation with Z.
He said “he’s a little bit mean. He hit me one day. He hurts me. He shot me in the foot with a gun on the top of my ankle. It hurt”. He said he had a bruise. He said he enjoyed playing games with his father. He also remembered being in a box. He said he was put in the box. I asked if he could tell me more about the box. He said he couldn’t breathe in the box. He couldn’t tell me more about the box and what distressed him about the box.
Starting at line 488 of the Report Dr C records some observations from the interview that he conducted between the children and the father as follows:
After seeing the three children I decided to interview the father with the children. The three children looked a little shocked when the father was brought into the room. Mr Dixon said he hadn’t seen the children for almost a year. The two boys were very pleased to see their father. X looked extremely uncomfortable and awkward although I believe from her calm reaction she was also pleased to see Mr Dixon.
Dr C commencing at line 532 reviews the aftermath of the joint interview and records:
The two boys were quite happy until the father left the office. Then the two boys looked a little shocked about what had just happened. Y immediately jumped up as if it encourage Z to be upset. X also jumped up and she sat on Z’s lap as if she should be upset. Y was also sitting on Z’s lap. Y said “I don’t want to see him again”. X said “I don’t want to see him. I would die”. Z echoed X’s statement “I’d rather die”. Y said “I never want to see him again”. It was clear that the three children had been primed to reject the father and had been a little taken aback by the situation and their response to encourage Z to be tearful was inappropriate and particularly by X was a parental response as if she was acting on behalf of how her mother would have acted.
Dr C then records the interaction between the mother, the maternal grandmother and the children after the children’s interview with the father and commencing at line 547 records.
The mother was hyperaware that the children looked a little tearful. She grabbed Z dramatically as if to want to find out what was wrong. I explained that the three children had each been interviewed with the father. Ms Dixon looked shocked. She said “I’m so sorry, I didn’t think you had to do that”. She clearly indicated that she disapproved of the children seeing the father. Z was trying to reassure his mother by saying “it’s not your fault; it’s not your fault”.
Dr C formed opinions and began the recording of his opinions at line 599 of his report.
Commencing at line 631 Dr C writes:
After they separated there was an agreement for him to see the children. However, she became increasingly anxious and worried. The first year in 2009 didn’t appear to be a major problem. However in 2010 which possibly coincided with his relationship with Ms S and behavioural difficulties in Z that she began to interpret Z’s behaviour. She interpreted Z’s oppositional behaviour and difficulty as potentially Mr Dixon grooming him to treat women that same way that she felt that Mr Dixon had treated her. This seemed to me to be an enormous emotional projection of her own unresolved issues about Mr Dixon.
At line 644 of the Report Dr C records:
I believe it’s quite possible that X was responding to the messages from the mother that she would prefer her to stay with her and not go to contact.
At line 657 of the Report Dr C writes:
It’s possible that the children were being physically abused by the father and that the reports of the children represented significant abuse by the father. However, I believe it was probably more likely that the questioning by the mother has increased the anxiety in the children and has illicited response from them in response.
At line 666 Dr C records:
She [the mother] also accepted at face value, comments from Z that the father was planning to kill them. She doesn’t appear to have been able to use any mature reasoning or hasn’t wanted to be able to contain the comments from the children. I believe she has most likely interpreted the comments of the children in a serious way.
In line 681 of the Report Dr C writes:
I form the view that the mother was a capable and competent parent. I believe the children were developing reasonably well in her care. However with respect to her ability to assess the children’s relationship with their father I believe her judgment is impaired. Unfortunately I don’t believe that she realises what potential damage she is causing the children by her inability to resolve her feelings of betrayal and her antipathy towards Mr Dixon.
At line 729 of the Report Dr C writes:
I form the view that there was no evidence that he [the father] was unacceptable risk to the children. I formed the view that he was a capable caring parent and that he could potentially take over the care of the children.
At line 774 of the Report Dr C writes:
Quite clearly the children still had a strong bond with their father, even though their statements were very negative towards the father.
Commencing at line 788 of the Report Dr C writes:
I formed the view that she [X] was functioning more like a partner of the mother and was quite parentified. Her nurturing of Z was like a parent. She was taking an adult position of rejecting her father on behalf of her mother. However I believe that she was very torn by this position. There was a significant amount of reverse parenting occurring… in essence I believe the children are caught in a loyalty bind. Their mother is their main security and support and they clearly are aligned with her and promoting her position with regard to the father. I believe that they have reflected the mother’s disdain and antipathy towards the father by verbalising for her. The choice of the children is quite clear: they could attempt to oppose their mother and support their father or support their mother and oppose their father. In essence there was no choice for them but to reject the father. I don’t believe there was any sign of the children being fearful or frightened of the father. I believe their major fear was the fear of disappointing their mother.
In line 855 of the Report Dr C writes:
I formed the view that the children were very confused. Z’s main fear was that he may be removed from the mother by the father; Y’s main fear is that he may disappoint his mother; and X is parentified and feels responsible for her mother.
At line 866 Dr C- Dr C writes:
In essence I formed the view that both parents were potentially capable caring parents. Probably the mother is the more competent of the two parents.
Starting at line 879 Dr C writes:
Should the children continue to reside with the mother and have no contact with the father I believe that in the short term they would be relieved about not being put into a situation of conflict or loyalty division. The mother would be relieved at no contact and this would confirm her position that the father was undeserving and a traitor. The children would grow up with this view that their father was an apostate and a bad person who had abused them and harmed them even though in effect I don’t believe he has been of any harm. However in the long term I believe the children would be extremely distressed and feel a great sense of loss and rejection of having no relationship with the father…this loss would predispose them to depression and anxiety later in their adolescence and impact on their ability to form relationships.
At line 895 of the Report Dr C writes:
Should there be regular substantial contact between the children and their father I believe that this would be extremely difficult for the children. This would require the mother to be able to tolerate the children being away from her. This would increase their anxiety significantly and they would feel a sense of betrayal…I therefore believe that regular substantial contact would be extremely difficult to establish.
At line 905 of the Report Dr C writes:
The next possibility is some form of identity contact. This would be difficult because this would also require the children’ to be supported by the mother to do this. The outcome would be similar to no contact.
At line 909 of the Report Dr C writes:
The next possibility is that the children reside with the father and have substantial contact with the mother. I believe the father could potentially care for the children however this would be enormously difficulty for the children to leave the mother. I believe the mother would be shocked at such an outcome however the support of Ms S with Mr Dixon may make this a viable alternative for the children.
Starting at line 921 of the Report Dr C records his recommendation which in summary is that the children reside with the mother and have gradually increasing contact with the father over a six month period leading to daytime contact. He did not explain how this recommendation fits with his opinion as set out in paragraphs 97 and 98 hereof.
At line 955 Dr C writes:
I hold grave fears for the children in this matter…with recommencement of some form of contact it is highly possible that the mother may continue to interrogate the children and illicit negative and condemning statements about the father…should there be ongoing interrogation and further unfounded abuse allegations I believe it is quite reasonable to consider a change of residence to the father… probably the main child who would be affected most by this change would be X. The children would need special psychological assistance to support such a change in residence as they would mainly be concerned about the effect on the mother.
Notwithstanding that his Report had been written nearly two years prior to the final hearing Dr C did not during the course of his cross examination resile from his views and opinions.
With respect to the views held by the children he elaborated somewhat and said that “the children’s views need to be treated cautiously”.
He elaborated and said
X is very parentified.
There are echoes in X’s behaviour with her siblings following visits that are similar to the mother’s behaviour.
With respect to X he further elaborated:
She worries a lot about her mother and cares for her mother and advocates for her. Her mother is very important for her.
Dr C said:
X is getting to an age where she is almost mature enough that it is not possible for the Court to act against her express wishes.
Dr C was of the opinion:
If the boys transfer to the father it will impact on X. She would lose her parent type role and lose her sibling role and this would be a loss for her but it may lift a burden from her.
In weighing potential outcomes Dr C said:
Both outcomes are probably equally bad that is all three children live with the mother and spend no time with the father and the boys live with the father and never see their mother or sibling.
Dr C said “it would be quite tragic to separate these three children. My recommendation is that the children stay together”.
Dr C thought if the children were to live with the father they would need twelve months of family and individual therapy.
Dr C was of the view that if the children remained living with the mother then the psychological therapy that they are receiving should stop and the mother should focus on getting help for Z with his oppositional defiance.
Determination
There is insufficient evidence to enable a conclusion on the balance of probabilities:
a)That the father was abusive of the mother in their relationship;
b)That the father shot Z with a gun;
c)That the father locked Z and Y in a box;
d)That the father is grooming Z to be either misogynistic or available for the purposes of abuse.
On the balance of probabilities I am able to conclude that:
a)The mother will not encourage a relationship between any of the children and the father;
b)The children will suffer long term psychological distress if they remain living with the mother and have no relationship with the father although in the short term they will be relieved by this outcome;
c)The children will suffer significant psychological distress if they live with the father such distress would be immediate and continue into the middle term for at least twelve months;
d)That X is so aligned with her mother that it will be impossible for her to have a relationship with her father;
The mother for her own needs has interpreted Z’s actions and behaviours as being inculcated into him by the father for the purposes of abuse.
The more rational and understandable reasons for Z’s behaviour are those postulated by Dr C that Z is exhibiting behaviours as a result of his oppositional defiance that should have caused the mother to obtain treatment for Z and not have caused her to conclude fault lay with the father. Z was never shot by the father. Nor were Z and Y ever locked in a box and unable to breathe. Z was playing with a toy gun. Z and Y were playing with and in a cardboard box. In their disclosures their imaginations ran away with them so as to please their mother. The mother should rationally have been able to think through this given Z kept the “shooting incident” to himself for twelve months.
The mother has co-opted X to meet her own needs drawing particular comfort and reinforcement from X’s support of her. This is another example of the poor attitude to the responsibilities of parenthood demonstrated by the mother.
The mother’s uncritical acceptance of Z’s assertion that he had been shot “by a real gun with a real bullet” is a further example of the mother being unable to deal appropriately with him and co-opting statements by him to suit her own needs and fulfil her own needs.
The mother since 2011 has not been able to encourage any relationship between the children and the father. Despite her proposal she will undermine supervised time, as she did in the past. She sought to portray her actions in comforting the boys as supportive. In reality she was knowingly encouraging them to have no time with their father.
She has since 2010 taken many and any opportunity to distance the children from the father.
Her negative views of the father have been reinforced by the New South Wales Police, I am not critical of New South Wales Police. They acted properly in response to the limited information that they received. Acting cautiously as they had to, they provided information and a safe house to the mother. The mother has used the information conveyed to her by the children so as to cause the police to act as they have, thereby drawing support from it for her own purposes. Moving to a safe house and changing schools for a short time before reverting to the original school with no objective improvement in safety was malevolent.
I accept Dr C’s opinion that the father does not pose a risk to the children and has not abused the children. Z and Y’s disclosures can be explained and discounted by regard to Ms S’s evidence.
Counsel for the Independent Children’s Lawyer opened the case by stating:
It is the Independent Children’s Lawyer’s understanding that all children hold an unwavering view that they do not want to live with their father and that they do not want to spend time with him.
It can be seen by the above that the children’s views have not changed since the Report of Dr C.
Dr C concedes that it is now not possible for the Court to make orders contrary to X’s views. In his opinion the views of Z and Y should be approached cautiously. I agree. Their views have been shaped and manipulated by the mother, and by X.
The children are closely aligned with the mother. X is parentified by the mother.
The siblings are close. They will suffer loss if separated from each other. Particularly X.
The children for the best part of three years have spent no time with the father other than recent brief periods of supervised time.
Notwithstanding their views and the loss of time with their father since 2011, Dr C described Z and Y quite clearly as still having a strong bond with their father.
The parents have been unable to make joint decisions about the children for many years. For many years, the mother has prevented the children from spending any meaningful time with the father and from communicating with him.
Dr C described both outcomes for the children as probably being equally as bad. That is if Z and Y live with the father they will not be able to have a relationship with their mother and X. If they remain living with their mother and X they will never have a relationship with their father.
Dr C described separating the children as “quite tragic” and recommends that they stay together.
There is no practical difficulty or expense that would prevent the children from spending time with or communicating with the father. That they do not do so is entirely down to the mother’s choice and her inability to give permission for them in a psychological sense to have a relationship with their father.
I accept Dr C’s opinion that each of the parents have capacity as parents to provide for the needs of the children. The mother is however distorting the children psychologically.
X is now of an age and so closely aligned with her mother and intent upon acting as a parent in place of her mother with respect to Y and Z that it would not be possible to make orders that are contrary to her wishes. The only viable order is that she lives with her mother.
Y and Z are immature young boys.
The mother will never be able to promote a relationship between the children and the father. If the children live with her then they will have no relationship with the father. In the long term, Dr C says that this will have a significant psychological impact on them. In the short term, they are likely to be relieved.
I cannot be certain that if Z and Y live with the father that he would obtain for Z and Y the significant psychological assistance they will need. He had Dr C report for a long time and made only cursory effort just prior to the hearing to begin the process of identifying assistance. His lack of initiative I believe indicates he does not appreciate the difficulty of the task of settling the boys if they were to live with him. For this reason he probably will not be able to settle them into living with him.
There will be significant upheaval and disruption for Z and Y if they are to live with their father. They will suffer significant psychological trauma. They would need a lot of help. If they did get it they would not then gain the anticipated benefit of the relationship with their father for a long time. This certain immediate and medium term trauma would outweigh the possible long term gain.
Counsel for the Independent Children’s Lawyer opened her submissions for her final Minute of Order as being “a line ball” decision. I agree.
I do not believe that it is likely if the children live with the father even with extensive psychological support that they would be able to spend time with their mother. If they did so they would be reminded of their current alignment with her and their relationship with their father would continue to be undermined by both their sister and their mother.
That end result is therefore not likely to benefit them. For any chance of success in establishing a relationship with their father they would have to lose a relationship with their mother and their sister. I am not convinced the benefit would outweigh the loss that already exists. It would simply be a variation of it.
It is likely that the father and indeed the general public, if they became aware of the decision, would view this outcome as being a reward for the mother and rewarding her bad behaviour.
Whilst that is superficially so it does not take into consideration the significant trauma that Z and Y would be subject to as a result of a change in residence which has no certainty of outcome even if they received psychological assistance for a significant period of time. It is this uncertainty then that determines that the potential long term benefit to the children Y and Z does not outweigh the short and medium term benefit of remaining living with their mother. As unhappy an outcome as that may long term be.
For those reasons it remains the least worst alternative for Y and Z that they live with their mother.
The father does not seek an order for X to live with him and consequently there will be an order that she live with her mother.
The father and the mother have for many years now been unable to communicate about the needs of their children. There is no “light on the horizon” that enables me to conclude that they will become able to communicate about their children. As the children are to live with the mother there will then need to be an order for the mother to have sole parental responsibility. Decisions for the children still need to be made about schools, medical treatment and so on.
I accept Dr C’s opinion that this is an ‘either or’ case. That is, the children either live with the mother or the father. It is not possible for the children to live with one parent and spend time with the other. To do so they would be subject to such pressure and emotional disturbance that it cannot be in their best interest.
Unhappily then for the children they will lose a relationship with their father. This is a relationship which for some time now has not been in existence.
That then is the least worst alternative for these children. Consequently it is not in their best interest for there to be orders for them to spend time with the father. The mother would not promote. X would undermine. The boys would consequently feel enormous pressure to remain aligned with both, it would be too traumatic for them to act contrary to what they know their mother and X want.
Over time, the mother needs to reflect on this and needs to be aware that the likely long term negative psychological consequences for the children will have been brought about by her. It is to be hoped she could help the children have a relationship with their father. Sadly, I do not think she will be able to. She may face in the middle adolescent years the possibility of them seeking out their father and abandoning her. Nevertheless the orders will be silent as to the time the children will spend with the father, because the only risk in them doing so is caused by the psychological trauma they would feel, a trauma for which the mother bears responsibility.
I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of Judge Dunkley
Associate:
Date: 11 September 2014
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Family Law
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