DREWRY & FIRE
[2014] FamCA 1238
•15 December 2014
FAMILY COURT OF AUSTRALIA
| DREWRY & FIRE | [2014] FamCA 1238 |
| FAMILY LAW – CHILDREN – Best interests – With whom the children live and spend time – Where it was conceded by the mother that it was in the best interests of the children to live with the father and spend no time with her – Where to spend time with the mother even in a supervised setting would expose the children to psychological harm and damage the health of the relationship between the father and the children – Orders made for the children to live with the father, for him to have sole parental responsibility and for the mother to communicate with the children on one occasion per month via email to be vetted by the father. |
| Family Law Act 1975 (Cth) |
| Mazorski v Albright (2007) 37 Fam LR 518 Rice and Asplund (1979) FLC 90-725 |
| APPLICANT: | Ms Drewry |
| RESPONDENT: | Mr Fire |
| INDEPENDENT CHILDREN’S LAWYER: | Mark Finn |
| FILE NUMBER: | MLC | 12680 | of | 2007 |
| DATE DELIVERED: | 15 December 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 14-17 October 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Baume |
| SOLICITOR FOR THE APPLICANT: | Erica Horsfield & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Mort |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mckean Park Lawyers |
Orders
That all previous parenting orders be discharged.
That the father have sole parental responsibility for the children of the marriage, namely B born … 2003, C born … 2005 and D born … 2006 (“the children”).
That the children live with the father.
That the children spend no time with the mother.
That the mother be permitted to communicate with the children on one occasion per month, such communication to be by email directed to the father’s email address, with such email to be vetted by the father prior to it being shown to the children.
That the mother be and is hereby restrained by herself, her servants or agents from:-
(a)Removing or attempting to remove the children, or any of them from the father’s care, whether they are in his presence, at school or attending extra-curricular activities or in the care of the father’s agents;
(b)Communicating with any school at which the children are enrolled in person, electronically, by post or any other means and further be restrained from attending any school attended by the children or any activities organised by the children’s school.
That the mother be and is hereby restrained by injunction from relocating the children to any state or territory in the Commonwealth of Australia.
That Ms Drewry (also known as Ms Fire) born …1971 be and is hereby restrained by injunction from removing the children B born … 2003, C born … 2005 and D born … 2006 or any of them from the Commonwealth of Australia without the prior written consent of the father or an order of the Court.
That the Court requests the Commissioner of the Australian Federal Police to take all necessary steps to immediately place the children on the WATCH LIST at all points of international departure from Australia for the purposes of preventing the removal of the children from Australia by the mother in breach of these orders.
That the Marshal of the Family Court of Australia and all officers in the Australian Federal Police and of the police forces and services in the various states and territories of Australia are required and empowered to give effect to these orders and to take all necessary steps to restrain the mother from removing the said children from the Commonwealth of Australia.
That the father cause a copy of the children’s school reports to be forwarded to the mother within 14 days of his receipt of the same.
That the parties each keep the other informed as to their current residential addresses and telephone numbers and maintain and exchange their emergency contact telephone numbers.
That the father and the children attend upon Mr M, psychologist, for the purpose of therapeutic non-reportable family counselling in relation to the implementation of these orders.
That the father be at liberty to change the children’s schools from the commencement of the 2015 academic year.
That in the event of any further application in this matter filed within 12 months of the date of these orders, such application be listed before the Honourable Justice Johns if practicable.
That the order for the appointment of the Independent Children’s Lawyer be discharged.
That all extant applications be otherwise dismissed.
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 by this Court under the pseudonym Drewry & Fire has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 12680 of 2007
| Ms Drewry |
Applicant
And
| Mr Fire |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The parties to these proceedings separated in 2007. Tragically, their children, aged 11, nine and eight have been at the centre of the conflict between them since that time.
There have been few issues regarding the children’s care about which the parties have been able to agree. That this is so has largely occurred as a result of the mindset of the mother, it being her view that she is the only parent who can appropriately care for the children.
Since the parties’ separation, a vast array of issues in relation to the children have been litigated, including whether the children have been exposed to family violence, whether the children should be permitted to relocate to Western Australia with the mother and whether the mother should be permitted to change the children’s names. There have been serious challenges levelled by each parent against the other as to the capacity of the other to appropriately care for the children. Those issues have culminated in these proceedings, where there are allegations raised by the father that the mother has undermined his role and embroiled the children in their parents’ conflict to such an extent that the children are at risk of psychological and emotional harm in the mother’s care.
The matter was heard before me over four days. The parties were cross-examined as were the two experts relied upon by the Independent Children’s Lawyer (“the ICL”), being Mr I, family consultant and Dr H, psychiatrist, who provided an assessment of the mother.
It was only during closing submissions that the parties found common ground. The ICL and the father sought orders that the children continue to live with the father and spend no time with the mother. Courageously, the mother conceded that the children’s best interests would best be served by orders in those terms. She confirmed that she did not oppose the orders sought by the father.
For the reasons set out hereunder I am satisfied that it is in the children’s best interests that such orders be made.
THE PARTIES
The mother is Ms Drewry. She is aged 43 years and is employed as a health professional. The mother works night shifts and on average works approximately 40 hours per week.
The mother currently lives with friends at their home in the Suburb F area. Since the children commenced living with the father pursuant to final orders made by consent in the Federal Circuit Court on 20 June 2013 (“the final orders”), the mother’s lifestyle has been transient and she has lived at the homes of her friends. It was the mother’s evidence that she intends to obtain her own independent accommodation at the conclusion of these proceedings.
The father is Mr Fire. He is aged 43 years. He is employed full-time as business manager.
The father lives in rental accommodation at Suburb O with his wife Ms Fire. The father’s evidence was that he has recently applied to rent larger accommodation in the North Melbourne area.
The parties commenced cohabitation in 1998 and married in 2000. Separation occurred in or about October 2007. The parties divorced in 2009.
There are three children of the marriage, B, aged 11 years, C, aged nine years, and D, aged eight years. The children attend F Primary School where they are in grades five, three and two respectively. The children’s most recent school reports are annexed to the father’s trial affidavit filed 9 October 2014. Those reports indicate that all of the children are progressing well at school.
BACKGROUND
The matter was last before the Court in 2013. At that time, the mother sought orders that she be permitted to relocate to Western Australia with the children and that she be permitted to change the children’s names. Those applications were heard in the Federal Circuit Court by Judge Turner. The mother represented herself during those proceedings. The hearing was conducted over 17 days.
On 28 May 2013 being the sixteenth day of that hearing, an adjournment was necessitated due to the mother’s threats to suicide in the event that the children were removed from her care. Following those threats (which in her evidence before me, the mother denied), the mother left the Court and attended the children’s school. As a result of that behaviour, the police attended the mother’s home and she was subsequently transferred to hospital where she was assessed as a “high” risk of suicide.
As a result of those events orders were made on an interim basis that the children live with the father and that the mother’s time be supervised. That day, the children were collected from school by the father. They have lived with him and spent only supervised time with the mother since that time.
Final orders were made by consent by Judge Turner in the Federal Circuit Court on 20 June 2013. Those orders provided that the children live with their father and spend time with the mother on a supervised basis.
Some three months later, in September 2013 the mother filed an application in the Federal Circuit Court seeking orders that the children be returned to her care. That application was summarily dismissed by Judge Turner.
On 13 December 2013 the mother filed another application seeking orders that the parties have equal shared parental responsibility for the children and that the children live with her. Those proceedings were transferred to this Court in December 2013.
In response, the father sought that that application be dismissed, relying upon the principles enunciated in the decision of Rice and Asplund (1979) FLC 90-725
The matter was first listed before me on 2 June 2014. That day I made orders with respect to the listing of the matter for a final hearing. Originally, it was agreed between the parties that there should be a preliminary hearing to determine the question of whether there are changed circumstances in accordance with the decision of Rice and Asplund.
At the mention hearing listed before me on 17 September 2014, the parties had altered their respective positions. That day, the mother conceded that she no longer sought to press her application for the children to live with her. Accordingly, those parts of her application were dismissed. I made further directions for the filing of material in anticipation of the hearing with respect to the question of what time the children should spend with the mother and whether such time should be on a supervised basis. It is those issues that were listed for final hearing before me on 14 October, 2014.
MATERIAL RELIED UPON AND ORDERS SOUGHT
At the commencement of the hearing the mother sought orders in the following terms:-
·That the parties have equal shared parental responsibility for the children.
·That the mother spend time and communicate with the children as follows:-
(a) Each alternate weekend from after school Friday to the commencement of school Monday;
(b) Each alternate week from after school Monday to the commencement of school Wednesday;
(c) For one half of all school term holidays;
(d) For one half of the long summer holiday period;
(e) For one half of Christmas Day;
(f) For one half of each of the children’s birthdays.
·That the children spend time with the father on Father's Day and with the mother on Mother's Day.
·That the mother seeks to attend school functions parents are ordinarily invited to attend and to be informed as to the children’s progress.
·That the mother be responsible for the management of the children’s health issues and to keep the father informed of such matters.
·That each parent inform the other of any medical emergency sustained by the children whilst in their care.
·That the children be permitted to contact the other parent during periods when they are in their care.
The documents relied upon by the mother are as follows:-
·Affidavit of the mother filed 25 September 2014;
·Affidavit of the mother filed 20 August 2014;
·Affidavit of Dr K filed 15 October 2014;
·Affidavit of Dr L filed 2 July 2014;
·Affidavit of Dr W filed 2 July 2014.
Following the luncheon adjournment on the first day of the hearing counsel for the mother tendered a Minute of Orders Sought by the mother (Exhibit A1). That Minute varied slightly from the position outlined by the mother’s counsel in his opening submissions. The most significant amendment to the mother’s position was that she no longer sought sole responsibility for making decisions with respect to any matters related to the children’s health.
In closing submissions counsel for the mother indicated that the mother had further altered her position. In accordance with his instructions counsel for the mother submitted that:-
After having heard the evidence [the mother] believes that a no-contact order is in the best interests of the children…[She] believes that she is a good mother. She loves her children dearly and they are everything to her. The mother wishes to put the children’s best interests first and avoid further psychological harm to them by either parent and the mother is therefore prepared to remove herself totally from their lives.
Counsel for the mother confirmed that the mother did not oppose the orders sought by the father and the ICL.
The father relied upon the following material:-
·Amended Response to Initiating Application filed 9 October 2014;
·Affidavit of the father filed 9 October 2014;
·Affidavit of Dr H filed 25 March 2014.
The father opposed the mother’s application. At the commencement of the hearing he sought orders that the mother’s time with the children be supervised and that it be limited to Christmas day, the children’s birthdays, Mother's Day, the mother’s birthday and Easter. The father’s position was supported by the ICL.
During closing submissions, the father tendered a Minute of Orders Sought (Exhibit F1). That Minute provided as follows:-
·that the father have sole parental responsibility for the children;
·that the children live with the father;
·that the children spend no time with the mother;
·that the mother by herself, her servants and agents be and is hereby restrained from communicating or attempting to communicate with the children in person, electronically or via any other means, save that the mother be permitted once per month, to send to the father’s email address an email for the children with such email to be vetted by the father prior to it being shown to the children;
·injunctions restraining the mother from:
- removing the children from their school, extra-curricular activities or any other place;
- communicating with the children’s school in person or electronically, by post or any other means and from attending activities organised by the children’s school.
·that the mother be restrained from removing the children from the Commonwealth of Australia;
·that the father provide to the mother copies of the children’s school reports;
·that both parties keep the other informed as to their residential addresses and maintain and share emergency telephone numbers;
·that the father be at liberty to change the children’s school commencing in the 2015 academic year;
·that the father and the children continue to attend for therapeutic non-reportable family counselling with Mr M, psychologist, or his nominee.
The ICL relied upon the following material:-
·Outline of case filed 17 September 2014;
·Affidavit of Dr H filed 25 March 2014;
·Family Report of Mr I dated 10 September 2014;
·Affidavit of Ms J filed 7 October 2014;
·Affidavit of Ms J filed 2 May 2014.
The orders sought by the ICL at the commencement of the hearing are those contained in the case outline document filed on his behalf. The ICL’s position altered during the course of the trial and during closing submissions the ICL had revised his position such that he sought orders in the following terms:-
·That the children live with the father;
·That the mother spend no time with the children;
·That the mother be permitted to communicate by email or letter with the children on a monthly basis, such communication to be vetted by the father;
·That the mother be prohibited from commencing further proceedings without leave of the Court.
RELEVANT LEGAL PRINCIPLES
Section 60B(1) of the Family Law Act 1975 sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the Court in determining what is in the child’s best interests. I will return to the detail below.
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent. For the reasons set out below I am satisfied that it is not in the children’s best interests for the father and the mother to have equal shared parental responsibility.
Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of the witnesses. In what follows, statements of fact constitute findings of fact.
At the commencement of the hearing, as the father was unrepresented, I provided each of the parties with copies of s 60CC of the Act. I informed all parties that in accordance with the provisions of the Act I must have regard to the best interests of the children as the paramount consideration. Further, I informed all parties that in determining what is in the children’s best interests I would have regard to the considerations set out in s 60CC of the Act. I informed the parties of the manner in which the trial was to proceed, the order of calling witnesses and the right which each of the parties had to cross-examine the witnesses.
Mr Mort, who appeared for the ICL, was very helpful. He agreed to go first in the cross-examination of the mother so that he could cover some of the material and so that the father could collect his thoughts as to any remaining questions. As a result, the father had the opportunity to observe how questions were to be appropriately framed prior to the commencement of his cross-examination of the mother and the other witnesses.
THE ISSUES
The issues in this case, as identified in the parties’ material, the family report and during the course of the hearing may be summarised as follows:-
·allocation of parental responsibility;
·whether the children are at risk of psychological harm when in the mother’s care;
·whether the mother should be permitted to spend time with the children;
·and if so, whether the mother’s time with the children should be supervised.
The issues can most conveniently be discussed within the s 60CC considerations. I will first consider the primary considerations under s 60CC(2).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
The children lived with the mother from the time of the parties’ separation until interim orders were made on 28 May 2013 that provided that the children live with the father. The children have continued to live with the father since that time.
Mr I, family consultant prepared a Family Report dated 10 September 2014. In preparing that report Mr I had the opportunity to interview the parties and also to observe them with the children. He also interviewed the children. At paragraph 93 of that report Mr I observes:-
Interviews with the children and observations of them with each of their parents confirmed they enjoy a loving relationship with [the mother] and [the father]. They also enjoy a positive and loving relationship with [the father’s wife].
In the decision of Mazorski v Albright (207) 37 FamLR 518, Brown J considered the question of what is a meaningful relationship and concluded at paragraph 25 that a meaningful involvement “is one which is important, significant and valuable to the child”. Ordinarily it is in the children’s best interests to have a meaningful relationship with both parents, that is one that is important, significant and valuable, as defined by her Honour.
The evidence of the mother and the father and that of the family consultant is that the children have enjoyed a meaningful relationship with both parents. At issue is the question of whether the mother’s alleged conduct in actively undermining the father’s relationship with the children combined with her alleged inability to support that relationship is such that the children are at risk of psychological harm in her care if her relationship with the children is permitted to continue. The principal issue during the hearing was the determination of the question of whether orders can be formulated which will enable the children to continue to have a meaningful relationship with the mother whilst ensuring that their relationship with their father is protected and supported.
Ultimately, that question has been determined to a large extent by the concession made by the mother through her counsel in closing submissions where it was acknowledged by her that it was not in the children’s best interests for her to continue to spend time with the children. I acknowledge the tremendous courage of the mother in making that concession. Having considered all of the material and had the benefit of hearing the evidence of the parties as well as the experts, there can be no doubt as to the depth of the mother’s love for the children. Her decision to effectively remove herself from the children’s lives is an enormous sacrifice but one which ultimately I am satisfied for the reasons set out later in this judgment is in the children’s best interests.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
In cases where there is inconsistency between the primary considerations under s 60CC(2), the Court is required pursuant to s 60CC(2A) to give greater weight to considerations set out in sub-paragraph 2(b) than to those is sub-paragraph 2(a).
As noted above, the central issue in this case is the allegations of the father that the mother has actively sought to undermine his role in the children’s lives. The consequence of the mother’s alleged behaviour has been the enmeshment of the children in the conflict between their parents. It is said by the father that the mother’s behaviour has continued unabated, notwithstanding the spectre of Court proceedings hanging over the parties since their separation in 2007. It was submitted on behalf of the father that in circumstances where the mother is incapable of containing her behaviour and attitude towards him, it was necessary that orders be made that would protect the children from the psychological and emotional harm arising from that behaviour.
The mother’s time with the children has been supervised pursuant to orders made by Judge Turner in June 2013. Initially, that time was supervised by Mr M, psychologist, who was appointed to provide therapeutic non-reportable counselling in the aftermath of the proceedings before Judge Turner. Those arrangements were short-lived due to the mother’s distrust of and animosity towards Mr M. As a result of those difficulties, the time spent by the mother with the children has been irregular. Since December 2013 that time has been supervised by the mother’s friends (with little success) and by Ms J, the managing director of X Centre which is a supervised contact facility. Ms J has sworn two affidavits in these proceedings, being her affidavits filed 2 May 2014 and 6 October 2014. Annexed to each of those affidavits are Ms J’s detailed reports of her observations of the supervised time between the mother and the children for the period of 17 December 2013 to 13 September 2014. Ms J’s evidence was not challenged.
The observations by Ms J of the mother’s behaviour during the supervised time were the focus of much of the cross-examination of the mother. The father and the ICL were highly critical of the conduct of the mother as observed by Ms J and in particular were critical of the manner in which the mother had sought to embroil the children in the conflict between their parents.
What is striking about much of that evidence is that notwithstanding the imminent trial date, the mother continued to engage in such behaviour in the months leading up to the final hearing, the last reported observed session occurring in September 2014, being some four weeks prior to the commencement of the trial.
During cross-examination by counsel for the ICL the mother agreed that if one parent was undermining the other’s role that would cause psychological harm to the children. Counsel for the ICL cross-examined the mother in relation to a number of recent events that had occurred during her supervised time with the children.
Disputes regarding the children’s footwear
The first of the matters about which the mother was cross-examined related to time spent by her with the children on 8 May 2014. Ms J records at page 3 of her report annexed to her affidavit filed 7 October 2014 (“the September report”) that on that occasion, upon greeting the children, the mother enquired of them “Where are the new runners that mum bought for you?” Ms J reports that the children explained to their mother that the father had not permitted them to wear the brightly coloured shoes to school. The mother in reply, rather than leaving the subject, commented to the children with words to the effect of “Does he know that the other children are wearing those type of runners to school and that the school allows bright shoes?”
Although on its face such a matter appears trivial, against a backdrop where the mother has been squarely criticised for involving the children in the dispute between their parents and of undermining the father, such behaviour exposes her to criticism. During cross-examination the mother conceded the accuracy of the report of that exchange. Further, the mother conceded that with hindsight it would have been better to have said nothing to the children in relation to the issue of their shoes.
Unfortunately for the children it appears that the mother was unable to let the issue of their shoes rest. Less than a week later on 13 May 2014, Ms J reports that during an afternoon of supervised time the mother again commented on the children’s shoes. It is reported by Ms J that on that occasion the mother asked the child C “Did you get new shoes?” C confirmed to her mother that the father had purchased new shoes the previous week. The mother responded to that information noting that the shoes were similar to the ones that she had purchased for the children which the father did not allow them to wear. Ms J reports that the mother sighed and stated “That’s a shame”.
At the conclusion of that period of time, the supervisor suggested that it was time that the children put their shoes and socks on. At page 11 of the September report Ms J notes that:-
The mother did not seem to consider this necessary, and stated that the children could walk a short distance to the car in bare feet.
The supervisor noted that it was dark and cold outside and again suggested to the mother that it would be appropriate in the circumstances for the children to at least wear their shoes outside, particularly as the supervisor would be held responsible in the event that the children injured their feet. The mother disagreed with the supervisor and used words to the effect of “I will be responsible because they are my children”.
It was only after the intervention of the mother’s friend, who was present during the time that the conflict between the mother and the supervisor was resolved and the children put on their footwear. Given the role of the supervisor, the position adopted by the mother on that occasion was extraordinary. That conduct demonstrates the limited insight the mother has in relation to the impact of her behaviour on the children. During cross-examination by counsel for the ICL the mother agreed that her response to the request of the supervisor had unnecessarily exposed the children to conflict. Further, the mother acknowledged that the impact upon the children of their continuing exposure to what would otherwise be trivial issues was likely to be significant.
The attitude displayed by the mother during that incident was indicative of a position asserted by her, namely that she is the children’s primary care-giver and therefore the only person capable of making decisions regarding the children’s care. This was a recurrent theme during the course of the mother’s evidence and is consistent with the observations made by both Mr I and Dr H in their reports.
Issues around the children’s footwear again emerged during a supervised period of time on 7 August 2014. On that occasion, C and D were sitting on the floor putting on their socks and shoes. D drew her mother’s attention to her runner, which had a detached sole. In response, the mother proposed to D that she take the fluorescent runners that the mother had purchased for the children home with them. D responded to that proposal stating she did not want to get into trouble. The mother pursued the issue, assuring D that she had contacted the school and ascertained that the children were permitted to wear bright-coloured footwear. Further, the mother told the children to “Just tell dad that it’s okay”. In response, D shook her head indicating that that would not be appropriate. The mother then proceeded to check C’s shoes. Having inspected the shoes the mother again urged the girls to take the fluorescent shoes stating “You might as well take them. Just tell dad”. C responded to her mother raising her voice and stating “I want them but you sort it out” and “You tell dad”. D agreed with that suggestion. Ms J noted that C seemed anxious and was shifting her feet awkwardly. Neither C nor D made eye-contact with the mother and Ms J observed a moistening of C’s eyes. At that point, Ms J intervened to assist the children. This is another example of the mother actively involving the children in conflict with the father.
During cross-examination, the mother agreed that the reporting of this incident by Ms J at page 20 of the September report was an accurate account of the event. The mother agreed that her actions had the effect of involving the children in what was an adult dispute. Further, the mother conceded that her actions had unnecessarily placed pressure on the children. To her credit, the mother acknowledged that her behaviour was “thoughtless, careless and reckless”. The mother confirmed that the children were distressed by the discussion.
At page 21 of the September report Ms J notes that she requested the mother find a way to address the children’s footwear with the father without involving the children. The mother agreed to that proposal. Nonetheless she permitted the children to remove the shoes provided by the father and wear the shoes provided by the mother home. The father’s shoes were placed in a bag for return to the father. During cross-examination, the mother conceded that in encouraging the children to wear the fluorescent shoes (which the mother knew the father disapproved of as school-wear) she was providing the children with a confusing message and that such actions were likely to be perceived as antagonistic towards the father.
At paragraph 19 of her trial affidavit filed 25 September 2014 the mother referred to the issues around the children’s shoes. The mother deposed to the exchange which occurred with the children regarding them wearing the fluorescent shoes home. She stated:-
I offered them their runners again and said that it was okay to take the shoes home to wear to school. It was decided that I would work it out with the father. The children took the shoes but under a cloud of fear.
During cross-examination the mother conceded that it was her actions that had generated the fear in the children and further that such fear was unhealthy.
The child B’s haircut
Another contentious issue in which the mother involved the children was the question of whether B should have a haircut. This issue first emerged during the mother’s time with the children on 13 May 2014. On that occasion, which was a time-spent period of approximately three hours duration after school, the mother suggested to B that she take him for a haircut. B declined that invitation and informed the mother that he was growing his hair. The mother responded stating that at some stage he would need a haircut as he was looking “a bit dishevelled”.
During cross-examination in relation to this issue, the mother asserted that B’s hair looked “matted” and “unkempt”. She confirmed that prior to the children’s change of residence she had been primarily responsible for maintaining the children’s hair. She agreed that the father had taken control of management of that issue upon the children coming to live with him in June 2013.
Some 11 days later during supervised time on 24 May 2014, the issue of B’s hair again emerged. At page 12 of the September report Ms J notes that the mother suggested to B several times that she could arrange for him to have a haircut. Ms J noted that the child politely refused those suggestions using words to the effect of “No. That’s okay”. Again, the mother confirmed Ms J’s report was an accurate record of the exchange with B on that occasion.
The issue emerged a third time during supervised time on 5 September 2014. That was an occasion of after-school time. That time occurred the week prior to the children’s school concert at which B had a leading role. Ms J notes at page 23 of the September report that the mother commented on B’s hair. The child responded to the mother’s comments stating “Yeah, I know. It’s a bit long.” He then added “I’ve asked dad for a haircut”. The mother then asked B whether he wanted a haircut before the opening show on Monday and B agreed. The mother told the child that his hair had grown rather long and was unkempt and that she considered it would be nice for the audience to see his “beautiful face” on the opening night of the school concert the following week. At that point Ms J notes that the child D sought to intervene stating “I think dad is getting [B’s] hair cut on the weekend”. The mother did not respond. The children then attended a barber with the mother and the supervisor so as to have B’s hair cut.
Ms J notes the father’s response to B’s hair cut at page 26 of the September report. She notes that upon return of the children at the conclusion of the mother’s time the father seemed upset by B’s haircut and approached the supervisor to ask her why B had had a haircut during the mother’s time. The father questioned B about why he had had his hair cut and the child responded using words to the effect “I told her not to”.
It is evident from Ms J’s report that B was squarely placed in the midst of a conflict between his parents, such that whilst having agreed to a haircut with his mother, he denied such actions to his father, stating that he had told his mother not to have his hair cut.
Again, the mother conceded that the matters contained in Ms J’s report were an accurate account of the events of 5 September 2014.
It was put to the mother that as B had a leading role in the school play it was intended that he grow his hair long for that role. During cross-examination the mother confirmed that she had not sought any information from the school regarding the play. She conceded that she knew the father had wanted B to grow his hair long and further she conceded that she was aware that B had refused haircuts on two previous occasions. Nonetheless she persisted to pressure the child to have a haircut. The mother’s conduct placed B in an invidious position. I am satisfied that the child sought to please his mother and that desire motivated his decision to agree to a haircut on 5 September 2014. The consequence of that behaviour was that upon his return to the father he felt the need to lie to his father as to the circumstances in which he had been taken for a haircut. I am satisfied that the mother was the author of those events and must take responsibility for the impact that her behaviour had on the child.
The issues regarding the children’s shoes and B’s haircut on their face appear trivial. However, those incidents are but two examples of the mother’s consistent and persistent behaviour in ensuring that the children are enmeshed in the conflict between their parents. Further, those incidents highlight the repeated attempt of the mother to undermine the father’s parenting role. She has consistently sought to override decisions made by the father with respect to the care of the children. They are also examples of the mother’s inability to place the children’s needs above her own needs; seemingly, her own need to fulfil her role as a parent is of greater priority than what is in the children’s best interests.
Counsel for the ICL cross-examined the family consultant, Mr I, in relation to the impact of the conflict upon the children. With respect to the conflict around B’s haircut the family consultant stated:-
The children love both their parents. They probably have a strong need to please both of their parents, and avoid disappointing either of them. And to be put in such a position would be quite difficult and awkward for a child.
When asked as to the consequences of such conflict upon the children’s mental health Mr I stated:-
It can be quite destructive, in the longer term, especially if that’s a chronic issue that extends over a long period of time. It will cause them distress. There may be some differences in terms of ultimate impact on children, depending on their personalities and their temperaments. Some children will internalise it and become very compliant with both, and try and cover up any anomalies between their parents. Other children may become quite angry - Depends on their personality - depends on the kind of child they are as to how they’re likely to react to that.
These children appear to me to be – they certainly appear lovely children, and I think they are of the more compliant child, rather than more reactive and overt, and out-spoken children. They are probably more likely to internalise and accept what’s told them, to accept instructions or directions, as may have been the case with [B].
The family consultant agreed with the proposition that a child who is more compliant is at greater risk in terms of long-term mental health issues.
The family consultant confirmed in his evidence that the mother’s inability to protect the children from a situation of conflict even during periods of supervised time was a matter of significant concern. The family consultant observed that:-
Even a diligent and conscientious supervisor has had to step in and those statements have been made even though that supervisor is present - and that concerns me. If that’s continuing on even during this litigation I’m not sure that it will stop once the litigation is completed.
Mr I confirmed that the issue from his perspective was the need to protect the children from emotional and psychological harm when spending time with the mother. Further, the family consultant stated that there is a need to protect the health of the children’s relationship with their father.
In the family report, Mr I made a series of recommendations that are set out at paragraphs 112 to 117 of that report. Those recommendations included that the Court consider that the mother spend time with the children supervised by a professional supervisor, or in the event that such supervision is found to be unnecessarily burdensome or leads to ongoing conflict or otherwise not be in the children’s best interests, that consideration be given to an order being made for no time. During his oral evidence, Mr I concluded that it was his view that exposing the children to ongoing denigration, negativity and undermining by the mother posed a greater risk to their psychological and emotional well-being than spending no time with the mother at all.
Mr I holds the position of Senior Family Consultant. He is a psychologist who has a substantial body of experience, including in this Court. He has had the opportunity to meet with the parties and observe the children. His report in the matter dated 10 September 2014 is detailed and thorough. His evidence during cross-examination was thoughtful and considered. I accept the evidence of Mr I as to the need to protect the children from psychological harm when in the care of the mother.
As noted above I am satisfied that the mother has engaged in conduct which has had the effect of exposing the children to ongoing conflict between their parents and in conduct that has denigrated and undermined the father’s parenting role. Based on the evidence of the family consultant, I am satisfied that the children need to be protected from such conduct.
In accordance with the provisions of s 60CC(2A) I am required to give greater weight to the above considerations than those that arise in sub-paragraph 2(a) related to the benefit of the children having a meaningful relationship with both parents.
I now turn to the additional considerations in s 60CC(3) of the Act.
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
Mr I confirmed at paragraph 93 of his report that the children enjoy a loving relationship with both the mother and the father. At paragraph 94 of his report the family consultant noted:-
That none of the children expressed a heart-felt desire to return to their mother’s care. The children all indicated they did not spend enough time with the [father] when they were in their mother’s care. [B] and [C] stated quite clearly that they would like an equal time living arrangement, however [the mother] ruled this out as an option. In any event such an arrangement would be contra-indicated in this matter given the troubled relationship between the parents and their inability to communicate and problem-solve child-related issues.
During interview with the child D, the family consultant noted that she stated that “She would be content living with either of the parents”. D rated living with her father as “Five out of ten” and when asked what would make her so happy that she would score ten out of ten she replied that “to be able to live with both parents together”.
The child B expressed similar views to the family consultant. At paragraph 47 of his report the family consultant noted that B said “He is annoyed that he is not able to live with both parents and made it clear that he does not ‘have a favourite’.”
At paragraph 55 of his report the family consultant notes that the child C rated living with her mother as “ten” and with her father as “nine”. She agreed that the difference between the two households was minimal.
I am satisfied on the basis of the family consultant’s evidence that all of the children would like to spend more time with the mother. However, whilst the views expressed by the children are relevant, in circumstances where I am satisfied as to the need to protect the children from psychological harm as noted earlier, those views must be subservient to the requirement for such protection.
Mr I was cross-examined by counsel for the mother in relation to the children’s views. The family consultant said that all of the children would have liked to have overnight time with the mother. He conceded that the children feel safe with the mother. However, it was his evidence that that is not determinative of the issue as to whether or not the children’s psychological welfare is secure in the mother’s care. Indeed, the family consultant stated:-
I think the children feel safe with mum – physically feel safe. I don’t believe they necessarily understand the issues around them being perhaps psychologically or emotionally unsafe with mum.
Mr I confirmed that the children would be unaware of the risks to their emotional and psychological welfare posed by the mother’s denigration, negativity and undermining of the father. He confirmed that the children would have a limited understanding as to why their time with the mother was being supervised.
I am satisfied having regard to that evidence that little weight can attach to the children’s views with respect to the time they would like to spend with the mother.
(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);
The evidence of the family consultant confirms that each of the children enjoy a loving and close relationship with the mother and the father, as well as the father’s wife, Ms Fire. That evidence was not challenged by either party.
(c)the extent to which each of the child’s parent 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
(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:
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Both parents love the children deeply and there is no doubt as to the commitment of both the mother and the father to their care. However, significant issues have been raised by the father and the ICL as to the mother’s capacity to meet the children’s emotional needs. Further, both the father and the ICL submit that the children are at risk of psychological harm when in the mother’s care.
As a result of those concerns, which were matters raised in the previous proceedings, the final orders made on 20 June 2013 required that the mother attend upon a female psychiatrist recommended by Dr H for therapeutic counselling. Moreover, paragraph 24 of those orders required that the mother obtain an up-to-date assessment from Dr H prior to the commencement of any further proceedings with respect to the children.
Since those orders were made, the mother has attended upon a psychiatrist to whom she was referred by Dr H, being Dr K as well as her treating psychologist, Dr W. Both Dr K and Dr W have prepared reports in relation to their treatment of the mother.
Dr K’s report, which is annexed to her affidavit filed 15 October 2014 details the history of her treatment of the mother. In her report dated 20 November 2013, she notes:-
·That the mother was referred to her by Dr H to provide therapeutic counselling and medication treatment as necessary.
·That she has seen the mother 17 times between 18 June 2013 and 11 November 2013.
·That she has liaised with Mr M, who is the therapeutic psychologist assisting the family, including the children pursuant to the final orders of June 2013.
Dr K confirmed her view that the mother has an adjustment reaction to the Court processes with anxious mood. She confirmed that she had treated the mother with Zoloft for her anxiety. Dr K confirmed that she had endeavoured to work with the mother in relation to issues around:-
·her trust in men;
·her strong views in regards to what she believes is best for the children;
·the need to be more flexible and accept the father’s approach at times;
·the development of other aspects of her adult life beside her role as a mother;
·the importance of the children having a positive relationship with both parents;
·the possible negative effects on the children of any expressed negative attitude by one parent towards the other; and
·the need for both parents to make efforts to shield the children from the relationship difficulties between the adults.
Dr K’s treatment of the mother ceased in November 2013 due to the failure of the mother to engage with her. Dr K notes at page four of her report that:-
It is difficult for me to address these issues further with [the mother] in therapy when there is the urgency from her part to reunite with her children. She continues to be consumed by her need to reunite with the children she deeply loves. Healing from the trauma of the events surrounding the last court order, when she lost the care of the children and felt victimised, and shamed in front of the school community and her friends, is difficult to achieve, under the current circumstances that she perceives as punishing and very unfair. Her therapeutic relationship with Mr [M] is affected by the fact that he was appointed by the Independent Children’s Lawyer, whom [the mother] perceives as biased against her and without trust effective therapy is difficult.
Dr W, notes in his report dated 1 July 2014 which is annexed to his affidavit filed 2 July 2014 similar difficulties in engaging the mother in therapeutic treatment. He notes in that report that the mother has continued to contact him by telephone and electronically intermittently and that there have been approximately 15 “substantial contacts” since July 2013. He notes that he offered the mother support and counsel and has endeavoured to “modify and modulate her level of anxiety”. Significantly, he notes at page one of this report that:-
As before I cannot claim success in this regard. She is focussed on her children, and cannot turn her mind to other issues of this nature. This situation has been greatly aggravated since the last orders were made effectively removing them from her care.
In the last paragraph on page one of his report Dr W notes:-
While I have been frustrated in my endeavours this has not lessened my regard for her or my support. [The mother] has a great many virtues and capabilities but her focus on the children can lead to a state of tunnel vision.
Dr W concedes in the second page of his report that “I can’t claim that she has learned from therapy”. That evidence is significant, particularly since Dr W has been the mother’s treating psychologist since approximately 2010. His observations of the mother’s “tunnel vision” in relation to the children and her role as their mother is entirely consistent with the mother’s presentation and evidence in these proceedings, as well as the observations of Dr K, Mr I and Dr H.
The evidence of both Dr K and Dr W was unchallenged.
Dr H, psychiatrist was appointed as a single expert by the ICL. He has had involvement with these parties in that role since February 2010 when he completed his first assessment. He has also assessed these parties in June 2011 and gave evidence to the Federal Circuit Court in the proceedings conducted before Judge Turner in May 2013.
As a result of the current application, Dr H conducted a further psychiatric assessment of the mother. His report with respect to that assessment dated 27 February 2014 is annexed to his affidavit filed 25 March 2014. Dr H was cross-examined in respect of his observations and opinion as contained in that report.
In his report Dr H notes that during interview, the mother confirmed that she sought to resume her role as the children’s primary carer. She described the children to Dr H as “my priority in life”. Her description of the father and his role in the children’s life to Dr H was troubling. For example at page 11 of his report Dr H notes:-
She described herself and the children as ‘innocent victims’ of [the father’s] antagonism, his lack of provision to her and his undermining of her which she described as hurtful and stressful. The fact that she was not allowed contact with the children at school only added to her concern.
She said that over the years since separation, [the father] had gone out of his way to destroy her relationship with the children, together with undermining of her support group…
Further, at page 12 of his report Dr H notes the mother’s assertion that:-
She said she had to live under the constant threats of [the father] who had threatened to take the children from her from day one, and as such she does not trust him and as he had threatened to harm the children she continues to feel that they are not safe in his care. “You never can tell can you?”
None of the allegations raised by the mother with Dr H in relation to the father and his conduct were matters established by the evidence in these proceedings. During her cross-examination the mother was invited to particularise any alleged threats made by the father. The mother was unable to articulate any behaviour by the father which would constitute a threat to the mother or the children. Rather, the mother perceived the Court proceedings as conduct by the father which threatens the mother’s position. There is much irony in the mother’s position given that she was the applicant in the proceedings before Judge Turner and in these proceedings.
The evidence of the family consultant, Ms J and the father supports the view that the father is a loving parent who has sought to promote and support the mother’s relationship with the children. The father has been child-focussed in his actions, for example continuing to support the children’s enrolment at the primary school they attended when in the mother’s care, notwithstanding the fact that that requires him to transport the children across Melbourne, a trip of some 45 minutes each way.
That the mother fails to recognise the importance of the father’s role in the children’s lives or the efforts he has made to support her relationship with the children highlights her lack of insight and awareness as to her own difficulties as well as a lack of insight as to the father’s role in the children’s lives. I am satisfied that the mother elevates her own need to be a mother above the children’s need to have a relationship with their mother and their father.
Dr H notes those features at page 14 of his report. He describes the mother’s presentation at interview as follows:-
She tended to repeat herself in respect of the need for the children to be in her primary care. This remained a fixed feature of the assessment. [The mother] spoke unrelentingly about those matters. She spoke of her hurt and disappointment as to the recent Court deliberations and removal of the children from her care. She remains utterly convinced that the children’s well-being will only be afforded to them if she is their primary carer. She was unable to contemplate any other possibilities and has again instigated Court proceedings to regain their residence. Whilst [the mother] would not be regarded as having frank delusional beliefs, it was readily evident that she has a fixed and over-valued idea which dominates the clinical picture and mental life. She remains utterly convinced that the children need her and that nothing else will suffice.
Dr H diagnosed the mother with an adjustment disorder with depressed and anxious mood.
Dr H’s prognosis for the mother’s future was pessimistic. At paragraph 3 of his opinion on page 14 he notes:-
Having seen [the mother] now on three occasions, she essentially presents with the same difficulties as she did initially. Various treatment modalities have not assuaged her strong and fixed belief that the only appropriate care the children can be provided is that which she has provided. As such, she cannot contemplate that in fact the children are well cared for by [the father], who she feels has conspired against her, and together with his legal team, she has lost out to. As such, she cannot join with him in any way, shape or form, and hence is left to continue as she says, to not rest until she brings about a return of the children to herself.
At paragraph five on page 15 of his report Dr H concludes:-
Psychiatrically she has an over-valued idea which is similar to that of a delusional belief, that is, an opinion which cannot be altered by reason or experience. One gains the strong impression that [the mother] will carry all of this with her for the foreseeable future. Essentially she is not someone who is likely to benefit from treatment. In reading between the lines, I note Dr [K] has come to much the same position. It is difficult to know how to help [the mother] at this time.
As to the question of whether the mother has the capacity to support the children’s relationship with the father, again Dr H’s view was pessimistic. At paragraph six of his opinion, he notes:-
Whilst she is no doubt a loving and caring mother, the matter now before the court relates largely to each of the partners’ ability to promote the relationship between the children and the other parent. On that question, [the mother] appears to fail the test. She is not interested in any other option than her having control of the children and for them to live with her as their ‘primary carer’, relegating the husband to second weekend contact, a position which clearly she could not bear to entertain for herself.
During cross-examination Dr H amplified the views expressed in his report. As to the mother’s lack of insight Dr H noted:-
… it’s immutable. She has a formed view which over the three assessments that I have seen her remains exactly the same and that is that she is the only one who could possibly look after the children, that the father essentially can’t, and that she is the perfect mother and that she won’t rest until they are back in her care because they will suffer otherwise … she continues to perceive [the father] as a thorn in her side and as has been indicated here that you can never trust him and so on and so forth. So that’s not changed so that whilst I made the diagnosis of an adjustment disorder, the condition is far more severe than that.
Dr H was questioned as to his diagnosis that the mother suffers from an adjustment disorder. Dr H clarified his position noting as follows:-
The term ‘adjustment disorder’ is a kind of one-fits-all diagnosis which we use when someone shows or develops symptoms of a psychiatric condition in reaction to something. But there is a lot more to it in this matter because that doesn’t explain the deeper aspects of her vulnerability, her terrible sense of pain as a result of being separated from the children. It needs to be remembered that she lost her mother when she was only 18 and we know that people who suffer such losses and deaths are very vulnerable to psychiatric conditions later on in their life. So if I was pressed – and I was very cautious about this – my view would be that she has got some borderline features to her personality - emotional intensity, inability to regulate herself.
During cross-examination of the mother, there was considerable focus on her conduct in the lead-up to and at the children’s school concert, which occurred in September 2014. I have already addressed the issues around B’s haircut in anticipation of that concert. The concert was a school event held at the local Town Hall on two consecutive evenings. The final orders of 20 June 2013 restrained the mother from spending time or communicating with the children other than as directed by Mr M. Accordingly, the orders prohibited the mother from communicating or spending time with the children at the school concert, in circumstances where Mr M had not directed such time should occur.
The mother confirmed during cross-examination that on both days of the school concert she attended the hall at approximately 4.30 pm, some two-and-a-half hours prior to the commencement of the concert and seated herself in the middle of the second row of the hall. Her justification for her early arrival and for seating herself in that position was to ensure that she could secure seats for other parents. The mother confirmed that the children did not know of her intention to attend the concert and the father similarly was not informed of the mother’s proposed attendance. The mother confirmed in her evidence that the children saw her from the stage on the first night and that B was also able to observe her on the second night of the concert. On the second night of the concert when the girls were not appearing in the show, the mother permitted a friend of the child D to sit on her lap during the concert. The mother confirmed that D approached her and sat with her and her friend for a period of approximately two minutes during the school concert. Counsel for the ICL put to the mother that she encouraged D’s friend to approach D and “lure” her to sit with the mother. The mother denied that allegation. I do not accept the mother’s evidence with respect to her motivation for engaging with D’s friend.
That evidence is concerning on many levels. First it demonstrates a complete disregard by the mother of the orders previously made. Second, it demonstrates a lack of awareness and insight as to the potential impact of her attendance at the concert upon the children and the father. Placing herself, as she did in the centre of the second row of the hall and being the first to arrive by some hours meant that the mother was likely to be noticed by the children, their friends and other parents. Seemingly, it was an act through which the mother attempted to assert her position and standing as the children’s mother; it was a statement that this was her rightful position.
Dr H was cross-examined about that conduct by counsel for the ICL. Dr H’s view of the mother’s behaviour on that occasion was as follows:-
…She has got no insight and that lack of insight is on the basis that she is the primary carer of the children, and she continues to act as such. So there has been no change, and when you consider the forthcoming proceedings being so close and putting yourself in a position like that where you’re going to be witnessed in public it beggars belief that you would, at a time like this when there is so much at stake, act in that way… She would see herself, as I know her, anyway as having not only every right to be there, but every duty to be there because the children in the absence of her don’t have the quality of life that they should, so she is acting as a normal mother who… is fulfilling her duty to them to be there when her son has a 62-word part in the play and the others are going to be there or the parents are going to be there, so it’s kind of … I think such an occasion must be very difficult for her not to go to.
I accept that evidence.
Dr H was cross-examined as to his prognosis for the mother. He responded stating as follows:-
… I would use the word ‘guarded’ because at this stage she is here today still maintaining the hope that she had when I first saw her, so there has been no change there, and there are indications that she might not get what she wants … prognostically, in terms of where she sees herself, that is as the primary care-giver of the children, that hasn’t changed one bit, so as to the extent that she doesn’t actually achieve that position then the prognosis continues to be of concern.
Dr H held little hope for ongoing treatment for the mother. That pessimism was based on the failure of the mother to engage with Dr K. Dr H noted “She’s now in the hands of Dr [L] who is not helping her and continues to align herself with the mother”. Dr H also noted that Mr M, could have been of great assistance to the mother however the mother again refused to engage with him in that process.
Dr H is a forensic psychiatrist who has significant experience in preparing assessments for the Family Court. His qualifications were not challenged. He has had the opportunity of observing and assessing the mother over an extended period and has prepared reports with respect to the mother on three separate occasions. He has now been cross-examined twice in relation to this matter. His evidence was considered and measured and I accept his evidence as to his observations and assessment of the mother.
As noted above, there is no challenge to the father’s capacity to appropriately care for the children.
Throughout these proceedings the mother has adopted a proprietorial attitude towards the children. She has maintained the view throughout that she is the only parent capable of providing for the children’s physical and emotional needs. Until the commencement of the hearing, the mother was highly critical of the father, both in her affidavit material and when interviewed by experts including Mr I and Dr H. Seemingly, the mother has an inability to contain her views with respect to the father. That this is so is evident from her behaviour during supervised time with the children as noted above. Sadly, from the children’s perspective, the mother has been unable to contain and manage her behaviour notwithstanding the assistance she has had from professionals including Mr M, Dr K and Dr W. Those professionals noted that the mother had disengaged with them and that they are no longer able to assist her. The only professional with whom the mother has engaged on an on-going basis is Dr L, her general practitioner. Dr L has sworn an affidavit filed 2 July 2014. That affidavit annexes two reports of Dr L, being her reports dated 5 August 2013 and 1 July 2014. It is evident from those reports that Dr L has closely aligned herself with the mother and adopted the role of advocate for the mother. She is critical of the assessments undertaken by the independent experts. Dr L is a general medical practitioner. She has no specialist qualifications which would enable her to prepare a psychiatric assessment of the mother. Further, Dr L has not observed the mother with the children and there is no basis for her assessment of the mother’s relationship with the children or the mother’s capacity to parent the children. Accordingly, little weight can attach to the observations of Dr L.
I am satisfied having regard to the evidence of Mr I and Dr H that the mother does not have the capacity to appropriately provide for the children’s emotional and psychological needs. She is unable to support and encourage the children’s relationship with the father. Indeed all of the evidence points to a conclusion that the mother, left unsupervised, would actively undermine the father’s relationship with the children.
It is as a result of the compelling evidence of both the family consultant and Dr H that the ICL and the father submit that the mother should not spend time with the children, even in a supervised setting. Having regard to the evidence, I share that view.
In addition to the mother’s capacity to support the children’s emotional and psychological needs, the question of the mother’s capacity to support their physical needs is also in issue.
At the commencement of her evidence the mother confirmed that she is currently living at the home of friends, and that she soon proposes to relocate to a property in Suburb F, the home of her friend Ms Y. The mother has no current plans to secure rental accommodation for herself and the children. During her evidence, she confirmed that she hoped in the future to secure a rental property in the Suburb F area. However, given her current financial position, with substantial amounts owing to her lawyers, arrears of child support and the cost of supervised time, there are no imminent plans to secure rental accommodation. Hence, I am satisfied on the basis of that evidence that the mother does not have the capacity to provide for the children’s physical needs.
The mother was also cross-examined as to her failure to spend time with the children on a regular basis. For example, the father was critical of the mother for failing to spend time with the child C on her birthday this year. The mother did not spend time with C or have any telephone communication with her on her birthday. Annexure CF 5 of the father’s affidavit filed 9 October 2014 is a copy of a letter forwarded by the father’s lawyer to the mother’s lawyer requesting her proposals for the mother to spend time with the children for C’s birthday. When originally questioned in relation to her receipt of that correspondence the mother stated that the letter did not look familiar to her. As the father had received no response to that correspondence, he emailed the mother direct. That email stated:-
As you know I don’t like organising things at the last minute or directly between us but I wanted to make an exception to make sure you received the attached letter ...
I think it’s really important for [C] that she sees you tomorrow.
If you want to organise with [Ms J] to see the kids after [C’s] party, please let me know.
The mother denied receiving that email. However, she confirmed that it was transmitted to her email address. I do not accept the mother’s evidence regarding receipt of the correspondence from the father. I am satisfied the mother was less than frank in her account of her efforts to spend time with the children on that occasion. Her evidence in relation to the correspondence passing between she and the father regarding arrangements for her to spend time with the children does not reflect well upon her.
There is no doubt that the cost of supervised time has been a financial burden upon the mother. However in circumstances where the mother is working approximately 40 hours per week, is paying minimal board and is not meeting her assessed child support obligations, I am satisfied that notwithstanding her protestations that only she can be the children’s primary carer, the mother has at times failed to take the opportunity to spend time with the children.
(ca)the extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligation to maintain the child
The children have lived with the father since May 2013 and he has been responsible for meeting all of their physical needs. He has done so with little assistance from the mother. The mother is currently assessed to pay approximately $609 per month in child support. At the time of the hearing she had last made a payment of child support of some $82 on 11 September 2014. She could provide no explanation for her failure to meet her child support obligations. Accordingly, I am satisfied that the mother has not fulfilled her obligations to support the children.
(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;
(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;
At the commencement of the hearing, it was proposed by both the ICL and the father that the mother spend supervised time with the children on nominated special occasions. As the evidence unfolded, both the ICL and the father revised that position and ultimately sought orders that the mother spend no time with the children.
The explanation for that change in position was largely due to the fact that it became evident during the course of the trial that even with supervision, the mother is unable to contain and manage her behaviour and that even with professional supervisors, the children cannot be protected from that behaviour which denigrates and undermines the father’s role. Even with supervision of the mother’s time, the children could not be protected or shielded from the conflict between the mother and the father.
During cross-examination Mr I was asked to consider the practical implementation of ongoing supervision.
As to the proposal that the children spend time with the mother on limited specified times in each year, Mr I indicated that to do so would break up and be disruptive to the children’s routine and regular lifestyle with their father and there would be little benefit in such an arrangement for the children. To engage in such an arrangement would be of benefit only to the mother.
In relation to the proposal that the children spend no time with the mother, the family consultant conceded that whilst initially there would be sadness for the children in spending no time with the mother, ultimately that would be a better outcome for the children than to have three or four visits a year, particularly if the lines of communication remained open with the mother being permitted to write to the children on a regular basis.
As to the concept of the children having more frequent time with the mother, say on a fortnightly or monthly basis, the family consultant indicated that it was his understanding that contact centres are not funded to provide supervision on an ongoing basis. Hence that option is not available to this family.
Finally, the family consultant was questioned as to the viability of private supervision of the mother’s time continuing on an ongoing basis. The family consultant confirmed that recent events contra-indicate such an approach. Mr I noted:-
A diligent and conscientious supervisor has had to step in and those statements have been made even though that supervisor is present. And that concerns me. If that is continuing even during this litigation I am not sure that it will stop once the litigation is completed.
The family consultant confirmed that his concerns were heightened given the mother’s current lack of engagement with professional services.
I am satisfied on the basis of that evidence that there are significant practical difficulties with the mother spending time with the children, insofar as:-
·there being no contact centre available to provide ongoing supervision; and
·professional supervisors being unable to contain and manage the mother’s behaviour during her time with the children.
(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;
As detailed earlier in in this judgment, I am satisfied that the mother lacks maturity and insight as to the impact of her behaviour upon the children. That behaviour has continued unabated, notwithstanding previous orders requiring the mother to seek therapeutic assistance from Mr M and Dr K. That behaviour was continuing as recently as one month prior to the commencement of the final hearing at the children’s school concert. On that occasion the spectre of a contested final hearing did nothing to curtail the mother’s long-held view that she is the only person capable of parenting the children.
In circumstances where the mother has had the opportunity to engage with therapeutic services designed to assist her in developing insight, to understand the importance of the role of the father in the children’s lives and where it is the unchallenged evidence of those experts that the mother has disengaged from that process, I am satisfied that there is little prospect of any change in the mother’s maturity and insight for the foreseeable future.
(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;
(j)any family violence involving the child or a member of the child’s family;
(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;
Insofar as these matters are relevant, they have been dealt with in other parts in this judgment.
(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;
The children have been at the centre of the conflict between their parents since the parties separated in 2007. In 2013 a 17 day hearing was conducted in the Federal Circuit Court. That hearing culminated in orders made by consent on 20 June 2013. Three months later, in September 2013 the mother sought to institute further proceedings regarding parenting arrangements for the children. That application was summarily dismissed. A further three months later, in December 2013 the mother again issued proceedings in relation to the children. It is that application which is the subject of this judgment.
It is now seven years since the parties separated. For the majority of that time the children have been at the epicentre of litigation between their parents. The time has come for that to end.
The matter for determination requires that I balance the risk to the children of spending limited time with the mother on a supervised basis as opposed to spending no time with her at all.
Having heard the evidence of the experts, at the conclusion of the hearing it was common ground between the parties that the children’s interests were best served by orders which provide that the children spend no time with the mother. I am satisfied that is the best outcome for the children. Further, I am satisfied that that outcome will ensure that the children are unlikely to be exposed to further litigation for the foreseeable future.
CONCLUSION
As noted earlier in this judgment, at the conclusion of the hearing there was no conflict between the parties as to the orders I should make with respect to parental responsibility. The father and the ICL sought orders that the father continue to have sole parental responsibility for the children. In circumstances where it is agreed between the parties that the children will live with the father and spend no time with the mother I am satisfied that the presumption of equal shared parental responsibility is rebutted. I am satisfied that in those circumstances it would not be in the children’s best interests if the parties were to have equal shared parental responsibility. Given the mother’s intransigent views that she is the only person appropriately qualified to parent the children, the prospect of her communicating and cooperating with the father in relation to any decisions regarding the children’s long-term care and welfare is remote. It follows therefore that there should be an order for the father have to have sole parental responsibility.
I am also satisfied that it is appropriate that the children continue to live with the father. The evidence of Mr I confirms that the children are well settled and appropriately cared for in the father’s home. There is no evidence before me which would support a change of the children’s current living arrangements. This was acknowledged by the mother at the hearing before me on 17 September 2014 when she consented to orders dismissing her application that the children live with her.
The father sought an order that he be permitted to change the children’s schools in 2015. As noted earlier, the children are currently travelling significant distances to their current school. The child B will soon be commencing secondary school and will be changing school in any event. The father seeks to enrol the children in a school closer to him geographically. In circumstances where I have determined that he have sole parental responsibility and the children live with him, I am satisfied that it is in the children’s best interests that the children attend schools selected by him.
I will also make an order that the children spend no time with the mother. Again this is a matter which is conceded by the mother as being in the children’s best interests. I am satisfied that an order in those terms is in the children’s best interests. The mother during her evidence as well as when observed by Mr I and Dr H does not presently have any capacity to accommodate a sharing of the parental role. In her mind, she must parent the children to the exclusion of the father. That position places the children in the midst of ongoing and unrelenting conflict. The evidence of Mr I confirms that the children’s long-term mental health will be compromised if such situation is permitted to continue. Accordingly, I am satisfied that it is in the children’s best interests that they spend no time with the mother.
However, I will make orders that the mother be permitted to communicate with the children on a monthly basis. The family conslutant confirmed in his oral evidence that such an order was appropriate. It will enable the children to maintain a line of communication with the mother in a safe and secure setting.
The evidence has demonstrated the mother’s inability to contain her behaviour in the children’s school environment. The most recent evidence of that was her conduct at the children’s school concert in September this year. In light of that behaviour I am satisfied that it is in the children’s best interests that the mother continue to be restrained from removing the children from the father’s care and from communicating with the children’s school. I will make orders requiring the father to provide the mother with copies of the children’s school reports and to ensure that the parties keep each other informed as to their current residential addresses and telephone numbers. This will ensure that the mother is informed as to the children’s progress.
I will also require the father and the children to attend upon Mr M for therapeutic non-reportable counselling in relation to these orders. Such an order will ensure that the children are supported during the implementation of these orders.
The father also sought orders restraining the children’s removal from the Commonwealth of Australia. The mother did not oppose that order. In the circumstances I will make orders in those terms. I will also make an order discharging the appointment of the ICL.
Finally, in the event of any further application being filed in this matter within 12 months, I will make an order that such application be listed before me if practicable. Given the long history of the matter and the recent hearing before me conducted over some four days, I am satisfied that both parties and the children are likely to benefit from such an order.
Accordingly the orders I will make are as follows:-
1.That all previous parenting orders be discharged.
2.That the father have sole parental responsibility for the children of the marriage, namely B born … 2003, C born … 2005 and D born … 2006 (“the children”).
3.That the children live with the father.
4.That the children spend no time with the mother.
5.That the mother be permitted to communicate with the children on one occasion per month, such communication to be by email directed to the father’s email address, with such email to be vetted by the father prior to it being shown to the children.
6.That the mother be and is hereby restrained by herself, her servants or agents from:-
(a) Removing or attempting to remove the children, or any of them from the father’s care, whether they are in his presence, at school or attending extra-curricular activities or in the care of the father’s agents;
(b) Communicating with any school at which the children are enrolled in person, electronically, by post or any other means and further be restrained from attending any school attended by the children or any activities organised by the children’s school.
7.That the mother be and is hereby restrained by injunction from relocating the children to any state or territory in the Commonwealth of Australia.
8.That Ms Drewry (also known as Ms Fire) born …1971 be and is hereby restrained by injunction from removing the children B born … 2003, C born … 2005 and D born … 2006 or any of them from the Commonwealth of Australia without the prior written consent of the father or an order of the Court.
9.That the Court requests the Commissioner of the Australian Federal Police to take all necessary steps to immediately place the children on the WATCH LIST at all points of international departure from Australia for the purposes of preventing the removal of the children from Australia by the mother in breach of these orders.
10.That the Marshal of the Family Court of Australia and all officers in the Australian Federal Police and of the police forces and services in the various states and territories of Australia are required and empowered to give effect to these orders and to take all necessary steps to restrain the mother from removing the said children from the Commonwealth of Australia.
11.That the father cause a copy of the children’s school reports to be forwarded to the mother within 14 days of his receipt of the same.
12.That the parties each keep the other informed as to their current residential addresses and telephone numbers and maintain and exchange their emergency contact telephone numbers.
13.That the father and the children attend upon Mr M, psychologist, for the purpose of therapeutic non-reportable family counselling in relation to the implementation of these orders.
14.That the father be at liberty to change the children’s schools from the commencement of the 2015 academic year.
15.That in the event of any further application in this matter filed within 12 months of the date of these orders, such application be listed before the Honourable Justice Johns if practicable.
16.That the order for the appointment of the Independent Children’s Lawyer be discharged.
17.That all extant applications be otherwise dismissed.
18.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.
I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 12 December 2014.
Associate:
Date: 15 December 2014
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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Standing
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